Update From the Benefits Review Board (May 2012)

By Karen Koenig, Associate General Counsel, Longshore, Benefits Review Board, United States Department of Labor, Washington, D.C.

BRB Statistical Update

The Board began this fiscal year in October 2011 with 148 pending Longshore appeals. During the last fiscal year, which ended September 30, 2011, the Board received 201 appeals in cases under the Longshore Act, one more than the year before (Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 et seq.). A total of 198 Longshore Act decisions were issued, three more than the year before; 13 decisions on reconsideration also were issued.[fn1] We received decisions from the courts of appeals in 36 appeals of the Board’s Longshore decisions, and the Board’s decisions ultimately were affirmed in 91.7 percent of them. Last year, an average of 9.9 months elapsed between the date an appeal was filed with the Board and the date a decision was issued.

As of mid-April 2012, the Board has approximately 121 pending Longshore appeals, including 27 appeals under the Defense Base Act (42 U.S.C.S. § 1651 et seq.). The Board has received 89 new appeals under the Act and issued 120 dispositions thus far. If the current average number of appeals continues, the Board will receive about 30 fewer appeals than last year. The cause of the lower appeal rate is not apparent, as the number of referrals to, and dispositions by, the OALJ remain strong. Thus far, the Board has received 15 decisions from the appellate courts and the Board’s decision was affirmed in 14 of these cases. The lone reversal was in Boroski, 662 F.3d 1197, which will be overturned as a result of the Roberts decision, as a petition for certiorari is pending in Boroski. See Boroski v. Dyncorp Int'l, 662 F.3d 1197, 46 BRBS 1(CRT) (11th Cir. 2011), Roberts v. Sea-Land Services, Inc., 132 S. Ct. 1350, 46 BRBS 15(CRT) (2012).

Board decisions continue to be available on the Board’s website, www.dol.gov/brb, indexed by the date of issuance. The website is updated with new decisions at the beginning of each month. For the period during which the Board was using initials in the captions of cases, the website now includes an index which provides the claimant’s name in addition to the listing by initials. The decisions also are searchable by key words. At the bottom of the Board’s main decisions page is a link to the search page. Check the box for “Longshore” and enter the search term. This will bring up both BRB and OALJ decisions containing the search term. The Desk Book also is available on the Board’s website at www.dol.gov/brb under “Longshore Deskbook.” In addition, the Desk Book is published by LexisNexis in the Longshore Reporter. The Desk Book is updated by Board staff every six months.

DBA Developments

In the pending appeal in Truczinskas v. Director, OWCP, No. 11-2503, the First Circuit has ordered the parties to brief the issue of whether appeals from the BRB should be initiated with the district court, pursuant to Section 1653 of the DBA, or to the circuit court, pursuant to Section 21(c) of the Longshore Act. The First Circuit did not question its jurisdiction in Air America, Inc. v. Director, OWCP, 597 F.2d 773, 10 BRBS 505 (1st Cir. 1979), wherein the court summarily stated, “The Review Board's order is then appealable to a court of appeals, 33 U.S.C.S. § 921(c) . . . .” 597 F.2d at 776, 10 BRBS at 508.

The Second, Seventh and Ninth Circuits have concluded that Congress meant to incorporate the Longshore Act as amended in 1972 into the DBA. Accordingly, appellate review in these circuits lies with the Board and then the United States Court of Appeals for the circuit where the office of the deputy commissioner whose compensation order is involved is located, pursuant to Section 21(b), (c) of the Longshore Act. Service Employees Int’l, Inc. v. Director, OWCP (Barrios), 595 F.3d 447, 44 BRBS 1(CRT) (2d Cir. 2010); Pearce v. Director, OWCP, 647 F.2d 716, 13 BRBS 241 (7th Cir. 1981); Pearce v. Director, OWCP, 603 F.2d 763, 10 BRBS 867 (9th Cir. 1979); see also Parsons Corp. of California v. Director, OWCP, 619 F.2d 38, 12 BRBS 234 (9th Cir. 1980).

The Sixth Circuit, however, concluded that the 1972 Amendments to Section 21, which eliminated review by a district court, was not incorporated into the DBA under 42 U.S.C.S. §1653(b). Therefore, this court held that review therefore remained in the appropriate district court as it did prior to the 1972 Longshore Act Amendments. Home Indemnity Co. v. Stillwell, 597 F.2d 87, 89 (6th Cir.), cert. denied, 444 U.S. 869, 62 L. Ed 2d 94, 100 S. Ct. 145 (1979). The Fourth, Fifth and Eleventh Circuits have joined in this view. Thus, in those circuits, a Board decision must first be challenged in the appropriate district court, and then may be appealed to the circuit court. ITT Base Services v. Hickson, 155 F.3d 1272, 32 BRBS 157(CRT) (11th Cir. 1998); Lee v. Boeing Co., Inc., 123 F.3d 801, 31 BRBS 101(CRT) (4th Cir. 1997); AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 24 BRBS 154(CRT) (5th Cir. 1991), cert. denied, 502 U.S. 906, 116 L. Ed. 2d 241, 112 S. Ct. 297 (1991); see Hice v. Director, OWCP, 48 F.Supp.2d 501 (D.Md. 1999). If an appeal is filed in the wrong court, the case generally will be transferred to the proper court. See Hice v. Director, OWCP, 156 F.3d 214, 32 BRBS 164(CRT) (D.C. Cir. 1998). The briefing order in Truczinskas states that if the First Circuit determines that the proceeding should have been filed in the district court, the appellate court will transfer the case to the district court pursuant to 28 U.S.C.S. §1631.

On the issue of average weekly wage in DBA cases, the Board recently affirmed an administrative law judge’s calculation based on wages the claimant earned in the year prior to injury, based on a combination of stateside and overseas employment. Jasmine v. Can-Am Protection Group, 46 BRBS __, BRB No. 11-0610 (Apr. 19, 2012). Although the claimant had received a large wage increase to work in Iraq, he was working under a six-month contract at the time of injury and had alternated overseas employment with domestic employment for several years prior to the injury. Under these circumstances, the Board held that the administrative law judge rationally found that the claimant did not have a long-term commitment to overseas work and it affirmed the administrative law judge’s finding that the Board’s decision in K.S. [Simons] v. Service Employees Int’l, Inc., 43 BRBS 18, aff’d on recon. en banc, 43 BRBS 136 (2009), thus did not mandate the use of only the wages paid in the overseas employment. An appeal of the Board’s decision in Simons remains pending before the District Court for the Southern District of Texas, No. 4:11-cv-01065.

Footnote:

1. In addition, the Board received 583 appeals under the Black Lung Act during the last fiscal year and issued 494 final dispositions (Black Lung Act, 30 U.S.C.S. § 901 et seq.). An amendment to the Black Lung Act contained in Section 1556 of the Patient Protection and Affordable Care Act, Public Law No. 111-148 (2010) revived certain classes of cases, resulting in increased claims and appeals. The fate of this amendment will be determined by the Supreme Court’s decision on the health care legislation.

© Copyright 2012 U.S. Dept. of Labor. All rights reserved. Reprinted by permission.