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ALJ GEE AWARDS CLAIMANT TEMPORARY TOTAL DISABILITY

Velia Cruz v. APM Terminals
Read Full Decision Here

Excerpts

Here, the parties have stipulated that the Claimant was temporarily totally disabled by her injuries from November 18, 2006, until April 15, 2007. (HT, p. 14.) The two physicians most involved in the case, Drs. Loddengaard and Delman, agreed that the Claimant was temporarily partially disabled for some period of time after returning to work on April 16, 2007 (RX 5, p. 12; CX 14, p. 40), and that she reached MMI by December 6, 2007 (CX 7, p. 8; HT, pp. 59, 230, 260). They disagreed, however, on how long that temporary partial disability lasted and whether the Claimant had any residual impairment after reaching MMI: Dr. Loddengaard opined that the Claimant had a 7% whole body impairment, whereas Dr. Delman saw no indications of permanent disability. (CX 7, pp. 8-9; RX 5, pp. 15, 18.)

In opposition to finding that the Claimant was able to return to her full regular employment by September 11, 2007, we have the Claimant's

word and the opinion of Dr. Loddengaard, which depends heavily on the Claimant

statements.47 As I have discussed at length, I have found tremendous evidence that the Claimant's

assertions should be given no weight, which also undermines Dr. Loddengaard's

opinions substantially, since he often relied entirely on the Claimant's

self-serving claims of what she could and could not do. (See CX 7, pp. 7-8.) After the Claimant's

 first MRI in January of 2007, Dr. Loddengaard appears to have never again attempted to develop objective evidence of the Claiman injury, even denying that it was desirable to do so when other physicians suggested a need for such proof.

See RX 5, p. 14 (no need for a new MRI).) Between January and December of 2007, I do not even have any records of the Claimant's subjective symptoms from Dr. Loddengaard, only one-line approvals of the restrictions the Claimant requested. (See, e.g., CX 14, pp. 41-43.) Nor could Dr. Loddengaard provide a persuasive explanation for his belief in the Claimant's continuing impairment when he testified at the hearing, or really any explanation that went beyond accepting the Claimant's word. (See HT, pp. 39, 59, 63-64, 100-02.) For these reasons, I am disinclined to give much credit to Dr. Loddengaard's opinion in December of 2007, that the Claimant should be permanently restricted to light-duty work. (CX 7, p. 8.)

Conclusion

In conclusion, the Claimant is entitled to temporary total disability benefits from

November 18, 2006, through April 15, 2007, for the back injury she sustained on November 17,
2006. These benefits should be paid at the applicable maximum compensation rate of $1,114.44.
As a result of her injury, the Claimant was also limited to light-duty work from April 16,
2007, through September 11, 2007. However, because I find that she had a wage-earning
capacity that was higher than her pre-injury average weekly wage, she is not owed any
compensatory benefits for that period.

CLAIMANT GRANTED MEDICAL BENEFITS FROM EMPLOYER (ALJ AVERY)

Ronald Cantrelle v. Main Iron Works, LLC
Read Full Decision Here

Excerpts

In this case, Claimant alleges he suffered cervical and lumbar injuries as well as a

urinary dysfunction as a result of the alleged 1974 workplace accident. Employer
contends that Claimant's testimony lacks credibility because of inconsistencies in his
medical history and testimony. Additionally, Employer argues that the delays intreatment for Claimant’s neck and bladder complaints are suspect. Carrier similarly argues that Claimant’s alleged neck and bladder injuries are not related to the 1974 workplace accident and further asserts that the workplace injuries Claimant sustained in 1976 and 1981 sever the causal connection between the 1974 accident and any subsequent disabilities, injuries, or illnesses.

Employer argues that Claimant is time-barred from receiving compensation. First,

Employer contends because Claimant was aware of the relationship between his injuries
and his employment early on, he should have filed his claim within one year of the last

voluntary payment made by Employer on October 20, 1975. (CX-1, p. 10). Claimant

argues his claim has not prescribed as the letters written by himself and Mr. Ferrara were filed within a year of Claimant’s workplace accident and meet the criteria for filing a claim under the Act.

Conclusion

Despite the arguments of Employer/Carrier, I find Claimant is entitled to

reimbursement for out-of-pocket expenses for treatment provided by Dr. Pribil, Dr.
Judice, and Dr. Oyler as related to the treatment of his low-back injury.This includes co-pays, prescription medications, and mileage. While there is no record that these  physicians provided timely reports to Employer and OWCP, I find good cause has been shown to excuse non-compliance and award Section 7 medical benefits. Employer waswell aware of Claimant’s injury and back problems as they

previously paid for treatment by Dr. Vogel for this condition. Claimant testified that he contacted Employer regarding treatment from Dr. Pribil and Dr. Judice, but was denied authorization for treatment. (Tr.85, 92) I find the treatment Claimant received for his back injury was reasonable and necessary as Claimant’s symptoms persisted despite his procurement of conservative

ALJ AVERY GRANTS CLAIMANT COMPENSATION FOR PERMANENT TOTAL DISABILITY

Kenneth L.Dixon v. Huntington Ingalls Inc.
Read Full Decision Here

Excerpts

In this case, the parties have stipulated that Claimant injured his chest wall in a

work related accident on July 28, 2009. However, Employer suggests that the automobile
accident Claimant was involved in on September 14, 2009, is an independent intervening
injury. If there has been a subsequent non-work-related injury or aggravation, the
employer is liable for the entire disability if the second injury is the natural or
unavoidable result of the first injury; however, where the second injury is the result of an
intervening cause, the employer is relieved of liability for that portion of the disability
attributable to the second injury.

