The Board began this fiscal year in October 2008 with 134 pending Longshore appeals. Historically, appeals are filed in about 10 percent of the Longshore cases decided by OALJ. During the last fiscal year, which ended September 30, 2008, the Board received 226 appeals in cases under the Longshore Act (33 U.S.C.S. § 901 et seq.), including about 30 under the Defense Base Act (42 U.S.C.S. § 1651 et seq.). A total of 260 Longshore Act decisions were issued, including about 15 under the DBA, and 22 decisions on reconsideration were also issued. (In addition, the Board received 573 appeals under the Black Lung Act during the last fiscal year and issued 727 final dispositions (Black Lung Benefits Act, 30 U.S.C.S. § 901 et seq.) We received decisions in 37 appeals of the Board's Longshore decisions, and the Board's decisions were affirmed in 32 of those appeals. Last year, an average of 8 months elapsed between the date the appeal was filed and the date a decision issued. Although the Labor appropriation no longer includes a provision requiring the Board to issue decisions within one year or the case is considered administratively affirmed, the Board continued to issue decisions within this time frame.
At the mid-point of the current fiscal year at the end of March, the Board had 148 pending Longshore appeals, including approximately 25 appeals under the Defense Base Act. The Board has received 120 new appeals under the Act and issued 106 dispositions thus far, with an average processing time of 7 months. If current trends continue, the Board will receive 240 appeals this year, a slight increase over last year. Thus far, the Board has also received 31 decisions from the appellate courts and the Board's decision was affirmed in 27.
Chief Judge Nancy Dolder and I attended the Annual Longshore Conference sponsored by Loyola University School of Law in March. The conference was, as always, very well done by the Loyola CLE Office, and presented knowledgeable speakers on a variety of topics, including post-hearing procedures, chronic pain syndrome, recent amendments to the Americans with Disabilities Act, Medicare set-asides, Section 28 (33 U.S.C.S. § 928), competing jurisdictions and current issues under the DBA. Several areas addressed recent cases and changes in law which were particularly interesting. Judge Dolder and I enjoyed the opportunity to meet with many practitioners and hear their perspectives on the law.
In May, several members of the Board's staff and I will be attending the Signal/LCA Maritime Conference in Baltimore, http://www.longshoreclaims.com/SeminarInfo/LCA.Signal.1.pdf.#Signal/LCA has planned an informative and entertaining two days for conference attendees, with the first day presenting a traditional format with speakers and topics, including the 6th Edition of the AMA Guides (Guides to the Evaluation of Permanent Impairment) and OWCP security requirements. The second day presents a novel format, exploring a hypothetical case which gets more complicated by the hour and by the end, should present many of the issues raised in resolving claims.
The Board's staff is currently engaged in a long-term project to revise the Longshore Desk Book. Organized by section of the Act, the Desk Book contains citations and discussion of published Board and appellate decisions. The Desk Book was first written in the early 80's and revised in 1986. The 1986 Desk Book uses a narrative format. Since 1986, new cases have been added in the form of case digests. The Desk Book published by LexisNexis contains both the 1986 material and the updated case digests; it is updated every 6 months by the Board's staff. The case digests are available online on the Board's web site at http://www.dol.gov/brb/welcome.html under Longshore Desk Book and are also updated every 6 months.
The new project seeks to update the old material in the 1986 Desk Book and integrate it with the case digests. Needless to say, there have been many changes in the law since 1986, so much of the old material will be revised and new citations added. The format will remain a narrative followed by case digests. In general, the pre-1986 material will still be in the narrative with the addition of updated citations supporting the legal propositions discussed, and the cases since 1986 will be described in more detail in the digests. New headings have been added as we attempt to make it easier to find relevant cases.
This project began last summer, and there is no specific deadline for its completion. Thus far, updates have been completed for the employment section, covering responsible employer/carrier and the employer/employee relationship, Section 2(2) (33 U.S.C.S. § 902(2)), covering causation, and Section 20 (33 U.S.C.S. § 920), covering the presumptions. New material is also complete on Sections 4 and 5, as well as the section covering miscellaneous definitions from Section 2. The next sections to be available with be Section 3, which will include Section 3(a) (33 U.S.C.S. § 903(a)) which was previously covered under Jurisdiction, and Section 22 (33 U.S.C.S. § 922). As it is completed, the new material will be forwarded to LexisNexis with the regular updates and placed in the Desk Book section of the Board's web site.
Board decisions are also available on the Board's website. The new decisions for a previous month are added at the beginning of the new month. The site separates published decisions and unpublished decisions. Both types are listed by date. In addition, at the bottom of the Board's Longshore decisions page is a link which permits searching decisions. Just check the box for the Longshore Act and enter the search term.
The Board has addressed some interesting issues in the last three months, resulting in nine published decisions. In M. K. v. California United Terminals, BRB No. 08-0392 (Feb. 12, 2009), after holding oral argument, the Board held that where a ILWU-PMA trust fund providing medical and disability benefits intervenes to recover payments, see 33 U.S.C.S. § 907, 33 U.S.C.S. § 917, claimant and employer cannot enter into a settlement without the participation of ILWU-PMA. A motion for reconsideration of this decision is currently pending.
