Tort Law’s “Zone of Danger” Test is Not Applicable to Longshore Psych Claims

2572917367_74b111ac08_o - forkliftWhile operating a forklift, claimant accidentally struck and killed a fellow employee.  Claimant’s testimony revealed that, after the accident, he and other employees attempted to extricate the decedent’s body from underneath the forklift.  The day after the accident, claimant first sought medical attention for a psychological injury arising from the forklift incident.  Claimant saw multiple mental health professionals.  After a formal hearing to address claimant’s request for Longshore benefits, an administrative law judge awarded benefits despite Employer’s argument that claimant did not meet the requirements of the “zone of danger” test.  On appeal, the Benefits Review Board affirmed.

At the outset, it must be noted that the “zone of danger” test argued by the employer in this case is not the “zone of special danger” test referenced in many Defense Base Act cases.  Instead, the employer argued in favor of importing the “zone of danger” test applied in tort law. The “zone of danger” test relied upon by the employer would limit recovery for negligent infliction of emotional distress injuries “to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.”

The  Board  dispatched the employer’s “zone of danger” argument:

We agree with claimant and the Director that the “zone of danger” test, upon which employer relies, is a tort concept which does  not apply to the workers’ compensation provisions of the Longshore Act.  As noted by the Director, employer cites five federal court decisions in which the “zone of danger” test was applied to limit plaintiff’s recovery for the negligent infliction of emotional distress.  . . .  employer’s reliance on these cases is misplaced, however, as its argument fails to acknowledge the critical distinction between tort actions, which rely on common law fault and negligence principles, and workers’ compensation claims, which are not governed by those principles.

. . .

Thus, as we reject employer’s position that the line of cases applying the “zone of danger” test in tort actions for the negligent infliction of emotional distress should be extended to workers’ compensation claims under the Longshore Act, we affirm the administrative law judge’s rejection of employer’s contention that the “zone of danger” test precludes an award of disability compensation in this case.

Jackson v. Ceres Marine Terminals, BRB No. 14-0071 and14-0071A (2014).

Forklift image courtesy of Flickr user Jaxport.

BRB Weighs Widow Status, Remands for Justifiable Cause and Conjugal Nexus Determination

Decedent worked as a crane operator for twenty years, including six years for Employer.  He retired in 2004 because of orthopedic problems.  In 2008, Decedent was diagnosed with lung cancer.  Following his death in 2009, which was caused by non-small cell lung carcinoma with contributing causes of chronic obstructive pulmonary disease, hypertension, and pulmonary embolus, Claimant filed a claim for death benefits.  The issue was whether Claimant qualified as a “widow” under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).

Pursuant to Section 2(16) of the LHWCA a “widow” includes a decedent’s wife who was “living with or dependent for support upon [the decedent] at the time of [the decedent’s] death; or living apart for justifiable cause or by reason of [the decedent’s] desertion at such time.”

The administrative law judge (“ALJ”) determined that Claimant was not a “widow.”  According to the ALJ, Claimant and Decedent had legally separated; there was no evidence of reconciliation; and the conjugal nexus had severed when Decedent filed for divorce.

On appeal to the Benefits Review Board, Claimant argued that she was a “widow” because she was dependent upon Decedent for support or, alternatively, she was living apart from Decedent for justifiable cause.  Claimant alleged she was dependent because of her receipt of the community portion of Decedent’s retirement pension, and Decedent’s continued health insurance coverage for Claimant.  The problem, however, was that Claimant did not raise this argument in front of the ALJ.  Accordingly, Claimant was required to show that she lived apart from Decedent for “justifiable cause” and that a “conjugal nexus” remained between Decedent and Claimant at the time of Decedent’s death…five years after they began living separate and apart from one another.

The alleged “justifiable cause” for living separate and apart was that Decedent had abused Claimant and that Decedent consumed too much alcohol.  The ALJ did not make a “specific finding regarding any justifiable cause for the separation, and addressed only whether a conjugal nexus existed at the time of death.”  Because the justifiable cause analysis was incomplete, the BRB vacated the ALJ’s denial of benefits and remanded the case with specific instructions:

On remand, if the administrative law judge finds evidence that, at the time of decedent’s death, there no longer was justifiable cause for claimant and decedent to be living apart, see Henderson, 204 F.2d at 179, claimant cannot be decedent’s widow and benefits should be denied.  If, however, he finds that the original justification persisted to the date of death, then he must consider whether the conjugal nexus had been severed.

The BRB also had instructions for the ALJ with respect to the conjugal nexus inquiry:

On remand, the administrative law judge must assess the weight and credibility of this, and any other, relevant testimony and evidence, as well as resolve conflicts in the evidence, in order to determine if claimant’s conduct maintained or severed her conjugal nexus with decedent.  The administrative law judge should re-examine the case precedent in view of the proper focus on claimant’s actions in maintaining or severing the conjugal nexus.  If the administrative law judge finds that the conjugal nexus between claimant and decedent had been severed, claimant is not decedent’s “widow,” and she is not entitled to death benefits.  If the administrative law judge finds that a conjugal nexus between the two existed at the time of decedent’s death, then claimant is decedent’s “widow” under the Act.  He then must address whether decedent’s death was work-related such that claimant is entitled to death benefits.

Johnston v. Hayward Baker, BRB No. 14-0032 (2014).

PA Court Requires Use of Longshore Benefits to Pay Spousal Support

On November 5, 2014, the Superior Court of Pennsylvania issued Uveges v. Uveges, a published opinion that addresses the intersection of family law and the Longshore and Harbor Workers’ Compensation Act’s (“LHWCA”) anti-assignment provision, 33  U.S.C. § 916.

