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Longshore Act at SCOTUS - Transcript Available - Roberts v. Sea-land Services

Last week, the Supreme Court heard oral arguments in the Roberts v. Sea-Land Services case.  The transcript of oral arguments is here. 

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 oral arguments required the justices to wade deep into a dense statutory worker compensation regime and address what appears to be an omission in the statute.  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).  I don't have the other merits briefs yet, but will post if I get them.

Earlier posts including the cert petition phase briefs are here and here.

Supplementing my earlier post on the Roberts v. Sea-Land Services, Inc. case, I have obtained copies of the cert-phase briefs from Claimant's counsel.

Claimant's Petition

U.S. Brief in Opposition

Claimant's Reply

The Claimant sought review on the following Questions Presented:

The Longshore and Harbor Workers’ Compensation Act, 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. §§ 908-10. 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). The identity of the years whose limits are “applicable" under this provision has divided the two courts of appeals with the heaviest Longshore Act dockets.

The questions presented are simple and straightforward:

1. Whether the phrase “those newly awarded compensation during such period” in Longshore Act § 6(c), applicable to all classes of disability except permanent total, can be read to mean “those first entitled to compensation during such period,” regardless of when it is awarded.

2. Whether the phrase “employees or survivors currently receiving compensation for permanent total disability or death benefits during such period” in § 6(c) can likewise be read to mean those “entitled to [such] compensation during such period,” without reference to when it is received.

The Supreme Court granted review on Question 1.

Mahalo to Claimant's counsel, Joshua Gillelan, II for the briefs.

FLASH: SCOTUS Grants Review of Ninth Circuit Longshore Decision

The Supreme Court just agreed to hear a Longshore and Harbor Workers' Compensation Act decision of the Ninth Circuit Court of Appeals.  The case is Roberts v. Sea-Land.

The Ninth Circuit decision can be found here.

I'll digest the decision later.  The Supreme Court only granted the cert petition on one of the Questions Presented, but the Supreme Court website is having technical difficulties with that one.  I'll post upon receipt.

 

New Defense Base Act - Longshore Case From Second Circuit - Dyncorp Int'l v. Dir., OWCP

New Defense Base Act/ Longshore case from the Second Circuit Court of Appeals.  The issue is on the timeliness of filing a claim.  The case is Dyncorp Int'l v. Dir., OWCP, 2011 U.S. App. LEXIS 18325 and can be found here.

Facts:  a civilian employee was shot by a United Nations peacekeeper from Jordan while serving as a guard in a prison in Kosovo.  The employee was eventually transferred back to the USA and was diagnosed with post-traumatic stress disorder.  Since her claim fell outside the one year statue of limitation in the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq., the Administrative Law Judge dismissed the claim.  The Benefits Review Board reversed the ALJ and the employer appealed to the Second Circuit. 

Analysis:  The court of appeals affirmed the BRB's reversal.  The Longshore Act does include a presumption of timely filing that can only be surmounted by an employer showing "substantial evidence."  The employer sought to use the date of the employee's first notice that she was suffering from mental impairment that could impact her income earning ability.  The court found that attending a counseling session was not enough to presume that an employee would evince an awareness of a disability.  Similarly, the court found that taking anti-anxiety drugs or sleeping pills do not evince an awareness of a disabilty.

This case is important for claimants, especially with psychological injuries, to consider when analyzing whether their claims are time barred.

New Longshore Case From Eleventh Circuit - Langfitt v. Federal Marine Terminals, Inc.

New Longshore case from the Eleventh Circuit Court of Appeals. It involves the exclusivity of the compensation scheme nestled in the Longshore and Harbor Worker's Compensation Act.  the case is Langfitt v. Federal Marine Terminals, Inc., 2011 U.S. App. LEXIS 15658 and can be found here.

Facts are simple:  longshore worker is injured on the job.  He is paid by the LHWCA insurer, but sues the marine terminal where he was injured.  The marine terminal asserted an affirmative defense that it was an "employer" for the purposes of the LHWCA.  As a LHWCA employer, it would be immune from any negligence suit.  The trial court found that it was an "employer and granted the terminal's motion for summary judgment.