Plappert v. Marine Corps Exchange, 31 BRBS 13, 15(1997),

aff’d 31 BRBS 109 (en banc), citing Merril v. Todd Pacific Shipyards Corp., 25

BRBS 140 (1991); Bailey v. Bethlehem Steel Corp., 20 BRBS 14 (1987).

Where there is no evidence of record which apportions the disability between the two injuries it is appropriate to hold employer liable for benefits for the entire disability.

Plappert v.Marine Corps Exchange

31 BRBS 13, 15 (1997), aff’d 31 BRBS 109 (en banc); Bass v. Broadway Maintenance, 28 BRBS 11, 15-16 (1994).

Conclusion

There is no evidence presented that Claimant suffered a worsening of his chest

pain after the automobile accident, nor that it overpowered or nullified the chest

conditon resulting from Claimant’s July 28, 2009 workplace accident. Claimant

complained of pain at the automobile accident scene, according to the police report.

However, in Dr. Shaw’s reports before and after the car accident, Claimant did notcomplain of worsened pain, only a continuation of his already-existing symptoms. At

most Claimant experienced a temporary exacerbation of his pre-existing chest wall injury. He never complained of or sought treatment for any additional injuries as a result

of this car accident. Therefore, it has been established that Claimant suffered a

compensable workplace injury on July 28, 2009, for which Employer remains liable.

ALJ PATRICK ROSENOW DECIDES CLAIMANT IS PERMANENTLY PARTIALLY DISABLED

Davey P. Richey v. Premiere, Inc
Read Full Decision Here

Excerpts

Claimant’s position is that the work related injury to his left thumb and left hand

combined with his preexisting injuries to aggravate his preexisting psychological
condition and make him permanently and totally disabled. In the alternative, Claimant
argues he is temporarily totally disabled because his aggravated preexisting psychological
condition is not yet at maximum medical improvement (MMI). Employer counters that
Claimant has been compensated for the permanent partial disability (PPD) rating to his
left thumb, and that it owes him no further benefits. Employer also also argues that Claimant’s psychological treatments are exclusively related to his preexisting conditions and that there has been no worsening of his pain or psychological condition since the work accident.

Conclusion

Claimant testified that because he made a career doing hard labor, he is still

stronger than most people his age, but that he did not think he could, for example, wash
dishes, handle money, or write orders eight hours per day. However, he was able to wash
dishes at Teen Challenge in 2010-2011 for four to six hours per day, which required him
to stand and use both of his hands. The positions listed were all light-to-medium duty,
and one of them, the security guard at Vinson Security, was part-time. I find that based
on the evidence presented, Claimant is capable of performing at least the part-time

security guard position, which paid between $8.00 and $10.00 per hour, and which

required no lifting, but frequent sitting, standing, and walking. Employer therefore
established suitable alternative employment on 7 Dec 11.
I therefore find Claimant became permanently partially disabled on 7 Dec 11 with
a loss of 4% use of his left hand

ALJ LEE ROMERO JR. DENIES DISCRIMINATION CLAIM MADE BY EMPLOYEE

Joseph R. Egland v. P.C Pfeiffer
Read Full Decision Here

Excerpts

The unresolved issue presented by the parties is whether Employer discriminated against Claimant in violation of Section 48(a) of the Act by refusing to return Claimant to full-time employment because he filed a claim and/or testified in a formal hearing against Employer.

Employer argues that Superintendent Donofry did not know

that Claimant had returned to work. Employer asserts that the

Texas Workforce Commission form completed by Dr. Masson fully

released Claimant only for his left shoulder. Dr. Cotler, to

whom Dr. Masson referred Claimant, was treating Claimant’s neckand back injuries and has not released Claimant to return towork. Dr. Masson deposed that he allowed Claimant to return to

work to give him a try and released him only for four hours of

work per day. Employer argues such a release is not a full

release and Employer was not obligated to return Claimant to

work under such circumstances. Employer also contends that

there has been no showing that Employer refused to take Claimant

back to work for an illegal motive or to discriminate against

Claimant.

Conclusion

Here, no modification of the original Decision and Order

has been requested. Claimant continues to receive permanent
partial disability compensation and ongoing medical benefits
from Employer pursuant to that Decision.
Based on the foregoing, I find and conclude that Claimant
did not carry his burden of proof and persuasion that he was
discriminated against by Employer because he filed and pursued a
compensation claim, or for any other reason protected under the
Act.

