A Maritime, Longshore and Defense Base Act Blog

Pursuant to an Order dated August 10, 2010, the United States Judicial Panel on Multidistrict Litigation transferred 77 cases from various United States District Courts to the Honorable Carl J. Barbier of the Eastern District of Louisiana.  The Panel determined that “if there is a geographic and psychological ‘center of gravity’ in this docket, then the Eastern District of Louisiana is closest to it.”  A full copy of the Order is available here.

The injured worker sustained a work-related neck injury on September 10, 1981.  After receiving TTD benefits for over a year, the worker entered into stipulations, which were incorporated in a compensation order issued by the deputy commissioner in 1985.  The parties agreed to PPD benefits commencing in 1983, and Employer was eventually granted Section 8(f) relief.  In 2008, the injured worker died of lymphoma at the age of 88, and was survived by his wife. 

Decedent’s son (without legal counsel) brought this claim seeking continued benefits for his widowed mother.  Claimant relied on a 1983 letter from Employer stating that upon the Employee’s death, his widow would receive benefits at a rate of 75% of PPD.  While this was an accurate statement of Section 8(d)(3) in 1983, the Employer argued that Section 8(d)(3) had been repealed in the 1984 amendments to the Longshore and Harbor Workers’ Compensation Act.  Further, the Employer argued that the cause of death was unrelated to the injury, and that neither the stipulations nor the compensation order mentioned death benefits.  Claimant argued that the stipulations amounted to a settlement that was only agreed to after the 1983 letter’s promise of death benefits.  Employer’s motion for summary decision was granted by the administrative law judge. 

Claimant appealed to the Benefits Review Board, again without counsel.  The BRB affirmed the motion for summary decision, finding that the 1984 amendments precluded death benefits for a death unrelated to the injury.  Post-1984 law provides that “when an employee who is permanently partially disabled due to an unscheduled work injury…dies from causes unrelated to the injury, the survivors have no right to recover additional benefits after the date of death.”  The 1983 letter referenced by Claimant was merely a description of then-existing law and it did not entitle Claimant to any additional rights. 

Wilson v. Bethlehem Steel Corp., — Ben. Rev. Bd. Serv. (MB) —, 2010 WL 3019969 (2010).

Note: This entry was prepared by Will Bland, IV, a present law clerk and future associate of Mouledoux, Bland, Legrand & Brackett.

In an unpublished decision, the Fifth Circuit affirmed the denial of death benefits to the widow of a Defense Base Act contractor who committed suicide while at home on a three-month leave of absence.  The Claimant-Widow alleged that the Decedent’s work-related stress caused him to suffer PTSD. 

Both parties submitted the reports from mental health experts, but neither of the experts had an opportunity to interview the decedent or review contemporaneous medical records.  The Claimant-Widow’s expert determined retrospectively that Decedent’s PTSD conditions were caused by his work because the expert “could find no other cause.”  The defense’s expert believed that Decedent’s suicide was “due to a combination of work-related stressors, including alcohol consumption.”  The Administrative Law Judge concluded that the defense’s expert was more persuasive, and that Decedent’s suicide was a willful act.

The Fifth Circuit started its analysis by quoting Section 3 of the Longshore and Harbor Workers’ Compensation Act, which provides that “[n]o compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself.”  Section 3 provides that the Claimant-Widow carried “the burden of proving the decedent’s suicide was the result of an irresistible impulse to kill himself,” and not the result of a willful act.  This burden can be met by producing an expert opinion that a mental disease or impairment created the impulse leading to the suicide.  The Fifth Circuit chose not to upset the factual conclusions made by the ALJ, including the ALJ’s determination that Decedent’s actions were willful.  Also, the Fifth Circuit concluded that the Section 20 presumption did not apply.

Eysselinck v. Director, OWCP, No. 09-20847 (5th Cir. 2010).

In a recent decision issued by the Fifth Circuit, the Court addressed whether the “last responsible employer/carrier” rule applied to the Louisiana Insurance Guaranty Association (“LIGA”).  The “last responsible employer/carrier” rule states that the “employer during the last employment in which the claimant was exposed to injurious stimuli should be liable for the full amount of the award.”  See New Orleans Stevedoes v. Ibos, 317 F.3d 480, 483 n.2 (5th Cir. 2003).  Further, carrier liability is treated the same as employer liability.  For example, if a single employer has multiple carriers, the carrier on the risk during the last exposure assumes the liability for the full award. 