The Facts–A Typical Family Law Case with a LHWCA Component:

The facts are fairly straight-forward.  The parties were married in 1972 and divorced in 2011.  While the divorce was pending, the parties entered into an alimony agreement whereby Husband would pay Wife “the sum of $2,500 per month for permanent alimony, modifiable only by remarriage, cohabitation, or the receipt by Wife of social security disability payments.”  Roughly six months after the divorce became final, Wife filed a petition to enforce the alimony agreement.  The trial court entered an order that “among other things provided for the attachment of Husband’s monthly benefits under the [LHWCA].”

Less than a month later, Husband’s prior Employer filed a petition for special relief, arguing that LHWCA benefits are exempt from attachment.  After a year-and-a-half of litigation, the trial “concluded on January 15, 2014 that the law permits an ex-spouse in Wife’s position to attach the [LHWCA] retirement or disability benefits of an ex-husband who has been found to be in contempt.”

The Law–LHWCA’s Anti-Assignment Provision:

The LHWCA’s anti-assignment provision is 33 U.S.C. § 916, which states:

No assignment, release, or commutation of compensation or benefits due or payable under this Act, except as provided by this Act, shall be valid, and such compensation and benefits shall be exempt from all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt, which exemption may not be waived.

Other state courts that previously analyzed the LHWCA’s anti-assignment provision determined that attachment was not allowed in a family court setting.  For instance, in Thibodeaux v. Thibodeaux, the Louisiana Supreme Court expressly stated that a wife could not garnish her ex-husband’s LHWCA benefits for past due child support.  See Thibodeaux v. Thibodeaux, 454 So. 2d 813 (La. 1985).  Then, in Spitalieri v. Spitalieri, 593 N.Y.S.2d 172, the Supreme Court of New York Richmond County, expressed sympathy for the plaintiff’s plight but nonetheless determined that LHWCA benefits could not be assigned.

At least one state court–before Uveges v. Uveges–allowed attachment of LHWCA benefits for child support purposes.  The District Court of Appeal of Florida, Third District, determined that child support payments could be withheld, and that the LHWCA’s anti-assignment provision was inapplicable to child support arrearages.  See Cigna Property & Casulaty v. Ruiz, 834 So. 2d 234 (Fla. 3 Dist. Ct. App. 2002).

The Reasoning–Why Uveges v. Uveges Allowed Attachment:

The Uveges court was persuaded by a Ninth Circuit decision, Moyle v. Dir., OWCP, and the Florida state appellate court’s Ruiz decision to support its conclusion that Wife could claim a portion of Husband’s LHWCA benefits.  In Moyle, the Ninth Circuit affirmed an administrative law judge’s decision that “disability benefits could be garnished to satisfy the recipient’s delinquent spousal support obligation.”  And, as mentioned before, the Ruiz court determined that Section 16’s anti-assignment provision applied to “claims of creditors” or “collection of a debt,” but a child support obligation was not a “debt.”

According to the Uveges court, Pennsylvania law has recognized that a spouse’s alimony or support obligation is not a “debt.”  As such, it follows that delinquent spousal support is not money owed to a “creditor,” and the delinquent money cannot be considered a “debt.”  As the court concluded:

In sum, because Husband’s LHWCA benefits are paid to him pursuant to federal law, and because Wife is not a “creditor” and Husband’s alimony obligation is not a “debt” under 33 U.S.C. section 916, the LHWCA benefits may be attached.  Additionally, we note our decision today is consistent with the historical treatment by Pennsylvania appellate courts of anti-attachment clauses vis-a-vis a claim for support or alimony.  We therefore affirm the trial court’s January 21, 2014 order attaching Husband’s LHWCA benefits for the payment of alimony.

Uveges v. Uveges, — A.3d —- (Pa. Super. Ct. 2014).

Move Over Apple, Here Comes DLHWC: Introduction to SEAPortal

The Office of Workers’ Compensation Programs (OWCP), Division of Longshore and Harbor Workers’ Compensation (DLHWC) has decided to step up its technology game. In an Industry Notice dated October 31, 2014, The DLHWC introduced its new secure electronic access portal known as SEAPortal. The portal, which is optional for stakeholders, is an OWCP sponsored web-based application that purports to streamline submission of claim-related documents.

The SEAPortal can be accessed at the OWCP/DLHWC website, or at https://seaportal.dol-esa.gov. Once accessed, a user need only provide: 1) the claim’s OWCP number; 2) the claimant’s last name; 3) claimant’s date of birth; and 4) the date of alleged injury. The SEAPortal then provides step-by-step instructions for uploading a file onto the system. The portal does not accept case creation longshore forms, such as LS-201, LS-202, LS-203, or LS-262, but does accept a variety of other documents including informal conference requests, formal hearing requests, settlement applications, special fund applications, copy requests, longshore forms, medical reports, other correspondence, and DOL vocational rehabilitation documents.

Once a document is uploaded onto the system, it will be assigned a Document Control Number (DCN) and reflect a status of either “received,” or “processed.” The Industry Notice advises that the Upload Date will be used for purposes of calculating deadlines.

While this system has so far proved to be efficient, there are some limitations to its use. For instance, the SEAPortal is only used to verify receipt of the document. The portal does not verify when, or if, the OWCP or another party have taken any action in the claim. The portal also does not act as service on other parties. Copies of documents will NOT be provided to other parties of record via SEAPortal; the parties must serve copies of the uploaded document on their own initiative. And lastly, the SEAPortal cannot be used to submit documents to the Office of Administrative Law Judges (OALJ) or the Benefits Review Board (BRB) as any documents must be sent directly to those entities per their respective instructions.

Based on our experiences thus far, we are encouraged by the technological advancements of the DLHWC. The SEAPortal is certainly a step, or an upload, in the right direction.

See http://www.dol.gov/owcp/dlhwc/lsindustrynotices/industrynotice148.htm for more information.