Fifth Circuit Holds “Zone of Danger” Test Not Applicable Under the LHWCA

In a recent unpublished opinion, the U.S. Fifth Circuit Court of Appeals affirmed the Administrative Law Judge’s award of benefits to a longshoreman who sustained work-related psychological injuries.  Claimant was operating a forklift when he accidentally struck and killed his co-worker.  Although Claimant was not physically injured, he attempted to assist the deceased co-worker by untangling her from under the forklift. During the entire time that first responders were attempting to save the co-worker, Claimant stood ten to fifteen feet away with a clear view of her.  Claimant spent the rest of the day reporting what he saw to multiple state and federal law enforcement agencies.

 

Claimant was subsequently diagnosed with post-traumatic stress disorder, depression, and anxiety; he was also being monitored for suicide.  Both Claimant’s treating physicians as well as the Employer’s Second Medical Opinion physician opined that Claimant was disabled from returning to work.  However, the SMO physician opined that Claimant was under-medicated, and Employer requested a Department of Labor (“DOL”) Independent Medical Examination (“IME”). The DOL IME physician opined that Claimant did not suffer from PTSD because Claimant did not experience a threat himself and was never in danger during the accident.  Further, the DOL IME opined that Claimant demonstrated significant evidence of malingering.   Based on this report, Employer terminated indemnity and medical benefits, and Claimant filed a claim.

 

Employer disputed the claim, arguing that Claimant was not entitled to compensation under the LHWCA for a psychological injury because he did not sustain a physical injury or was not placed in immediate risk of physical injury, i.e., Claimant was not in the “zone of danger” set forth in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).  Employer further contended that the DOL IME’s opinion that Claimant did not suffer from PTSD was dispositive.

 

The Fifth Circuit (in affirming the ALJ and the BRB) held that the “zone of danger” test was a tort concept inapplicable to the LHWCA.  Further, Section 2(2) defining “injury” did not distinguish between physical and psychological injuries. Nowhere in the statute was there a requirement that physical injury accompany a psychological injury.  The Fifth Circuit further affirmed the ALJ’s findings that the DOL IME physician’s report was to be given little weight.  In examining the plain language of Section 7(e), the court held nothing in the LHWCA required an ALJ to adopt a DOL IME physician’s opinion as binding.  The ALJ’s finding that the numerous other doctors who diagnosed PTSD and disabled Claimant was supported by substantial evidence.

 

Ceres Marine Terminal Inc. v. Director, OWCP

Fifth Circuit Weighs in on P&I Insurance Coverage Dispute

Following a verdict in favor a Jones Act seaman, Larry Naquin, for injuries he sustained in a land-based crane accident, an insurance coverage dispute arose between Naquin’s employer, Elevating Boats, LLC (“EBI”), and its insurance companies, State National Insurance Company (“SNIC”) and Certain London Insurers (“London Insurers”).  EBI alleged that SNIC and London Insurers breached their insurance contracts by denying EBI’s claims related to Naquin’s accident and failing to provide defense and indemnity.  EBI also sought damages for bad faith on the part of SNIC and London Insurers.  SNIC moved for summary judgment, arguing there was no coverage for Naquin’s land-based accident under its Protection & Indemnity Policy (the “Policy”) and that EBI failed to provide sufficient notice as required by the Policy.  The District Court granted summary judgment and entered final judgment in favor of SNIC.

 

On appeal, the Fifth Circuit reviewed the “Indemnity” provision of the policy that called for indemnification of EBI “as owner of the Vessel” for liability arising out of “any casualty or occurrence[.]”  SNIC argued that the “as owner of the Vessel” clause did not provide coverage for EBI’s negligence in Naquin’s land-based accident.  EBI’s assertion to the District Court was that the “any casualty or occurrence” clause provided coverage for the accident.  The Fifth Circuit, interpreting Louisiana law, found that the only way to give meaning to the “Indemnity” provision of the Policy was to construe it as limiting coverage to “any casualty or occurrence” which arises out of EBI’s conduct “as owner of the Vessel.”  Since Naquin’s injuries resulted from a land-based crane accident, the Court held that there was no causal operational relation between the vessel and injury so as to extend coverage of the Policy in this instance.  The District Court’s summary judgment was affirmed.

 

Naquin v. Elevating Boats, L.L.C., et al.

