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

Ninth Circuit Finds DBA Claimant Failed to Establish Employee-Employer Relationship

The Ninth Circuit recently addressed the employer-employee relationship required in a claim under the Defense Base Act.  Claimant worked as a contractor truck driver with the U.S. military in Iraq.  In 2005, he was injured by an improvised explosive device (IED) and filed a claim under the DBA.  Claimant named his employer as Theodor Wille Intertrade, GmbH (TWI), a Swiss corporation that did business in Iraq as Servco Solutions, LLC (Servco).  TWI/Servco controverted the claim and denied Claimant was its employee.

 

The claim was submitted to the Administrative Law Judge on briefs.  Judge Paul Johnson reviewed multiple deposition transcripts (including two from the Claimant) and affidavits and denied the claim on the grounds that Claimant had failed to establish that there was an employer-employee relationship.  Claimant appealed to the Benefits Review Board, which affirmed Judge Johnson’s decision.  Claimant then appealed to the U.S. Ninth Circuit Court of Appeals.

 

The Claimant testified that he was working for TWI/Servco or one of its subsidiaries and that he took instruction from a TWI/Servco employee, Eddie Nagel.  He also submitted a signed declaration from a friend who confirmed these allegations, as well as a letter of recommendation from Mr. Nagel on TWI/Servco letterhead.  Judge Jonnson discounted Claimant’s testimony based on multiple inconsistencies at his two depositions, gave no weight to the signed declaration, and credited Mr. Nagel’s explanation that he wrote the letter out of sympathy, but did not supervise the Claimant.  The Ninth Circuit affirmed the ALJ’s findings because the credibility determinations were not in conflict with the record and held that substantial evidence supported the ALJ’s finding that Claimant was not an employee of TWI/Servco.

 

Mikha v. Director, OWCP

Benefits Review Board To Enforce Attorney Fee Petition Deadline

The Clerk of the Benefits Review Board has issued a notice to the community that the Board has reviewed its policy concerning handling of untimely attorney fee petitions. Effective March 1, 2017, attorney fee petitions must be filed within the time limits established in 20 C.F.R. §802.203(c) and 802.219(e). The Board will not consider a late filed attorney fee petition absent a valid basis for late filing, which must be specifically requested and will be considered on a case by case basis. This serves notice to claimants’ counsel that late attorney fee petitions will not be permitted as a matter of practice, as has been done in the past.

Pursuant to 20 C.F.R. §802.217, any out of time request must be submitted as a separate motion directed to the Clerk of the Board. Untimely filings are not allowed unless found to be “warranted.”