In this instance, we are confronted with a claimant who not only refuses to comply with a Show Cause Order; but, has declined to communicate in any way with his own former counsel, opposing counsel, or the court. I am, of course, mindful that Claimant is now acting, or, more accurately, failing to act, pro se; but he has been urged, without success, to seek the assistance of counsel. He has, moreover, been afforded every accommodation his pro se status will permit consistent with the requirements of the applicable rules and due process.
Nevertheless, by his past refusals to respond to any inquiry, including proper discovery requests, and by his refusal to respond to a Show Cause Order which sought his input, Claimant has manifested a complete absence of motivation to pursue his claim.
The testimony of FIT’s operations manager clearly establishes that the company did not know of the claimed December 19, 2009 injury until Mr. Jones visited his office on March 5, 2010 to report it. Therefore, claimant’s untimely notice of his injury is not excused under Section 12(d)(1) of the Act.
I also agree with employer/carrier that it has been prejudiced by the lack of knowledge of the claimed injury until seventy-six days after it allegedly occurred. It could have investigated the accident and interviewed anyone working on that day, especially the employee named Rudy who Mr. Jones claims he was working with on that day. See Strachan Shipping Co. v. Davis, 571 F.2d 968 (5th
Cir. 1978). Therefore, I find the claimant’s failure to give timely notice to his
employer is not excused under Section 12(d)(2). His claim for compensation against this employer for any injury suffered on December 19, 2009 is barred under Section 12(a) of the Act.
The evidence presented fails to weigh in support Claimant’s arguments. Drs. Irwin, Seidemann, and Engelberg agree that a flat pattern of hearing loss, as is shown in this case, is not indicative of noise-induced hearing loss. Further, no quantitative data is provided to show that Claimant was exposed to injurious noise levels during his employment at Employer’s Reserve facility. While the experts were all found qualified and credible, the consensus among their opinions was that Claimant’s hearing loss was not attributable to noise exposure. The evidence- 19 -
presented weighs in favor of Employer/Carrier. Consequently, Claimant’s claim for benefits is DENIED.
………………………………………
In the Matter of:
THOMAS CATHEY, Case No.: 2012 LDA 00064
Claimant, OWCP No.: 02-136363
v.
SERVICE EMPLOYEES INTERNATIONAL, INC. /
INSURANCE COMPANY of the STATE of PENN.,
Employer /Carrier,
and
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Party in Interest.
………………………………………..
For Claimant: John M. Schwartz, Esq.
Titusville, Florida
For Employer: Grover E. Asmus, Esq.
Mobile, Alabama
Before: Stuart A. Levin
Administrative Law Judge
Summary Decision Dismissing a Challenge to the
Application of the
War Hazards Compensation Act
A deal on container royalties has already been agreed in principal.
The International Longshoremen's Association(ILA) has said it is ready to engage in "round the clock" talks with theUnited States Maritime Alliance(USMX) as the February 6, 2013 "container cliff" deadline for negotiations approaches.
There has been no further official word from USMX or the Federal Mediation and Conciliation Service (FMCS) since January 17, 2013, when it was said that negotiations had "made progress."
However ILA, commenting via its official Facebook page, said the parties met earlier this week, and those talks look set to continue this morning.
In its most recent post, ILA said that "our employers cannot continue to cry poverty," citing a January 30, 2013 article from the Journal of Commerce indicating container lines should expect a return to profit in the 6 year period covered by the new contract.
The association's members have threatened to walk out after the February 6, 2013 deadline if negotiations over the $1.8 billion master contract are unsuccessful.
Last month Clarkson Plc. predicted shipping capacity would outpace demand in 2013, and Lars Jensen, CEO, SeaIntel Maritime Analysis, expects overcapacity to persist in 2013.
Ship & Bunker News Team To contact the editor responsible for this story email us ateditor@shipandbunker.com
A former longshoreman has been sentenced to 30 months in prison for his role in what federal authorities say was a long-running scheme to shake down port workers for their Christmastime bonuses.
