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Claimant appealed, and the BRB affirmed, the Decision and Order of ALJ C. Richard Avery, wherein Claimant was denied benefits under the Act.  The ALJ addressed only the issue of status under Section 2(3) of the Act, 33 U.S.C. § 902(3).

Generally, a claimant satisfies the “status” requirement if he is an employee engaged in work that is integral to the loading, unloading, constructing, or repairing of vessels.  See 33 U.S.C. §902(3); Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96 (1989).  To satisfy this requirement, he need only “spend at least some of [his] time in indisputably longshoring operations.”  Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 273 (1977).  Although an employee is covered if some portion of his activities constitute covered employment, those activities must be more than episodic, momentary, or incidental to non-maritime work.  Boudloche v. Howard Trucking Co., 632 F.2d 1346, 12 BRBS 732 (5th Cir. 1980), cert. denied, 452 U.S. 915 (1981).

Here, Claimant was a yard foreman; his regular duties consisted of loading trucks, building pipe racks, and cleaning the yard.  On some occasions, he did barge work when the barge crew was short-handed.  Claimant’s yard supervisor indicated that Claimant was sometimes put on the day’s schedule to help the barge crew, and at other times, he would simply be called over to help.  Initially, Claimant’s yard supervisor testified that Claimant spent 50% of his time loading trucks, 5% cleaning the yard, 15% building pipe racks, and 30% working the barges.  Yet, he later testified that he saw Claimant working the barges approximately only ten times over the course of three years.  Claimant was unable to estimate how many times he worked on the barges over the course of his employment; his best guess was 20% of the time.  Claimant reported that he did not work on a barge every week, but sometimes he aided in moving barges around.  Claimant’s co-worker stated that Claimant was part of the truck crew, which was separate from the barge crew, and that he could have loaded barges if he were filling in for someone, but that such a job was infrequent.  No reports or work logs existed in the record.

Claimant contended that because he was sometimes put on the “schedule,” his work loading and unloading barges was not “brief and fortuitous,” as the ALJ found.  The ALJ found that Claimant’s work on the barges was not a part of his regular duties.  Though the ALJ considered the testimony of Claimant’s yard supervisor to be contradictory, he credited the supervisor’s  later statements that Claimant worked on the barges approximately ten times over a three-year period, as this coincided with Claimant’s co-worker’s statements.  All witnesses agreed that Claimant’s work on the barges was not part of his regular duties and was something that was done only when the barge crew was short-handed.  Consequently, the BRB concluded that the ALJ rationally found that Claimant’s activities on the barges were “sporadic” and “were too brief and fortuitous to confer longshore jurisdiction.”  See Kilburn v. Colonial Sugars, 32 BRBS 3 (1998).  As such, the BRB affirmed the finding that Claimant failed to establish that he spent at least “some” time in covered work.  Id.; see generally Caputo, 432 U.S. at 273.  The BRB, therefore, affirmed the ALJ’s denial of benefits under the Act.

Gray v. The Bayou Companies, L.L.C., BRB No. 11-0600 (03/05/2012) (unpublished).

Archie Crawford (Employee) was employed as a lead operator for Island Operating Co., Inc. (Employer) on an offshore oil production platform.  Employee was taken by helicopter to an offshore platform to begin a week-long shift.  While disembarking the helicopter, Employee’s knee buckled and he fell down two stairs.  He filled out an accident report but performed his job duties for the rest of the day.  When he awoke the next morning, he experienced numbness in his left foot and three fingers on his left hand.  Employee asked his supervisor to send a replacement so that a physician could examine him, as there were no physicians on the platform.  His request was denied.

Employee’s condition continued to worsen.  Two days after his fall, he experienced numbness in his upper body.  On the third day, he felt more pronounced numbness in his chest.  Employee continued to request relief to see a physician, but his repeated requests were denied.  By the fourth day, he could not walk.  Finally, on the fifth day, Employee was replaced by a relief operator and was taken by helicopter to the hospital where physicians diagnosed him with a stroke.  He has not returned to work since his diagnosis. 

Employee filed a claim for benefits under the LHWCA against Employer/Carrier.  An ALJ found that Employee’s stroke was a preexisting condition not caused by Employee’s work but aggravated by his working conditions because of the time he spent on the offshore platform before he was able to seek treatment.  Employee had also suffered a shoulder injury, which the ALJ found was caused by his fall.  Employee was awarded TTD benefits from the time he left the platform until he reached MMI, and continuing PTD.  Employer/Carrier appealed the ALJ’s decision and order to the BRB, and the BRB affirmed.  Employer/Carrier then appealed the order of the BRB to the Fifth Circuit. 

On appeal to the Fifth Circuit, Employer/Carrier contended that they produced sufficient evidence to rebut the presumption that working conditions aggravated Employee’s condition.  Employer/Carrier argued that (1) Employee’s stroke was a preexisting condition that likely began before he fell on the steps and was unrelated to work; (2) Employee did not report that he was experiencing symptoms of a stroke until at least twenty-four hours after his fall; (3) because blood thinner was not administered within three hours of the stroke’s onset, Employee’s stroke had already caused permanent and irreversible damage by the time he reported his symptoms; and thus, (4) Employee’s condition was caused solely by his own inaction and could not have been caused by his working conditions. 