Fifth Circuit Reverses Benefits Review Board’s Finding that Claimant Successfully Invoked Section 20(a) Presumption

In a newly-published decision, the Fifth Circuit Court of Appeals in BIS Salamis, Inc. v. Director, OWCP and Joseph Meeks, No. 15-60148 reversed the Benefits Review Board’s determination that Claimant had successfully established a prima facie case of compensability under Section 20(a) of the LHWCA as to certain injuries.  In April 2009, Claimant was involved in an incident where he alleged a low back injury, a neck injury, and a missing tooth following an offshore personnel basket transfer.  All parties agreed there was an incident, but the nature and extent of injuries were disputed, as Claimant had significant pre-existing degenerative issues in his neck and lower back.  Claimant underwent low back surgery and received a recommendation for neck surgery. Claimant visited a dentist on one occasion for his missing tooth.

 

At formal hearing, ALJ Rosenow determined that Claimant lacked credibility for a number of reasons, including Claimant’s filing of falsified tax returns, the existence of surveillance contradicting his sworn testimony, and Claimant’s withholding information to mislead his doctors.  Because Claimant failed to “create any confidence in the accuracy of his testimony or even his motivation to at least attempt to tell the truth,” the ALJ denied benefits.  The Benefits Review Board reversed this decision, holding that the ALJ failed to address whether Claimant had the presumption of compensability under Section 20(a).

 

On first remand, the ALJ again emphasized that Claimant was so dishonest and unreliable that any medical testimony that relied on Claimant’s subjective history of injury was not credible.  The ALJ concluded that because the weight of Claimant’s medical evidence relied on his subjective history, that his medical evidence was insufficient to establish a prima facie case of harm.  Therefore, the ALJ held that Claimant had not met his burden under Section 20(a).

 

In its second opinion, the BRB again reversed.  The BRB held that not only had Claimant met the Section 20(a) presumption, but went further in its analysis, holding that the Employer failed to present any evidence to rebut the presumption.  The BRB remanded strictly for the purpose of determining Claimant’s average weekly wage.  In a dissent, Judge Boggs agreed that Claimant had met his burden under Section 20(a), but indicated that the proper procedural action was to remand to the ALJ for determination of whether the employer presented substantial evidence to rebut the Section 20(a) presumption.  On second remand, parties agreed to an AWW, and the BRB affirmed, extending a final and appealable order pursuant to Section 21(c).

 

The Fifth Circuit reversed the BRB and ordered reinstatement of ALJ Rosenow’s order on first remand.  The Fifth Circuit confirmed that credibility can be taken into account in the first step of the 20(a) presumption analysis.  The ALJ and not the BRB must weigh the evidence,  and ALJ Rosenow had determined that the medical records in Claimant’s favor were based solely on his subjective complaints.  Because Claimant had no credibility, the medical causation opinions also lacked credibility.  Claimant therefore failed to demonstrate that he suffered a harm and could not meet the requirements under Section 20(a) as to his neck and low back.  However, the Fifth Circuit affirmed the BRB’s determination that the ALJ’s denial of Claimant’s missing tooth was irrational and unsupported by substantial evidence.

 

BIS Salamis, Inc. v. Director, OWCP and Joseph Meeks

5th Circuit Finds Record Insufficient to Confirm OCSLA Situs in Indemnity Dispute

The U.S. Fifth Circuit Court of Appeals recently addressed the situs requirement of a personal injury claim arising under the Outer Continental Shelf Lands Act (OCSLA).  Tetra Technologies was performing a salvage operation on a decommissioned oil production platform in the Gulf of Mexico and retained Vertex Services to assist with the project.  A rigger employed by Vertex was injured when he fell approximately 80 feet into the water.  He sued Tetra for personal injury and Tetra sought indemnity from Vertex pursuant to a Master Service Agreement between the two companies.  The District Court determined Tetra was entitled to indemnity from Vertex and Vertex appealed to the 5th Circuit.

 

On appeal, Vertex raised several arguments including that under OCSLA, Louisiana law was applicable and the indemnity agreement was voided under the Louisiana Oilfield Indemnity Act (LOIA).  The first question for the Court was whether OCSLA applied to this case such that Louisiana law should be applied as a surrogate to federal law.  The adoption of state law as a surrogate to federal law requires 1) that the controversy arise on a situs covered by OCSLA (such as a fixed platform on the outer continental shelf); 2) that federal maritime law must not apply of its own force; and 3) state law must not be inconsistent with federal law.  For the controversy to arise on a situs covered by OCSLA in a contractual dispute, the majority of the work performed under the contract must occur on a stationary platform or other OCSLA situs.

 

After reviewing the plaintiff’s deposition testimony, the MSA, and the Salvage Plan, the Court was unable to conclude whether the majority of Vertex’s work was to be performed on an OCSLA situs.  The Court determined the record was inadequate and the case was remanded to the District Court for further evaluation of this dispositive question.

 

Tetra Technologies v. Continental Insurance Co.