Tuesday, August 28, 2012
ALJ Geraghty Denies Claim for Cardiac Death Based Upon Causally Related Weight Gain and Risk Factors
Larry B. Breen vs. Electric Boat Corp. (full decision)
Excerpt
3. Weighing All The Evidence
Once an employer rebuts the Section 20(a) presumption, “the ALJ must weigh all of the
record evidence to determine whether the claimant has established the necessary causal link
between the injury and employment.” Fields, 599 F.3d at 53; see Preston, 380 F.3d at 605;
Brown, 194 F.3d at 5. The Claimant bears the ultimate burden of persuasion. Fields, 599 F.3d at
53; Director, Greenwich Collieries, 512 U.S. at 281. I must now weigh all of the evidence and
determine whether the Claimant has established by a preponderance of the evidence that the
Decedent’s work-related back injuries caused, contributed, or hastened his death.
In the present matter, all of the medical experts agree that Decedent’s coronary artery
disease was the direct cause of his death. All of the physicians also agree that Decedent’s
morbid obesity contributed to his diabetes, hypertension, obstructive sleep apnea and coronary
artery disease. However, the medical experts differ with regard to whether the Decedent’s workrelated
back injuries contributed to his morbid obesity. The key difference in the opinions
between the Claimant’s expert, Dr. Baker, and the Employer’s experts, Dr. Morgan and Dr.
Tousignant, is that the Claimant’s expert states the Decedent’s work-related back injury was a
direct and proximal cause of the Decedent’s morbid obesity. Dr. Baker linked Decedent’s lack
of physical activity to his chronic back pain and he linked Decedent’s overeating, at least in part,
to depression associated with both chronic back pain and PTSD. Based upon this linkage, Dr.
Baker opined that morbid obesity contributed to the other medical conditions which hastened
Decedent’s death, thereby, connecting the back injuries to Decedent’s death many years later. In
contrast, the Employer’s medical experts concluded that the back injuries Decedent sustained
working for Electric Boat did not contribute to his morbid obesity, and rather his progression
from obesity to morbid obesity over the years is attributed to his binge eating disorder, diabetes
treatment and family history of obesity, diabetes and cardiac disease.
In 1983, Decedent had specific physical limitations as a result of his back injuries and
some residual pain. However, he was able to return to work for 11 months in 1988-1989.27
26 Dr. Tousignant noted that individuals with a body mass index above 30, which Decedent had in 1981, are at substantially higher risk for developing diabetes and coronary artery disease. The Decedent’s progression to morbid obesity certainly contributed to both of these medical conditions.
27 The fact Decedent returned to work for 11 months in 1988-89 undermines Mrs. Green’s testimony that from 1984 to the mid 1990’s the Decedent could not sleep, walk, or exercise because those activities bothered his back.
- 20 -
Thereafter, it appears he did not work. The absence of any medical treatment records for the
period 1984-2000 with the exception of the 1989 visit to Dr. Selden for back pain after hanging
wallpaper does not assist the Claimant in her efforts to prove that the Decedent’s back pain
precluded virtually all physical activity. After the Decedent slipped and fell at the supermarket
in 2000, he reported back pain to the VA, sought treatment and was diagnosed with another
herniated disc and radiculopathy. By that point Decedent had gained almost 100 pounds. The
VA records reflect that Decedent had back pain which limited activity, but the records does not
indicate that Decedent was incapable of any physical activity, and indeed the VA physicians
recommended walking and swimming. Additionally, I am persuaded by Dr. Tousignant’s
opinion that one loses weight by reducing caloric intake, even if one is not physically active. Dr.
Tousignant’s practice specialty is weight loss and I credit his opinion in this regard. The VA
treatment records overwhelmingly demonstrate that the Decedent did not reduce his caloric
intake, but rather engaged in binge eating episodes over a long period of time, had insulin
dependent diabetes, and likely had a glandular condition all of which resulted in significant
additional weight gain.28
Dr. Baker’s belief that the VA treatment records attribute Decedent’s overeating to
depression, related in part, to his chronic daily back pain is not supported by the VA records.
The treatment records for depression covering the period 2004 to 2006 reflect that the depression
resulted from Decedent’s Vietnam experiences and flashbacks from that period as well as from
family interpersonal issues. The treatment records in the period 2008-2009 indicate that the
Decedent’s depression increased over that time as a result of PTSD related to service experiences
and disappointment/frustration over his unsuccessful efforts to sustain weight loss and qualify for
bariatric surgery. Because the VA records do not provide the linkage Dr. Baker claims, his
opinion connecting Decedent’s depression to overeating binges and back pain is not credited.
