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Cases

NINTH CIRCUIT COURT OF APPEALS

Christensen v. Stevedoring Services of America, Inc., F.3d (9th Cir. 2005) 39 BRBS 79(2005)(CRT). Sections 21, 28. Attorney’s Fee. Finality of Decision. An award of attorney’s fees is not final and therefore not enforceable via default in the District Court until the underlying decision is final in all respects, even if only the Claimant noted an appeal. COMMENT: Not a decision within the last year, but a good reminder that the rules of finality cut both ways.

M. Cutter Co. v. Carroll, F.3d , (9th Cir. 2006) 40 BRBS 53. Section 7. Medical Care. Claimant sustained grievously serious injuries as a result of a 30 foot fall. By the undisputed medical evidence, Claimant required 24 hour medical are, but the ALJ found the employer only liable for part-time on grounds that wife could provide for Claimant’s remaining need “without substantial disruption to her quality of life. Board reversed on grounds that “other attendance” of section 7 includes 24 hour care at employer’s expense. COMMENT – What was the ALJ thinking?

Healy Tibbitts Builders, Inc. v. Director, OWCP (Maumau), F.3d (9th Cir. 2006), 40 BRBS 13 (2006)(CRT). Section 2(3). Status – “Harbor Worker. “ Employer’s project was the replacement of renovate and replace submarine berths at Pearl Harbor. Project also required replacement of new utility lines through main duct banks and shore power mounds. Employee died when struck by trench shield of a main utility bank that was to also supply power to the base. No dispute that site of accident/utility bank was a covered situs of an adjoining area.

In wipe sweeping discussion of deference to the Director’s position, panel affirmed decision of ALJ and BRB that the decedent was a covered harbor worker, which, “includes workers directly involved in the construction of a marine facility, even if their specific job duties are not maritime in nature.”

COMMENT: The Ninth lightly, and unsuccessfully in my opinion, tries to distance itself from McGray Construction Co. v. Director, OWCP(Hurston), 181 F.3d 1008 (9th Cir. 1008 (9th Cir. 1999), 33 BRBS 81 (Pile driver at ship-less pier not covered) and Weyher/Livsey Constructors, Inc. v. Prevetire, 27 F.3d 984 (4th Cir. 1994), 38 BRBS 57 (Pipefitter for construction of power plant at naval shipyard is not covered).

There should be no logical or other difference based common sense between power bank to provide electrical energy to a berthed submarine versus a power plant that will provide electricity to an entire shipyard. Apparently, the breath to salt air at Pearl Harbor in the Ninth Circuit is no coextensive with the breezes at Norfolk Shipyard in the Fourth Circuit.

Scheuring v. Traylor Brothers, Inc., 2007 U.S. App. Lexis 29852 (9th Cir. Cal. Feb. 14, 2007). Jones Act vs. Longshore. Section 5(b). Plaintiff crane operator was injured in the construction of passenger wharf at the Long Beach Container Terminal. Motion for summary judgment granted by District Court on the Plaintiff’s Jones Act claim on the grounds that he was not a seaman and there was no triable issue of the breach by employer/vessel owner of the turnover duty under section 905(b).

The status of Plaintiff as a seaman presented a triable issue of fact where subject to the sea swells, wind waves, vessel wakes and tidal currents such that Plaintiff had over “sea-based” duties. Also a factual issue about breach of turnover duty where question of fact about the status of a ramp connection from shore to a float. COMMENT: The Chandris/Papai definitions remain unsettled and fact intensive, but reconciliation of this result with Cabral v. Healy Tibbits Builders, Inc., 128 F.3d 1289 (9th Cir. 1997) is mind-boggling.

UNPUBLISHED NINTH CIRCUIT COURT OF APPEALS

Laird v. Sause Brothers, Inc., Unpublished (9th Cir., 2006 U.S. App. LEXIS 17561) Section 28 – Attorney’s Fees. Ninth Circuit affirmed Board decision, also unpublished, that merely because Claimant’s attorney had received a fee in past at higher rate, ALJ had discretion to reduce to lower rate because not bound by hourly rate in such other cases. COMMENT. Why does the BRB or Ninth Circuit have the chutzpah to publish a decision when it should. Never give up on fees.

Avant v. National Steel & Shipbuilding Co., Unpublished (9th Cir., 2006 U.S. App. LEXIS 13709). Price Responsible Employer. ALJ and Board decision, also unpublished, which credited the “natural progression” testimony of one physician over testimony of two less convincing physicians was supported by substantial evidence, thus first employer was last responsible employer. COMMENT. Never give up the ship on Price, which is 99.9% of the time decided at the trial level.

Colaruotolo v. Centennial Stevedoring Services, Unpublished. (9th Cir., 2006 U.S. App. LEXIS 15938). Price Responsible Employer. ALJ and Board decision also unpublished, affirmed that last means last for cervical neck injury. COMMENT. See above.

BENEFITS REVIEW BOARD

Ramey v. Crescent City Marine, 40 BRBS 583 (2006)(ALJ). Section 17. Health and Welfare Liens. The parties resolved all issues by stipulation, except the manner of reimbursement and payment of the lien of the ILWU-PMA Welfare Plan for disability indemnity and medical care. Namely, the Claimant contention was that because Claimant had the primary responsibility for satisfaction of the Welfare lien, then the employer/carrier should pay all compensation due to the Claimant, which party had the right negotiate and/or reimburse the lien?

