BRB: ALJs are Not Required to Use K.S. to Calculate Average Weekly Wage

The Benefits Review Board (“BRB”) recently discussed average weekly wage calculations in an unpublished Defense Base Act decision.  In Hamidzada v. Mission Essential Personnel, the Employer and Carrier appealed an administrative law judge’s (“ALJ”) average weekly wage decision.  The ALJ calculated Claimant’s average weekly wage using only the wages Claimant earned overseas during his employment for Employer in Afghanistan.  Employer appealed, arguing that the ALJ erred in relying on the BRB’s K.S. decision–which used to be the seminal average weekly wage decision for DBA claims–because a federal court vacated K.S.

Why was K.S. so important?  For years, K.S. was used in connection with Proffitt v. Serv. Employers Int’l to more or less bar ALJs from blending together overseas and stateside earnings to determine an injured worker’s average weekly wage.  Instead, K.S. wanted average weekly wage calculations to be based on only overseas wages when the employee was paid “higher wages for more dangerous work under at least a one-year contract….”  After K.S. was appealed to the Southern District of Texas, the federal court vacated the decision in Service Employees Int’l, Inc.  The court reasoned that ALJs are not mere calculators required to blindly apply prior BRB precedent–precedent with no statutory, regulatory, or common-law support–to determine an injured worker’s AWW.

In the present case (Hamidzada), the Employer raised a legitimate issue with the ALJ’s average weekly wage calculation.  The BRB (in a footnote) conceded that it was “without any published precedent on the [average weekly wage] issue,” and it chose to vacate the ALJ’s calculation of Claimant’s average weekly wage.  As stated by the BRB (with internal citations omitted):

We agree with employer that the administrative law judge believed that he was compelled to apply [K.S.], based on his statements about “controlling” law and that claimant’s average weekly wage “must be based on what [Claimant] earned in Afghanistan” given his findings of fact.  Given the district court’s order vacating [K.S.], we vacate the administrative law judge’s average weekly wage finding, and we remand this case for findings of fact under Section 10(c).  In its decision, the district court based its holding on the administrative law judge’s “wide discretion,” specifically noting, “[I]t is within the administrative law judge’s discretion to determine whether or not the facts of the two cases [K.S. and Proffitt] are similar enough to merit similar outcomes.”  On remand, the administrative law judge must determine the facts pertinent to the average weekly wage calculation, apply relevant case precedent, and calculate an average weekly wage that represents claimant’s wage-earning capacity at the time of injury.

Hamidzada v. Mission Essential Personnel, BRB No. 13-0312 (Mar. 21, 2014).

Summary of the 1972 Amendment to the Longshore Act Regarding Attorneys’ Fees

It is sort of a slow news day, so here is a little slice of history.  In 1972, the Longshore and Harbor Workers’ Compensation Act underwent a substantial amendment.  Attorneys’ fees were one of the focuses of the amendments.  Here is what Mr. Thomas Eagleton (from the Committee on Labor and Public Welfare) said in his September 14, 1972 report about Longshore attorney’s fees:

S. 2318 amends section 28 of the Act to authorize assessment of legal fees against employers in cases where the existence or extent of liability is controverted and the claimant succeeds in establishing liability or obtaining increased compensation in formal proceedings or appeals.  Attorneys fees may only be awarded against the employer where the claimant succeeds, and the fees awarded are to be based on the amount by which the compensation payable is increased as a result of litigation.  Attorneys fees may not be assessed against employers (or carriers) in other cases.

In all cases, the amount of attorneys fees payable to the claimants lawyer (either by the employer or the claimant) is subject to approval by the deputy commissioner, hearing examiner, board or court, as the case may be.

Further explanation of the attorney fee shifting provision can be found later in the report:

Section 13 amends section 28.

Subsection (a) would require the award of an attorney’s fee payable by the employer if the employer had refused payment of compensation and the employee had hired an attorney to successfully prosecute the claim.  The fee would be approved by the deputy commissioner, Board, or Court, as applicable.

Subsection (b) would require an informal conference before the deputy commissioner if the employer offered to pay compensation without an award and there was a controversy over the amount of compensation.  The deputy commissioner would recommend a settlement.  If the employer refuses the settlement, he must offer to pay the amount he thinks is due.  If the employee refuses that offer, hires an attorney and obtains an award greater than that offer, he shall be awarded an attorney’s fee based on the amount of the increase payable by the employer.  The latter provision for attorneys’ fees shall not apply when the controversy relates to degree or length of disability and the employer or carrier agree to submit the case to doctors chosen as provided for in section 7(e) and offer to pay an amount based on the medical report.  However, if such an award is being reviewed by the Review Board or a court and there are findings favorable to the employee, the Review Board or court may award a reasonable attorney’s fee payable by the employer or carrier.  No attorney’s fee may be assessed against the employer in any other case.

Subsection (c) provides that in any proceedings before the Review Board or a court, the Board or the court shall approve the attorney’s fee for work done before it by the attorney for the employee.

Subsection (d) provides that where the employer or insurance carrier is required to pay an attorney’s fee, they may also be required to pay costs and fees for the attendance of witnesses: such fees must be approved by the deputy commissioner.

Subsection (e) provides that failure to obtain approval of an attorney’s fee for representation of employees is made an offense punishable by a fine of $1,000 or imprisonment for one year or both.

