Fifth Circuit Holds “Zone of Danger” Test Not Applicable Under the LHWCA

In a recent unpublished opinion, the U.S. Fifth Circuit Court of Appeals affirmed the Administrative Law Judge’s award of benefits to a longshoreman who sustained work-related psychological injuries.  Claimant was operating a forklift when he accidentally struck and killed his co-worker.  Although Claimant was not physically injured, he attempted to assist the deceased co-worker by untangling her from under the forklift. During the entire time that first responders were attempting to save the co-worker, Claimant stood ten to fifteen feet away with a clear view of her.  Claimant spent the rest of the day reporting what he saw to multiple state and federal law enforcement agencies.

 

Claimant was subsequently diagnosed with post-traumatic stress disorder, depression, and anxiety; he was also being monitored for suicide.  Both Claimant’s treating physicians as well as the Employer’s Second Medical Opinion physician opined that Claimant was disabled from returning to work.  However, the SMO physician opined that Claimant was under-medicated, and Employer requested a Department of Labor (“DOL”) Independent Medical Examination (“IME”). The DOL IME physician opined that Claimant did not suffer from PTSD because Claimant did not experience a threat himself and was never in danger during the accident.  Further, the DOL IME opined that Claimant demonstrated significant evidence of malingering.   Based on this report, Employer terminated indemnity and medical benefits, and Claimant filed a claim.

 

Employer disputed the claim, arguing that Claimant was not entitled to compensation under the LHWCA for a psychological injury because he did not sustain a physical injury or was not placed in immediate risk of physical injury, i.e., Claimant was not in the “zone of danger” set forth in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).  Employer further contended that the DOL IME’s opinion that Claimant did not suffer from PTSD was dispositive.

 

The Fifth Circuit (in affirming the ALJ and the BRB) held that the “zone of danger” test was a tort concept inapplicable to the LHWCA.  Further, Section 2(2) defining “injury” did not distinguish between physical and psychological injuries. Nowhere in the statute was there a requirement that physical injury accompany a psychological injury.  The Fifth Circuit further affirmed the ALJ’s findings that the DOL IME physician’s report was to be given little weight.  In examining the plain language of Section 7(e), the court held nothing in the LHWCA required an ALJ to adopt a DOL IME physician’s opinion as binding.  The ALJ’s finding that the numerous other doctors who diagnosed PTSD and disabled Claimant was supported by substantial evidence.

 

Ceres Marine Terminal Inc. v. Director, OWCP

Fifth Circuit Weighs in on P&I Insurance Coverage Dispute

Following a verdict in favor a Jones Act seaman, Larry Naquin, for injuries he sustained in a land-based crane accident, an insurance coverage dispute arose between Naquin’s employer, Elevating Boats, LLC (“EBI”), and its insurance companies, State National Insurance Company (“SNIC”) and Certain London Insurers (“London Insurers”).  EBI alleged that SNIC and London Insurers breached their insurance contracts by denying EBI’s claims related to Naquin’s accident and failing to provide defense and indemnity.  EBI also sought damages for bad faith on the part of SNIC and London Insurers.  SNIC moved for summary judgment, arguing there was no coverage for Naquin’s land-based accident under its Protection & Indemnity Policy (the “Policy”) and that EBI failed to provide sufficient notice as required by the Policy.  The District Court granted summary judgment and entered final judgment in favor of SNIC.

 

On appeal, the Fifth Circuit reviewed the “Indemnity” provision of the policy that called for indemnification of EBI “as owner of the Vessel” for liability arising out of “any casualty or occurrence[.]”  SNIC argued that the “as owner of the Vessel” clause did not provide coverage for EBI’s negligence in Naquin’s land-based accident.  EBI’s assertion to the District Court was that the “any casualty or occurrence” clause provided coverage for the accident.  The Fifth Circuit, interpreting Louisiana law, found that the only way to give meaning to the “Indemnity” provision of the Policy was to construe it as limiting coverage to “any casualty or occurrence” which arises out of EBI’s conduct “as owner of the Vessel.”  Since Naquin’s injuries resulted from a land-based crane accident, the Court held that there was no causal operational relation between the vessel and injury so as to extend coverage of the Policy in this instance.  The District Court’s summary judgment was affirmed.

 

Naquin v. Elevating Boats, L.L.C., et al.

Clean-Up Responder Defendants Dismissed from Deepwater Horizon Multi-District Litigation

On April 22, 2010, the Deepwater Horizon rig sank following numerous fires and explosions resulting from a loss of well control.  Oil subsequently discharged into the Gulf of Mexico, and flow continued for three months until the well was capped on July 15, 2010 and subsequently sealed with completion of a relief well on September 19, 2010.  Clean-up activities and efforts to minimize the spill’s impact continued for months.  Response activities included skimming oil from the surface, conducting in situ burning of oil, placing containment and sorbent boom, and on-shore and beach clean-up.  Clean-up responders dispersed chemical agents designed to emulsify, disperse, or solubilize the oil in the water.