ALJ USES WEIGHTED AVERAGE OF CLAIMANTS SALARY TO CALCULATE HIS COMPENSATION

Ted Ivey v. Huntington Ingalls, Inc
Read Full Case Here

Excerpts

The parties’ only dispute is Claimant’s AWW at the time of his injury. Claimant

multiplies his hourly wage rate of $21.85 by 40 hours to reach an AWW of $874. In the

alternative, Claimant argues his AWW should be no less than $731.70 per week, based
on his gross earnings of the 13 weeks worked prior to the accident. Employer argues that
since Claimant rarely worked a 40-hour week, the more accurate means of calculating his
AWW is to divide his gross earnings during the 52 weeks prior to his injury by the
number of weeks he actually worked, yielding $688.0The parties agree Claimant’s AWW should be determined using Section 10(c) of the Act. 

Section 10 of the Act sets forth three alternative methods for calculatin claimant’s average annual earnings, which are then divided by 52, pursuant to Section 10(d), to arrive at an average weekly wage. The computation methods are direct toward establishing a claimant’s earning power at the time of injury.

Conclusion

The record establishes that Claimant was not a five or six day worker and the

parties agreed that Section 10(c) applies. Employer does not contest that using an hourly

wage rate of $21.85 is proper. The issue is how many hours he worked. Claimant’s

suggestion that his average weekly wage should be based upon an assumption that he

averaged forty hours per week is unsupported by the record. He never worked 52 or even

50 weeks in a year and he never came close to averaging 40 hours for the weeks during

which he did work

         

JUDGE RULES THAT EMPLOYEE OF YACHT COMPANY FALLS IN THE JURISDICTION OF THE LONGSHORE ACT

LUIS E. DEJESUS V. VIKING YACHT COMPANY, INC
Read Full Decision Here

Excerpts

Employer’s position

in this case is simply explained. Mr. DeJesus was performing repair work on a vessel that was built by the parent company as a recreational vessel when he suffered the injury involved in this case on February 2, 2010. It argues that the Act was amended on February 9, 2009 by the American Recovery and Reinvestment Act of 2009 (ARRA) and the amendment eliminated coverage from the Act for employees that repair “recreational vessels.”

33 U.S.C. § 902(3)(F)(2099). Since the injury occurred after the effective date of this statutory

amendment, employer maintained,“the claim falls under Florida State workers’ compensation and not under the Longshore and Harbor Workers’ Compensation Act.”

Employer also argues that its facilities were used exclusively for repair and warrantee work on Viking build boats which were used for recreational or pleasurable activities. Claimant obviously believes the jurisdictional question involved in this case is not so easy to resolve. It is his position that he performed repair on boats covered by the Act and noncovered recreational boats while working for the employer. He therefore contends that all of his repair work for the employer is covered by the Act. He initially notes that it is important to understand that the employer operates marine repair facilities and is a separate subsidiary of a company that is a shipbuilder of recreational vessels, emphasizing that the employer is not a shipbuilder. He argues that since the employer used the Viking built boats at its facilities for promotional and commercial purposes, the vessels were no longer recreational vessels and the employer “lost its qualifying exclusion under” the statutory amendment and the newly promulgated regulations pertinent to the amendment. 33 U.S.C § 902(3)(F)(2009); 20 C.F.R. §§701.501 and 701.502.

Conclusion

The employer also argued that its facilities were used exclusively for repair and warrantee work on Viking build boats which were used for recreational or pleasurable activities. The evidentiary record does not support this position. The facilities also were open to the public

and the employer simply did not know how or for what purpose all of the owners used the

vessels that were being repaired there. Employer also acknowledged that its employees

performed repair or service work on the boats owned by its parent company and some of the

local Viking dealers that were used for seas trials for potential customers and boat show

purposes. The evidence establishes that not all of the vessels on which the claimant and

similarly situated employees perform repair were used exclusively for recreational purposes.

Had the employer maintained its facilities exclusively for service or repair of recreational

vessels, its employees would have been excluded from the Act. However, it chose to commingle

the recreational boats with vessels used for non-recreational purposes thereby affording its repair workers continuing coverage under the Act. Thus, I find

the claimant’s job related injury on February 2, 2010 falls within coverage of the Act

rather than Florida workers’ compensation

ALJ CLEMENT KENNINGTON DENIES CLAIMANT BENEFITS

Dennis H. Radford v. Arcelormittal LaPLACE LLC
Read full decision Here

Excerpts
Claimant contends that processed steel was sometimes prepared for shipping via barge or ship in
the plant on the landward side of the Mississippi River levee and is the functional equivalent of awharf or dock causing Claimant’s injuries to have occurred in an “other adjoining area.” Further, Claimant asserts that since the 1972 Amendments to the Act, the Fifth Circuit has recognized an emphasis on status over situs to avoid the anomaly of a worker walking in and out of coverage.

Employer maintains that Claimant does not have status under the Act in that he had noregularly assigned duties that could be considered maritime in nature. By Claimant’s own admission, Employer notes that he spent a minimal amount of time on the dock and for none of that time was Claimant involved, at least in some part, in “indisputably longshoring operations”in order to have status.