Accordingly, I find that the Claimant has failed to establish by a preponderance of evidence that
the Decedent’s work-related back injuries caused, contributed, or hasted his death from sudden
cardiac arrhythmia exacerbated by morbid obesity, coronary artery disease, diabetes, and
hypertension. It is, therefore, unnecessary to reach the remaining issues in dispute.
28 The Claimant’ testimony that the Decedent did everything he was supposed to do to lose weight is inconsistent with the contemporaneous treatment records. While he made some attempts to lose weight, the records establish that Decedent’s effort was not consistent and he was unable to make different dietary choices over any sustained period of time. I recognize that Decedent’s struggle was contributed to by an eating disorder and likely a glandular issue. Nevertheless, I cannot credit Claimant’s statements that Decedent complied with all guidance and instruction regarding weight loss efforts.
ALJ Bergstrom Finds 948(a) Discrimination Violation and Analyzes Penalty Provisions
Jerry Ballard vs. AAFES Full Decision
Excerpts.
STIPULATIONS
The parties stipulated, and this Administrative Law Judge finds, the following as fact (TR at 6-
7):
1. The Claimant sustained a work-related injury to his neck and back on February 22, 2008,
while performing assigned duties as a warehouseman.
2. The Claimant filed a claim for benefits based on the February 22, 2008 work-related
injury under the LHWCA, which claim was adjudicated with findings of fact and
conclusions of law being promulgated in a “Decision and Order – Granting and Denying
Benefits In-Part” on March 29, 2011. Such Decision and Order being a final action of the
Department of Labor as of April 29, 2011.
3. On April 6, 2011, Claimant made a request for modification of the March 29, 2011
“Decision and Order-Granting and Denying In-Part” and alleging an allegation of
Employer’s violation of §948(a) of the LHWCA.
4. The District Director held an informal conference on June 23, 2011.
5. The Employer controverted the District Director’s recommendations on July 26, 2011.
6. The Claimant’s employment was terminated by Respondent on March 2, 2011.
7. Disability compensation ordered by the March 21, 2011 Decision and Order was paid
through March 2, 2011.
8. The Claimant has not been employed since March 2, 2011.
9. The Claimant has not received disability compensation under the LHWCA since March
2, 2011.
ISSUES
The issues remaining to be resolved are (TR 7-8):
1. Did Respondent violate §948(a) of the LHWCA on March 2, 2011 by terminating the
Claimant’s employment?
2. If so, what penalty and/or relief is appropriate under §948(a) of the LHWCA?
3. Is the Claimant entitled to a change in benefits under the LHWCA based on a change in
condition since March 2, 2011?
4. Was there a mistake in the determination of a material fact in the March 29, 2011
Decision and Order?
5. Will the interests of justice be served by re-opening the March 29, 2011 Decision and
Order?
6. Is the Claimant entitled to additional reimbursement for certain travel expenses for travel
to the January 25, 2011, hearing in Newport News, Virginia under §928(d)?
7. Is the Claimant entitled to additional compensation for Respondent’s failure to make
payments under §914(e) or §914(f) of the LHWCA?
8. Is Respondent liable for legal fees and costs under the LHWCA?
....
Claimant’s counsel submits that the Claimant was terminated from his employment while
disabled and entitled to benefits under the LHWCA in violation of §948(a) and that the
Respondent’s argument that the Claimant was terminated for lying on his initial employment
application 10 years prior to the termination was a pretext for the adverse employment actions
taken on March 2, 2011. He argues that the uncontradicted evidence is that the Claimant was
called into the human resources department by Respondent in the fall of 2001 and provided
human resources with a written explanation of all arrests and/or convictions listed in EX 3 and
was directed to return to work.
Claimant’s counsel submits that Respondent does not claim the Claimant was a poor performer,
insubordinate, or unauthorized absentee; but, “instead they attempted to resurrect something that
was dealt with in 2001.” He argues that “instead of simply saying they had no work for him,
AAFES used a pretext to fire him after he had worked for AAFES for ten (10) years.”
Respondent argues that the Claimant’s employment was properly terminated for falsifying his
October 2, 2001 employment application as related to disclosure of history of arrests, charges,
convictions, fines and non-judicial punishment.
....
Here the Claimant has established that an adverse employment action was taken by AAFES
during the pendency of a claim for benefits under the LHWCA in the form of termination of
employment on March 2, 2011. The Claimant has also established by inference that the
termination was due, at least in part, because he had a pending claim for benefits under the
LHWCA at the time of the adverse actions. This is a prima facie case of retaliation in violation
of §948(a) of the LHWCA. Since Mr. Montgomery was not aware until February 3, 2011 of the
claim that the criminal infractions were explained by the Claimant to human resources in 2001,
his actions of placing the Claimant on suspension with pay did not violate §948(a) of the
LHWCA.