However, on appeal to the BRB, Employer/Carrier challenged only the ALJ’s finding that Employee was entitled to the presumption under Section 920(a) of the LHWCA that working conditions had aggravated the disability resulting from Employee’s stroke.  Though the ALJ found that Employer/Carrier failed to present substantial evidence to rebut the presumption that working conditions aggravated Employee’s stroke-related disability, Employer/Carrier neglected to challenge this finding on appeal to the BRB.  The Fifth Circuit, therefore, found Employer/Carrier waived this argument by failing to raise it before the BRB. 

Consequently, the inquiry before the Fifth Circuit focused on whether Employee set out sufficient facts to entitle him to the Section 920(a) presumption.  This is a relatively low threshold to meet; it required Employee to set out that conditions existed at work that could have caused, aggravated, or accelerated his stroke.  The Fifth Circuit agreed with the BRB finding that substantial evidence supported the ALJ’s inference that the damage caused by Employee’s stroke was aggravated by the six days he spent on the offshore platform before he received treatment.  Hence, Employee was entitled to the presumption under Section 920(a).  Because this was the only issue properly preserved on appeal, the Fifth Circuit affirmed the order of the BRB upholding the ALJ’s decision and order awarding compensation to Employee.

Island Operating Co., Inc. v. Dir., Office of Workers’ Comp. Programs, 11-60532, 2012 WL 512682 (5th Cir. Feb. 16, 2012).

The United States Court of Appeals, Fifth Circuit, issued an opinion discussing whether cure awarded in a Jones Act claim should include the amount medical providers charged or the amount they accepted as full payment from a plaintiff’s insurer.

In November 2006, Leon Manderson began working as a licensed engineer for Chet Morrison Contractors, Inc. (CMC) aboard a dive vessel operating in the Gulf of Mexico.  In January 2008, Manderson, aboard another CMC dive vessel, left abruptly and was hospitalized, receiving treatment for ulcerative colitis, diabetes, and a liver condition.  Manderson did not return to work. 

The United States District Court for the Western District of Louisiana awarded Manderson maintenance and cure and attorney’s fees incurred in obtaining that relief.  The court subsequently ruled CMC liable for $14,680.00 for maintenance and $169,691.06 for cure. 

On appeal, CMC challenged the district court’s application of the collateral-source rule for determining the amount of cure awarded Manderson.  In an issue of first impression, CMC contended that the cure award should not have included the difference between the amount of Manderson’s medical providers charged and the lesser amount they accepted from his insurer as full payment.  The Fifth Circuit applied a de novo review.   

Cure is the shipowner’s obligation to pay necessary medical services for seamen injured while in its service.  This obligation is an implied term of a maritime-employment contract and does not depend on any determination of fault. 

The collateral-source rule is a substantive rule of law that bars a tortfeasor from reducing the quantum of damages owed to a plaintiff by the amount of recovery the plaintiff receives from other sources of compensation that are independent of the tortfeasor.  Generally, in tort actions, the collateral-source rule prohibits a reduction of compensatory damages by the difference between the amount billed for medical services and the amount paid.  Yet, as previously mentioned, maintenance and cure is an implied term of contract for maritime employment and is not predicated on the fault or negligence of the shipowner.  Accordingly, because of the unique nature of maintenance and cure, normal rules of damages, such as the collateral-source rule in tort, are not strictly applied. 

Nevertheless, the Fifth Circuit has identified an exception to this general rule:  Where a seaman has alone purchased medical insurance, the shipowner is not entitled to a set-off from the maintenance and cure obligation moneys the seaman receives from his insurer.

Having found Manderson purchased his own medical insurance, the court¾consistent with the Fifth Circuit precedent¾made no deduction from the cure award for payments by Manderson’s insurer.  In doing so, the court found the amount of cure was the greater amount charged by Manderson’s health-care providers.  CMC contended that the appropriate amount for cure was the lesser amount those providers accepted as full payment from Manderson’s insurer, and the Fifth Circuit agreed.   

An injured seaman may recover maintenance and cure only for those expenses actually incurred.  The relevant amount is that needed to satisfy the seaman’s medical charges.  The Fifth Circuit stated, “This applies whether the charges are incurred by a seaman’s insurer on his behalf and then paid at a written-down rate, or incurred and then paid by the seaman himself, including at a non-discounted rate.”  Regardless of what Manderson’s medical providers charged, those charges were satisfied by the much lower amount paid by his insurer.  Consequently, the district court erred by awarding the higher charged (but not totally paid) amount. 

Though Manderson’s payment of health-insurance premiums benefitted CMC, this benefit was not a problem here, where fault was not an issue and CMC was liable only for maintenance and cure.  By using the amount paid by Manderson’s health insurer, rather than the amount charged, the Fifth Circuit held Manderson entitled to recover $71,085.79 for cure, resulting in a difference of $98,605.27.

Manderson v. Chet Morrison Contractors, Inc., — F.3d —, 2012 WL 10541 (5th Cir. 01/03/12).