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In a recent unpublished opinion, the U.S. Fifth Circuit Court of Appeals affirmed the Administrative Law Judge’s award of benefits to a longshoreman who sustained work-related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 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

U.S. 9th Circuit Sides with Claimant’s Counsel in Attorney Fee Dispute

Recently, in the case of Shirrod v. Director, OWCP et al., a Claimant’s attorney appealed the decision of the ALJ, which was affirmed by the BRB, to reduce his applicable hourly rate for attorney’s fees. Initially, Claimant sought attorney’s fees at the ALJ level. The fees requested were a result of a $400.00 per hour billing rate by Claimant’s counsel. In support of his claim for attorney’s fees, Claimant submitted an Oregon State Bar 2007 Economic Survey which provided billing rates for legal services in Oregon.

 
The ALJ awarded attorney’s fees based on a reduction of Claimant’s counsel billing rate to $340.00 per hour. As a basis for this decision, the ALJ rejected the economic survey as not probative. Rather, the ALJ developed a proxy market rate. After the BRB affirmed the ALJ’s award of attorney’s fees, Claimant sought an appeal on the contention that the proxy market rate formula was flawed.

 
In its review, the 9th Circuit noted that fees in Longshore Act cases should be commensurate with those of other types of cases. In these cases, the deciding authority should determine the “relevant community” and the prevailing market rates in that community. The 9th Circuit determined that despite the presence of readily available rate information, the ALJ had not relied on data tailored to the relevant community, which in this case was Portland, Oregon. Ultimately, the 9th Circuit held that the BRB erred in affirming an attorney’s-fee award based on a proxy market rate not tailored to the relevant community. Claimant’s petition for review was granted, the BRB’s decision was vacated, and the case was remanded for further proceedings.

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