Conclusion

As Claimant was not employed in any of the occupations enumerated in the statute, his

work must have been integral or essential to the loading, unloading, building, or repairing of a

vessel to be covered under the LHWCA. Claimant cites

Boudeloche and Caputo in support of

his claim that he meets the status requirement even though Claimant admits to spending less than

five percent of his time in arguably maritime employment. These cases are distinguishable from

the case

sub judice in that the claimants in Boudeloche and Caputo were involved directly and

indisputably in traditional stevedoring and longshoring activities albeit in limited amounts but as

part of their regularly assigned job duties. Claimant here argues that his work associated with

the dock was unquestionably maritime. Claimant testified that he never performed any physical

work in connection with the repair and maintenance of the dock or machinery and that his role

was limited to observing, mentoring, and advising on various projects. These types of activities

are not “an integral or essential part of the loading, unloading, building, or repairing of a vessel”

nor are they “indisputably longshoring operations.” Claimant’s

connection to activities covered under the Act is not only indirect but so far removed from what can be considered to be maritime employment in order to have status under the Act.

DECEASED CLAIMANT RECEIVES POSTHUMOUS BENEFITS FROM THE ELECTRIC BOAT COMPANY

JAMES W. KELLY v ELECTRIC BOAT CORPORATION and ACE AMERICAN INSURANCE COMPANY

Read Full Case Here

Excerpts:

On April 26, 2012, the Claimant filed a motion for summary decision seeking an award of benefits to the

Claimant’s estate for a permanent partial impairment from October 4, 2011

through the date of the Claimant’s death on February 9, 2012. On May 7, 2012, the Employer

filed an objections to the Motion, and on that same day, it filed a cross motion for summary

decision arguing that it should not be liable for payment to the Claimant because after it became

self-insured in April of 1973, the Claimant was not engaged in maritime employment nor was he

exposed to asbestos at any maritime situs. On May 17, 2012, the Carrier filed a motion for summary decision seeking dismissal from the case before the    

Claimant’s exposure continued beyond April 1973 when the Employer became self-insured and the Carrier no longer insured the risk. On May 25, 2012, the Employer filed an objection to the Carrier’s motion, and on May 31,2012, the Claimant filed a response to both the Employer and Carrier’s motions for summary decision. On June 5, 2012, I held telephonic hearing on-the-record on the pending motions. During the June 5, 2012 telephonic hearing, the parties confirmed that there were no factual issues in dispute that would preclude summary decision, and all relevant documentary evidence was appended to the filling made by the various parties. Subsequently, I rendered a Bench decision on the record finding that Ace American Insurance Company was the last responsible  in this matter and granted the Claimant’s Motion for Summary Decision, in part.

Conclusion

Mr. Kelly is entitled to permanent partial disability benefits from October 4, 2011

through the date of his death on February 9, 2012, as well as medical care and

treatment. The Carrier, Ace American Insurance Company, shall pay the Estate of James W.
Kelly Permanent Partial disability benefits pursuant to 33 U.S.C. § 908(c)(23) at
the rate of $280.63 per week for the period of October 4, 2011 to February 9,2012;

ALJ RICHARD CLARK DECIDES CLAIMANT IS ENTITLED TO TOTAL TEMPORARY AND PERMANENT DISABILITY PAYMENT

AMY MUNDY v. PLATYPUS MARINE

Read Full Decision Here

Excerpts

With respect to the current nature and extent of disability, Claimant argues that her left

arm condition has rendered her permanently and totally disabled. ALJX 1 at 18. She argues that

she has diligently pursued employment, but Employer has failed to identify suitable alternative

employment that account for all of her physical and mental impairments.

Id. at 20-22. Majestic argues that in spite of Claimant’s physical and mental impairments, suitable

alternative employment has been identified drawing on Claimant’s prior work skills, and that she is

therefore only permanently partially disabled. ALJX 2 at 17-18. Chartis concedes that Claimant

was temporarily totally disabled from January 9, 2008, to March 20, 2008, but argues that there

was no permanent impairment resulting from the December 20, 2007, shoveling incident, and

defers to Majestic’s argument concerning the extent of disability. ALJX 3 at 17.

With regard to the extent of the disability, a claimant is presumed to be totally disabled
where claimant can establish that a work-related injury prevents her from performing or

returning to her usual employment.

In other words, a claimant may still be deemed totally disabled “when physically capable
capable of performing certain work but otherwise unable to secure that particular kind of work.”

Because Claimant’s December 20, 2007 shoveling injury constitutes a permanentaggravation of her underlying condition, Chartis, the carrier at the time of this injury, is the las

responsible carrier. As the last responsible carrier

Chartis is solely liable for the entire resulting disability from December 20, 2007

the date of the aggravation forward. Found. Constructors, 950 F.2d at 624. Chartis should have paid

Claimant wage compensation and medical benefits from this date forward. As such, Majestic is entitled to reimbursement for all payments made to Claimant after December 20, 2007.

