Ninth Circuit Publishes Significant Last Responsible Employer Decision

The Ninth Circuit published a new last responsible employer decision based on a mesothelioma death benefits claim made pursuant to Section 9 of the Longshore and Harbor Workers Compensation Act (“LHWCA”).  The decision is significant for its treatment of the Section 20(a) presumption and the sequential (as opposed to simultaneous) evidence analysis approach that it will use in last responsible employer cases involving occupational diseases.

Pursuant to Section 20(a) of the LHWCA, a claimant is given a presumption that their claim comes within the purview of the LHWCA.  To get the presumption, however, a claimant must still make out a prima facie claim alleging that he was injured and that the injury arose both “in the course of” and “out of employment.”  In this case, a question arose as to whether a claimant given the Section 20(a) presumption for one employer automatically receives that presumption for all other employers.  The Ninth Circuit stated:

“Contrary to the Board’s repeated statements in its decisions in this case, the § 20(a) presumption is relevant to the question of liability in a multi-employer case, and not just to the question of whether a claim is compensable in the first instance.  It is illogical to state, as the Board does, that § 20(a) applies to the compensability of a claim, and not to the question of the liable employer, because of the nature of the prima facie case that a claimant is required to make under § 20(a).  The presumption is invoked only if a claimant alleges that his injury arose out of and in the course of his employment.  It is implicit in this language that the employment referred to is employment with a particular employer, against whom a claim has been filed.  Where only a single employer is claimed against, the claimant would of course not be able successfully to assert a claim that fell within the § 20(a) presumption on the basis of evidence relating to employment with some other employer that was not claimed against.  Similarly, in a claim against multiple employers, the claimant should be expected to make out a prima facie case against all of the employers; if the claimant fails to make such a case against one employer, the presumption should not apply against that employer.”

Further, the court reasoned, if the evidentiary burden imposed on a litigant is different from the burden contained in the relevant statute, then it is invalid under Section 7(c) of the Administrative Procedure Act (“APA”).  The APA provides that  the proponent of a rule has the burden of proof unless provided otherwise by statute. 

Notably, the Ninth Circuit appears to have created a Circuit Split with its Section 20(a) holding.  The Seventh Circuit previously addressed this issue, determining that Section 20(a) applies to a claim, and not to individual employers.  The Board adhered to the Seventh Circuit’s Marinette Marine decision which determined that “[t]he § 920(a) presumption is about whether the claimant’s injury is compensable–whether it happened in the course of work–not about who has to pay for it.”  Marinette Marine Corp. v. OWCP, 431 F.3d 1032, 1035 (7th Cir. 2005).

In addition to the application of Section 20(a), the Ninth Circuit also addressed how evidence must be analyzed in last responsible employer cases.  The argument presented to the court was that each employer’s evidence must be analyzed sequentially in occupational disease cases.   Not only did the court agree, it provided the framework for a proper sequential analysis:

“Therefore, the ALJ in multiple-employer occupational disease cases should conduct a sequential analysis, as follows: the ALJ should consider sequentially, starting with the last employer, (1) whether the § 20(a) presumption has been invoked successfully against that employer, (2) whether that employer has presented substantial, specific and comprehensive evidence so as to rebut the § 20(a) presumption…and (3) if the answer to the second question is yes, whether a preponderance of the evidence supports a finding that that employer is responsible for the claimant’s injury…  The first employer in the analytical sequence (that is, the last responsible employer in time) who is found to be responsible under this analysis shall be liable for payment of benefits, and the ALJ need not continue with this analysis for the remaining employers.  In conducting this analysis, the ALJ should consider all evidence regarding exposure or lack thereof at a particular employer, and evidence supporting a finding of exposure at a given employer may be submitted either by the claimant or by earlier employers.”