Accordingly, AAFES must rebut this prima facie case by demonstrating that the March 2, 2011
termination was due solely to non-discriminatory reasons in order to escape liability under
§948(a) of the LHWCA. In that regard AAFES has failed to rebut the evidence that AAFES was
aware of the infractions in 2001, the Claimant adequately explained the infractions in 2001, and
AAFES accepted that 2001 explanation by retaining the Claimant as an employee continuously
through the March 2, 2011 termination date. The fact Mr. Montgomery accepted the Union
representative’s argument on February 3, 2011 that the infractions with the military would have
been reflected on the DD-214 that would have been part of the Claimant’s 2001 employment
application does not support Mr. Montgomery’s conclusion that the Claimant did not file a
written supplement to the employment application in 2001 explaining the civilian infractions
noted by Agent Mix December 8, 2001 (the same infractions subsequently reported by B.L.
McCray on January 25, 2011), does not contradict the Claimant’s testimony concerning his 2001
explanation of the civilian infractions, and does not excuse AAFES’s rush to terminate the
Claimant prior to the March 29, 2011 Decision and Order.
After deliberation on the evidence of record, this Administrative Law Judge finds that the
Claimant has established a prima facie violation of §948(a) of the LHWCA by AAFES
terminating the Claimant’s employment on March 2, 2011 due at least in part to the pending
claim for benefits under the LHWCA and that AAFES has failed to rebut the prima facie case
that AAFES so violated §948(a) of the LHWCA.
...
Excerpts.
STIPULATIONS
The parties stipulated, and this Administrative Law Judge finds, the following as fact (TR at 6-
7):
1. The Claimant sustained a work-related injury to his neck and back on February 22, 2008,
while performing assigned duties as a warehouseman.
2. The Claimant filed a claim for benefits based on the February 22, 2008 work-related
injury under the LHWCA, which claim was adjudicated with findings of fact and
conclusions of law being promulgated in a “Decision and Order – Granting and Denying
Benefits In-Part” on March 29, 2011. Such Decision and Order being a final action of the
Department of Labor as of April 29, 2011.
3. On April 6, 2011, Claimant made a request for modification of the March 29, 2011
“Decision and Order-Granting and Denying In-Part” and alleging an allegation of
Employer’s violation of §948(a) of the LHWCA.
4. The District Director held an informal conference on June 23, 2011.
5. The Employer controverted the District Director’s recommendations on July 26, 2011.
6. The Claimant’s employment was terminated by Respondent on March 2, 2011.
7. Disability compensation ordered by the March 21, 2011 Decision and Order was paid
through March 2, 2011.
8. The Claimant has not been employed since March 2, 2011.
9. The Claimant has not received disability compensation under the LHWCA since March
2, 2011.
ISSUES
The issues remaining to be resolved are (TR 7-8):
1. Did Respondent violate §948(a) of the LHWCA on March 2, 2011 by terminating the
Claimant’s employment?
2. If so, what penalty and/or relief is appropriate under §948(a) of the LHWCA?
3. Is the Claimant entitled to a change in benefits under the LHWCA based on a change in
condition since March 2, 2011?
4. Was there a mistake in the determination of a material fact in the March 29, 2011
Decision and Order?
5. Will the interests of justice be served by re-opening the March 29, 2011 Decision and
Order?
6. Is the Claimant entitled to additional reimbursement for certain travel expenses for travel
to the January 25, 2011, hearing in Newport News, Virginia under §928(d)?
7. Is the Claimant entitled to additional compensation for Respondent’s failure to make
payments under §914(e) or §914(f) of the LHWCA?
8. Is Respondent liable for legal fees and costs under the LHWCA?
....
Claimant’s counsel submits that the Claimant was terminated from his employment while
disabled and entitled to benefits under the LHWCA in violation of §948(a) and that the
Respondent’s argument that the Claimant was terminated for lying on his initial employment
application 10 years prior to the termination was a pretext for the adverse employment actions
taken on March 2, 2011. He argues that the uncontradicted evidence is that the Claimant was
called into the human resources department by Respondent in the fall of 2001 and provided
human resources with a written explanation of all arrests and/or convictions listed in EX 3 and
was directed to return to work.
Claimant’s counsel submits that Respondent does not claim the Claimant was a poor performer,
insubordinate, or unauthorized absentee; but, “instead they attempted to resurrect something that
was dealt with in 2001.” He argues that “instead of simply saying they had no work for him,
AAFES used a pretext to fire him after he had worked for AAFES for ten (10) years.”