LIGA is a state-created guarantee association that appeared in place of the insolvent National Insurance Company, which insured the Employer during the period of time when Claimant was subjected to his “last injurious stimuli.”  The National Insurance Company, had it not become insolvent in 1994, would have been liable for the entirety of Claimant’s injuries as a result of the “last responsible employer/carrier” rule.  Due to the Carrier’s insolvency, LIGA appeared in its place.  LIGA argued that the “last responsible employer/carrier” rule should not apply to it because it does not constitute a “carrier.”  LIGA therefore contended that a pro-rata recovery scheme would be the appropriate recourse in this matter.

The Fifth Circuit found LIGA liable to the same extent that National Insurance Company would have been, had it not become insolvent.  The Court reasoned that the statute that created LIGA provided that LIGA would step into the shoes of an insolvent carrier “to the extent of [the insolvent insurer’s] obligation on the covered claims and to such extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent…”  La. Rev. Stat. Ann. §  22:2058(A)(2) (2010).  Because the applicable law of allocation would have assigned all liability to National Insurance Company as the last responsible carrier, the Administrative Law Judge did not err in placing full responsibility for liability upon LIGA.

Louisiana Insurance Guaranty Association v. Director, OWCP, — F.3d —-, 2010 WL 3125810 (5th Cir. 2010) (published).

Disclosure: Patrick E. Costello of Mouledoux, Bland, Legrand & Brackett represented the Employer in this litigation.

Litigation has been defined as the process of resolving public and private disputes with the help of the courts.  There is a difference, of course, between disputes that remain civil and disputes that turn acrimonious.  One fact, however, remains constant regardless of the amount at issue or which side of the “v.” your company is on – no one likes to lose, regardless of how high the stakes are.

This dichotomy, civil resolution of disputes versus “scorched Earth” tactics, frequently arises in pretrial preparation, particularly in the preparation of witnesses for deposition or trial.  Prudent counsel, of course, always makes sure that his or her witnesses are prepared for direct and cross-examination, that exhibits are in good order and that hopefully, suprise issues or documents are kept to a bare minimum or elimitated altogether.

The United States Court of Appeals for the Fifth Circuit, in Ibarra v. Baker, 338 F. App’x 457 (5th Cir. 2009) (unpublished), considered how far is too far with respect to overly coaching, or “woodshedding,” witnesses.  The crux of the underlying lawsuit concerned an action brought against law enforcement officials under 42 U.S.C. §1983 when plain-clothes police officers arrested a man who photographed and videotaped officers executing a search warrant at a neighbor’s home and seized his video recorder without a warrant.  The man sued the officers and the police department, claiming that both his arrest and the seizure of his personal property were unlawful. 

During the course of the civil litigation, the defendant police officers hired a ranking official with the Texas Department of Public Safety to act as an expert on whether the officers’ actions in arresting the man and seizing his camera was reasonable and lawful.  During the expert’s deposition, his testimony was grossly inconsistent with the facts offered by the officers.  Making matters worse, the transcript was littered repeatedly with the catch phrases “high-crime area” and “retaliation,” phrases and words that drew the suspicion of plaintiff’s counsel because their use appeared rehearsed and fit all to perfectly in this action.  Plaintiff’s counsel brought the issue to the trial judge, who harshly criticized the officers’ attorneys.  He found both the expert’s and the attorneys’ conduct sanctionable, assessing $10,000 against the attorneys alone.  Although the §1983 action at issue eventually settled, the attorneys appealed the sanctions levied against them.

On appeal, the attorneys argued that they did nothing out of the ordinary in meeting with their retained expert before his deposition, in preparing their clients and expert for testimony, and in suggesting to them that if certain facts were true, then those facts would assist in the defense of the case.  In rejecting the attorneys’ position, the Fifth Circuit initially found that the evidence against them to be “a bit scant,” but nonetheless, did not warrant reversing the district court’s findings.  The panel specifically found that the attorneys had improperly coached witness testimony concerning “retaliation” and “high-crime area.”