Chris Ryan, Getty Images
Edward Aulisi had pleaded guilty to conspiracy. He was sentenced in federal court in Newark on Tuesday.
Authorities say the 53-year-old Aulisi, of Flemington, admitted conspiring with others including Genovese crime family captain Michael Coppola to extort money from the dock workers.
Aulisi was among more than a dozen people connected to the New Jersey waterfront arrested in 2011 and charged with crimes ranging from running illegal poker games to extortion.
The arrests were part of a massive takedown of reputed mob members and associates in the Northeast. In all, more than 120 people were arrested.
(Copyright 2013 by The Associated Press. All Rights Reserved.)
Claimant contends that the situs requirement is met due to the fact that at the time of his injury, Claimant was in the process of breaking down trailers used to house personnel and equipment that was part of the BP oil spill cleanup operation. Claimant asserts that the site of his injury, while not over navigable water, was within a few hundred yards of the dock/muster area for the cleanup operations. Claimant also argues that he has met the status requirement because he spent up to eight hours each day assisting and instructing the responders with the loading and unloading operations. Specifically, that Claimant held daily safety meetings and both loaded and unloaded oil boom from the chartered vessels.
Employer/Carrier contend that Claimant lacks a maritime status and that there is no nexus between breaking down the trailers and maritime employment. Employer/Carrier argue that Claimantfs work was far removed from traditionalmaritime activities. While Claimant had duties coordinating cleanup workers, at the time of Claimantfs injury this work had ended andhis exclusive duties at the time were breaking down the trailers and transporting them to Mobile, AL. Additionally, Employer/Carrier asserts that Claimantfs duties lacked the functional nexus tomaritime employment and that his activities fail the status test. Should the undersigned find that Claimant has met the jurisdictional requirements of the Act, Employer/Carrier argue that Claimant is not entitled to ongoing medical benefits because there is no plan for future treatment of Claimants alleged condition.
--
ALJ 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 here argues that his work included coordinating
and supplying the oil cleanup workers. These duties have nothing to do with the loading,
unloading, building, or repairing of a vessel. Claimantfs connection to activitiescovered
under the Act is not only indirect but so far removed from what can be considered to be maritime
If truth is the first casualty of war, author Kerry Patton has ably attempted to correct that dictum in his highly entertaining novel,Contracted: America’s Secret Warriors, a fictionalized account of the heroic but overlooked work performed by civilian contractors in Afghanistan.
As a military veteran and expert in intelligence, security and counter-terrorism who has worked at the highest levels of government, including the Department of Defense and Homeland Security, Patton initially began Contracted as an autobiography.
However, fear of breaching intelligence secrets led Patton to switch gears, writing a fictionalized story instead, one based on true events, but told through the voice of Declan Collins, a former military man recruited out of civilian life by the CIA for intelligence work in Afghanistan.
There, Declan and his civilian partner, Rex Browhart, himself a former military vet, find themselves assigned as military advisors at a Forward Operating Base in eastern Afghanistan.
At the FOB, Collins and Browhart form a working alliance with a varied group of officers and enlisted men on a plan to arm Afghan warlords eager to fight the Taliban, a plan Collins believes will save American lives.
Most of the men aiding Collins in this task are a mixture of Special Forces, including Delta Force, Navy Seals and Army Rangers and Green Berets. To Collins, these men are modern day warriors, part of a dying breed, driven to sacrifice their lives for God, family and country.
It’s a patriotic theme Patton employs throughout his book, one in which money isn’t the primary motivating factor driving these contractors — most of whom are former military — but rather a deep love of country further fueled by an abiding loyalty to aid their brothers-in-arms.
Unfortunately, the press has helped to paint a picture of civilian contractors as either nothing more than mercenaries in search of a quick paycheck or out-of-control homicidal maniacs, such as those in Blackwater, the private security consulting firm employed by the US government during the Iraq war.