Respondent argues that the Claimant’s employment was properly terminated for falsifying his
October 2, 2001 employment application as related to disclosure of history of arrests, charges,
convictions, fines and non-judicial punishment.
....
Here the Claimant has established that an adverse employment action was taken by AAFES
during the pendency of a claim for benefits under the LHWCA in the form of termination of
employment on March 2, 2011. The Claimant has also established by inference that the
termination was due, at least in part, because he had a pending claim for benefits under the
LHWCA at the time of the adverse actions. This is a prima facie case of retaliation in violation
of §948(a) of the LHWCA. Since Mr. Montgomery was not aware until February 3, 2011 of the
claim that the criminal infractions were explained by the Claimant to human resources in 2001,
his actions of placing the Claimant on suspension with pay did not violate §948(a) of the
LHWCA.
Accordingly, AAFES must rebut this prima facie case by demonstrating that the March 2, 2011
termination was due solely to non-discriminatory reasons in order to escape liability under
§948(a) of the LHWCA. In that regard AAFES has failed to rebut the evidence that AAFES was
aware of the infractions in 2001, the Claimant adequately explained the infractions in 2001, and
AAFES accepted that 2001 explanation by retaining the Claimant as an employee continuously
through the March 2, 2011 termination date. The fact Mr. Montgomery accepted the Union
representative’s argument on February 3, 2011 that the infractions with the military would have
been reflected on the DD-214 that would have been part of the Claimant’s 2001 employment
application does not support Mr. Montgomery’s conclusion that the Claimant did not file a
written supplement to the employment application in 2001 explaining the civilian infractions
noted by Agent Mix December 8, 2001 (the same infractions subsequently reported by B.L.
McCray on January 25, 2011), does not contradict the Claimant’s testimony concerning his 2001
explanation of the civilian infractions, and does not excuse AAFES’s rush to terminate the
Claimant prior to the March 29, 2011 Decision and Order.
After deliberation on the evidence of record, this Administrative Law Judge finds that the
Claimant has established a prima facie violation of §948(a) of the LHWCA by AAFES
terminating the Claimant’s employment on March 2, 2011 due at least in part to the pending
claim for benefits under the LHWCA and that AAFES has failed to rebut the prima facie case
that AAFES so violated §948(a) of the LHWCA.
...
Longshoremen Strike Looming Large
Possible strike at ports in the Northeast and Gulf Coast full story
A possible longshoremen’s strike that could cripple the Port of New York and New Jersey and other ports on the Gulf and East Coasts is looming, threatening to idle countless workers and drive up the consumer costs as the holiday season approaches.
A possible longshoremen’s strike that could cripple the Port of New York and New Jersey and other ports on the Gulf and East Coasts is looming, threatening to idle countless workers and drive up the consumer costs as the holiday season approaches.
Saturday, August 11, 2012
YOURS TRULY, JOHNNY DOLLAR
YOURS TRULY, JOHNNY DOLLAR
Who says that insurance investigation and adjusting isn't exciting?
For over twelve years, from 1949 through 1962 (including a one year hiatus in 1954-1955), this radio series recounted the cases "the man with the action-packed expense account, America’s fabulous freelance insurance investigator, Johnny Dollar". Johnny was an accomplished 'padder' of his expense account. The name of the show derives from the fact that he closed each show by totaling his expense account, and signing it "End of report... Yours Truly, Johnny Dollar". For a while in the 1950s, the show was broadcast in 5 15 minute parts, one every week night. This five part episode aired the week of October 3, 1955. Johnny travels to visit a dying inmate in Sing Sing prison.
(Great for free downloads and listening in the car)
As an aside, on October 3, 1955, Captain Kangaroo debuted on CBS and The Mickey Mouse Club made its debut on ABC.
Thursday, August 9, 2012
New Procurement Process for DBA Insurance
Clements Worldwide Cautions Contractors about New Procurement Process for DBA Insurance (via redOrbit)
Wednesday, August 8, 2012
OWCP Power Point Presentation on Defense Base Act
This is a Power Point presentation given by Eric Richardson and Brandon Miller at the ACE Seminar earlier this year.