Employer/carrier contended that because it became a judgment debtor to the Plan as a judgment creditor, then the employer/carrier had the responsibility to payment the lien and the corresponding right to deduct the Plan’s payment from compensation to be paid the Claimant. Core issue – which party reaps the benefit of any reduction of a the lien by a Health or Welfare Plan.

ALJ held that the employer and carrier are entitled to deduce the full amount of the disability indemnity payment by the Welfare plan, even in the face of payment by the employer/carrier of a reduced lien. “The addition of interest on the past due payments will compensate [the Claimant] for the delay in payments. COMMENT: An issue that is ripe for further development at considerable saving to the industry.

Reposky v. International Transportation Service, 40 BRBS 65 (2006). Price Responsible Employer. Section 6 - TTD Rates. Again a morass of employment, dates of injury, and multiple surgeries for a UTR driver who later returned to work in the computer kitchen at part-time employment, albeit greater wages that as a driver. Board upheld ALJ finding that middle employer was liable for not only the first surgery, but the second surgery after later employment.

Sears v. Norquest Seafoods, Inc., 40 BRBS 51 (2006). Section 8(i). Settlements – Borrowing Employer. Section 3(e) – Credit. Claimant hired by a labor broker and subcontracted to clean a ship for Norquest. Filed claim against titular employer/labor broker, which was settled under 8(i) agreement. Then filed 905(b) action against Norquest, whose request for dismissal was granted on grounds that it was the borrowing employer and therefore the Claimant’s statutory employer.

Held. ALJ finding that labor broker and Norquest were joint liable revered by Board in that Claimant has only one statutory employer, citing on precedent from the Fifth Circuit. In addition, Board re-affirmed nefarious implications of Alexander v. Director, 297 F.3d 805 (9th Cir. 2002), 36 BRBS 25, the “liability of the responsible employer is not affected by the settlement of claims arising out of the same injury with other potentially liable employers.” COMMENT: Ugh, the only solution may be the proposed amendments to the Act. Whatever happened to the now apparently old fashioned prohibition against double recovery.

ADMINISTRATIVE LAW JUDGES

W.B. vs. Sea-Logix, Inc., 40 BRBS 651(2006)(ALJ) Section 2(3) – Status – Truck Driver. Claimant worked as a short haul, local, or “street” truck driver within the Port of Oakland (i.e., terminal to terminal) and throughout Northern California (i.e., to and from the consignee’s door). None of his duties involved the movement of containers “beneath the hook,” but he would often pick up container from the stringer and move directly to railhead or another marine terminal within the Port of Oakland.

ALJ finds that Claimant’s primary duties were to transport cargo to and from maritime locations to land-based destinations. Any work in the marine yard was “ancillary” to land based duties. Driver did not have status under Dorris v. Director, OWCP, 808 F.2d 1362 (9th Cir. 1987) and Board’s decision in McKenzie v. Crowley American Transportation, Inc., 36 BRBS 41 (2002).

COMMENT: Case on appeal to Board and likely headed for Ninth. Are the jurisdictional issues with respect to truck drivers any different that the duties in the computer tower or kitchen. When will the management side of the industry take on the challenge of these purely land based workers?

Carter v. Brown & Root/Halliburton, 40 BRBS 669 (2006)(ALJ). Defense Base Act. Psychiatric Injury. An initial claim of exposure to “unprocessed water” later morphed to a full blown claim of PTSD, not based on any other physical injuries, but simply to presence in a combat zone and seeing wounded soldiers.

COMMENT. Nothing extraordinary about the weighing of evidence by ALJ to rely upon Claimant’s psychiatrist, but a hugely unfavorable example again of how little is required to establish a mental-mental injury under the Defense Base Act. Could not ever DBA claim be deemed to lead to a psychological condition?

J.T. v. American Logistic Services, 40 BRBS 731 (2006)(ALJ). Defense Base Act. Section 38. Joint and Several Liability of Corporate Officers. While not a Ninth Circuit case, except to the extent that Claimant was represented by a Hawaii based attorney, noteworthy for ALJ upholding the findings of the District Director employer’s failure to obtain DBA coverage and the joint and several personal liability of the corporate officers.

Schuchardt v. Zidell Marine Corp., 40 BRBS 570 (2006)(ALJ P. Mapes). Section 20 – Presumption. Cardillo last injurious exposure. Board remanded by citation to its own decision in McAlister v. Lockheed Shipbuilding, 39 BRBS 35 (2005). Decedent worked in shipyards of Portland 1966 to 1991. His death in 2000 from a heart attack was in part related to pulmonary asbestosis. Claim brought against 12 parties defendant.

In a fashion typical of the now sorely missed his precision, Judge Mapes restates the Board’s rules better than the Board itself. The section 20 presumption does not apply to a particular employer. Thus, the presumption takes on two tracks. If any of the employers rebut the presumption, it falls out of the case and the issue of causation must be resolved on the evidence of the records as a whole, with the Claimant bearing the burden of persuasion.

If no employer rebuts the presumption, Claimant does not bear the burden, but each employer must prove that it is not the responsible employer by proof that (a) the employee was not exposed to injurious stimuli or (b) the employee was exposed to injurious stimuli while working for subsequent covered employer.

With his obvious dissatisfaction of the Board’s new rules, Judge Mapes worked down the chronological order of employment to find that the last three employer/carriers has proven no injurious exposure. The fourth from the last employer was found liable. Shades of Goertemller, 27 BRBS 344 (ALJ).

COMMENT: This one is far from over and seems to stand much of the traditional Cardillo rules on its head. Hopefully the Board will affirm without a remand and the Ninth Circuit will remand.