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

Fishing Injury Covered Under Zone of Special Danger

Claimant was a citizen of the Republic of the Marshall Islands within the Kwajalein Atoll, which is home to the U.S. Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Test Site. At the time he was injured, Claimant was employed as a painter for one of the companies providing logistical support to the site.  As part of his job duties, Claimant would work on various islands, including Gagan Island which was a small, uninhabited, defense support island.  This particular island was restricted to persons assigned to work there.  The only ingress and egress to and from the island was by an employer-provided watercraft.  While working on this island one evening, Claimant decided to partake in recreational fishing after hours.  Claimant, who was wearing flip-flop sandals, slipped and cut his right foot on the coral reef.  Claimant thereafter sought medical attention for this incident, which ultimately resulted in a below-the-knee amputation. Employer argued that Claimant was acting outside the course and scope of his employment and therefore, the claim was not compensable under the Defense Base Act.


The ALJ disagreed with Employer and applied the zone of special danger doctrine to find Claimant’s injury compensable.  On appeal to the Benefits Review Board, Employer argued that since Claimant was working in his home country, the zone of special danger doctrine is inapplicable. In ruling on the issue, the BRB specifically noted that noncitizen employees, and local nationals have been covered by DBA jurisdiction since amendments made to the Act in 1958. Furthermore, according to O’Leary v. Brtown-Pacific-Maxon, Inc., 340 U.S. 504 (1951), the issue of whether the zone of special danger doctrine is applicable involves a factual determination. The fact that Claimant was working in his home county is not dispositive of the zone of special danger inquiry. The BRB engaged in a factual analysis to affirm the ALJ’s finding that Claimant was within a zone of special danger when he decided to engage in after-hours fishing. More specifically, the BRB affirmed the ALJ’s finding that the obligations and conditions of Claimant’s employment created a zone of special danger out of which his injury arose. Therefore, Claimant’s injury was compensable under the DBA.


Jetnil v. Chugach Management Services

Rig Owner Not Liable for Failing to Search for Lost and Submerged Rig

A tanker vessel allided with an unmarked and submerged wreck of a jack-up drilling rig that was lost during Hurricane Ike. In the aftermath of the hurricane, the jack-up drilling rig owner discovered that the rig was no longer moored in the Gulf of Mexico. The rig owner timely searched for the rig using aerial searches of the Gulf of Mexico and subsea sonar searches within the estimated drift path of the rig. These search efforts proved unsuccessful, and the jack-up drilling rig owner concluded its search. Later evidence showed that within ten hours of Hurricane Ike’s passage, the jack-up drilling rig traveled 100.9 miles west-northwest, capsized, and came to rest in 115 feet of water in the South Sabine Point Lightering Area, approximately 65 miles south of Galveston, Texas. The tanker vessel allided with the wreck at this location approximately six months later, causing substantial damage.

The tanker owner asserted that the jack-up drilling rig owner was liable under 33 U.S.C. § 409 for failure to mark the wreck. The case proceeded to a bench trial. After all parties put on the majority of their evidence and the tanker owner rested its case, the district court granted the rig owner’s motion for judgment, finding it had conducted a full, diligent, and good-faith search for jack-up drilling rig, but was unable to find it. The tanker owner appealed to the U.S. Fifth Circuit.

The tanker owner’s primary argument was that the district court applied an incorrect legal standard in making its factual finding that the jack-up drilling rig owner conducted a full, good-faith search. The tanker owner argued that the district court should have placed greater weight on the fact that the drilling rig owner did not search in the area where jack-up drilling rig ultimately rested, because that was an area where the wrecked rig would constitute a hazard to navigation.

The Court found no reversible error based on the evidence presented at trial, that the search the jack-up drilling rig owner did conduct was full, diligent, and in good faith, even though the jack-up drilling rig owner did not search the area 100 miles away considered a hazard to navigation.

ENSCO Offshore Co v. M/V SATILLA

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.