Conclusion

1. Claimant is entitled to temporary total disability benefits from November 14,

2006, through March 20, 2007; temporary partial disability benefits from March

21, 2007, to May 14, 2007; and temporary total disability benefits from May 15,

2007, to September 23, 2007, based on an average weekly wage of $438.88.

2. Claimant is entitled to temporary total disability benefits from January 8, 2008, to

August 1, 2011, and permanent total disability benefits from August 2, 2011, to

the present and continuing based on an average weekly wage of $438.74.
3. Majestic shall provide all disability benefits owed to the Claimant based on the

average weekly wage of $438.88 beginning on November 14, 2006, through

December 19, 2007, less the benefits it previously paid Claimant during this time

period. This includes any unpaid medical expenses, unpaid temporary total

disability benefits from November 14, 2006, through March 20, 2007; unpaid

temporary partial disability benefits from March 21, 2007, to May 14, 2007; and

unpaid temporary total disability benefits from May 15, 2007, to September 23,

2007.

4. Chartis shall provide all disability benefits owed to the Claimant based on the

average weekly wage of $438.74 beginning on December 20, 2007, and

continuing, less the benefits it previously paid Claimant during this time period.

This includes any unpaid medical expenses, unpaid temporary total disability

benefits from January 8, 2008, to August 1, 2011, and unpaid permanent total

disability benefits from August 2, 2011, to the present and continuing.

5. Chartis shall reimburse Majestic for all medical and compensation benefits

Majestic paid after the December 20, 2007, injury, plus interest at the statutory

rate set forth in 28 U.S.C. § 1961.

ALJ LEE ROMERO JR. AWARDS PERMANENT TOTAL BENEFITS TO CLAIMANT

THERESA C. RODRIGUEZ v.ARMY CENTRAL INSURANCE FUND
Read Full Decision Here

Excerpts

In the present matter, Claimant contends she suffered a

work-injury on October 18, 2007. She contends that she suffered
a compensable neck, lower back and left shoulder injury. Employer concedes that Claimant suffered a cervical sprain or strain, but they argue that the injury did not extend to a ruptured cervical disc or any cervical disc injury which could be remedied by the surgery performed by Dr. Smith. It contends Claimant has not presented credible evidence showing that her present symptoms arose out of her employment with Employer.



The Employer argues the Claimant’s back and neck problems are
compensable because she suffered from pre-existing arthritis
and degenerative disc disease which were not aggravated or accelerated by the work injury. Dr. Xeller diagnosed Claimant with resolved cervical and lumbar sprains, which had resolved in three to four months. He opined the October 2007 work-accident did not cause spurs or degeneration. Dr. Xeller further opined that the cervical surgery was performed because of

Claimant’s arthritis, which pre-existed the injury.

Conclusion

1. Employer shall pay Claimant compensation for temporary

total disability from December 15, 2008 to March 20, 2009, based

on Claimant's

average weekly wage of $421.10, in accordance with the provisions of Section 8(b) of the Act. 33 U.S.C. § 908(b).

2. Employer/Carrier shall pay Claimant compensation for

permanent total disability from March 21, 2009 to May 6, 2009,

based on Claimant's

average weekly wage of $421.10, in accordance with the provisions of Section 8(a) of the Act. 33

U.S.C. § 908(a).

3. Employer shall pay all reasonable, appropriate and

necessary medical expenses arising from Claimant’s

October 18, 2007, work injury, pursuant to the provisions of Section 7 of

the Act, consistent with this Decision and Order.

4. Employer shall receive credit for all compensation

theretofore paid, if any, as and when paid.

5. Employer shall pay interest on any sums determined to

be due and owing at the rate provided by 28 U.S.C. § 1961

(1982); Grant v. Portland Stevedoring Co., et al., 16 BRBS 267

(1984).

6. All computations of benefits and other calculations

which may be provided for in this Order are subject to

verification and adjustment by the District Director.

ALJ LEVIN RULES ON CROSS MOTIONS FOR SUMMARY JUDGEMENT IN CLAIM THAT ALL PAYMENTS WERE NOT TIMELY PAID

READ FULL DECISION

Excerpts


This matter involves a claim for benefits filed under the Longshore Act by Mark
Wainwright, a former employee of Jacksonville Shipyards. Claimant injured his back at work on
August 22, 1980. In this proceeding, Claimant challenges the amount and the timeliness of
compensation payments he has been receiving pursuant to prior orders that have issued in this
matter. On April 6, 2012, he filed a Motion for Summary Decision seeking a lump sum for
alleged underpayments of past due compensation, plus interest and penalties. Thereafter,
following an extension of time to respond, Employer filed Objections to Claimant’s Motion and
a Cross Motion for Summary Decision. Employer contends that Claimant has failed to identify a
single specific compensation payment that was unpaid, underpaid, or paid late. In addition, Employer moves for Summary Decision dismissing this matter on the ground that it has timely paid Claimant everything he is owed under the compensation orders that are applicable to this
claim.
 ......

