ALJ Can Determine Audiogram Reliability For Special Fund Relief

In an unpublished decision, the Ninth Circuit found that an audiogram not provided to the Claimant within thirty days of its administration could establish evidence of the amount of hearing loss sustained on a particular date for the purposes of Section 8(f) relief.  33 U.S.C. §908(f) (2011).

Under 33 U.S.C. §908(c)(13)(C) and 20 C.F.R. § 702.321(a)(1), preexisting hearing loss must be documented as required by 20 C.F.R. § 702.441.  Section702.441(b) states that an audiogram shall be presumptive evidence of the amount of hearing loss on the date it was administered if it meets certain requirements, including the requirement that the employee must be provided with the report within thirty days of the administration of the audiogram.  The court held that while the plain language of the statute and regulations establish a safe harbor for employers seeking to use the audiogram as presumptive evidence of hearing loss for Section 8(f) relief, an administrative law judge retains the discretion to certify that the audiogram is “reliable and probative” evidence for Special Fund relief.  Therefore, the court denied the petition for review of the administrative law judge’s findings on that issue.

Dir. OWCP v. Matson Terminals, Inc., No. 09-72979, 2011 WL 2689355 (9th Cir. 2011) (unpublished).

The Value of Thorough Pre-employment Screening

In the maritime work force, workers fall generally into two groups.  There are those who work aboard vessels and in the eyes of the law would be considered seaman.  And, there are those who are engaged in some aspect of maritime commerce earning their living on the navigable waters and adjacent facilities, but who are not assigned to a specific vessel or fleet of vessels.  These workers may be, for instance, longshoremen, ship repairmen or fabricators.

What both groups have in common is that if injured on the job their employers may have a non-delegable, no fault duty to pay compensation and medical expenses to, and on behalf of the injured worker.

The maritime law which protects the rights of the injured seaman, and the federal and state workers’ compensation statutes which provide for the injured land based maritime worker, are all interpreted by the courts in a liberal manner, favoring the injured employee.  As a result, if one of its employees claims job related illness or injury, the employer will be responsible for compensation benefits to the land based worker, maintenance (a daily living allowance) to the seaman, and costs of medical treatment until the employee is discharged by his physicians.  Fault or negligence of the employer in causing the illness or injury pays no role in assigning these duties.  Given the rising costs of medical services and insurance, the employer has substantial financial exposure.

However, there are defenses of which a diligent employer can avail itself.  The “front-line” defenses are a comprehensive written employment application and a thorough and detailed written pre-employment physical questionnaire, both of which the applicant should be required to personally fill out and sign with the express written understanding that everything stated is true.

In the case of the seaman, the employer may be able to escape financial responsibility if it can prove that the seaman intentionally misrepresented, lied about or concealed a pre-existing medical condition, that the pre-existing condition is the same as, or substantially the same as the condition, and that had it known of the pre-existing condition the claimant would never have been hired.  McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547 (5th Cir. 1968).

While it may be more time consuming and expensive, thorough screening at these stages in the employment process will save money down the road.  One claim has the potential of dramatically affecting the bottom line of any company, particularly those who are self-insured or carry high deductibles.  By requiring the applicant to fill out applications and detailed pre-employment physical history questionnaires, the employer will have documentation that should be preserved and can be used as evidence should a questionable claim be filed and litigation ensue. 

Jones Act Plaintiff’s 10-Year Old PTSD Claim Was Time-Barred

A pro se plaintiff filed a Jones Act suit against Defendants, Dyncorp International and DynMarine Services of Virginia, complaining of post-traumatic stress disorder (“PTSD”) stemming from a sexual assault that allegedly occurred over 10 years before she filed her complaint.  Plaintiff’s hand-written complaint contained no factual or legal allegations other than two phrases: “Post Traumatic Stress Disorder (sexual assault)” and a demand of “Amount Undecided” for “lost wages, pain & suffering.”  In response to Plaintiff’s suit, Defendants filed motions for summary judgment arguing inter alia that her Jones Act claim was time-barred. 

