This year’s longshore conference, occurring March 9-10, was very successful for Loyola University College of Law. There were over 500 attendees, guest speakers including District Directors, Administrative Law Judges, and doctors. Topics included Managing Pain and the Opioid Crisis in America, Section 22 Modification Trends, Professionalism in Settlement Negotiations, and a mock oral argument before the BRB. Kudos to the speakers, Board Members, and Loyola University College of Law for hosting such a great conference.
In September 2013, a five-man crew was operating a mobile well-servicing rig in Hawkins, Texas. An inspector for the Occupational Safety & Health Administration (“OSHA”) observed the crew pulling pipe out of a well and photographed the activity. The photographs demonstrated that the crew had placed guardrails only around the upper part of the rig’s platform. Further, the investigator observed a set of stairs leading from the ground to the lower platform, but no stairs from the lower to the upper platform.
Based on these observations, OSHA cited the rig operator for the missing stairs and missing guardrail. The matter was tried before an administrative law judge, who affirmed both citations. In affirming the citations, the ALJ rejected the rig operator’s defenses that compliance with the guard rail regulation was “infeasible” and would have presented a greater hazard. Further, the ALJ also found that the fixed stairs violation was serious and that the guardrail violation was a repeat violation. The rig operator was fined penalties of $5,500.00 for the fixed stairs violation and $38,500.00 guardrail infraction. The rig operator appealed for discretionary review to the Occupational Safety & Health Review Commission as to the fixed stairs violation (which upheld the ALJ’s findings and conclusions), but not as to the guardrail citation.
On appeal to the Fifth Circuit, the rig operator argued that the “fixed stairs” requirement did not apply to a mobile rig because the rig itself was not “fixed.” Further, the rig fell into the “articulated stairs” exception that would apply to structures such as floating roof tanks, dock facilities, or other rigs containing several sections that independently articulated. In interpreting the word “fixed,” the Fifth Circuit rejected the rig operator’s definition of “fixed” as “permanently attached.” Citing prior application of the fixed stairs requirement to mobile rigs, the Fifth Circuit held that OSHA’s definition of “fixed” as being “attached in some way to prevent movement” was much more reasonable. As to the “articulated stairs” exception, the Fifth Circuit held that that exception applied only to stairs that rest on water. Thus, the citation as to the fixed stairs was affirmed.
With respect to the guardrail citation, the Fifth Circuit found that the rig operator had waived its argument that attachment of the guardrail was infeasible because the rig operator had not raised that argument with the OSHRC.
Basic Energy Services v. Occupational Safety and Health Administration
Plaintiff filed suit against his Jones Act employer, Cheramie Marine, L.L.C., alleging negligence and seeking maintenance and cure after an alleged injury on one of its utility vessels. Plaintiff alleged that on July 18, 2014, he was injured as a result of the captain’s decision to travel through high seas. Cheramie put on contrary evidence that the waves were not violent and that plaintiff had made contradictory statements that he, in fact, did not fall and that his alleged back pain was the result of being seasick. The captain testified at trial that plaintiff never reported having any kind of accident. Cheramie’s medical expert also offered testimony at trial about two different MRI films taken of plaintiff’s back, one taken prior to his alleged injury and the other taken after the injury. Cheramie’s expert offered his opinion that the pre-injury MRI actually looked worse than the one taken after the alleged accident. After a jury entered a “take nothing” verdict on plaintiff’s claims, plaintiff appealed to the United States Court of Appeals for the Fifth Circuit.
Prior to appealing, plaintiff did not file a motion for a judgment as a matter of law or a motion for new trial. Accordingly, on appeal, the Fifth Circuit was limited in what it could review. Review for sufficiency of the evidence was not an option because of plaintiff’s failure to move for judgment as a matter of law or new trial. The only review available was a challenge to the jury instructions. One of the questions on the jury verdict form asked the jury: “(1) Do you find from a preponderance of the evidence that plaintiff had an accident on July 18, 2014?” In response to this question, the jury answered “no.” On appeal, plaintiff argued that the word “accident” was confusing to the jury because, among other reasons, it may have given them the impression that it was something that happened without fault. Applying an abuse of discretion standard in reviewing the challenge to the jury verdict form, the Fifth Circuit found no reversible error in the inquiry as to whether plaintiff had an accident because it fairly presented the issue of liability to the jury.
Plaintiff also challenged the trial court’s decision to allow Cheramie’s medical expert to offer an opinion about the pre-incident MRI because the actual film of the MRI was not produced prior to trial. However, the pre-incident MRI was discussed in the expert’s Rule 26 expert report that was disclosed seven months prior to trial and the opinions offered in that report mirrored the testimony offered at trial. The Fifth Circuit concluded that the district court did not err in allowing the expert to testify consistent with his report while not admitting the actual MRI films into evidence.
Bosarge v. Cheramie Marine, L.L.C., 2017 WL 105891 (5th Cir. 2017)
The Clerk of the Benefits Review Board has issued a notice to the community that the Board has reviewed its policy concerning handling of untimely attorney fee petitions. Effective March 1, 2017, attorney fee petitions must be filed within the time limits established in 20 C.F.R. §802.203(c) and 802.219(e). The Board will not consider a late filed attorney fee petition absent a valid basis for late filing, which must be specifically requested and will be considered on a case by case basis. This serves notice to claimants’ counsel that late attorney fee petitions will not be permitted as a matter of practice, as has been done in the past.
Pursuant to 20 C.F.R. §802.217, any out of time request must be submitted as a separate motion directed to the Clerk of the Board. Untimely filings are not allowed unless found to be “warranted.”