Not surprisingly, that negative portrayal tends to overlook the heroism and sacrifices that many contractors have performed and endured once they have left the comfort and safety of the civilian world for life in a combat zone.
In fact, it is to that point that Patton reportedly wrote Contracted, noting it is “truly meant for those unsung heroes who never get recognized yet often get chastised.”
Patton also doesn’t neglect the hardships faced by the family and loved ones left behind, weaving into his book the struggles and fears faced by Collins’ new young wife, Brannagh. As Patton has noted, “This book is not just for them (the contractors) but for their friends and family as well. They too deserve some recognition.”
That recognition comes at the same time as the use of civilian contractors in combat zones by American corporations, defense contractors, and governmental agencies — including the DOD, State Department and CIA — is growing in both prominence and danger.
Specifically, in 2012 American civilian contractors constituted 62 percent of the US presence in Afghanistan. These contractors are used in many unarmed roles, including transporting supplies, staffing food services, building homes and commercial facilities and serving as interpreters.
However, they are also employed in armed capacities, jobs which include providing security for State Department and Pentagon officials, guarding US installations, gathering intelligence and training the Afghan army and police.
Still, whether operating in armed or unarmed roles, the risks these civilian contractors face are great. In 2011, 430 American contractors were reported killed in Afghanistan — 386 who worked for the Defense Department — and 1,777 injured or wounded.
In fact, 2011 marked the first time that deaths among civilian contractors working for American companies in Afghanistan outnumbered the deaths of US military personnel in that country.
Yet in addition to the physical risks they face, civilian contractors can also be subjected to the prospect of financial ruin.
For example, while the federal Defense Base Act requires American contractors to carry insurance that will provide their employees with medical care and compensation, there have been numerous instances in which medical coverage has been cancelled and contractors and their families uncompensated.
Not surprisingly, all of this has gone relatively unnoticed by the American public, ignorance perhaps driven in part by journalistic indifference.
Of course, to be fair, it’s not entirely unusual that the full details of war have difficulty coming to light. That view was once expressed decades after the Civil War had ended, when Walt Whitman, in a moment of reflection, wrote, “The real war will never get in the books.”
To his credit, Kerry Patton’s new novel, Contracted: America’s Secret Warriors,has managed to allow us a glimpse into the real war in Afghanistan and the hazardous and heroic role played there by America’s civilian contractors.
Freedom Center pamphlets now available on Kindle: Click here.
II. Claimant has not established that the right elbow ECRB repair surgery recommended by his treating physician is reasonable and necessary.
Under § 907 of the LHWCA an employer is required to furnish to the employee “such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the [work-related] injury or the process of recovery may require.” In order for medical expenses to be assessed against the employer, the medical expense must be both reasonable and necessary for addressing the work-related injury. See Ballesteros v. Willamette Western Corp., 20 BRBS 184 (1988); Pernell v. Capitol Hill Masonry, 11 BRBS 532 (1979). The claimant has the burden to establish that the medical treatment provided for a work-related injury is both reasonable and necessary. Weikert v Universal Marine Service Corp., 36 BRBS 38 (2002); Newport News Shipbuilding & Dry Dock Co. v. Loxley, 934 F.2d 511 (4th Cir. 1991), cert. denied 112 S. Ct. 1941 (1992); Maryland Shipbuilding & Drydock Co. v. Jenkins, 594 F.2d 404 (4th Cir. 1979), rev’g 6 BRBS 550 (1977). Functionality, cost, professional accreditations, success rates, and experience of providers are factors that may be considered on the issue of reasonableness of competing viable courses of medical treatment. Green v. Ceres Marine Terminals, Inc., 43 BRBS 173 (2010), rev’d on other grounds, 656 F.3d 235 (4th Cir. 2011); Monta v. Navy Exchange Service Command, 39 BRBS 104 (2005); Amos v. Director, OWCP, 153 F.3d 1051 (9th Cir. 1998), amended, 164 F.3d 480 (9th Cir. 1999), cert. denied, 528 U.S. 809 (1999); Schoen v. U.S. Chamber of Commerce, 30 BRBS 112 (1996).