Click here for complete powerpoint
Click here for complete powerpoint
Book review: 'Longshoreman Philosopher' resurrects Hoffer - Bowling Green Daily News: Sunday Reader
Book review: 'Longshoreman Philosopher' resurrects Hoffer - Bowling Green Daily News: Sunday Reader:
Eric Hoffer was the world-famous California longshoreman who wrote “The True Believer” and a dozen other fascinating, provocative books without…
Eric Hoffer was the world-famous California longshoreman who wrote “The True Believer” and a dozen other fascinating, provocative books without…
Tuesday, August 7, 2012
ALJ Lesniak Finds DBA Psychological Injury Compensable, But Limits Award
Excerpt
Dr. Deol testified that it is reasonable for the Claimant to perceive the events experienced
during the course of his employment, including the attacks on the bases and viewing the bombed
out buildings, as stressful. (CX. 14, p. 21, lines 17-23). The emergence of the Claimant’s
symptoms is consistent with the events that he was exposed to during the course of his
employment in Iraq. (CX. 14, p. 23, lines 2-5). The Claimant’s symptoms in July 2011 were
consistent with those of someone who had been exposed to a war zone and were directly related
to his diagnosis. (CX. 14, p. 22, lines 6-25). Dr. Deol opined that the Claimant’s exposure to the
trauma and stressful conditions of his employment caused his current psychiatric illness,
including depression and post- traumatic stress disorder. (CX. 14, p. 23, lines 6-21).
Regarding Employer's expert psychologist:
Furthermore, Dr. Ricker had a limited understanding of the legal standard of causation
under the Defense Base Act. (EX. 11, p. 52, line 22 to p. 53, line 22). The Employer/Carrier did
not provide him with a definition of causation under the Defense Base Act. (EX. 11, p. 68, lines
16-21). Dr. Ricker could not state within a reasonable degree of psychological certainty that the
stressors of the Claimant’s employment in Iraq did not cause his psychological condition. (EX.
11, p. 70, line 22 to p. 71, line 13). Dr. Ricker’s opinion is equivocal and, accordingly, the
Employer/Carrier has not submitted substantial evidence to rebut the Section 20(a) presumption
that the Claimant’s condition is work-related.
Regarding extent of disability:
In this case, Employer/Carrier has presented no evidence establishing the availability of
suitable alternate employment for the Claimant. In the absence of such evidence—and absent a
showing that Claimant has reached maximum medical improvement—Claimant is entitled to an
award or temporary total disability benefits from July 22, 2011 to the present and continuing
pursuant to the opinion of Dr. Deol. Additionally, Dr. Talib of the Canadian Specialist Hospital
recommended three weeks sick leave as of the Claimant’s hospital discharge on August 29,
2009. Accordingly, Claimant is also awarded temporary total disability benefits from August 29,
2009 through September 18, 2009.
I find, however, that Claimant is not entitled to disability benefits during the period of
September 19, 2009 through July 21, 2011. To begin with, there is no medical evidence
supporting a finding that Claimant was totally disabled during this time. Additionally, Claimant
traveled to Indonesia in February of 2010 and remained there for a year and four months before
returning to the United States, thus making himself unavailable for treatment by his domestic
physicians.
Read Full Decision Awarding Benefits
ALJ Solomon Grants Summary Judgment in DBA Toxic Exposure Case
Excerpt:
Employer/Carrier maintains that Alaska National is not the carrier liable to pay
compensation or medical benefits for two critical reasons:
First, Alaska National is not the “last carrier” on the risk during exposure to injurious
stimuli; and
Second, the assignment of liability in occupational disease claims, of which this is one,
flows from the date of disability not the date of awareness.
Read Full Decision Agreeing with Employer's Position
Employer/Carrier maintains that Alaska National is not the carrier liable to pay
compensation or medical benefits for two critical reasons:
First, Alaska National is not the “last carrier” on the risk during exposure to injurious
stimuli; and
Second, the assignment of liability in occupational disease claims, of which this is one,
flows from the date of disability not the date of awareness.
Read Full Decision Agreeing with Employer's Position
Monday, August 6, 2012
ALJ Sarno Analyzes AWW and Residual Earning Capacity in DBA Claim
www.oalj.dol.gov/Decisions/ALJ/LDA/2011/WILLIS_DAVID_M_v_DYNCORP_INTERNATIONA_2011LDA00487_(JUL_27_2012)_145355_CADEC_SD.PDF
In circumstances involving a one-year contract for work overseas in a hostile, dangerous
environment in return for higher wages, a “claimant’s average weekly wage must be based on the
higher wages earned in the job in which he was injured … particularly since those wages were
the primary reason for [a claimant] accepting employment under [existing] dangerous working
conditions.” K.S. v. Service Employees International, Inc., 43 BRBS 18, 21 (2009). See also
Simons v. Service Employees International, Inc., 43 BRBS 18 (2009). The Claimant in this case
was injured six weeks into a one-year contract with the Employer. He in fact completed his
contract and extended it to work for an additional six months overseas for the Employer.