CONCLUSION

For all of the foregoing reasons, Claimant has failed to establish, pursuant to Rule
18.40(d), that he is, as a matter of law, entitled to summary decision awarding him unpaid,
underpaid or untimely paid compensation, interest, or penalties. Accordingly, his Motion for
Summary Decision will be denied. Sections 18.40(d) and 18.41(a); Anderson, supra; see also,
Celotex, supra at 322.

Turning to Employer’s Cross Motion for Summary Decision, I have construed all
evidence and factual inferences in Claimant’s favor, Matsushita Elec. Indus. Co., Ltd., , supra;
Diebold, Inc., supra ; Held, supra, and have applied the principle that summary decision should
be entered only when no genuine issue of material fact need be litigated. Poller, supra; Rogers,
supra. In this instance, the essential facts are not in dispute. Claimant was timely paid $29.65 per
week in compliance with the stipulation and order applicable to his claim. The uncontroverted
evidence shows he was timely paid everything he was owed. For all of the foregoing reasons, I,
therefore, conclude that Employer has satisfied its burden of establishing, pursuant to Rule
18.40(d), that no genuine issue of material fact exists for hearing and that it is, as a matter of law,
entitled to summary decision dismissing this matter. Accordingly;
ORDER
IT IS ORDERED that Claimant’s Motion for Summary decision be, and it hereby is,
denied, and;
IT IS FURTHER ORDERED that Employer’s Cross Motion for Summary Decision be,
and it hereby is, granted, and;
IT IS FURTHER ORDERED that the claim filed in this matter be, and it hereby is,
dismissed.

The strong and the smart surviving South Jersey's shipbuilding industry - pressofAtlanticCity.com: Atlantic County News

The strong and the smart surviving South Jersey's shipbuilding industry - pressofAtlanticCity.com: Atlantic County News: Difficult times in the shipbuilding industry could mean trouble for Bass River Township and its largest taxpayer, Viking Yachts, but the company ... full article...

OHIO Bureau of Workers' Comp. Reduces LHWCA Rates

By WorkersCompensation.com 5 hours 59 minutes ago

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Columbus, OH (WorkersCompensation.com) - The Ohio Bureau of Workers' Compensation (BWC) today approved rates for several funds that support Ohioans whose workplace injuries caused permanent disability, and those working in the marine and coal industries. The BWC Board of Directors approved a 20 percent rate decrease for employers insured through the Marine Industry Fund and no change in rates for employers with coverage through the Coal Workers' Pneumoconiosis Fund. Employer's contributions rates to the Disabled Workers' Relief Funds will also remain unchanged.

"These specialty funds support workers in two significant Ohio industries, as well as those who have suffered some of the most debilitating injuries and are unable to return to their livelihoods," said BWC/CEO Administrator Steve Buehrer. "The setting of rates for these funds is consistent with BWC's charge to assess the lowest possible rates that support the recovery of injured workers while leaving employers with more resources to succeed."

The Marine Industry Fund provides coverage for injuries, disease and death resulting from longshore and harbor worker duties for Ohio employers with employees who work on or about navigable waters, as required by the Federal Longshoremen and Harbor Workers' Act. This act includes coverage for activities on pier, wharf, dry dock, terminal, building way, marine railway and other adjoining areas customarily used by an employer in loading, unloading, repairing, or building a vessel.

The Coal Workers' Pneumoconiosis Fund provides permanent and total disability benefits and medical payments to employees who have contracted pneumoconiosis (Black Lung disease) in the course of their employment. It also provides death benefits for surviving spouses of workers whose death resulted from their contraction of pneumoconiosis.

The Disabled Workers' Relief Funds are supplemental funds established to provide cost of living adjustments to an injured worker who is receiving permanent and total disability compensation benefits.

The rates will be effective July 1.

The next meeting of the BWC Board of Directors is scheduled for Friday, July 27, 2012.

Read Full Article at www.workerscompensation.com

Diesel Fumes Linked to Cancer: Diesel Engine Exhaust Earns 'carcinogenic' Label

Diesel Fumes Linked to Cancer: Diesel Engine Exhaust Earns 'carcinogenic' Label

LA Times: World Health Organization Says Diesel Fumes Cause Cancer

World Health Organization Says Diesel Fumes Cause Cancer
 

 

 

By Erin Loury

June 15, 2012, 9:55 a.m.

Diesel engines power commerce and transportation around the world, but the exhaust they produce can prove deadly. The World Health Organization (WHO) announced on Tuesday that it now classifies diesel exhaust as a cause of cancer. While major advances in technology have helped clean up some diesel pollution in the United States, the findings could have serious implications for developing countries still relying on dirty diesel power.

Following a week-long meeting of experts, the WHO’s International Agency for Research on Cancer concluded there was sufficient evidence that diesel exhaust can cause lung cancer, and noted it may also increase the risk of bladder cancer. Gasoline exhaust remains classified as a “possible” carcinogen, a WHO status that has not changed since a 1989 evaluation.
California’s Air Resources Board classified diesel as cancer-causing in 1998, and passed a number of regulations to reduce the public’s diesel pollution exposure from sources like trucks, ports and agricultural equipment.