Analysis:  the court issue an exhaustive 41 page decision outlining the analysis for who is a LHWCA employer and then conducted an intense application of the facts.  But, the essence of the decision is that the "borrowed employee" doctrine can immunize defendants facing claimants who are receiving LHWCA benefits from their actual employer's insurer.

The test is:

When a general employer transfers its employee to another person or company, the latter is the employee’s borrowing employer for purposes of the LHWCA, and thus is liable for the Act’s compensation and has the benefit of the Act’s tort immunity, if each
of the following three criteria is satisfied:

(1) Employee Consent to the New Employment Relationship. The employee must be shown to have given deliberate and informed consent to the new employment relationship with the borrowing principal. The test is objective, and the employee’s consent may be shown to have been given either expressly or impliedly.

(2) Borrowing Principal’s Work Being Done. The work being performed by the employee at the time of the injury must be shown to have essentially been that of the borrowing
principal—that is, that it was primarily the borrowing principal’s interests that were being furthered by the employee’s work.

(3) Borrowing Principal Assumed Right to Control the Details of Employee’s Work. The borrowing principal must be shown to have received, from the employee’s general employer, the right to control the manners and details of the employee’s work. This might be evidenced by: (a) an express agreement between the general employer
and the borrowing principal that directly evidences a transfer of control over the employee to the borrowing principal; (b) the borrowing principal’s actual exercise of control; (c) the borrowing principal’s furnishing of the equipment and space necessary for the employee to perform the work; (d) the borrowing principal’s right to terminate the employee’s relationship with the borrowing principal;and (e) the method and obligation of payment for the employee’s services.

Must read if you have a negligence claim by someone receiving benefits under the LWHCA.

New Longshore Case from Fifth Circuit - Great Southern Oil & Gas Co. v. Dir., OWCP

New LHWCA case from the Fifth Circuit Court of Appeals.  It is unpublished (so I'll be brief) and the opinion is brief but provides an insight on appeals from Administrative Law Judges to the Benefits Review Board.  The facts are brief:  a worker was injured on a barge in the navigable waters.  At issue was whether the LHWCA applied.  The court found that under the situs test the LWHCA provided protection.  Because the employer did not appeal the decision on whether the situs on a vessel made the LHWCA inapplicable, the court declined to rule that it was inapplicable. 

Lesson here:  Preservation of arguments for appeal drives the remedies that an appeal can provide.

The case is Great Southern Oil & Gas Co. v. Dir., OWCP, 2011 U.S. App. LEXIS 23658 and can be found here.

Update on Longshore Case From Ninth Circuit - Pedroza v. Benefits Review Board

Update on a Longshore and Harbor Workers Compensation Act case from the Ninth Circuit Court of Appeals.  The court has denied rehearing en banc in the case of Pedroza v. BRB, 2010 U.S. App. LEXIS 27063 which can be found here.

Facts:  A harbor worker was unloading materials from a Navy vessel and struck a 440 volt cable line.  He did not seek medical attention after the resulting explosion.  The worker received a letter from his employer a year later noting that it was his negligence that caused the accient.  Thereafter, the claimant sought medical attention.  The ALJ and the Benefits Review Board found that his claimed psychological injuries were the result of general working conditions or the personnel actions and denied the claim.

There was only one issue in this case:  Are psychological injuries that result from legitimate personnel actions compensable under the Longshore Act?

The Ninth Circuit reviewed the history of the Longshore and Harbor Workers Compensation Act, 33 U.S.C. 901 et seq.  The court then noted that work related psychological impairment and injuries are presumed to be compensable under the Longshore Act.  The court then noted its prior case law, Turner v. Todd Pacific Shipyards Corp., 990 F.2d 1261, No. 91-70524 (9th Cir. 1993)(table) that found that injuries caused by legitimate personnel actions don't fall within the Longshore Act.  The court has now endorsed the prior unpublished decision and has explicitly found that such injuries resulting from legitimate personnel actions are not recoverable.

