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 While this was an accurate statement of Section 8(d)(3) in 1983, the Employer argued that Section 8(d)(3) had been repealed in the 1984 amendments to the Longshore and Harbor Workers’ Compensation Act.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.
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In an unpublished decision, the Fifth Circuit affirmed the denial of death benefits to the widow of a Defense Base Act contractor who committed suicide while at home on a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.
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.
Disclosure: Patrick E. Costello of Mouledoux, Bland, Legrand & Brackett represented the Employer in this litigation.