There is a line separating thorough preparation from woodshedding a witness.  The Fifth Circuit in Ibarra drew it as such:  “[A]n attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way.”  Ibarra, 338 Fed. Appx. at 465.  Attorneys have a duty not to cross the line in preparing witnesses to testify.   Corporate witnesses and representatives can assist counsel in combating an opponent’s woodshedding witnesses and other objectionable tactics by alerting counsel of an opponent’s suspicious testimony or inconsistent actions as early in the litigation as possible.  At that juncture, counsel will likely have several options at his disposal, including vigorous cross-examination during a deposition concerning exactly how the witness was prepared, filing a motion with the trial judge as in Ibarra, etc. 

Ibarra v. Baker, 338 F.App’x 457 (5th Cir 2009) (unpublished).

Loyola Law School, in conjunction with the United States Department of Labor, Office of Workers’ Compensation Programs, will hold its annual Day With the DOL on Wednesday, September 29th, from 8:00 a.m. to 3:30 p.m. Registration for this program is available online through Loyola Law School’s Continuing Legal Education webpage.

In a published decision, Urso v. MVM, Inc., the Benefits Review Board tackled the meaning of the word “dependency” as used in the Longshore and Harbor Workers Compensation Act and the Internal Revenue Code.  In Urso, the decedent’s parents claimed death benefits under Section 9(d) of the LHWCA.  

If there is no surviving spouse or child, then Section 9(d) provides “support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, and any other persons who satisfy the definition of the term ‘dependent’ in section 152 of title 26 of the United States Code, but are not otherwise eligible under this section, 20 per centum of such wages for the support of each such person during such dependency and for the support of each parent, or grandparent, of the deceased if dependent upon him at the time of the injury, 25 per centum of such wages during such dependency.”  33 U.S.C. § 909(d).

The BRB determined that Section 9(d) contemplates three potential groups of claimants: (1) grandchildren or siblings, if dependent; (2) persons who are “dependents” under section 152 of title 26 of the United States Code, also known as the Tax Code or Internal Revenue Code; and, (3) each parent, or grandparent, if dependent upon him at the time of the injury.  These differing categories, alone, indicate that parents are not included in the same category as Tax Code “dependents.”

“Dependency” under the LHWCA is not as stringent as “dependency” under the Tax Code.  For LHWCA purposes, the common meaning of “dependency” controls.  The test is “whether the contributions were needed and relied upon to maintain the alleged dependent in the position in life to which she or he was accustomed,” and even partial dependency is sufficient to pass this test.  Here, the decedent made consistent contibutions to his parents and even claimed them as dependents on his tax returns.

Another issue addressed by the BRB was the timeliness of employer’s cross-appeal.  Here, the employer did not receive the judge’s decision, the notices of appeal filed by the claimants or the Director, or the BRB’s acknowledgments of appeal.  The carrier, however, did receive a copy of the decisions and the notices of appeal.  The BRB held that “[n]otice to carrier is sufficient notice to employer under [33 U.S.C. § 935] and the laws of agency.”  The employer’s cross-appeal was dismissed as untimely.

Urso v. MVM, Inc., BRB Nos. 09-0831, 09-0831A and 09-0831B, 2010 WL 3019967 (Ben. Rev. Bd. 2010) (published).

Note: The BRB’s decision did not address parental dependency for aliens.  Although Section 9(d) permits benefits to parents dependent at the time of the injury, Section 9(g) permits benefits only for a “surviving father or mother whom the employee has supported, either wholly or in part, for the period of one year prior to the date of injury…”.  33 U.S.C. § 909.  A similar provision in the Defense Base Act, Section 2(b), contains the same temporal language, requiring support of a mother or father for the period of one year immediately prior to the date of the injury…”  See 42 U.S.C. § 1652(b).  The difference in the statutory language suggests that aliens would have to prove financial dependency for a longer period of time–a period of one year–as opposed to dependency at the time of injury or death.

Plaintiff, a yacht broker and expert fishing vessel operator, planned a weekend fishing trip with friends aboard the 29-foot M/V Tuner.  A tropical storm delayed the fishing trip, and the M/V Tuner remained docked in a marina.  Thereafter, Plaintiff noticed a 43-foot vessel, the M/V Special T, was heading directly towards the stationary M/V Tuner.  The M/V Special T’s operator, Defendant, could not control the boat due to loss of power, and his attempts to restart the engines failed.  He sent out an alarm to notify Plaintiff, who told Defendant not to start the M/V Special T’s engines.  Defendant nonetheless continued his efforts.  Although Defendant successfully restarted the M/V Special T as it came within feet of the M/V Tuner, a water surge from the newly-started engines caused Plaintiff to lose his balance and fall.  Ultimately, he was diagnosed with a fractured calcaneous bone in his right heel and awarded, among other things, $185,000 for pain and suffering.

