BRB Questions Whether Work or Adultery and Drugs Led to Suicide

Decedent worked as a pest control specialist in Iraq for one and a half years.  Upon returning to the United States in June 2006, he learned that his wife had committed adultery while he was away, and that his daughter developed a drug problem.  A few weeks later, Decedent checked himself into a hotel room where he shot and killed himself.  Claimant, Decedent’s widow, filed a claim for death benefits contending that Decedent’s suicide was related to his employment.

An administrative law judge (“ALJ”) agreed, noting that “the zone of special danger could have been a cause of [Decedent's] suicide.”  The ALJ noted Decedent’s exposure to mortars, a hazardous waste spill, a colleague’s injury or death, and even the Decedent’s physical  separation from his family as all falling under the zone of special danger.  After the ALJ awarded benefits, the Employer and Carrier appealed to the Benefits Review Board (“BRB”) the first time.  The BRB vacated and remanded for the ALJ to determine whether Employer presented substantial evidence to rebut the Section 20(a) presumption.

On remand, the ALJ awarded compensation even though he determined that Employer rebutted the Section 20(a) presumption.  The ALJ then weighed the evidence as a whole and assigned more weight to Claimant’s expert psychologist.  According to the ALJ, the Decedent’s suicide was the result of an irresistible impulse and not an intentional act.  Employer again appealed.

After the ALJ issued his Decision, but before the BRB issued its second Decision, the Ninth Circuit issued its opinion in Kealoha v. Dir., OWCP, 713 F.3d 521 (9th Cir. 2013).  The Navigable Waters post on Kealoha is available through this link.  In Kealoha, the Ninth Circuit held:

[S]uicide or injuries from a suicide attempt are compensable under the Longshore Act when there is a direct and unbroken chain of causation between a compensable work-related injury and the suicide attempt.  The claimant need not demonstrate that the suicide or attempt stemmed from an irresistible suicidal impulse.  The chain of causation rule accords with our modern understanding of psychiatry.  It also better reflects the Longshore Act’s focus on causation, rather than fault.

What is an “unbroken chain of causation?”  It is “where the injury and its consequences directly result in the workman’s loss of normal judgment and domination by a disturbance of the mind, causing the suicide.”

The BRB determined that Kealoha applied to this case even though the Ninth Circuit decided Kealoha after the ALJ issued his second Decision.  Ninth Circuit jurisdiction applied, and the BRB was bound to apply Ninth Circuit law.  Considering such, the BRB had to vacate and remand the claim for the ALJ to determine whether there was an “unbroken chain of causation from the injury to the suicide.”  The ALJ must consider the full extent of the events that occurred prior to Decedent’s death, which Employer summarized as follows:

Employer asserts that the events which occurred in June and July 2006 while decedent was not in Iraq were the cause of his death.  When decedent arrived home unexpectedly in June 2006, he learned: he had been locked out of his home; his wife appeared to be committing adultery; his daughter was seeing someone 10 years older than she; and, she was taking drugs and had been expelled from school for doing so.  Thus . . . while there may have been previous family strife and decedent may have been troubled by being separated from his family,  the true stressor that caused him to actually commit suicide was his familial  situation once he arrived home.

It is telling that the BRB chose to paraphrase Employer’s arguments.  But if that wasn’t enough, it also printed an edict for the ALJ in footnote 14:

Effectively, the administrative law judge found that the behavior of claimant and her daughter was the natural and unavoidable result of decedent’s having been away from home, the fighting and breakup were the natural next result, and the suicide was the natural final result.  The administrative law judge should readdress this line of reasoning under the “chain of causation” test enunciated by the Ninth Circuit.

Dill v. Serv. Employees Int’l, Inc., BRB No. 13-0262 (Mar. 11, 2014).

Tip of the hat to Lara Merrigan for forwarding this opinion.

Reporting a Marine Casualty: When is it Necessary?

Since 1986 those in the maritime industry have been required by law to submit to the US Coast Guard a Report of Marine Casualty, commonly known as a “2692,” when a marine casualty or accident occurs.  The regulations broadly define “marine casualty or accident” in order to capture a wide variety of occurrences. These occurrences provide the Coast Guard with the appropriate authority and jurisdictional latitude to investigate a wide range of occurrences irrespective of reporting requirements.  These occurrences include both commercial and recreational vessel activities.  Casualty reporting criteria for state registered vessels is found in 33 CFR Part 173 and  for federally registered vessels in 46 CFR Part 4.

Historically, the Coast Guard has relied upon the language found in Part 4 to assist regulated industry stakeholders in determining if an occurrence is a reportable marine casualty.  Information and data collected by the Coast Guard during marine casualty investigation are used by a wide audience for many purposes from enforcement of laws to enhancement of prevention activities (i.e. safety alerts and standards).  However, since inception there has been confusion in the industry as to when exactly submission of a 2692 report is necessary.  This becomes problematic for those in the maritime industry since civil penalties can be levied against the vessel owner/operator should the Coast Guard later conclude that a report should have been submitted when none was.

The Coast Guard has finally officially recognized that in order to achieve consistency and to assist industry time has come to address the problem.  The Coast Guard has issued a Notice of Availability and Request for Comments (Notice) on January 14, 2014 on a draft Navigation and Vessel Inspection Circular to provide guidance for the identification and reporting of marine casualties and provide clear policy interpretations to facilitate compliance with marine casualty reporting requirements.  79 Fed. Reg. 2466 (January 14, 2014).  The Notice is available at http://www.gpo/fdsys/pkg/FR-2012-01-14/pdf/2014-00443.pdf.  The draft NVIC is available at http://www.regulations.gov/#!documentDetail;D=USCG-2013-1047-0002.  Specifically, the draft NVIC assists responsible parties in the proper evaluation of occurrences that constitute a reportable marine casualty and subsequently require action by both Coast Guard and Industry.