Therefore, I find his average weekly wage must be based only on his overseas earnings with the
Employer.
Claimant contends his average weekly wage should be calculated using only the six
weeks of earnings prior to his injury. The Employer argues that because Claimant returned to
work after his injury, his wages can be more accurately calculated by considering his post-injury
earnings with the Employer. The Employer notes that Claimant’s post-injury earnings take into
account unpaid rest and relaxation time (“R&R”) that his pre-injury earnings do not.
In some circumstances it is appropriate to look to a claimant’s post-injury earnings when
his pre-injury earnings do not fairly represent his earning capacity. See L-3 Communications v.
Dir., OWCP, et al., 2011 WL 6046440 (E.D.Va. 2011). In this case, Claimant’s six weeks of preinjury
earnings are inflated compared to his regular earnings after his injury. In Claimant’s first
three days of work he had earnings of $4,676.162, for a daily rate of $1,558.72, significantly
higher than the daily wage rate called for in his contract of $354.243. Therefore I find his preinjury
earnings do not accurately reflect his earning capacity.
However, I also find that Claimant’s post-injury wages may not accurately reflect his
earning capacity. According to the Employer, the reason Claimant’s average weekly earnings are
lower over the course of his employment with the Employer is that he took unpaid R&R during
that time.4 Employer argues there is no evidence that Claimant would not have continued to take
such breaks every couple months as he had shown a history of doing. However, I note that
Claimant sought medical treatment while home on R&R and it is quite possible he was
motivated to schedule R&R due to a need to recover from working in the conditions that were
causing him pain. There is no way to know if and how frequently Claimant would have opted to
take R&R had he not been injured.5 There is no evidence Claimant was required to take R&R at
any preset interval or in a certain amount during the course of his contract. Claimant did not
testify as to his intention to take breaks at certain intervals or in a certain amount every year.
I find the best method for determining Claimant’s annual earning capacity in this case is
to look at the wages Claimant had contracted to earn. His contract called for a daily wage rate of
$216, 35% hazard pay, 25% bonus, and 4% annual leave for a daily rate of $354.246, which is a
weekly rate of $2,479.68. I find that amount best represents the Claimant’s annual earning
capacity at the time of the injury.
In circumstances involving a one-year contract for work overseas in a hostile, dangerous
environment in return for higher wages, a “claimant’s average weekly wage must be based on the
higher wages earned in the job in which he was injured … particularly since those wages were
the primary reason for [a claimant] accepting employment under [existing] dangerous working
conditions.” K.S. v. Service Employees International, Inc., 43 BRBS 18, 21 (2009). See also
Simons v. Service Employees International, Inc., 43 BRBS 18 (2009). The Claimant in this case
was injured six weeks into a one-year contract with the Employer. He in fact completed his
contract and extended it to work for an additional six months overseas for the Employer.
Therefore, I find his average weekly wage must be based only on his overseas earnings with the
Employer.
Claimant contends his average weekly wage should be calculated using only the six
weeks of earnings prior to his injury. The Employer argues that because Claimant returned to
work after his injury, his wages can be more accurately calculated by considering his post-injury
earnings with the Employer. The Employer notes that Claimant’s post-injury earnings take into
account unpaid rest and relaxation time (“R&R”) that his pre-injury earnings do not.
In some circumstances it is appropriate to look to a claimant’s post-injury earnings when
his pre-injury earnings do not fairly represent his earning capacity. See L-3 Communications v.
Dir., OWCP, et al., 2011 WL 6046440 (E.D.Va. 2011). In this case, Claimant’s six weeks of preinjury
earnings are inflated compared to his regular earnings after his injury. In Claimant’s first
three days of work he had earnings of $4,676.162, for a daily rate of $1,558.72, significantly
higher than the daily wage rate called for in his contract of $354.243. Therefore I find his preinjury
earnings do not accurately reflect his earning capacity.
However, I also find that Claimant’s post-injury wages may not accurately reflect his
earning capacity. According to the Employer, the reason Claimant’s average weekly earnings are
lower over the course of his employment with the Employer is that he took unpaid R&R during
that time.4 Employer argues there is no evidence that Claimant would not have continued to take
such breaks every couple months as he had shown a history of doing. However, I note that
Claimant sought medical treatment while home on R&R and it is quite possible he was
motivated to schedule R&R due to a need to recover from working in the conditions that were
causing him pain. There is no way to know if and how frequently Claimant would have opted to
take R&R had he not been injured.5 There is no evidence Claimant was required to take R&R at
any preset interval or in a certain amount during the course of his contract. Claimant did not
testify as to his intention to take breaks at certain intervals or in a certain amount every year.