Summary Judgment Was Not Appropriate in Jones Act Case Against Louisiana

Plaintiff worked on a ferry boat operated by the State of Louisiana, Department of Transportation and Development.  On August 1, 2007, she slipped and sustained injuries while cleaning an oil leak the vessel’s engine room.  After Plaintiff filed a Jones Act suit against the State, the State moved for summary judgment on the issue of causation, arguing that Plaintiff’s own negligence was the sole of her injury.  In response, Plaintiff filed her own motion for summary judgment on the issue of liability, arguing that the State’s vessel was unseaworthy and that the State was negligent in failing to repair the vessel.  The trial court agreed with Plaintiff and the State appealed.

Louisiana’s Third Circuit first addressed causation.  The State argued that Plaintiff could not prove causation because, “while cleaning the oil with soap and water, she herself created the condition which caused her injury.”  The Third Circuit recognized that a seaman need only present “slight evidence” that her injuries were caused by her employer’s negligence in order to reach the jury (and avoid summary judgment).  Here, Plaintiff presented sufficient evidence to avoid summary judgment:

In a transcript attached to her opposition to the State’s summary judgment motion, Ms. Thibodeaux testified that she had not yet mopped the portion of the floor on which she slipped.  She further testified that she was cleaning according to operational instructions.  In contrast, the State alleges she created the condition of soapy water mixed with oil through her own act of mopping.  Therefore, there exists a genuine issue of material fact as to causation.

As for liability, the Third Circuit determined that summary judgment should not have been granted in Plaintiff’s favor.   Plaintiff submitted that the vessel’s engine leaked oil, that its propeller shaft leaked water, and that the vessel had “poor flooring conditions.”   But the “presence of oil does not satisfy the legal standard for demonstrating Jones Act negligence as set forth above.”  Here, the jury must determine whether the dangerous condition was caused by the State’s negligence, or whether, as the State argued, Plaintiff caused the dangerous condition herself.

Thibodeaux v. State, DOTD, 13-893 (La. App. 3 Cir. 3/12/14); — So. 3d —-.

BRB Questions Whether Work or Adultery and Drugs Led to Suicide

Decedent worked as a pest control specialist in Iraq for one and a half years.  Upon returning to the United States in June 2006, he learned that his wife had committed adultery while he was away, and that his daughter developed a drug problem.  A few weeks later, Decedent checked himself into a hotel room where he shot and killed himself.  Claimant, Decedent’s widow, filed a claim for death benefits contending that Decedent’s suicide was related to his employment.

An administrative law judge (“ALJ”) agreed, noting that “the zone of special danger could have been a cause of [Decedent's] suicide.”  The ALJ noted Decedent’s exposure to mortars, a hazardous waste spill, a colleague’s injury or death, and even the Decedent’s physical  separation from his family as all falling under the zone of special danger.  After the ALJ awarded benefits, the Employer and Carrier appealed to the Benefits Review Board (“BRB”) the first time.  The BRB vacated and remanded for the ALJ to determine whether Employer presented substantial evidence to rebut the Section 20(a) presumption.

On remand, the ALJ awarded compensation even though he determined that Employer rebutted the Section 20(a) presumption.  The ALJ then weighed the evidence as a whole and assigned more weight to Claimant’s expert psychologist.  According to the ALJ, the Decedent’s suicide was the result of an irresistible impulse and not an intentional act.  Employer again appealed.

After the ALJ issued his Decision, but before the BRB issued its second Decision, the Ninth Circuit issued its opinion in Kealoha v. Dir., OWCP, 713 F.3d 521 (9th Cir. 2013).  The Navigable Waters post on Kealoha is available through this link.  In Kealoha, the Ninth Circuit held:

[S]uicide or injuries from a suicide attempt are compensable under the Longshore Act when there is a direct and unbroken chain of causation between a compensable work-related injury and the suicide attempt.  The claimant need not demonstrate that the suicide or attempt stemmed from an irresistible suicidal impulse.  The chain of causation rule accords with our modern understanding of psychiatry.  It also better reflects the Longshore Act’s focus on causation, rather than fault.

What is an “unbroken chain of causation?”  It is “where the injury and its consequences directly result in the workman’s loss of normal judgment and domination by a disturbance of the mind, causing the suicide.”

The BRB determined that Kealoha applied to this case even though the Ninth Circuit decided Kealoha after the ALJ issued his second Decision.  Ninth Circuit jurisdiction applied, and the BRB was bound to apply Ninth Circuit law.  Considering such, the BRB had to vacate and remand the claim for the ALJ to determine whether there was an “unbroken chain of causation from the injury to the suicide.”  The ALJ must consider the full extent of the events that occurred prior to Decedent’s death, which Employer summarized as follows:

Employer asserts that the events which occurred in June and July 2006 while decedent was not in Iraq were the cause of his death.  When decedent arrived home unexpectedly in June 2006, he learned: he had been locked out of his home; his wife appeared to be committing adultery; his daughter was seeing someone 10 years older than she; and, she was taking drugs and had been expelled from school for doing so.  Thus . . . while there may have been previous family strife and decedent may have been troubled by being separated from his family,  the true stressor that caused him to actually commit suicide was his familial  situation once he arrived home.

It is telling that the BRB chose to paraphrase Employer’s arguments.  But if that wasn’t enough, it also printed an edict for the ALJ in footnote 14:

Effectively, the administrative law judge found that the behavior of claimant and her daughter was the natural and unavoidable result of decedent’s having been away from home, the fighting and breakup were the natural next result, and the suicide was the natural final result.  The administrative law judge should readdress this line of reasoning under the “chain of causation” test enunciated by the Ninth Circuit.

Dill v. Serv. Employees Int’l, Inc., BRB No. 13-0262 (Mar. 11, 2014).

Tip of the hat to Lara Merrigan for forwarding this opinion.