http://www.nwpr.org/post/wheat-export-choke-point-could-drive-down-prices-nw-farmers
Friday, November 30, 2012
ALJ LEVIN (WASHINGTON) FINDS LOSS OF EARNING CAPACITY RESULTING FROM PTSD USING OPEN MARKET ANALYSIS FOR SPECIAL FORCES INSTRUCTOR
This is an extremely interesting case in which work related PTSD was stipulated, but Employer tried to establish that Claimant voluntarily left his employment and accepted subsequent employment which further aggravated his PTSD.
Read Decision in Neal vs. Dyncorp International
Read Decision in Neal vs. Dyncorp International
Thursday, November 29, 2012
Tuesday, November 27, 2012
ALJ ROSENOW (COVINGTON) AWARDS MEDICAL TREATMENT FOR CERVICAL INJURY AGGRAVATION
Excert below.. The ALJ felt the evidence was close, but that the LHWCA's standard for aggravation was minimal and awarded benefits.
The evidence is very close on the issue but given the very minimal aggravation standard of the Act, I find that the record shows that, more likely than not, the trauma of 20 Aug 08 played some role in the aggravation or symptomatizing of Claimant’s cervical condition.
Full Decision
The evidence is very close on the issue but given the very minimal aggravation standard of the Act, I find that the record shows that, more likely than not, the trauma of 20 Aug 08 played some role in the aggravation or symptomatizing of Claimant’s cervical condition.
Full Decision
Monday, November 26, 2012
ALJ ROSENOW (COVINGTON) FINDS VIAGRA PRESCRIPTION MEDICALLY RELATED TO INJURY
From the decision:
Claimant made a prima facie case for compensation for the Viagra and Phenergan prescriptions. Claimant and his wife credibly testified that he did not suffer any sexual dysfunction before the work injury, and Dr. Feldman testified that chronic opiate use leads to the well-known side effect of lowered testosterone. He equivocated some in response to counsel’s questions, but stated that people have erectile dysfunction for many different reasons, and if Claimant had no trouble before the work injury and surgeries, he would consider his need for Viagra now a result of that injury. I therefore find that it is more likely than not that Claimant’s chronic opiate use led to his suffering from sexual dysfunction, and that the prescription for Viagra is a reasonable treatment of the condition. Even though Dr. Feldman could not unequivocally say that Claimant’s sexual dysfunction was a result of the injury, Claimant’s burden is to prove so by a preponderance, which he did.
FULL DECISION BERGHMAN vs. LIBERTY SERVICES
Claimant made a prima facie case for compensation for the Viagra and Phenergan prescriptions. Claimant and his wife credibly testified that he did not suffer any sexual dysfunction before the work injury, and Dr. Feldman testified that chronic opiate use leads to the well-known side effect of lowered testosterone. He equivocated some in response to counsel’s questions, but stated that people have erectile dysfunction for many different reasons, and if Claimant had no trouble before the work injury and surgeries, he would consider his need for Viagra now a result of that injury. I therefore find that it is more likely than not that Claimant’s chronic opiate use led to his suffering from sexual dysfunction, and that the prescription for Viagra is a reasonable treatment of the condition. Even though Dr. Feldman could not unequivocally say that Claimant’s sexual dysfunction was a result of the injury, Claimant’s burden is to prove so by a preponderance, which he did.
FULL DECISION BERGHMAN vs. LIBERTY SERVICES
ALJ McGRATH FINDS CAUSALLY RELATED MULTIPLE TRAUMA AND AWARD PERMANENT TOTAL DISABILITY
OLIVER vs. ELECTRIC BOAT CORPORATION
In the present case, Mr. Oliver suffered from multiple contusions to his head and worked in conditions where he was often required to work in confined spaces, bend, twist, crawl, climb, reach and lift overhead, and do light to heavy lifting of weight up to sixty-four pounds, while employed as a pipe lagger for Electric Boat from 2003 until 2011.24 TR 41; CX-13 at 29. The Claimant asserted that these work conditions and repeated contusions to the head contributed to and exacerbated his cervical arthritis, causing neck pain, headaches, and dizziness. TR 15. In his trial testimony, Mr. Oliver stated his work at EB caused his symptoms to build up over time. TR 57. Mr. Oliver alleged that his September 2011 leave from work was due to neck pain, severe headaches, and some dizziness caused by his work conditions. TR 48. Mr. Oliver further alleged that his November 2011 leave was caused by an incident in which he hit his head on a hanger while performing a task at work. TR 46.
In the present case, Mr. Oliver suffered from multiple contusions to his head and worked in conditions where he was often required to work in confined spaces, bend, twist, crawl, climb, reach and lift overhead, and do light to heavy lifting of weight up to sixty-four pounds, while employed as a pipe lagger for Electric Boat from 2003 until 2011.24 TR 41; CX-13 at 29. The Claimant asserted that these work conditions and repeated contusions to the head contributed to and exacerbated his cervical arthritis, causing neck pain, headaches, and dizziness. TR 15. In his trial testimony, Mr. Oliver stated his work at EB caused his symptoms to build up over time. TR 57. Mr. Oliver alleged that his September 2011 leave from work was due to neck pain, severe headaches, and some dizziness caused by his work conditions. TR 48. Mr. Oliver further alleged that his November 2011 leave was caused by an incident in which he hit his head on a hanger while performing a task at work. TR 46.