A claimant establishes a prima facie case for compensable § 907 benefits when a qualified physician reports that the medical treatment was/is necessary for the work-related injury. Monta v. Navy Exchange Service Command, 39 BRBS 104 (2005); Turner v. Chesapeake & Potomac Telephone Co., 16 BRBS 225 (1984); Barbour v. Woodward & Lothrop, Inc., 16 BRBS 300 (1984). A claimant need not file a separate claim for medical benefits, and if a prima facie case for medical treatment is established, the employer must present substantial evidence in opposition to rebut the reasonableness or necessity of the medical treatment or demonstrate that the medical expense is the result of a subsequent intervening cause unrelated to the work-related injury. See Salusky v. Army Air Force Exchange Service, 3 BRBS 22 (1975). If credible rebuttal evidence is presented, then the evidence as a whole must be evaluated to determine if the claimant has met the burden of establishing that the medical care for the work-related injury is both reasonable and necessary. Where the credible evidence of record is in “equipoise,” that is evenly balanced, the party proponent with the burden of proof (persuasion) must lose. Schaffer v. Weast, 546 U.S. 49 (2005); Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 281 (1994).
In this case, Claimant put on evidence that his treating orthopedist, Dr. Wardell, recommended the ECRB repair surgery in 2011. (CX 1, EX 7). This recommendation is the only medical
- 18 -
evidence directly supporting Claimant’s need for surgery. The Employer submitted as rebuttal evidence two reports from Dr. Baddar opining that surgery would not help Claimant. (EX 8, EX 9). Dr. Baddar reasoned that Claimant’s symptoms of increased pain and loss of motion in his elbow were the result of arthritic spur formation, not epicondylitis. (EX 8 at 16-17, EX 9 at 3). Dr. Baddar believed that surgery would not prove beneficial because it would not cure Claimant’s underlying arthritis. Because the Employer has presented this credible rebuttal evidence, the evidence as a whole must be evaluated to determine if Claimant has met the burden of establishing the recommended surgery is reasonable and necessary.
Dr. Wardell’s recommendation of surgery appears in his treatment notes. (CX 1, EX 7). He did not provide any details about what the surgery entailed or explain how it was expected to help Claimant’s condition. His treatment notes document Claimant’s symptoms of lateral epicondyle tenderness, pain, swelling, and mild loss of motion in the elbow, and show that more conservative treatment options had little impact on Claimant’s condition. However, Dr. Wardell did not attribute Claimant’s symptoms to epicondylitis or relate them to a need for surgery, nor did he explain how the symptoms and the condition led him to choose ECRB repair surgery as the preferred course of treatment. Also, he did not directly state that the surgery was necessary. Because Dr. Wardell did not offer any reasoning to support his recommendation or to show the necessity of the surgery, thus his medical opinion is not well-reasoned.