The Ninth Circuit carefully noted that it was choosing the sequential analysis approach for last responsible employer cases involving occupational diseases.  For “two-injury” cases involving cumulative traumas, the simultaneous analysis approach still applies, requiring the fact-finder to consider working conditions at multiple employers.  In other words, the competing employers have concurrent or complimentary duties, with each bearing the burden of persuading the fact-finder “that the disability is due to the injury with the other employer.”  Buchanan v. Int’l Transp. Servs., 33 BRBS 32, *4 (1999).

Albina Engine & Machine v. Director, OWCP, —F.3d—- (9th Cir. 2010).

Nurse Not Integral to Shipbuilding Process

In Gelinas v. Electric Boat Corporation, the Benefits Review Board addressed the question of LHWCA status.  The claimant, an occupational health nurse, filed a hearing loss claim against her employer, a shipyard.  The nurse’s duties were limited to treating injured workers in an on-site medical clinic; responding to ambulance calls in the shipyard; performing physical exams, audiograms, and EKGs; stocking RADCON (radiological control) supplies; and participating in RADCON training drills.

In affirming the Administrative Law Judge’s dismissal on summary decision, the BRB looked to a Supreme Court decision, Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989).  Applying the test outlined in Schwalb and its progeny, the court found that Claimant’s work as a nurse was not integral to the shipbuilding process to the extent that failure to perform her duties would have impeded shipbuilding activities.  The court found she was not a maritime employee under Section 2(3) of the Act and therefore not covered by the Act.  

Gelinas v. Electric Boat Corp., BRB No. 10-0422 (11/23/10)

Note: This entry was prepared by Will Bland, IV, an associate at Mouledoux, Bland, Legrand & Brackett.

Presumptions in General Maritime Law

The General Maritime Law in the United States has evolved, not from a codified body of laws or rules, but from a case by case analysis by the courts of maritime related casualties and disputes predating the founding of our Union.  Over the years the courts have created several presumptions of fault and/or causation which have the effect of shifting the burden of proof from the aggrieved party to the offending party.

For instance, in 1873 the United States Supreme Court in the case The Steamship Pennsylvania, gave birth to the rule of the same name (the Pennsylvania Rule), and held that the violator of a statutory rule intended to prevent collisions has the burden of proving not only that its transgressions were not a contributing cause of the alision, but that they could not have been a cause.  This applies not only to vessels whose masters may violate the rules of the road, but also to owners and operators of stationary structures which must operate in conformity with federal regulations (for instance drawbridges, which operate in accord with state or federal regulations, structures that must be marked, etc.).

For the rule to be applied, there must be (1) proof by a preponderance of evidence of violation of a statute or regulation that imposes a mandatory duty; (2) the statute or regulation must involve marine safety or navigation; and (3) the injury suffered must be of a nature that the statute or regulation intended to prevent.  The rule is commonly applied to violations of the navigational rules, but it has also come into play with respect to a great many other marine safety statutes and regulations.

The burden of proof under the Pennsylvania Rule is difficult but not impossible to carry.  In order to rebut the presumption, a number of tactics may be employed.  First, the circumstances of the collision may show that the statutory violation was irrelevant in that the casualty would have occurred anyway.  For instance, a violator of a navigational statute may not be held liable under the Pennsylvania Rule if the other party to the accident is found to be solely responsible.  Second, the offending vessel may show that the fault was incurred as an error in extremis, where the vessel, through no fault of her own, was placed in a situation where the collision was imminent, and the fault was an emergency action to avoid it.  Third, the most effective method to rebut the presumption is to demonstrate that the violation could not have been the proximate cause of the collision.  In most cases, however, the vessel presumed to be at fault will fail to carry the burden of exoneration.  See, Schoenbaum, Admiralty and Maritime Law. 4th Ed. 2001.

In 1895 the United States Supreme Court decided The Oregon case, involving a steamship, THE OREGON, which had hit an anchored ship.  The court found that when a moving vessel collides with a stationary object, the moving vessel is presumed to have been at fault.  Thus arose The Oregon Rule.  The offending vessel then has the burden of proving that the collision was not its fault.  The presumption may be rebutted by the defense of the inevitable accident.

