SCOTUS Refuses to Hear Appeal of Longshore Modification Decision

On February 24, 2014, the Supreme Court of the United States denied certiorari in Cox v. Director, OWCP, which was a Longshore decision from the Fifth Circuit.  The holding in the unpublished Fifth Circuit case–a case dealing with Section 22 modification–was:

Addressing the remaining issues, the ALJ did not err denying Cox’s Motion for Modification or granting Employer’s Motion for Summary Decision denying Cox’s Second Motion for Modification.  Under the LHWCA, once the claimant has established that he is unable to return to his former employment due to a work-related injury, the burden shifts to the employe rto demonstrate that the claimant retains the capacity to earn wages in a regularo job by showing the availability of suitable alternative mployment which the claimant is capable of performing.  When an employer offers of  a suitable job within the partially disabled claimant’s current place of work, that is sufficient to discharge the employer’s burden of establishing suitable employment.  If a claimant loses suitable employment due to his own misconduct, any loss in his wage-earning capacity thereafter is not compensable under the Act as it does not result from the work-related incident.

In this case, Employer offered Cox a suitable alternative position earning his pre-injury wages.  If Cox had accepted the position, he would not have any loss of wage earning capacity and would not be entitled to disability.  Since Employer offered suitable employment at Cox’s original place of work and Cox lost the job due to his misconduct (failure to report), Employer is no longer required to show other suitable alternative employment or that Cox can earn wages in the open market.  Employer’s decisions not to hire Cox in August 2007 and to place him on medical leave of absence in December 2007 do not warrant modification of the ALJ’s July 2007 order, because at those times Employer had no obligation to provide suitable alternative employment.

Cox v. Dir., OWCP, No. 12-60180 (5th Cir. Mar. 19, 2013) (internal citations omitted).

Fifth Circuit: Longshore Modification Statute Has a Broad Scope

Claimant injured his right knee while working for Employer on an oil production platform.  Over the next month, Claimant’s left knee began hurting, too.  Claimant performed light duty work for Employer until he was terminated.  Not long thereafter, Claimant filed a Longshore and Harbor Workers’ Compensation Act (“LHWCA”) claim.  Initially, the administrative law judge (“ALJ”) denied the claim, but the Benefits Review Board (“BRB”) reversed.  On remand, the ALJ awarded closed periods of temporary partial and temporary total disability benefits.  Prior to the passage of one year, Claimant filed a Section 22 modification application.  The ALJ modified the previous judgment to provide for permanent partial disability benefits equal to a 25% impairment of each knee.  The BRB affirmed and Employer appealed to the Fifth Circuit, which also affirmed.

The Fifth Circuit addressed the two avenues by which a party to a LHWCA claim may move for a Section 22 modification: (1) a change in conditions, or (2) a mistake in a determination of fact by the ALJ.  Employer wanted to restrict a “mistake of fact” to “completely new and previously unattainable evidence,” but the Fifth Circuit disagreed.  Prior caselaw from the Supreme Court concluded that Section 22′s “mistake in a determination of fact” language was intended to have a broad scope, and that there was no limitation requiring modification only when there is new evidence.  Here, modification was appropriate because the testimony of two different physicians supported the 25% impairment rating to both knees.

Island Operating Co., Inc. v. Dir., OWCP, — F.3d —- (5th Cir. 2013).

New York Has Title to Shipwrecked Vessel Resting at the Bottom of Lake Erie for 150 Years

In an interesting opinion discussing the War of 1812, a vessel known as General Wayne (and originally Caledonia), and the Battle of Lake Erie, the Second Circuit addressed a private company’s salvage claim to a historic Lake Erie shipwreck.  The court stated:

