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Fifth Circuit En Banc Decision on Longshore Act

The Fifth Circuit, en banc, just reversed an earlier panel decision in a Longshore Act case which turned on the situs of the injury and whether it met the jurisdictional requirements of the Longshore and Harbor Worker Compensation Act.

En Banc decision is here.

Per the Court:

In particular, the BRB found that the claimant’s employment activities with NODSI took place in an area or location “adjoining” navigable waters“customarily used by an employer in loading [or] unloading . . . a vessel” and therefore NODSI’s facility met the situs requirement of the Act. We conclude that because the NODSI facility where Mr. Zepeda worked did not border on navigable waters, it was not a covered situs and Mr. Zepeda is entitled to no benefits under the Act from Petitioner NODSI. We therefore vacate the award of the BRB as against NODSI and remand for further proceedings.

Circuit Split ALERT....  Stay tuned.

New Ninth Circuit Longshore Case - Is Suicide Compensable Injury?

I am in trial this week, but a very interesting case was just handed down by the Ninth Circuit Court of Appeals.  The title is Kealoha v. Leeward Marine, Inc. and the opinion can be found here.

The Longshore Act precludes compensation for injuries caused by an employee's "willful intent to injure or kill himself."  33 U.S.C. 903 (c).  But, courts interpreting similar provisions of state worker compensation laws have allowed for compensation if the suicide, or attempted suicide, was work related.  Those courts that have found the statutory bar inapplicable have done so using a "chain of causation" test instead of a "fault" or "voluntariness" test.

In this case, the Administrative Law Judge applied an "irresistable impulse" test.  The Ninth Circuit held that the causation test was the more reasoned approach, stating:

Given the best-reasoned modern trend of case law, we hold 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 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. See 33 U.S.C. § 904(b) (“Compensation
shall be payable irrespective of fault as a cause for the injury.”).

No apparent circuit splits, but this is an issue to watch.

 

New Defense Base Act Case from First Circuit - Truczinskas v. OWCP

As Amended.  Often seen in statutes.  Rarely litigated.

The First Circuit Court of Appeals issued a decieion in a Defense Base Act case.  It is entitled Truczinskas v. Director, Office of Workers' Compensation Programs and can be found here.  

The facts are short.  A employee duing military training in Saudi Arabia was found hanging from a cross-beam with a noose around his neck.  His widow brought a claim under the Defense Base Act, 42 U.S.C. s. 1651-1654.

First issue, does the Court of Appeals have jurisdiction on appeal from the Benefits Review Board or does this matter properly belong in the district court. [Author's Note - Danger - Circuit Split Coming Up].  The Defense Base Act is patterned after the Longshore and Harbor Workers Compensation Act.  The Defense Base Act, when enacted, required awards to be reviewed in the district court "wherein is located the office of the deputy commissioner whose compensation order is involved."  But, since 1972, Longshore cases have been reviewed at the circuit court and not the district court.  Did Congress overlook the Defense Base Act when it shifted jurisdiction over Longshore cases to the circuit court?  Or does the language "as amended" in the Defense Base Act, carry with it the incorporation of all the amendments to the Longshore Act.  The Fourth Circuit said no in Lee v. Boeing Co., 123 F.3d 801 (4th Cir. 1997).  This court said yes, that the case is property in the circuit court.

The second issue was on the coverage under the Act for suicide.  There are several presumptions against a finding of suicide, which would lead to non-coverage under the compensation scheme.  First, the law presumes that claims are covered claims until proven otherwise.  Second, injuries are presumed to be not caused by willful intentional act.

New Longshore Act Decision from Ninth Circuit - Keller Foundation v. Tracy

I have a rather large queue of cases to digest and disseminate, so excuse the delay.  I will still call it a "new" Longshore case, because, well, it is.

One oft-litigated issue in maritime injury cases is the situs and status test.  Longshore and harbor workers have a different worker compensation scheme than other maritime workers who have a different compensation scheme than land based workers.  As such, courts and litigants need to determine which compensation scheme covers a particular injury in order to bring that claim in the proper forum and understand which special rules apply to their injury.  In this case, the special rule is the Longshore Act's "last employer rule" which basically puts the last employer on the hook for a claimant's injury even if it was sustained during their employ with a different employer.

So, what happens when a worker has a heart attack while on a boat, but had earlier worked on a boat in a drydock, and on a boat in two foreign ports?  Is he covered by the Longshore Act?