The NVIC contains the existing regulations and provides amplifying information to assist reporting parties to determine whether an occurrence is a reportable marine casualty.

The proposed interpretations are extensive and comprehensive and cannot be reviewed in the space of this article.  They are helpful and are an improvement to the regulations as they presently exist.  For instance, the regs currently state that an injury needs to be reported if it “requires professional medical treatment (treatment beyond first aid).  In an attempt to provide clarification the suggested interpretation suggests that such is damage or harm caused to the structure or function of the body as a result of an outside physical agent or force.  The Coast Guard considers injuries and illnesses as separate types of occurrences.  As such, damage or harm caused by illness, including but not limited to communicable illness, food poisoning, heart attack, stroke or other pre-existing medical condition is not considered an injury and does not fall within the definition of the regulation.  To assist in determination of what constitutes “professional medical treatment” the Coast Guard has adopted the definitions of medical treatment and first aid established by OSHA in 29 CFR 1904.7(b)(5) as well as the explanation regarding medical treatment provided therein.  This regulation can be viewed online at www.ecfr.cov.

Those with a stake in this should take time to read the NVIC and referenced OSHA regs.  With this clarification comes the recognition that the Coast Guard is increasing its expectations of industry and will step up enforcement of its reporting requirements.

Chief Judge of Benefits Review Board to Retire

Hon. Nancy S. Dolder, Chief Judge of the Benefits Review Board, has announced her retirement effective April 30, 2014.  Judge Dolder was appointed as one of the five members of the BRB in 1985.  She served as Acting Chairman and Chief Judge from 1993 to 1994, and was appointed Associated Deputy Secretary for Adjudication in 1998, having management and administrative oversight of the three appellate adjudicatory boards in the Department of Labor.  She developed the strategy to reduce case backlogs in those agencies, long known for lengthy delays in deciding cases and issuing decisions.  Then Secretary of Labor Elaine Chao named her Chair and Chief Judge of the BRB in 2001.

Prior to her federal service, Judge Dolder was Chief Counsel for the California State Teachers Retirement System and the TEachers Retirement Fund, one of the largest public investment funds in the country.  She was in private practice in California for several years prior.

Judge Dolder was a strong proponent of legal education, serving for seventeen years on the Advisory Board of Loyola Law School’s Annual Longshore Conference.  She will be missed in the longshore community.  We wish her and her husband, Carl, a long and happy retirement.

The BRB Went on an Attorney Fee Tear in Early 2014

Did anyone else notice that the Benefits Review Board went on a tear in January and February 2014 with respect to Longshore attorney fee decisions?  See below:

Leffard v. Eagle Marine Servs., BRB No. 13-0199 (Jan. 17, 2014) (addressing hourly rate, fee petition evidence, and time spent preparing a response to employers’ objection to claimant’s counsel’s fee petition).

Richey v. Premiere, Inc., BRB No. 13-0216 (Jan. 17, 2014) (affirming award of Section 28(a) fees for failing to pay compensation within 30 days).

Modar v. Maritime Servs. Corp., BRB No. 13-0319 (Jan. 17, 2014) (affirming district director’s decision to “enhance counsel’s attorney’s fee for services performed in 2004 and 2005 by using 2008 hourly rates rather than 2012 hourly rates….”).

Huggins v. Massman Traylor Joint Venture, BRB N. 13-0223 (Jan. 28, 2014) (affirming ALJ’s reduction of fees by 30% based on claimant’s limited success in obtaining benefits.).

Keniston v. Crowley Marine Services, BRB No. 13-0197 (Jan. 31, 2014) (addressing hourly rate, fee petition supporting evidence, and “escalating routing discovery disputes with unnecessary filings that waste the time of both parties and the court.”).

Oleska v. CSX Transp., Inc., BRB No. 13-0400 (Feb. 18, 2014) (reversing award of Section 28(b) fees because claimant did not receive “greater compensation” as a result of the ALJ proceeding).

Petitt v. Sause Bros., BRB No. 13-0330 (Feb. 26, 2014) (affirming inter alia district director’s method for calculating claimant’s counsel’s hourly rate on a delayed payment claim).

And finally, the Sallyport Global Services claims, all of which are interrelated:

Khudhaier v. Sallyport Global Servs., BRB No. 13-0342 (Feb. 7, 2014) (vacating fee award based on procedural deficiencies at the ALJ level);

Kadim v. Sallyport Global Servs., BRB No. 13-0346 (Feb. 12, 2014) (same);

Al-Maliki v. Sallyport Global Servs., BRB No. 13-0343 (Feb. 18, 2014) (same);

Ali v. Sallyport Global Servs., BRB No. 13-0344 (Feb. 18, 2014) (same);

Younis v. Sallyport Global Servs., BRB No.13-0349 (Feb. 20, 2014) (same);

Yaseen v. Sallyport Global Servs., BRB No. 13-0345 (Feb. 27, 2014) (same); and

Shamkhi v. Sallyport Global Servs., BRB No. 13-0350 (Feb. 28, 2014) (same).