Second of Three Employers Was Last Responsible

Claimant was working as a longshoremen for Employer when he sustained an injury to his back after stepping into a hole. Claimant received temporary total disability benefits until he was released to return to work at full duty. Upon his return to work, Claimant worked for various employers. During his employment with Employer II, Claimant was responsible for lifting and throwing luggage, which he claimed caused pain in his back. Though Claimant sought medical treatment for this pain, he did so while simultaneously working for another employer, Employer III. Approximately one year after Claimant experienced this pain, he filed a claim under the LHWCA and underwent invasive back surgery. The employers disputed which employer was responsible for the resulting injury. The Administrative Law Judge found that Claimant’s initial injury was aggravated, accelerated, or combined with the new pain to result in his disability and need for surgery. As a result, Employer II was responsible for Claimant’s disability, as enunciated by the aggravation doctrine.


The aggravation doctrine has been described as follows:
If the disability resulted from the natural progression of a prior injury and would have occurred notwithstanding the subsequent injury, then the prior injury is compensable and accordingly, the prior employer is responsible. If, on the other hand, the subsequent injury aggravated, accelerated or combined with claimant’s prior injury, thus resulting in claimant’s disability, then the subsequent injury is the compensable injury, and the subsequent employer is responsible. See Kelaita v. Dir., OWCP, 799 F.2d 1308, 1311 (9th Cir. 1986).


Employer II argued that Claimant’s disability was the natural progression of his initial injury, and that the incident occurring during its coverage was only a temporary exacerbation of Claimant’s condition.  Therefore Employer II argued it was not responsible. The ALJ, and subsequently the Benefits Review Board, disagreed. In the instant case, the BRB recognized conflicting medical opinions regarding the effect of Claimant’s employment with Employer II on his disability. The BRB also acknowledged, and agreed with the ALJ’s determination, that there is no requirement that the second injury fundamentally or permanently alter the underlying condition.  A worsening of claimant’s symptoms is sufficient. Marinette Marine Corp. v. Director, OWCP, 431 F.3d 1032, 39 BRBS 82 (CRT) (7th Cir. 2005). Though Employer II appealed the BRB affirmation to the circuit court, Employer II was ultimately found liable.


Wallace v. Ceres Marine Terminals

Rail Yard Worker Fails LHWCA Situs and Status Tests

Claimant worked for Employer for twenty years when he became aware that his exposure to workplace noise had caused hearing loss. He brought a claim under the Longshore Act. He argued that although he worked as a trackman operating switching engines, he sometimes worked on a track near a shipping channel and was a member of the longshoreman’s union, thus, he was a longshoreman under the Act. Employer controverted the claim on the grounds that Claimant never worked on, over, or adjacent to navigable waters. Employer further argued that switching cars was not integral or necessary to the loading or unloading of a vessel.

The claim was referred to the Office of Administrative Law Judges and the ALJ found that Claimant failed to meet both the situs and status tests. First, the judge cited the Fifth Circuit’s decision in New Orleans Depot in finding that the rail yard did not adjoin navigable waters because it was not bordering on such waters, and the rail yard was not used by Employer for the loading or unloading of a vessel. Further, the judge found that Claimant was not a ship repairman or ship builder, and his work was not an integral or essential part of the loading or unloading process, such that if he failed to perform his duties, the loading process would come to a halt. The claim was denied.

Watson v. Rail Switching Services, Inc.

No Expansion of the Longshoreman Definition

Coming before the Louisiana Third Circuit Court of Appeals  was the question of whether the Claimant was covered by the Longshore and Harbor Workers’ Compensation Act or the Louisiana Workers’ Compensation Act.  After reviewing the situs and status requirements of the LHWCA, the Court found he did not fall under the longshoremen classification.

Claimant was an employee of UNO Enterprises, LLC. At the time of his injury, he was working under the direction and control of M. Matt Durrance, LLC, a heavy construction company which was hired by Breaux’s Bay Craft to construct a boat ramp on Bayou Tech in Loreauville, Louisiana- a navigable waterway. On the date of his injury, Claimant was cutting timber to be used for construction of the ramp. The uncontested facts of the case established that Claimant was in a grassy area between thirty and one hundred feet from the ramp while cutting the timber.

The Court engaged in a “situs” and “status” analysis to determine whether Claimant met the definition of longshoreman within the meaning of the LHWCA.  The Court was not persuaded by the comparison of the boat ramp to a pier, which is an enumerated situs under the Act, as there was no evidence to establish that the ramp was “a structure built on pilings extending from land to navigable water.” Furthermore, there was no evidence to establish the adjoining area in question was customarily used by the employer in the loading, unloading, repairing, dismantling or building a vessel. Claimant therefore did not meet situs or status test necessary to be covered by the LHWCA.  The Court noted that the Claimant “was performing work on property used to construct physical reinforcements to stabilize the earth around a boat launch.” Claimant’s involvement in building the boat ramp was deemed insufficient to trigger application of the LHWCA.

Hernandez v. Louisiana Workers’ Compensation Corp.

New District Director for the Sixth Compensation District

Kristina Hall, a longtime Claims Examiner in the Jacksonville office of OWCP, has been named as the new District Director for the Sixth Compensation District, replacing Charles D. Lee, who retired in March, 2015. Ms. Hall has been the acting District Director for the past four months. The Sixth District covers claims arising in Alabama, Florida, Georgia, Kentucky, North Carolina, South Carolina, and Tennessee.