The WHO’s announcement validates California’s efforts, said Diane Bailey, a senior scientist with the Natural Resources Defense Council in San Francisco. “It’s a signal to the international community that we really need to take diesel pollution seriously,” Bailey said. “It’s a major global health threat to people throughout the world.” She added that tens of thousands of people die from exposure to diesel exhaust every year.
Diesel exhaust contains tiny soot particles that can pass through the lungs into the bloodstream, carrying heavy metals, sulfates and other chemicals. “The health risks of diesel exhaust are a little like smoking a couple of cigarettes a day, the difference being that you don’t choose” to be exposed, Bailey said.
However, these risks are largely preventable, thanks to low-sulfur diesel and more efficient engines with improved filtration. “We really have diesel that’s near zero emissions for fine particles and nitrogen oxides,” said Allen Schaeffer, the executive director of the Diesel Technology Forum. A recent study by the Health Effects Institute found that exhaust from diesel engines meeting the 2007 EPA standards, which reduce particle emissions by 90%, only slightly decreased lung function in rats.

California’s trucking industry has already taken many steps to comply with Air Resources Board regulations, such as installing particle filters, said Michael Shaw, a spokesperson for the California Trucking Assn. However, the costs of such upgrades get passed on to consumers buying items like a gallon of milk or a loaf of bread, he said.

The trucking industry is currently experiencing a “renaissance” in terms of alternative fuels, Shaw said, “everything from liquified natural gas, to hybrid trucks and all-electric trucks.” But he added that these alternatives comprise just a small percentage of fuel used by the trucking industry, which is projected to rely predominantly on diesel well into this century.

Although the United States has made progress to clean up diesel pollution, exposure is a serious issue in the developing world, Bailey said. “We’re starting to see the sales of diesel vehicles skyrocket.”
In order to take advantage of cleaner diesel technology, developing countries first need to adopt cleaner fuel standards, Schaeffer said. The low-emission engines won’t work properly on diesel high in sulfur.

A June 2012 United National Environment Programme map of sulfur content standards in diesel fuel around the world shows that North America, Europe and Australia have the highest standards, but that the sulfur problem is worse – and sometimes much worse – in large parts of the globe. To see more, click here.
 “It’s the challenge of getting the clean equipment and the clean fuel together,” he said. “That becomes a big problem in a hurry outside of the U.S.”

FIFER v. MARINE REPAIR SERVICE (ALJ KIRBY)

ALJ Kirby credits treating physician and awards medical treatment in carpal tunnel claim.  In so doing, ALJ rejects defenses of untimely notice and untimely filed claim.

Full Decision

Excerpts:

I give more weight to the credible testimony of Claimant and well-supported opinion of
Dr. Franchetti, attributing the initiation of Claimant’s bilateral carpal tunnel syndrome to his
work for Employer. A doctor’s reasoning that is both supported by objective medical tests and
consistent with all the documentation in the record is entitled to greater probative weight. Fields
v. Island Creek Coal Co., 10 B.L.R. 1-19 (1987). Additionally, to be considered well reasoned,
the physician’s conclusion must be stated without equivocation or vagueness. Justice v. Island
Creek Coal Co., 11 B.L.R. 1-91 (1988). Accordingly, I find that Claimant has established by a
preponderance of the evidence that his bilateral carpal tunnel syndrome was caused by,
contributed to, or aggravated by his work for Employer which involved the repetitive use of
vibratory and pounding hand tools.

Claimant testified that he has continued to experience bilateral hand pain and numbness
ever since he worked for Employer. The persistence of the bilateral hand conditions after
Claimant left employment for Employer does not break the link between his duties for Employer
and his bilateral carpal tunnel syndrome.

Timely Notice

At the very latest, Claimant was aware of the relationship between his injury and

employment on March 22, 2010, when Dr. Franchetti told him that he had bilateral carpal tunnel
syndrome that was occupationally related to his work for Employer. The record does not reflect
that Claimant gave notice to Employer within 30 days of attaining this knowledge. Rather, his
first action did not occur until August 3, 2010, when he filed a claim with the Office of Workers’
Compensation Programs. Employer was not notified of the claim and Claimant’s alleged injury
until August 16, 2010. Accordingly, I find that Claimant did not comply with the Section 12(a)
requirement to provide Employer with notice of his injury within thirty days.
Given Claimant’s failure to provide the required notice, I must determine pursuant to
Section 12(d) whether the claim should be barred. Examining Section 12(d), the only ground for
excusal which may exist in this case would be that Employer has not been prejudiced by failure
of Claimant to provide notice. In its brief, Employer has not articulated any way in which it has
been prejudiced by Claimant’s failure to file timely notice. Upon review of the entire record, I
do not find that Employer has been prejudiced. Employer has not been hindered in its ability to
investigate the claim and to obtain independent medical examination. Accordingly, I find that
pursuant to Section 12(d)(2), Claimant’s failure to file timely notice does not bar his claim.