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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. The ALJ, as factfinder, is “entitled to evaluate the credibility of all witnesses and to draw his own inferences from the evidence.” O’Kelley, 34 BRBS at 42; see John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961); Wheeler v. Interocean Stevedoring, Inc., 21 BRBS 33 (1988).
As the presumption has been rebutted, I must now weigh all of the evidence to determine whether Mr. Oliver has established that his injuries are causally related to his employment at Electric Boat. After careful consideration, I find Mr. Oliver to be credible in his testimony of his working conditions and frequent long-standing injuries. Two fellow laggers for EB, Mr. Hall and Mr. Perry, confirm Mr. Oliver’s working conditions.
---
The opinions of the Claimant’s and Defendant’s medical experts differ on the key issue of causation, specifically on whether banging one’s head or heavy lifting may cause or contribute to Mr. Oliver’s neck pain. After careful consideration, I credit the opinions of Drs. Crisafi and Hamburger over that of Dr. Gaccione. Drs. Crisafi and Hamburger have been Mr. Oliver’s treating physicians and have seen the progression of Mr. Oliver’s neck pain, headaches, and vertigo. Additionally, Dr. Crisafi has been Mr. Oliver’s primary care physician for thirteen years, and has personally noticed a decline in Mr. Oliver’s health since his employment at EB. Dr. Gaccione only examined Mr. Oliver for an IME, and further gave a report and a deposition without knowledge of the November 2011 event or access to many of the case records. Dr. Gaccione based much of his analysis on the lack of an incidence of trauma and found importance in the severity of Mr. Oliver’s head injuries. Since Dr. Gaccione had limited knowledge of Mr. Oliver’s medical records and work injuries, I find his IME and testimony to be unreliable.
Accordingly, I find that Mr. Oliver has proved by a preponderance of the evidence that his neck pain, headaches, and vertigo were causally related to his duties at Electric Boat.
Saturday, November 24, 2012
ALJ MALAMPHY (NEWPORT NEWS) ORDERS CONTINUING TTD FOR AGGRAVATION OF PREEXISTING PSYCHIATRIC CONDITION
DISCUSSION
The claimant was injured on September 24, 2008 and the employer paid temporary total disability benefits through February 20, 2010. By the later date there were no confirmable organic physical impairments.
The claimant has a psychiatric impairment which has been variously diagnosed as a personality disorder, somatoform disorder, anxiety, depression, conversion reaction, and as schizophrenia.
Dr. Robert Mitchell began treating the claimant in December 2006 for depression and anxiety. This treatment continued into early 2009. Therefore, the claimant had a preexisting psychiatric impairment.
Section 20(a) Presumption. In this case, the issue is whether or not a preexisting psychiatric disorder was aggravated by the work injury.
Tillett Bond vs. Lamberts Point Docks
ALJ BERGSTROM (NEWPORT NEWS) DENIES BENEFITS, FINDING CLAIMANT IS EXCLUDED AS A 'CLERK'
c. The Claimant is excluded from coverage under the LHWCA for her February 23, 2006 work-related injury by §902(3) of the LHWCA.
The LHWCA specifically excludes from coverage those individuals who are employed exclusively to perform office clerical, secretarial, or data processing work if the individual is subject to coverage under a State workers’ compensation law. 33 U.S.C. §902(3)
As set forth above, at the time of the February 23, 2006 work-related injury, the Claimant was employed exclusively to perform clerical and secretarial work and was subject to coverage under the Virginia Workers’ Compensation Act. Accordingly, this Administrative Law Judge finds that the Claimant is not a covered employee under the LHWCA.
ON SECOND REMAND FROM BRB ALJ MALAMPHRY FINDS CLAIMANT PERM TOTAL FROM HYPERSOMNOLENCE RELATED TO SHIFT-WORK
This is a unique case with a long history. After the Board had found Claimant's hypersomnolence to be work related as a matter of law, the ALJ concluded he was permanently and totally disabled, even from other non-shift positions brought forward by the employer.
A formal hearing in this matter held in Newport News, Virginia on June 18, 2009 at which time all parties were afforded full opportunity to present evidence and argument as provided in the Longshore Act and the applicable regulations. The undersigned issued a Decision and Order denying benefits on October 28, 2009. The Claimant appealed that decision and in an order issued July 29, 2010, the Benefits Review Board (“the Board”) remanded the case. A Decision and Order on Remand was issued on May 3, 2011. The Claimant appealed that decision and the Board again remanded on April 19, 2012. In its remand, the Board found that Employer had failed to rebut the Section 20(a) presumption and thus determined that Claimant’s hypersomnolence is work-related as a matter of law.