The other medical evidence does not establish the necessity of surgery, either. Claimant testified that his pain management specialist, Dr. Pennington, agreed he needed surgery. (EX 10 at 21-22, TR at 18-19). However, Dr. Pennington’s progress notes do not explain the need for surgery but merely comment that after a slight increase in the patient’s pain symptoms, he planned to discuss potential surgical options with his doctor. (CX 5, EX 6). The less recent medical evidence flatly contradicts Dr. Wardell’s recommendation of surgery. Dr. Davlin indicated in his 2004 report that future surgery would not be useful because Claimant was already at maximum medical improvement (MMI) for his work-related elbow injury at that time, although he noted as an aside a finding of degenerative osteoarthritis that could cause increasing stiffness and pain in Claimant’s elbow in the future. (EX 12 at 4-5). Dr. Stiles, who served as Claimant’s treating orthopedist from shortly after his injury in summer 2000 until late 2010, performed a right elbow arthroscopy in 2001 (CX 3, EX 2) but declined to recommend further surgery on the elbow. On October 17, 2007, Dr. Stiles reported that an MRI showed right lateral epicondylitis, but noted that this was an old injury and that the patient did not believe his symptoms warranted surgery. (CX 2). On February 7, 2009, Dr. Stiles reported MRI results substantially the same as before, but again declined to recommend surgery, stating that in his opinion surgical intervention would not help Claimant very much. (EX 3 at 5). On January 26, 2010, he reiterated that he did not feel Claimant’s symptoms warranted further surgery. (EX 3 at 6). His treatment notes do not mention surgery after this date. It appears that the only change in Claimant’s symptoms since this time has been a slight increase in pain and mild limitation of motion in his elbow. As Dr. Baddar pointed out, these symptoms are consistent with arthritic changes and thus may not even represent a worsening of Claimant’s work-related injury. (EX 8 at 16-17). Based on all the foregoing evidence, it is not clear that surgery would benefit Claimant.
We are left with a collection of evidence showing Claimant’s symptoms did not warrant surgery before 2011, along with Dr. Wardell’s recommendation of surgery without further explanation
- 19 -
and without evidence that Claimant’s condition changed significantly in 2011. As discussed above, Claimant bears the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. After evaluation of the evidence as a whole, this Administrative Law Judge finds that the Claimant has not established the reasonableness and necessity of the recommended right elbow ECRB repair surgery by a preponderance of the evidence. Accordingly, his claim for medical benefits in the form of right elbow ECRB repair surgery must be denied.
RICHMOND, Virg. (Legal Newsline) – The Virginia Supreme Court has reversed and remanded a case in which a jury awarded over $17 million dollars to the estate of a shipyard worker who died from mesothelioma.
Millette
Justice Leroy F. Millette Jr. wrote the majority opinion and Justice Elizabeth A. McClanahan wrote an opinion, concurring in part and dissenting in part, joined by Justice Cleo E. Powell.
Rubert E. Minton was employed at the Newport News Shipbuilding and Dry Dock Company, referred to as Shipyard, from 1956 until 1993 with the exception of the two years he spent in the Army Reserves.
Minton worked in a variety of positions on the construction of new vessels but never worked aboard any Exxon vessels when he did hands on work, according to the opinion.
“He was regularly exposed to asbestos from asbestos-containing materials as well as from asbestos dust from a dusty worksite and does not claim that Exxon is liable for this asbestos exposure.”
In 1966, Minton was promoted to a supervisory position and although he no longer did hands on work and therefore no longer actually handled asbestos products, “Minton spent approximately half of his day walking through vessels on which repairs were being made with each vessel’s repair supervisor or port engineer, to start new jobs and to inspect the repair work that was being done or that was recently completed.”
“During these inspections, Minton and the ship’s port engineer viewed various rooms in which asbestos was used, including the boiler and engine rooms … Over Minton’s eleven years as repair supervisor, Exxon owned seventeen of the approximately two hundred vessels repaired by the Shipyard.”
In 2009, Minton was diagnosed with malignant mesothelioma, a form of cancer caused by exposure to asbestos, and he subsequently filed suit against Exxon “for failure to warm Minton of, and protect him from, the dangers associated with asbestos.”
“The jury found in favor of Minton and awarded him $12,000,000 in compensatory damages, $430,963.70 in medical expenses, plus punitive damages in the amount of $12,500,000.
“Exxon’s motions to set aside the verdict, for a new trial, and for remittitur were denied, except that the punitive damage award was reduced to $5,000,000, the amount sought in Minton’s ad damnum clause. Exxon timely filed its appeal.”