 

Of the numerous parties named as defendants in the master complaint were several companies contracted as clean-up responders.  Plaintiffs alleged that the clean-up responders “failed to use reasonably safe dispersant chemicals or other chemicals in their attempts to respond to the Oil Spill, and thereby exacerbated the pollution of the Gulf of Mexico and injury to Plaintiffs,” “ignored worker safety concerns,” and failed to supply workers with appropriate equipment such as respirators.”  The clean-up responders moved to dismiss arguing that they were entitled to derivative immunity under the Clean Water Act (“CWA”), were entitled to discretionary immunity under the Federal Tort Claims Act (“FTCA”), and that the plaintiffs’ claims were preempted as a matter of law.  The Eastern District of Louisiana initially denied these motions to dismiss and issued a Lone Pine order to conduct discovery on these claims.  The clean-up responders subsequently filed a motion for summary judgment at the conclusion of discovery on the issues raised in their initial motion to dismiss.

 

The court held that the clean-up responders were entitled to derivative immunity under the CWA and to discretionary immunity under the FTCA because the clean-up responders had adhered to and acted within the scope of the federal government’s directives in their clean-up efforts.  Further, the court held that it was not possible for the clean-up responders to simultaneously comply with both the federal directives of CWA and FTCA and with state or maritime law; the clean-up responders had therefore demonstrated a prima facie basis for dismissal of their claims based on conflict pre-emption.  Thus, claims against the clean-up responder defendants were dismissed.

Fifth Circuit Reverses Benefits Review Board’s Finding that Claimant Successfully Invoked Section 20(a) Presumption

In a newly-published decision, the Fifth Circuit Court of Appeals in BIS Salamis, Inc. v. Director, OWCP and Joseph Meeks, No. 15-60148 reversed the Benefits Review Board’s determination that Claimant had successfully established a prima facie case of compensability under Section 20(a) of the LHWCA as to certain injuries.  In April 2009, Claimant was involved in an incident where he alleged a low back injury, a neck injury, and a missing tooth following an offshore personnel basket transfer.  All parties agreed there was an incident, but the nature and extent of injuries were disputed, as Claimant had significant pre-existing degenerative issues in his neck and lower back.  Claimant underwent low back surgery and received a recommendation for neck surgery. Claimant visited a dentist on one occasion for his missing tooth.

 

At formal hearing, ALJ Rosenow determined that Claimant lacked credibility for a number of reasons, including Claimant’s filing of falsified tax returns, the existence of surveillance contradicting his sworn testimony, and Claimant’s withholding information to mislead his doctors.  Because Claimant failed to “create any confidence in the accuracy of his testimony or even his motivation to at least attempt to tell the truth,” the ALJ denied benefits.  The Benefits Review Board reversed this decision, holding that the ALJ failed to address whether Claimant had the presumption of compensability under Section 20(a).

 

On first remand, the ALJ again emphasized that Claimant was so dishonest and unreliable that any medical testimony that relied on Claimant’s subjective history of injury was not credible.  The ALJ concluded that because the weight of Claimant’s medical evidence relied on his subjective history, that his medical evidence was insufficient to establish a prima facie case of harm.  Therefore, the ALJ held that Claimant had not met his burden under Section 20(a).

 

In its second opinion, the BRB again reversed.  The BRB held that not only had Claimant met the Section 20(a) presumption, but went further in its analysis, holding that the Employer failed to present any evidence to rebut the presumption.  The BRB remanded strictly for the purpose of determining Claimant’s average weekly wage.  In a dissent, Judge Boggs agreed that Claimant had met his burden under Section 20(a), but indicated that the proper procedural action was to remand to the ALJ for determination of whether the employer presented substantial evidence to rebut the Section 20(a) presumption.  On second remand, parties agreed to an AWW, and the BRB affirmed, extending a final and appealable order pursuant to Section 21(c).

 

The Fifth Circuit reversed the BRB and ordered reinstatement of ALJ Rosenow’s order on first remand.  The Fifth Circuit confirmed that credibility can be taken into account in the first step of the 20(a) presumption analysis.  The ALJ and not the BRB must weigh the evidence,  and ALJ Rosenow had determined that the medical records in Claimant’s favor were based solely on his subjective complaints.  Because Claimant had no credibility, the medical causation opinions also lacked credibility.  Claimant therefore failed to demonstrate that he suffered a harm and could not meet the requirements under Section 20(a) as to his neck and low back.  However, the Fifth Circuit affirmed the BRB’s determination that the ALJ’s denial of Claimant’s missing tooth was irrational and unsupported by substantial evidence.

 

BIS Salamis, Inc. v. Director, OWCP and Joseph Meeks