In the record, a treating physician described how hypersomnolence can be sleep related:
On August 2, 2007, Dr. Ripoll explained the work note that he gave the Claimant in July:
I want to make it clear that you suffer from daytime hypersomnolence and that this problem is secondary to a sleep-related impairment. You suffer from two different sleep-related diseases. The first one is obstructive sleep apnea, which is corrected with positive airway pressure, the second one is shift work sleep disorder and the only way to correct that problem is to stop doing shift work. It is important that you change the hours that you work or you change occupation to work steady shifts, either days only or nights only, preferably days only. Shift work sleep disorder is a medical condition and daytime hypersomnolence is a serious problem, which could cause a security problem for you and others around you.
A formal hearing in this matter held in Newport News, Virginia on June 18, 2009 at which time all parties were afforded full opportunity to present evidence and argument as provided in the Longshore Act and the applicable regulations. The undersigned issued a Decision and Order denying benefits on October 28, 2009. The Claimant appealed that decision and in an order issued July 29, 2010, the Benefits Review Board (“the Board”) remanded the case. A Decision and Order on Remand was issued on May 3, 2011. The Claimant appealed that decision and the Board again remanded on April 19, 2012. In its remand, the Board found that Employer had failed to rebut the Section 20(a) presumption and thus determined that Claimant’s hypersomnolence is work-related as a matter of law.
In the record, a treating physician described how hypersomnolence can be sleep related:
On August 2, 2007, Dr. Ripoll explained the work note that he gave the Claimant in July:
I want to make it clear that you suffer from daytime hypersomnolence and that this problem is secondary to a sleep-related impairment. You suffer from two different sleep-related diseases. The first one is obstructive sleep apnea, which is corrected with positive airway pressure, the second one is shift work sleep disorder and the only way to correct that problem is to stop doing shift work. It is important that you change the hours that you work or you change occupation to work steady shifts, either days only or nights only, preferably days only. Shift work sleep disorder is a medical condition and daytime hypersomnolence is a serious problem, which could cause a security problem for you and others around you.
JUDGE GERAGHTY (BOSTON) REJECTS EMPLOYER'S ALTERNATIVE EMPLOYMENT POSITIONS AND AWARDS PERM TOTAL DISABILITY AND 8(f) RELIEF ..
The Claimant suffered a heart attack related to employment. He also was afflicted with COPD and had orthopedic knee conditions. The Employer found multiple alternative employment positions, all of which were evaluated and rejected by ALJ Geraghty. The Solicitor did not appear and Section 8(f) relief was granted.
ALJ Geraghty's Decision
ALJ Geraghty's Decision
ALJ McGRATH (BOSTON) QUESTIONS BASELINE AUDIOGRAMS AND EMPLOYER HEARING STUDIES - AWARDS HEARING LOSS BENEFITS
Employer showed audiograms through 1997 to establish hearing loss baseline and noise studies showing that there was no injurious stimuli after 1997. ALJ McGrath rejected both.
Crime on the Waterfront Radio Show
Crime on the Waterfront Radio Show
Radio Detective Story Hour Episode 158 – Crime on the Waterfront
Myron Wallace
Often pilot episodes never make it to broadcast. Crime on the Waterfrontstarring Myron Wallace is one of those detective series that never saw the light of airtime. Coming before potential sponsors in 1949 just when television was getting wind in its sail, and given the plethora of radio detectives already on, Crime on the Waterfront never had a chance.
Myron Wallace was good though he sounded a lot like Charles Russell inYours Truly, Johnny Dollar but Wallace’s Lt. Cagle was a real detective working for a police department. Who knows if the shows failure was why Myron Wallace soon became Mike Wallace leading to his long stint on CBS Television’s 60 Minutes!
Smith vs. Offshore Energy - ALJ Kennington Questions Claimant's Credibility and Does Not Award Permanent Disability
ALJ Kennington's 27 page decision
The Claimant's complaints of neck and back complaints did not arise until well into his treatment, and ALJ Kennington found his explanations for the delay unconvincing.
The Claimant's complaints of neck and back complaints did not arise until well into his treatment, and ALJ Kennington found his explanations for the delay unconvincing.
SERIOUSLY ONE-SIDED ARTICE SLAMS AIG'S DBA PRACTICES
Not that AIG needs my defense, but this article seems to have been taken straight from a press-release from the Claimant's attorney. Its worth a read.
Houston Press Article Slams AIG DBA Practices
Houston Press Article Slams AIG DBA Practices
SUPREME COURT CONSIDERS WORKPLACE HARRASSMENT
Who Is a "Supervisor" that Can Stop Harrassment?
The case turns on the definition of a single word - "supervisor" - under a federal civil rights law that prohibits racial, religious or sexual harassment in the workplace.
Under previous Supreme Court rulings, an employer is automatically responsible if a supervisor harasses a subordinate. The employer is not liable if the harassment is between two equal coworkers, unless it was negligent in allowing the abuse.
Since those rulings, a rift has developed between federal appeals courts over exactly who is a supervisor. On one side, three circuits say supervisors are those with the power to hire, fire, demote, promote or discipline. Three other circuits have adopted a broader standard, one that also includes employees who direct and oversee a colleague's daily work.
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