Considering all of the known factors, the clear and convincing evidence proves that even assuming the Dunkirk Schooner is the General Wayne, this ship has rested at the bottom of Lake Erie, utterly forgotten and undisturbed, for at least 150 years.  As further circumstantial evidence of abandonment, the General Wayne‘s hold was filled with spoilable goods and she was nearing the end of her working days.  While the lack of technology available to salvage a shipwreck at the time of its disaster might in some cases excuse inaction, that factor does not suffice to create a material dispute of fact necessitating trial here, where the ship has gone undisturbed for such a lengthy period during which no recovery effort was made.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”); cf. Fairpoint Int’l Exploration, Inc. v. The Captain Lawrence (Fairport V), 245 F.3d 857, 863-64 (6th Cir. 2001) (affirming district court’s conclusion that state proved abandonment despite evidence of owner’s financial inability to return to shipwreck).  The “lapse of time, alone, does not necessarily establish abandonment, and an owner’s failure to return to a shipwreck site does not necessarily prove abandonment.”  Fairport III, 177 F.3d at 499 (citation omitted).  But here, given the surrounding circumstances, the Dunkirk Schooner is a vessel “so long lost that time can be presumed to have eroded away any realistic claim of original title,” Martha’s Vineyard Scuba Headquarters, 833 F.2d at 1065.  Northeast has failed to point to any fact in the record sufficient to create a genuine issue of material fact to the contrary.  See Scotto, 143 F.3d at 114 (“[T]he non-movant [opposing a motion for summary judgment] must produce specific facts indicating that a genuine factual issue exists.” (internal quotation marks omitted)).  Accordingly, summary judgment was properly granted to New York.

Northeast Research, LLC v. One Shipwrecked Vessel, — F.3d —- (2d Cir. 2013).


New OSHA Rule-Making In Progress: I2P2

The Occupational Safety and Health Administration (OSHA) is in the process of developing new workplace standards that would call upon employers to identify hazards unique to their workplaces and develop a process for fixing them.  Known as the Injury and Illness Prevention Program Standard, it is commonly referred to as I2P2.  In general, the new standard would require all employers to develop and implement a plan that systematically identifies hazards in their particular workplace, and then establish means and methods to eliminate those hazards.  In a recent address to the American Society of Safety Engineers, OSHA Assistant Secretary David Michaels stated that the new standards will be “risk-based.”  Every employer governed by OSHA would be required to conduct and document specific job related hazards and then document its protocol on preventing injuries from those hazards.  The I2P2 will be in addition to any current safety program the employer has in place.

In January, 2012 OSHA took the first step toward rule-making when it notified the Small Business Administration (SBA) that it intends to convene a small business review panel.  A small business review is statutorily required before OSHA publishes a proposed rule.  The SBA is required to assemble a panel of small business representatives to which OSHA will provide its proposal and supporting documents.  The panel will review and provide its report to OSHA.

In support of its initiative, OSHA released a white paper supporting its position on injury and illness prevention program ( WhitePaper.html).  In it OSHA describes I2P2 as a “proactive process to help employers find and fix workplace hazards before workers are hurt.”  It states that many states already have such programs in place and that data shows them to be effective at reducing injuries and illnesses.  OSHA’s I2P2 will constitute a new national standard.

However, a review of comments by safety professionals shows that there is less than overwhelming support for adoption of a new national standard.  For instance, the Rand Corporation recently conducted a study on the effectiveness of the Cal-OSHA Injury and Illness Prevention Program (IIPP).  Its draft report suggests that California’s program has had little impact on fatalities, and more broadly, that such programs do not improve safety.  (Ogeltree Deakins, 1-23-12, Tressi L. Codaro).  In her article Ms. Codaro points out that “at first blush, such a standard might sound like a good thing, and in fact many employers already have implemented their own program.  Problems arise when OSHA wants to mandate safety and health programs.  The most significant risk to employers from a mandatory program would come from the enforcement of the I2P2 standard.  In the event of an accident, OSHA will undoubtedly take the position that if the employer’s plan had been adequate, the accident would not have occurred, and the result could be stiff penalties and harsh press releases.  Additionally, I2P2 appears to be a way to back door rulemaking for an ergonomics standard.  Under the I2P2 standard, OSHA would no longer need an ergonomics standard.  Instead, the employer would be required to address ergonomic hazards, and the failure to do so would be a violation of the I2P2 standard.

In this election year it remains to be seen if OSHA is able to push I2P2 into law.  However, rest assured that the supporters of this latest OSHA initiative will not give up the fight.  The details of the program remain to be seen.  Employers concerned about the possible effects of the federal I2P2 proposal should continue to monitor the debate.