Estate of C. H. v. Chevron, USA, BRB No. 08-0531 (March 13, 2009), addressed a number of issues resulting from proceedings involving Section 14(f) (33 U.S.C.S. § 914(f)), including enforceability, the assessment of a Section 14(f) amount on a Section 14(e) (33 U.S.C.S. § 914(e)) assessment overturned on appeal and on medicals reimbursed to claimant, and the maximum compensation rate.
In a case involving the appropriate average weekly wage under the DBA for a claimant injured in Iraq, the Board held that only Iraq wages may be used where claimant worked on a one-year contract and received higher wages due to the dangerous conditions existing in that country. K. S. v. Service Employees Int'l, BRB No. 08-0583 (March 13, 2009). A motion for reconsideration is pending in this case.
The Board overruled its decisions in Lombardi v. Universal Maritime Service Corp., 32 BRBS 83 (1998), and Feld v. General Dynamics Corp., 34 BRBS 131 (2000), which held that where employer did not raise suitable alternate employment in the initial proceeding and did not establish a change in claimant's condition or that circumstances precluded a showing of suitable alternate employment earlier, it could not raise the issue for the first time on modification. R. V. v. Friede Goldman Halter, BRB No. 08-0605 (March 13, 2009). In R. V., the Board discussed recent precedent regarding the Act's preference for accuracy over finality and held that Lombardi and Feld are at odds with these cases. As an accurate determination of disability is of paramount importance, the Board affirmed the administrative law judge's decision to grant modification based on employer's evidence of suitable alternate employment. An accurate determination of entitlement to benefits renders justice under the Act.
The Board reached a similar result in addressing the availability of a Section 3(e) (33 U.S.C.S. § 903(e)) credit in a Section 22 modification proceeding in M. R. v. Electric Boat Corp., BRB No. 08-0653 (March 30, 2009). In M. R., the parties entered into stipulations regarding average weekly wage and disability which the administrative law judge adopted in the initial award of temporary total disability benefits. Both parties thereafter sought modification of the disability award, and employer notified claimant it was suspending compensation in order to recoup a credit for state payments made prior to the initial award. The administrative law judge held that employer was required to raise this credit before the administrative law judge in the initial proceeding and directed the reinstatement of benefits. On appeal, the Board reversed, holding that employer could claim the prior credit on modification. The Board relied on the language of Section 3(e) and the broad scope of Section 22 in addressing a mistake in fact.
In L. W. v. Northrop Grumman Ship Systems, BRB No. 08-0497 (March 27, 2009), the Board addressed a situation where employer attempted to show suitable alternate employment at other employers during a period when claimant was laid off prior to being recalled by employer. As the collective bargaining agreement to which employer was a party provided that claimant would be fired if claimant accepted such outside employment, the Board held that the jobs shown in the labor market survey were not realistically available and claimant was thus entitled to total disability during those periods.
Following the recent decisions in Christensen v. Stevedoring Services of America, 557 F.3d 1049 (9th Cir. 2009), and Van Skike v. Director, OWCP, 557 F.2d 1041 (9th Cir. 2009), the Board vacated the hourly rate determinations in fee awards of the administrative law judge and district director and remanded the cases for findings in accordance with the controlling precedent of the Ninth Circuit. H. S. v. Dep’t of Army/NAF, BRB Nos. 08-0533 & 08-0596 (Apr. 10, 2009). In K. L. v. Blue Marine Security, LLC, BRB No. 08-0789 (Apr. 16, 2009), the Board held that a security guard assigned to a vessel as a result of regulations of the Department of Homeland Security who was injured on the vessel was not excluded by Section 2(3)(A) (33 U.S.C.S. § 902(3)(A)) as he did not work "exclusively" in an office.
Most recently, the Board addressed the provision of Section 9(b) (33 U.S.C.S. § 909(b)) providing for the termination of compensation to a widow "upon remarriage." In A. S. v. Advanced American Diving, BRB No. 08-0574 (Apr. 27, 2009) (McGranery, J., dissenting), the Board affirmed the administrative law judge's finding that decedent's widow had not remarried where she was living with another man with whom she has two children and joined in a "commitment ceremony" in Cabo San Lucas, Mexico. In A. S., it was uncontested that claimant had not entered into a formal marriage, and the Board affirmed the administrative law judge's conclusion that claimant did not enter into a union in Mexico that would be the equivalent of a formal marriage or common law marriage recognized in Oregon. In this regard, the administrative law judge relied on the parties' lack of intent to marry and distinctions between a concubinage relationship under Mexican law and marriage.
This article by Jan Ulan, Associate General Counsel, Longshore Division, Benefits Review Board, U.S. Department of Labor, Washington, D.C., was reprinted from the Benefits Review Board Service Longshore Reporter.