Articles by Daniel Sullivan

NINTH CIRCUIT FINDS SUICIDE ATTEMPT BY LONGSHOREMAN COMPENSABLE

In 2001, Claimant William Kealoha was injured while working as a ship laborer.  Kealoha fell 25 to 50 feet off a barge onto a steel floor.  He sustained numerous injuries, including blunt trauma to the head, chest, and abdomen and sustained numerous broken bones.  In 2003, Kealoha attempted suicide by shooting himself in the head.  Kealoha subsequently sought compensation under the Longshore & Harbor Workers’ Compensation Act for his head injuries resulting from his self-inflicted gunshot wound.

 

The presiding administrative law judge initially denied benefits on the grounds that Kealoha’s suicide attempt was not the “natural and unavoidable” result of his fall and other, more significant factors led to his suicide attempt.  Alternatively, the ALJ found that Claimant’s suicide attempt precluded recovery for compensation under Section 3(c) because Claimant’s injury was caused by his willful intention to injure or kill himself.    On appeal to the Benefits Review Board, the BRB reversed the ALJ, holding that application of the “natural and unavoidable” standard was improper.  Further, the BRB indicated that the ALJ failed to address whether Kealoha’s illness was so severe that he lacked capacity to form willful intent and failed to address whether the stress caused by Kealoha’s upcoming deposition as to his underlying accident contributed to his stress.

 

The BRB instead held that the “irresistible impulse” standard was applicable.  Under this standard, an employee’s injury is compensable when the employee takes his life through an “uncontrollable impulse or in a delurk or frenzy without conscious volition to produce death.”  On remand, the ALJ found that Claimant planned his suicide and that his suicide attempt was intentional and not the result of an irresistible impulse.

 

The Ninth Circuit reversed, holding that “a suicide 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 Ninth Circuit further held that a claimant need not demonstrate an irresistible impulse and noted that this standard better reflected the Longshore Act’s focus on causation and not on fault.  The matter was remanded to the BRB or the OALJ for further application under this standard.

 

Kealoha v. Director, OWCP and Leeward Marine

NINTH CIRCUIT HOLDS DEFENSE BASE ACT’S ZONE OF SPECIAL DANGER APPLICABLE TO LOCAL NATIONALS

Claimant, a citizen of the Marshall Islands, was employed as a civilian defense contractor based in the Kwajalein Atoll, which houses the U.S. Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Site.  Claimant was hired as a painter and was given a four-day overnight assignment to paint and repair the Gagan Island pier.  While on Gagan Island, Claimant and co-workers resided in Employer’s trailer, which had limited space and food.  Claimant, as was culturally customary for Marshallese, engaged in reef fishing after hours to catch and eat the fish within the local body of water.  The DBA employer had a policy of prohibiting reef fishing during work hours.  While reef fishing on Gagan Island after hours, Claimant slipped and fell, cutting his right foot.  This injury became infected and ultimately resulted in the amputation of Claimant’s right leg below his knee.

 

Claimant sought benefits pursuant to the Defense Base Act as an extension of the Longshore & Harbor Workers’ Compensation Act.  The Employer denied benefits asserting that the zone of special danger did not apply to local nationals, but only to foreign nationals.  The ALJ and BRB disagreed with Employer and awarded benefits.  On appeal, the Ninth Circuit affirmed the award of benefits.

 

The Ninth Circuit held that the plain language of the DBA does not distinguish between employees sent abroad from their home country and local nationals.  Further, the court held that Congress implicitly endorsed applications of the zone of special danger to local nationals, citing to O’Leary, the United States Supreme Court case that first articulated the zone of special danger in 1951.  Further O’Leary and its progeny did not distinguish between employees sent abroad and local nationals, as Claimants’ domiciles are never broached in those cases.  The Ninth Circuit, however, did note in dicta that if Claimant were injured at home in his living room instead of injured during a four-day overnight work assignment on an uninhabited island with restricted access, then the zone of special danger would not likely apply.

 

Chugach Management Services v. Jetnil & Director, OWCP

Federal District Court Once Again Addresses Discoverability of Surveillance

The Eastern District of Louisiana recently issued another opinion interpreting Chiasson v. Zapata Gulf Marine Corp., the benchmark Fifth Circuit case that guides the discoverability of surveillance as substantive versus impeachment evidence.  Plaintiff alleged that, while employed as a Jones Act seaman, he experienced an accident that resulted in injury to his back and other parts of his body.  In filing against his employer for Jones Act benefits and other defendants for negligence under general maritime law, Plaintiff filed an expedited motion to compel production of surveillance obtained by his Jones Act employer prior to his deposition.  Employer objected to the production of surveillance arguing that surveillance was non-discoverable impeachment evidence at the present stage of litigation.  The District Court agreed that, under Chiasson, Plaintiff was entitled to production of surveillance tapes as substantive evidence, but that Chiasson did not address the timing of disclosure.  The court agreed with Employer that the proper procedure would be to produce the surveillance evidence subsequent to Plaintiff’s deposition in order to preserve the substantive and impeachment value of the surveillance evidence.

 

Krekorian v. FMC Technologies, Inc.

BENEFITS REVIEW BOARD HOLDS STATE WORKERS’ COMPENSATION SETTLEMENT TOLLS STATUTORY BAR

In the 1970s, Claimant worked for a LHWCA-covered employer as a welder. Subsequently, he worked for non-covered employers until he retired voluntarily. During the course of his employment with the Longshore employer, Claimant was exposed to asbestos, and, in 2009, he was diagnosed with lung cancer. In August 2010, Claimant filed a claim for benefits under Connecticut state workers’ compensation law. On December 5, 2012, the state workers’ compensation commissioner approved settlement, and Claimant received payment on approximately the same day. In October 2013, Claimant filed a claim for benefits under the LHWCA. Employer filed a motion for summary decision, asserting that the claim was not filed timely. The administrative law judge denied the motion and awarded benefits to Claimant; Employer appealed to the Benefits Review Board.

 

The Board, in reviewing Section 13(b)(2), noted that Claimant would be barred from filing a LHWCA claim if he failed to file either within two years of becoming aware of the relationship between his illness and his employment, or within one year of the last payment of compensation. As to the latter factor, the Board looked to the definition of “compensation” under Section 2(12). In interpreting “compensation” under that provision, the Board held that a settlement for workers’ compensation benefits under a state statutory scheme was a “payment of compensation” sufficient to toll the statute of limitations under Section 13(b)(2). Thus, Claimant’s October 2013 claim was timely filed within one year of his state-approved settlement in December 2012.

 

Robinson v. Electric Boat Corp.