A claim under the Jones Act must be brought within three years after the cause of action arises.   A cause of action under the Jones Act and general maritime law accrues when a plaintiff has had a reasonable opportunity to discover the injury, its cause, and the link between the two.  The discovery rule applies such that the statute of limitations is not meant to apply to facts that were “unknown and inherently unknowable” to the plaintiff.  The law in the Fifth Circuit recognizes potential application of the discovery rule in both pure latent injury cases and traumatic event/latent manifestation cases.  Occupational exposure cases present the most common example of a pure latent injury case.  In this type of case the plaintiff does not know that he has sustained an injury until years later when the disease finally manifests itself.  The discovery rule may operate in such a case because the plaintiff should not be victimized if he has no knowledge that he was injured.  Traumatic event/latent manifestation cases are different because the plaintiff sustains both immediate and latent injuries caused by a noticeable, traumatic, occurrence.  At the time of the traumatic event, the plaintiff realizes both that he is injured and what is responsible for causing the injury.  The full extent of the harm, however, has not become manifest.

Here, the plaintiff last worked for Dyn Marine in May of 1999.  That means that plaintiff’s claim, on its face, would be time-barred, unless the discovery rule applied to her claim.  The only potential application of the discovery rule was the traumatic event/latent manifestation scenario.  The court stated that it was “beyond cavil that a victim of a sexual assault knows that she has received an injury as a result of that tortious act upon its occurrence albeit the full extent of the harm may not have become immediately manifest.”  Although the date of diagnosis was not known, the court noted that Plaintiff, for purposes of entering into a settlement in a separate discrimination suit, stated she was taking PTSD medication in 2002.   Finally, the court determined that even if it credited Plaintiff’s assertion that the cause of her PTSD only became known in 2009, she still failed to create a issue of fact as to the timeliness of her claim.  Her response to the summary judgment motionwas “three sentences long and completely unresponsive to the potentially dispositive issues raised via Defendants’ motion.”

Payton v. Dyncorp International, No. 10-1014, 2011 WL 2669254 (E. D. La. July 7, 2011).

Average Weekly Wage Determinations For DBA Cases Outside of the War Zone

Claimant worked for a number of years outside of the United States in hostile environments.  After years of this type of work, he decided to take a break from the hostilities and work on the United States Army Kwajalein Atoll in the South Pacific.  On May 1, 2008, Claimant sustained a disabling neck injury for which Claimant received indemnity and medical benefits.  The only issue before the administrative law judge (“ALJ”) was Claimant’s average weekly wage.  The ALJ determined that Claimant’s rate of pay at the time of his injury on the Atoll, in an environment without hostilities, provided the appropriate basis for his Section 10(c) average weekly wage calculation.  Claimant appealed.

The Benefits Review Board (“BRB”) upheld the ALJ’s average weekly wage calculation.  The ALJ refused to include Claimant’s pre-Atoll wages, which were higher, because Claimant’s pre-Atoll job was performed under drastically different conditions.  Whereas Claimant’s pre-Atoll job was performed in a hostile environment, his Atoll job was not.  Thus, the ALJ found that this case represented “the mirror image” of war zone cases.  Claimant voluntarily left the higher-paying jobs in the Middle East for the lower-paying jobs in the Bahamas and the South Pacific.  Further, at the time of the injury, Employer was not paying Claimant a premium for any hazardous duty.  It was appropriate to calculate Claimant’s average weekly wage using only the wages Claimant earned in the South Pacific, a non-combat zone.

Luttrell v. Alutiiq Global Solutions, BRB No. 10-0555 (2011).

Note: The Luttrell decision adds another piece to the AWW puzzle.  Defense Base Act work can be performed in a war zone, or in a place that is a world removed from a combat destination.  Thus, the BRB appears to endorse basing AWW determinations on the “extrinsic circumstances of claimant’s employment.”  If an employee earns war zone wages, look to K.S. [Simons] v. Service Employees Int’l, Inc., 43 BRBS 18, aff’d on recon., 43 BRBS 136 (2009).  If not, look to Luttrell.