I find the best method for determining Claimant’s annual earning capacity in this case is
to look at the wages Claimant had contracted to earn. His contract called for a daily wage rate of
$216, 35% hazard pay, 25% bonus, and 4% annual leave for a daily rate of $354.246, which is a
weekly rate of $2,479.68. I find that amount best represents the Claimant’s annual earning
capacity at the time of the injury.
Sunday, August 5, 2012
Friday, August 3, 2012
Thursday, August 2, 2012
ALJ Etchingham Denies Clamaint Compensation
EDWARD REDDEG v. NATIONAL STEEL & SHIPBUILDING COMPANY
Read Full Decision Here
Excerpts
Claimant argues first that he sets forth sufficient evidence to invoke the presumption contained under § 20(a) of the Act, which favors claimants in Longshore cases. Under § 20(a), a court may presume that a claimant‟s injury causally relates to his or her employment. See Pedroza v. BRB, No. 05-75449, slip op. at 14090 (9th Cir. Oct. 1, 2009); Kelaita v. Triple A Mach. Shop, 13 BRBS 326, 331 (1981). However, for a claimant to receive the benefit of the §20(a) presumption, he or she must establish two elements: (1) that physical harm or pain has occurred and (2) that working conditions existed or an accident occurred that could have led to such harm. See U.S. Indus./Fed. Sheet Metal, Inc. v. Dir., OWCP, 455 U.S. 608, 615-16 (1982); Kelaita, 13 BRBS at 329-31; see also Ramey v. Stevedoring Servs. of Am., 134 F.3d 954, 959 (9th Cir. 1998). In this case, I therefore look first to see if Claimant has successfully established these two elements necessary to invoke the § 20(a) presumption.
In this case, Employer points to multiple sources of evidence to rebut Claimant‟s § 20(a presumption. First, Employer notes that any cumulative trauma claim rests primarily on Claimant‟s own description of symptoms and subjective complaints of pain. Employer argues that Claimant suffers from severe credibility problems, and that this must necessarily taint the subjective evidence giving rise to his cumulative trauma claim. Next, Employer attacks the conclusions, testimony, and credibility of Dr. Cleary, who concluded that Claimant suffered from a cumulative trauma injury while working for Employer. Finally, Employer offers the findings of Dr. Asdit and Dr. Raiszadeh to argue that any pain or additional symptoms experienced by Claimant related to the natural progression of Claimant‟s August 11, 2005 injury and not a new cumulative trauma injury.5 Below, I examine all of these contentions and the evidence associated with each.
Conclusion
I find that Claimant did not sustain a cumulative trauma injury as a result of his work for Employer.
Claimant‟s evidence to support such a claim consists primarily of his own subjective
complaints of pain and description of symptoms coupled with the findings of Dr. John Cleary. I
find that a lack of credibility undermines the testimony and opinions of both Claimant and Dr.
Cleary. Furthermore, I find that Employer offers credible evidence that no such injury occurred
through the testimony and reports of Dr. William Asdit and Dr. Kamshad Raiszadeh, two of
Claimant‟s treating physicians. Therefore, I discuss below only the reasoning behind my finding
that no such new injury occurred; the extent of Claimant‟s disability following his August 11,
2005 injury; Claimant‟s ability to undertake his usual and customary occupation of marine electrician; and Employer‟s entitlement to a credit for Abbott benefits.
Read Full Decision Here
Excerpts
Claimant argues first that he sets forth sufficient evidence to invoke the presumption contained under § 20(a) of the Act, which favors claimants in Longshore cases. Under § 20(a), a court may presume that a claimant‟s injury causally relates to his or her employment. See Pedroza v. BRB, No. 05-75449, slip op. at 14090 (9th Cir. Oct. 1, 2009); Kelaita v. Triple A Mach. Shop, 13 BRBS 326, 331 (1981). However, for a claimant to receive the benefit of the §20(a) presumption, he or she must establish two elements: (1) that physical harm or pain has occurred and (2) that working conditions existed or an accident occurred that could have led to such harm. See U.S. Indus./Fed. Sheet Metal, Inc. v. Dir., OWCP, 455 U.S. 608, 615-16 (1982); Kelaita, 13 BRBS at 329-31; see also Ramey v. Stevedoring Servs. of Am., 134 F.3d 954, 959 (9th Cir. 1998). In this case, I therefore look first to see if Claimant has successfully established these two elements necessary to invoke the § 20(a) presumption.
