DeJesus vs. Viking Yacht Co, et als.

Luis E. DeJesus vs. Viking Yacht Company, Inc. & American Risk Svcs and Seabright Insurance Equity 

In claims for continuing aggravation/exacerbation of knee injury, ALJ Mosser decides which carrier will be responsible for each knee.

Excerpt

The Benefits Review Board (Board) held as early as 1997 that the Section 20(a)
presumption has no role in determining the correct responsible operator/carrier in cases involving
traumatic injuries. Buchanan v. Int’l Transp. Servs., 31 BRBS 81 (1997). It explained that “[§]
20(a) presumption aids a claimant in establishing the compensability of his claim, and does not
apply to the issue of responsible employer.” Buchanan, 31 BRBS at 84, citing Lins v. Ingalls
Shipbuilding, Inc., 26 BRBS 62, 65 (1992); Susoeff v. San Francisco Stevedoring Co., 19 BRBS
149, 151 n. 2 (1986). See also Marinette Marine Corp. v. Dir., OWCP, 431 F.3d 1032, 39 BRBS
82(CRT) (7th Cir. 2005). In more recent cases, the Board also has restated its position that the
Section 20(a) presumption is not applicable to proving the responsible operator/carrier in cases
involving traumatic injuries. See Palmer v. Marine Terminals Corp., et al., BRB Nos. 10-0650,
10-0650A (Sept. 30, 2011) (unpub.); Miller v. Ceres Marine Terminals, Inc., et al., BRB Nos.
11-0227 and 11-0279 (Dec. 9, 2011). In factual situations, like the one involved in these cases,
where there is a finding that the claimant sustained a work-related injury (e.g., with the initial
employer), the Board has held that such a finding resolves the issue of compensability, leaving
only the issue of liability to be decided, with each employer bearing the burden of proof. See,
e.g., Oberts v. McDonnell Douglas Servs., et al., BRB No.05-0445 (2006) (unpub.); see also
Avant v. Nat. Steel and Shipbuilding Co., et al., BRB No. 03-0414 (Mar. 8, 2004) (unpub);
Holmes v. Worldwide Labor Support, Inc., et al., BRB No. 04-0914 (Aug. 24, 2005) (unpub);
Ramey v. Jones Stevedoring Co., et al., BRB Nos. 05-0578 and 05-0578A (Mar. 30, 2006)
(unpub.). Thus, I find that the Section 20(a) presumption should not be applied in these cases to
determine whether American Equity or Seabright is liable for the continuing disability and
medical treatment of the claimant’s knees. Instead, I find that each carrier bears the burden to
prove it is not liable.