Judge Pregerson "specially concurred" stating: 

I write separately to emphasize that our holding concerns legitimate personnel actions, and not employer conduct that is in any way hostile, vindictive, malicious, mean, insensitive, crude, or abusive.

 

 

News Flash - SCOTUS To Hear Outer Continental Shelf Lands Act Injury Case

The U.S. Supreme Court just agreed to hear the case of Pacific Operations Offshore, LLP v. Valladolid.  Links to docket, briefs, and opinion below, courtesy of SCOTUSBLOG, here. 

My earlier post on the Ninth Circuit's opinion is here.  As to why SCOTUS took the case?  As noted in my earlier post, there was a plain circuit split between the Ninth, Third and Fifth Circuit Courts of Appeal.

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)?

Great way to highlight a circuit split.  Stay tuned.

New Longshore Case from Fifth Circuit - Eysselinck v. Dir., OWCP

New Longshore/Defense Base Act case from the Fifth Circuit Court of Appeals.  The issue is PTSD and wilfull injury to an employee.  The case is Eysselinck v. Dir., OWCP, 2010 U.S. App. LEXIS 17227 and can be found here.  It is unpublished and not precedential.

Facts:  a contract worker home on leave from his job in Iraq committed suicide.  His widow sought death benefits under the Longshore and Harbor Workers' Compensation Act (42 U.S.C. 1651(c) but was denied at the administrative level.  The District Court also denied relief, as did, ultimately, the Fifth Circuit.

Analysis:  The widow argued that the suicide was caused by the decedent's post-traumatic stress disorder (PTSD) relating to work stress and danger.  At the administrative hearing level, the Administrative Law Judge heard from competing experts regarding the likelihood that the decedent did in fact have PTSD.  The ALJ found that he did not have PTSD, found that the decedent wilfully committed suicide and denied benefits.  Per the court, under 33 U.S.C. 903(c), "“[n]o compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.”  The widow argued that she was entitled to a statutory presumption that the injuries were not wilful, but the court noted that the presumption only applied in the "absence of substantial evidence fo the contrary" and then noted the substantial evidence in the record that the decdent's death was willful.

New Longshore Case from Third Circuit - Consolidation Coal Co. v. Benefits Review Bd.

New Longshore case from the Third Circuit Court of Appeals relating to the status of the injured claimant and the situs of the injury.  There appears to be a circuit split on the meaning of "adjoining area" in 903(a) of the LWHCA, so stay tuned for higher review.

The case is Consolidation Coal Co. v. Benefits Review Bd., 2010 U.S. App. LEXIS 25979 and can be found here.

Facts:  a diesel mechanic was injured in a garage at a facility that moved coal onto barges on the Monongahela River in Pennsylvania.  The garage was 100 yards from the river. The employer challenged the claimant's entitlement to benefits under the Longshore and Harbor Workers' Compensation Act.

Issue: Was the claimant's injury compensable under the LHWCA?

Analysis: As to status, the court stated:

With regard to status, § 902(3) of the Act states that a covered employee must be a "person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include-" certain enumerated categories of employees under § 902(3). Schwalb, 493 U.S. at 45.

Finding the claimant to have been employed as a mechanic who contributed to the loading process, he had the "status" for benefits under the LHWCA.

As to situs, the court stated:

Section 903(a) states:

Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal,building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel). 33 U.S.C. § 903(a). Because Smith was not actually on navigable water or on a pier, wharf, dry dock, terminal, building way, or marine railway at the time of his injury, the determinative question is whether the garage in which Smith‟s injury occurred is an "adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel." Id.

As such, the claimant only fulfilled the situs test if he was injured on an "adjoining area."  The court found that it should liberally construe the term "adjoining area" to find that the claimant did satisfy the "situs" test.  In doing so, it set up a circuit conflict with the Fourth Circuit case of Sidwell v. Express Container Servs., Inc., 71 F.3d 1134, 1138 (4th Cir. 1995)(requiring the are to be continguous with or touch navigable waters).  The claimant also had to show that the adjoining area was used in the loading/unloading of cargo.  The court of appeals held that he had satisfied that burden.