The Ninth Circuit's most recent decision on this issue is in Keller Foundation v. Tracy.  The opinion was authored by Judge Ikuta and it can be viewed here.  The facts are simple:  a maritime worker suffered a heart attack that resulted from cumulative trauma from prior employers.  The Administrative Law Judge found that at the time of his injury, the claimant was not covered by the Longshore Act (his assignments didn't satisfy the status test -is he a harbor worker - or the situs test - did the injury occur in the longshore area).  The Benefits Review Board affirmed.

On appeal, the Ninth Circuit reviewed, in great detail, the facts of the claimants' various job assignments - all of which, it ultimately concluded, where maritime in status and not Longshore in status.  As to some injuries which occurred on foreign territorial waters, the Court found that the Longshore Act did not extend to foreign territorial waters as those waters are not "navigable waters of the United States."

New Longshore Case from Ninth Circuit - en banc - Price v. Stevedoring Services

Brand new, hot off the press Longshore case from the Ninth Circuit Court of Appeals, sitting en banc, but I am running around this week and must blog it later (come see us at www.lawinfilm.com to see where we are spending our evenings this week).

The case is Price v. Stevedoring Services of America and it can be found here.

My 30 second skim:  Director, OWCP litigation positions are not entitled to Chevron deference, only the Benefits Review Board decisions are.

New Longshore Case from 5th Circuit - New Orleans Depot Svcs v. OWCP

New Longshore case from the Fifth Circuit.  The case is New Orleans Depot Services v. Office of Worker Compensation Programs and it can be downloaded here.

Facts - a worker suffered a hearing injury during the course of employment with two different employers.

Issue - "situs" of the injury and status of the employee.

Analysis - Under the Longshore and Harbor Workers Compensation Act, work-related injuries are governed by the Act if the injury occurred in the maritime situs and their status is that of a maritime employee.

Under Fifth Circuit law, when deciding whether aa location satisfies the "situs" requirement of the Longshore Act, courts consider "both the geographic proximity to the water's edge and the functional relationship of the location to maritime activity."  The employer conceded the proximity requirement but challenged situs on functional relationship grounds.  In this case, the situs was a shipping container facility and the claimant did maintenance on shipping containers.  It was adjoining to, but not on, the waterfront.  Noting that under Fifth Circuit law, situs is not a formulaic test, the court affirmed the ALJ's factual determination that the yard was a maritime situs.

At hearing, the ALJ found that the claimant was a maritime employee because he worked on marine shipping containers.

Dissent -  In dissent, Circuit Judge Clement took issue with this holding and found that it expanded the reach of the Longshore Act.  The claimant was not involved in the loading or unloading of any vessel nor was the facility where the injury took place involved the loading or unloading of any vessel.  The majority felt bound by the standard of review which gives deference to questions of fact.  In so doing, Judge Clement though that the incrementally expanding reach of LHWCA, would end up "gradually swallowing every employer in the vicinity of a port."

Ninth Circuit's Temporal Musings - New Longshore Opinion

The Ninth Circuit Court of Appeals just issued a decision in a Longshore case.  The case is Pacific Ship Repair and Fabrication, Inc. v. Office of Worker Compensation Programs.  It can be found here. 

In a nutshell, the question was how to treat a worker's disability that was originally classified as permanent partial but proves to be temporarily total during recovery following surgery.

Following the Benefits Review Board, the Ninth Circuit held that such an employee's disability could be recharacterized.

SCOTUS Decides Longshore Case - When is Claimant "Newly Awarded Compensation"?

Longshore Wonks - Take Heed.  The Roberts v. Sea-Land case is hot off the press and the Supreme Court says, a claimant is "newly awarded compensation" when the claimant first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.

The decision is here.  Near unanimous decision authored by Justice Sotomayor.  Justice

Ginsburg concurred and dissented.

The issue in this case is when an injured longshore worker's "Average Weekly Wage" is to be determined:  at the time of the entitlement to an award of compensation or the actual award of compensation.

The statutes in question used the term "newly awarded compensation" but didn't define the particulars of that event.  So, the Court picked an event.  Justice Ginsburg would have picked a different timeframe.

This has more to do with a calculation of damages in Longshore cases rather than a rewrite of federal worker compensation laws, but if we see any commentary that suggest it could go elsewhere, we'll post!