Earlier in 1865, the United States Supreme Court introduced the Louisiana Rule, taken from a case involving the steamship THE LOUISIANA.  The court noted that “during the Southern Rebellion” THE LOUISIANA, a 275 foot steamer “loaded with sick and wounded soldiers from our army in the South,” arrived at Hampton Roads and tied off to a wharf that was one third its size.   Because it could not be tied off along its full length, the tide ultimately tore THE LOUISIANA from its moorings, it drifted and hit another vessel, resulting in damage.  The court found that the drifting vessel will be presumed to be at fault and to escape liability it has the burden of affirmatively proving that the drifting was the result of inevitable accident, or of a force majeure or Act of God, which human skill and precaution could not have prevented.

Although more than a century has passed since they were conceived, all of these doctrines are still in play and are regularly employed in maritime litigation.  While they shift the burden of proof to the offending vessel, the damaged party should always conduct the appropriate investigation, accumulate the necessary evidence and identify those important witnesses and be prepared to prove its case.

A Widow Must First Be A Wife

In a new published decision, the Benefits Review Board (“BRB”) reviewed the issues of what constitutes a “widow” for purposes of Section 9(b) of the Longshore and Harbor Workers’ Compensation Act (“the Act”), and whether a child whose siblings have settled their claims is entitled to a greater percentage than he was prior to his siblings settlements.

At the time of his death, the decedent resided with his fiancée and three children.  Employer voluntarily initiated payment of death benefits to the three children.  Two of the children settled their claims, and decedent’s fiancée and remaining child pursued additional benefits under the Act.

Decedent’s fiancée argued that she was entitled to death benefits because she should be considered a “widow” for purposes of Section 9(b) of the Act, or as an “other dependent” as classified by Section 152 of the Internal Revenue Code (“IRC”).  The BRB affirmed the Administrative Law Judge’s decision that the fiancée was not decedent’s widow and was not entitled to death benefits.  The fiancée argued that Section 2(16) of the Act requires only that she be living with decedent or dependent upon him for support at the time of his death in order to be eligible for a widow’s death benefits.  The BRB disagreed, finding that Section 2(16) requires one to be either a “wife” or “husband” of the decedent.  Thus the issue became whether the fiancée was Claimant’s “wife” at the time of his death.

Because the Act does not define “marriage,” the BRB looked to Louisiana state law.  Article 87 of the Louisiana Civil Code requires a marriage ceremony in order for parties to enter into a valid marriage contract.  The fiancée testified that she did not participate in a marriage ceremony, and as such, the BRB concluded that the fiancée was not the decedent’s wife.  The fiancée argued that, in the alternative, she should be considered a member of the decedent’s household at the time of his death and dependent upon him at the time of his death.  The Act provides that if there is no surviving spouse, death benefits may be awarded to a dependent as defined by the IRC.  Section 152 defines a dependent as an individual over half of whose support was received from another individual.  Here, the fiancée had testified that she filed her own tax returns, and maintained her own bank account and credit cards, and that she was not dependent upon the decedent for over half of her support.  The Board therefore affirmed the denial of death benefits to the decedent’s fiancée.

The remaining child who did not settle his claim contended that he was entitled to additional death benefits.  Section 9(c) of the Act establishes that if there is only one child, the child will receive 50% of the decedent’s average wage, as opposed to having to share equal parts with siblings.  The remaining child argued that since the other two children had settled their claims, that he was now the only child of the decedent remaining, and that he should therefore receive 50% of the decedent’s average wage.  The Board affirmed the Administrative Law Judge’s finding that the fact that the other two siblings settled their claims does not alter the formula for payment set forth in Section 9(c) of the Act.  The Board reasoned that because decedent left three dependent children at the time of his death, it would be contrary to the evidence to find that the remaining child was the only surviving child of decedent.

Boswell (Welch) v. Fugro Geosciences, Inc., BRB No. 10-0381 (Nov. 24, 2010).