In this case, Employer points to multiple sources of evidence to rebut Claimant‟s § 20(a presumption. First, Employer notes that any cumulative trauma claim rests primarily on Claimant‟s own description of symptoms and subjective complaints of pain. Employer argues that Claimant suffers from severe credibility problems, and that this must necessarily taint the subjective evidence giving rise to his cumulative trauma claim. Next, Employer attacks the conclusions, testimony, and credibility of Dr. Cleary, who concluded that Claimant suffered from a cumulative trauma injury while working for Employer. Finally, Employer offers the findings of Dr. Asdit and Dr. Raiszadeh to argue that any pain or additional symptoms experienced by Claimant related to the natural progression of Claimant‟s August 11, 2005 injury and not a new cumulative trauma injury.5 Below, I examine all of these contentions and the evidence associated with each.
Conclusion
I find that Claimant did not sustain a cumulative trauma injury as a result of his work for Employer.
Claimant‟s evidence to support such a claim consists primarily of his own subjective
complaints of pain and description of symptoms coupled with the findings of Dr. John Cleary. I
find that a lack of credibility undermines the testimony and opinions of both Claimant and Dr.
Cleary. Furthermore, I find that Employer offers credible evidence that no such injury occurred
through the testimony and reports of Dr. William Asdit and Dr. Kamshad Raiszadeh, two of
Claimant‟s treating physicians. Therefore, I discuss below only the reasoning behind my finding
that no such new injury occurred; the extent of Claimant‟s disability following his August 11,
2005 injury; Claimant‟s ability to undertake his usual and customary occupation of marine electrician; and Employer‟s entitlement to a credit for Abbott benefits.
Claimand Awarded Temporary Total Disability and Permanent Partial Disability for Knee Injury (ALJ Bergstrom)
WILLIAM A. FIELDS v. HUNTINGTON INGALLS INDUSTRIES, INC
Read Full Decision Here
Excerpts
Claimant’s Contentions:
Counsel for the Claimant argues that the June 11, 2010 work injury aggravated the Claimant’s
pre-existing right knee injury. Counsel argues the definition at § 902(2) of the Act includes an aggravation as an injury, and therefore the Claimant is entitled to the presumption at § 920(a).Therefore, the period of temporary total disability in question and the Claimant’s resulting 31%permanent partial disability rating in the right lower extremity are due to his June 11, 2010 work
injury.
Conclusion
This Administrative Law Judge had found that the total knee replacement surgery was due to the natural progression of the Claimant’s January 22, 1982 work-related injury. Consequently, the resulting 31% right lower extremity permanent partial impairment rating is based on the Claimant’s January 22, 1982 right knee injury.
Read Full Decision Here
Excerpts
Claimant’s Contentions:
Counsel for the Claimant argues that the June 11, 2010 work injury aggravated the Claimant’s
pre-existing right knee injury. Counsel argues the definition at § 902(2) of the Act includes an aggravation as an injury, and therefore the Claimant is entitled to the presumption at § 920(a).Therefore, the period of temporary total disability in question and the Claimant’s resulting 31%permanent partial disability rating in the right lower extremity are due to his June 11, 2010 work
injury.
Employer’s Contentions:
Counsel for the Employer argues that the right knee replacement surgery and resulting period of disability were due to the Claimant’s 1982 injury, and not caused or aggravated by the June 11, 2010 injury. In support of their argument Counsel notes that the total right knee replacement surgery was scheduled before the Claimant’s June 11, 2010 injury. Additionally, Counsel argues the Claimant has a 31% permanent partial impairment to his right lower extremity.
Conclusion
This Administrative Law Judge had found that the total knee replacement surgery was due to the natural progression of the Claimant’s January 22, 1982 work-related injury. Consequently, the resulting 31% right lower extremity permanent partial impairment rating is based on the Claimant’s January 22, 1982 right knee injury.
Wednesday, August 1, 2012
Longshoremen Comedy Ladder Routine at Sea World Orlando
So who'd a thunk? There's a slapstick comedy team "The Longshoremen", performing at Sea-World. For injuries, they may be covered under the Longshore and Comedy Workers' Compensation Act...
A BRIEF Summary of the Longshore Act, with Emphasis on Jurisdiction
This is a brief presentation that summarizes jurisdiction under the LHWCA. It was prepared for a construction industry client to help advise their executives when to be on the alert for LHWCA jurisdiction. Since it is a New Jersey firm, it was inevitable that we'd throw in some comparisons to NJ Compensation...
Longshore 101 Part 2
Part 2 of Longshore 101 Dealing with Jurisdiction
Enjoy!
http://prezi.com/idi08q536asg/002-coverage-jurisdiction/
Enjoy!
http://prezi.com/idi08q536asg/002-coverage-jurisdiction/
Subscribe to:
Posts (Atom)