Background Materials

The transcript of oral arguments is here. (Of note:  Justice Scalia was unimpressed with Congress' statute-writing ability, asking the counsel if this was a "stupid statute.")

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 The Question Presented is:

The Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§ 901-50 (“Longshore Act”), provides generally for compensation for total disability in periodic payments at a rate of two-thirds of the “average weekly wage of the injured employee at the time of the injury,” and for most partial disabilities the same fraction of the difference between that weekly wage and the worker’s residual “wage-earning capacity.” Id. §§ 8, 10, 33 U.S.C. §§ 908, 910. But it has always imposed upper and lower limits on the rate payable as so determined. Section 6(b) of the Act, 33 U.S.C. § 906(b), provides that the compensation rate cannot be more than twice “the applicable national average weekly wage,” as determined for each fiscal year; nor can compensation for total disability be less than the lesser of half the “applicable national average weekly wage” so determined and the worker’s full pre-injury earnings. The question which fiscal year’s limits are the “applicable” ones is addressed by § 6(c):

Determinations under subsection (b)(3) of this section with respect to a [fiscal year]
shall apply to employees or survivors currently receiving compensation for permanent
total disability or death benefits during such period, as well as those newly awarded compensation during such period.

33 U.S.C. § 906(c) (emphasis added). The determinant of the years whose limits are “applicable” under this provision has divided the three courts of appeals that have addressed it. The Court granted certiorari to resolve the question:

Whether the phrase “those newly awarded compensation during such period” in Longshore Act § 6(c) makes the time an award is first entered determinative, or can and should be read to mean “those first entitled to compensation during such period,” regardless of when an award is first entered.

The Merits Reply Brief is here (courtesy of Cockle Law Blog).  Earlier posts including the cert petition phase briefs are here and here.

New Defense Base Act Case Fifth Circuit - Fisher v. Halliburton

New Defense Base Act case from the Fifth Circuit Court of Appeals.  The case is Fisher v. Halliburton, 2012 U.S. App. LEXIS 641 and can be found here.

The facts are straightforward:  several employees of Kellogg Brown & Root were killed in Iraq while driving logistics trucks in Iraq.  Their widows and family members brought state tort claims against their employers.  The employers sought to dismiss the suits citing the remedy and preemption provisions fo the Defense Base Act, 42 U.S.C. 1651.

The Circuit Court walked through the analysis of the applicability of the Defense Base Act, including whether the injury suffered was because of the claimant's employment, whether the Defense Base Act bars intentional torts; and whether claimants can bring fraud claims against their employer, despite the preemptive effect of the Defense Base Act.

Rejecting the widows' claims and arguments, the Fifth Circuit ruled in favor of the Defense Base Act applicability to the injuries suffered by their civilian husbands in Iraq. 

SCOTUS Rules on OCSLA Case - Pacific Operators Offshore, LLP v. Valladolid

News Flash - the Supreme Court issued a decision in Pacific Operations Offshore, LLP v. Valladolid, an Outer Continental Shelf Lands Act/Longshore Act case arising from the Ninth Circuit.  The Supreme Court affirmed the Ninth Circuit's decision, rejecting the approaches adopted by the Third Circuit Court of Appeals and the Fifth Circuit Court of Appeals. 

The decision is here. 

The Question Presented was:

The court granted review for this question presented:

The Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356 (OCSLA), governs those who work on oil drilling platforms and other fixed structures beyond state maritime boundaries. Workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf." 43 U.S.C. § 1333(b) (2006). When an outer continental shelf worker is injured on land, is he (or his heir):

(1) always eligible for compensation, because his employer's operations on the shelf are the but for cause of his injury (as the Third Circuit holds); or

(2) never eligible for compensation, because the Act applies only to injuries occurring on the shelf (as the Fifth Circuit holds); 

(3) sometimes eligible for compensation, because eligibility for benefits depends on the nature and extent of the factual relationship between the injury and the operations on the shelf (as the Ninth Circuit holds)?

The opinion, authored by Justice Thomas, holds that the Ninth Circuit's "substantial nexus" test was the most supportable reading of the statutes at play here.  Justice Scalia concurred, joined by Justice Alito, that favored the adoption of a "proximate cause" test instead of the "substantial nexus" test which he thought unworkable.

Previous posts on case: Ninth Circuit Decision; Cert Petition.

Transcript of oral argument: Transcript - 10-507,