The Court of Appeal of Louisiana, Fourth Circuit, agreed that Defendants were negligent.  Inland Navigation Rule 5 states that a vessel has a duty to “maintain proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.”  33 U.S.C. § 2005 (2010).  The pilot of a vessel has a duty to navigate with proper lookout and at a safe speed.  Further, the fault of a moving vessel is presumed when that vessel allides with a stationary object. 

Here, the Fourth Circuit determined that Defendant failed to heed Plaintiff’s warnings not to start the M/V Special T’s engines.  Defendant instead attempted to manuever the vessel by putting its starboard engine in reverse, causing the M/V Special T to accelerate directly towards the M/V Tuner.  Even Defendant’s expert witness stated that a moving vessel does not typically collide with a stationary object unless the vessel was mishandled.  As such, the court found that Defendant failed to exercise reasonable care. 

Moreover, in affirming the district court’s ruling,  the Fourth Circuit determined that Defendant caused the collision.  Had Defendant not taken the M/V Special T out into a trapical storm, the accident could have been avoided.  Further, Defendant should have heeded Plaintiff’s warnings and stopped his attempts to restart the stalled engines.  See Inland Navigation Rule 8, 33 U.S.C. § 2008(e) (2010) (“if necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion”).

Finally, the Fourth Circuit affirmed a $185,000 pain and suffering award to Plaintiff, a $25,000 loss of consortium award to Plaintiff’s wife, and the application of Louisiana prejudgment interest as opposed to federal maritime interest rates. 

Wynne v. Trotter, 2010-CA-0090 (La. App. 4 Cir. 6/30/2010); — So. 3d —-, 2010 WL 2615804.

In a brief unpublished decision, the Ninth Circuit recently affirmed the denial of benefits to a decedent-longshoreman’s estate and widow.  The longshoreman’s estate alleged that his knee injury led to depression and excessive drinking, which “resulted in his drunk driving death two years after the injury.”  Here, the Employer and Carrier rebutted the permanent total disability presumption related to decedent’s knee injury by demonstrating decedent could have engaged in suitable alternative employment as a parking lot cashier.  The evidence of record indicated that decedent’s psychological condition would not have prevented employment at this job, and that alcohol did not make decedent unemployable.

The Ninth Circuit affirmed the denial of death benefits to decedent’s widow because her claim was time barred.  Section 13(a) of the Act states that, “[e]xcept as otherwise provided in this section, the right to compensation for disability or death under this Act shall be barred unless a claim therefor is filed within one year after the injury or death.”  Here, decedent’s widow did not file a timely claim, and the court rejected her contention that “her grief rendered her mentally incompetent for several months after her husband’s death.”  The ALJ found no evidence of mental incompetence, and the BRB concluded that “at no time during the year [after decedent's death] was she mentally incompetent.”

Morgan v. Cascade General Inc., Nos. 08-73371, 08-73463, 2010 WL 2835751 (9th Cir. 2010) (unpublished).

The U.S. Department of Labor, Division of Longshore and Harbor Workers’ Compensation,  recently released a preliminary estimate of the national average weekly wage for the period commencing October 1, 2010.  These figures are based on data compiled and published by the Bureau of Labor Statistics (BLS), which also provided information upon which to base estimates for the maximum and minimum compensation rates.

The Longshore community will note that Section 6(b)(1) of the Act, in all but limited circumstances, caps benefits at an amount not to exceed 200% of the applicable national average weekly wage. 

The following estimates apply to the period beginning on October 1, 2010 through September 30, 2011:

National Average Weekly Wage: $628.27
Maximum Compensation: $1,256.54
Minimum Compensation: $314.14
Percentage Increase: 2.60%

These figures are estimates, and an ultimate determination will not be made until final data is obtained.  Finally, we note that the percent increase in the national average weekly wage rises from 2.0% to 2.6%.