TIMELY CLAIM

However, he was unaware at this time that such condition was occupationally
related as it does not appear from the records that Dr. Lee opined as to the etiology of the
condition. It appears that Dr. Lee did not go beyond conducting the test and making the
diagnosis. I find that it was not until March 22, 2010, when he sought evaluation and treatment
from Dr. Franchetti, that Claimant became aware of the etiology of his carpal tunnel syndrome
and that it was, in fact, related to his work with repetitive vibrating and pounding tools for
Employer. I also find that Claimant’s condition constitutes an “occupational disease,” and
Claimant thus had two years in which to file his claim. See D.L. v. Labor Ready Inc., BRB No.
08-0230, (Sep. 22, 2008); citing LeBlanc v. Cooper/T. Smith Stevedoring, Inc., 130 F.3d 157, 31
BRBS 195 (CRT) (5th Cir. 1997); Gencarelle v. General Dynamics Corp., 892 F.2d 173, 23
BRBS 13 (CRT) (2d Cir. 1989); see also, Carlisle v. Bunge Corp., 33 BRBS 133 (1999), aff’d,
227 F.3d 934, 34 BRBS 79 (CRT) (7th Cir. 2000). Accordingly, I find that Claimant filed his
claim in a timely manner. I also note that even if the filing period were one year rather than
two, Claimant still filed his claim in a timely manner.

Ketchum v. AAR Brown International, Inc. (Associate Chief ALJ Paul Johnson)(DBA)

Following extensive discussion and analysis, Association Chief ALJ Johnson holds that Claimant is barred from further compensation by failure to comply with Section 33(g) and obtain Employer/Carrier's written approval for third-party settlement.

ORDER
Because of Claimant’s failure to comply with Section 33(g) of the Act, he has no further
remedy under the Longshore Act as to his claim for physical and psychological injuries
described above arising from the accident of July 20, 2009 against Employer/Carrier; and any
benefits under the Longshore Act or Defense Base Act as to that claim are now precluded.
Accordingly, Employer/Carrier’s motion for summary decision is GRANTED, and this matter is
DISMISSED.


Read Full Decision

Whitaker vs. Service Employee's International, Inc. (DBA) (ALJ Rosenow)(2012-LDA-583)

In DBA claim, ALJ Rosenow finds that Claimant fails to make prima facie case that Glaucoma worsening is causally related to employment.   Medical benefits granted for carpal tunnel syndrome.

Full Decision

ALJ Kranz Credits AMA Guides 6th Edition over 5th, Edition

MCALLISTER-NEWSOME LONNIE v NORTHROP GRUMMAN


Review Board (“Board”) has held that the Act does not require the administrative law judge
(ALJ) to adhere to any physician’s opinion, particular guide, or formula. Mazze v. Frank J.
Holleran, Inc., 9 BRBS 1053, 1055 (1978). The Board expanded this holding to note that the
ALJ “may consider a variety of medical opinions and observations in addition to claimant's
description of symptoms and physical effects of his injury in assessing the extent of claimant's
disability.” Pimpinella v. Universal Mar. Serv. Inc., 27 BRBS 154, 159 (1993)(citing Bachich v.
Seatrain Terminals of California, Inc., 9 BRBS 184 (1978)). The ALJ may rely on the Guides in
determining the extent of loss of the use of a body part but is not required to do so except in
cases involving hearing loss. Ortega v. Bethlehem Steel Corporation, 7 BRBS 639 (1978). The
ALJ is entitled to weigh all the evidence, medical or otherwise, before him and to rely on that
evidence which he finds most credible. Ennis v. O'Hearne, 223 F.2d 755, 758 (4th Cir.1955).
Guides 5th and 6th Editions.

Claimant urges that the rating calculated under the 5th Edition be credited, while
Employer avers that the 6th Edition represents an advance in medical consensus and science,
reconciling many criticisms of prior editions, and accordingly Dr. Cavazos’ rating based on that
edition is most accurate.

The Fourth Circuit has noted that, with respect to hearing loss impairments, “The AMA
Guides are specified because they are ‘the most widely accepted medical standards and
[Congress] wish[ed] to assure that determinations will always be in accordance with the most
recently revised edition.’” Green-Brown v. Sealand Services, Inc. 586 F.3d 299 (4th Cir. 2009)
(quoting H.R. Rep. No. 98-1027, at 28 (1984) (Conf.Rep.), reprinted in 1984 U.S.C.C.A.N.
2771, 2778.) While that particular case dealt with hearing loss, the notion that impairment rating
determinations should be made in accordance with the most recently revised edition of the
Guides is common sense and can be extrapolated to many types of injuries. Further, I note that
the Fourth Circuit released this decision in 2009, after the publication of the 6th Edition, and
therefore encompasses that edition.5 Accordingly, I will consider impairment ratings based on  the 6th Edition to be more credible than those based on the 5th Edition, notwithstanding other
factors to the contrary.

... full case ...

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2010/MCALLISTER-NEWSOME_L_v_NORTHROP_GRUMMAN_SHI_2010LHC02