Millette wrote, “Exxon first challenges the sufficiency of the evidence to establish that it violated the requisite duty of care. . . We disagree and conclude that the evidence was sufficient for a reasonable jury to find that both the active control duty and the duty to intervene were owed to Minton and subsequently breached.”
“Exxon’s second challenge is to the sufficiency of the evidence presented to establish that Exxon’s breach of its duty of care caused Minton’s injury.”
“According to Exxon, because the experts testified that Minton’s prior work in vessel construction was sufficient exposure to cause mesothelioma, any breach by Exxon could not be established as the cause of Minton’s subsequently-diagnosed mesothelioma.”
Millette then explained that, however, “it is established maritime law that an injured party may sue a tortfeasor for the full amount of damage for an indivisible injury that the tortfeasor’s negligence was a substantial factor in causing.”
“The question before the jury was therefore whether the evidence was sufficient to show that Minton’s exposure to asbestos while on Exxon’s vessels was a substantial contributing factor in the development of Minton’s injury, mesothelioma … we agree with Minton that there was sufficient evidence for a reasonable jury to find that Exxon’s actions were a substantial contributing factor in Minton’s injury.”
“Exxon also assigns error to the circuit court’s exclusion of evidence regarding the Shipyard’s knowledge of the danger of asbestos exposure and its policies in place to protect the Shipyard workers from the hazard,” Millette wrote regarding Exxon’s third of four assignments of error.
“Exxon contends that, due to the court’s denial of its requests to introduce evidence about the Shipyard’s knowledge and safety measures, the jury was given the false impression that Exxon had unique knowledge and was therefore the only actor with the ability to protect Minton from harm.
“Exxon argues that this error was highly prejudicial and therefore warrants reversal.
“The circuit court found the Shipyard’s knowledge of the danger of exposure to asbestos and its ability and intent to remedy that danger irrelevant. We hold, however, that evidence tending to show the Shipyard’s knowledge of the danger and its ability and intent to remedy the danger is relevant in the determination of whether Exxon had a duty to intervene to protect Minton.
“Because we cannot determine from the record whether the jury found in favor of Minton based upon the duty to intervene without the opportunity to consider the excluded evidence, or because of Exxon’s violation of the active control duty, we will reverse the judgment of the circuit court,” Millette wrote.
“Finally, Exxon challenges the award of punitive damages, basing its argument on the language of [the Longshore and Harbor Workers Compensation Act] which it argues forecloses the remedy.
The Court agreed with Exxon’s interpretation of the statute, holding “that the award of $12,500,000 in punitive damages was inappropriately granted because punitive damages are a remedy prohibited by the terms of LHWCA.” The $12,500,000 award had been reduced by the trial court to $5 million but this had no effect on this holding as the Court declared no punitive damages are allowed.
In her opinion, concurring in part and dissenting in part, McClanahan agreed with the majority holdings that Minton presented sufficient evidence to establish Exxon’s duty to intervene but disagreed with the majority conclusion that the trial court erred in excluding evidence of the Shipyard’s knowledge of the dangers of asbestos and its policies toward protecting Shipyard employees.
McClanahan sided with the trial court, writing, “In light of Minton’s proof that Exxon had a duty to intervene, the Shipyard’s asbestos-related knowledge and policies were irrelevant to Exxon’s duty to protect shipyard workers on its ships.”
McClanahan also disagreed with the majority’s interpretation of the LHWCA provision relied on to make its punitive damages ruling, stating that LHWCA “does not preclude as a matter of law a shipyard worker from seeking to recover punitive damages in a negligence action against a shipowner.”
McClanahan and Powell would have affirmed the trial court in total. The majority holding summarized by Millette, however, did not:
“For the aforementioned reasons, we will reverse the judgment of the circuit court based on its exclusion of relevant evidence regarding the Shipyard’s knowledge of the danger of asbestos exposure and its ability to remedy the danger, and remand for further proceedings consistent with this opinion. We will also reverse the circuit court’s award of punitive damages and enter final judgment as to that claim.”
