Bath Iron Works Corp.
__F.3d__, 08/30/2004
RUDMAN
Causation found and benefits awarded where coworkers harassed employee about an underlying neurologic disorder, increasing his stress and symptoms.
The Court affirmed the decisions of an Administrative Law Judge (ALJ) and Benefits Review Board, finding that the employee was entitled to Longshore and Harbor Workers' Compensation Act benefits for work-related exacerbation of a preexisting neurological condition. The issues on appeal included causation, timely notice, and the average weekly wage calculation.
The employee has a hereditary neurological condition that causes involuntary shaking of his arms and hands, which worsens when he is under stress. He alleged that during his 20-year employment at Bath Iron Works, other employees routinely ridiculed him because of this condition. This stress aggravated his condition, leading to further symptoms and ridicule. Eventually, his coworkers questioned whether he was a danger to the crew. In 1998, he left BIW for good on the advice of his physician.
He then filed a claim for benefits under the Longshore Act. The employer contended that non-work factors, such as family and alcohol problems, caused the employee's downfall. Based on the testimony of a neurologist and a psychiatrist, the ALJ at first denied benefits, holding that the employer had rebutted the §20(a) presumption of causation accorded an employee who presents a prima facie case of an injury and a work incident that could have caused that injury. The Benefits Review Board vacated and remanded, holding that the ALJ had not made specific findings on causation and that the medical testimony relied upon by the ALJ was legally insufficient to rebut the presumption of causation.
On remand, the ALJ, relying on other evidence, concluded that the employee had made a prima facie case for causation. The judge also stated that the Board had "usurped" his fact-finding function and had treated §20(a) as "virtually an irrefutable presumption." The employer echoed these complaints on a second appeal, contending that the Board had "exceeded the scope of its review." It also argued that the Board had required it, on rebuttal, to present not just substantial evidence of a lack of causation, but to rule out every possible causal connection. The Board reaffirmed. The employer then appealed to the First Circuit Court of Appeals on several grounds, including causation, timeliness, and calculation of benefits. The Court affirmed the Board's decision in all respects.
Regarding causation, the Court stated that an employee makes a prima facie case of presumed work-relatedness if he shows conditions at work that could have caused the injury; he need not definitively prove the causal link. In his second decision, the ALJ made explicit findings about the workplace stress endured by the employee which exacerbated his underlying disorder. Meanwhile, because the ALJ's first decision failed to contain findings on causation, it was properly remanded.
The Court also dismissed the employer's argument that the Board did not consider the evidence "as a whole," because once the Board found that the employee had made a prima facie case of causation, it did not have to consider all the evidence. The Court next rejected BIW's argument that the Board had usurped the ALJ's factfinding authority when it found the medical testimony insufficient to rebut the presumption of work-relatedness. As Judge Lipez stated, this was not a factual but a legal conclusion, based on the sufficiency of the evidence.
The Court next found that the employee's claim was timely filed. While employees must give notice of gradual occupational injuries within a year after they realize they might be work-related, an exception occurs when the employer or carrier also has knowledge of the injury. Here, the employer was aware of a possible work injury by a 1997 meeting of the union and medical staff regarding the employee's worsening condition due to on-the-job stress. Alternatively, the employer knew of the employee's condition by 1998, when the employee's doctor recommended to the employer, in writing, that the employee stop working because of his medical condition.
The Court also upheld that the employee was totally disabled from working as a crane operator, because when an employee cannot return to work because of an injury, a presumption of total disability arises. BIW failed to rebut this with evidence of available suitable work.
The Court next affirmed the calculation of the average weekly wage based on §910(c) of the Longshore Act, which is to be applied when neither 910(a)(employee works substantially the entire year preinjury) nor 910(b)(based on wages of comparable employees) are applicable. Section (c) applied because the employee provided wage information for only 39 of 52 weeks, with variable earnings and uncertainty about the number of days worked. The Court upheld the calculation of the AWW-the 39 weeks of wages divided by 31 (39 minus eight weeks with no wages reported).
Finally, the Court upheld the finding that the employee was entitled to medical benefits. While the parties had agreed to litigate the necessity of medical benefits only after causation was found, when employees are found to be injured under the Act, the employer "shall furnish such medical...treatment" as required (§907(a)).
Cunningham v. OWCP
__F.3d__, 08/03/2004
COFFIN
Maritime facility several miles away from main shipyard and not on navigable waterway does not meet the definition of an "adjoining area" in Longshore Act; therefore, injury at that site is not covered by the Act.
In a case of first impression, the Court examines the definition of an "adjoining" maritime work location in terms of Longshore and Harbor Workers' Compensation Act coverage. Congress amended the LHWCA in 1972 to cover injuries of maritime employees working away from the shore side, as long as they occur on a site "adjoining" navigable waters.
The employee worked at Bath Iron Works' East Brunswick Manufacturing Facility (EBMF), and his claim for a work injury under the Longshore Act was denied by the Administrative Law Judge and Benefits Review Board on the ground that the EBMF was not a covered work site under the Act. The East Brunswick facility is several miles from the main BIW shipyard, for which it prepares prefabricated parts. It is one of five BIW businesses in the same section of Brunswick, but the area between the EBMF facility and the shipyard is not predominantly maritime in nature.
Though the Court noted that the employee presented "a sympathetic case," it affirmed the Board's decision.
As the Court noted, the original LHWCA in 1927 covered only maritime employees on the seaward side of the shore. In 1972, coverage was extended to the shoreward side because technological changes put much maritime work on shore. The amended law covered injuries occurring not just on a navigable waterway, but on "any adjoining pier, wharf, dry dock, terminal, building way, marine railway or other adjoining area" used by the employer in working on vessels.
Courts have required injured longshore workers to meet the "status" and "situs" tests-that is, the employee must be engaged in maritime work and injured while working on navigable waters or in an adjoining area, as stated above. At issue here was whether the EBMF facility met the situs test by constituting an "adjoining area" as defined by the Act or by being located on a navigable waterway.
As the First Circuit has not yet addressed the "adjoining" clause, the Court upheld the "functional relationship test" adopted by the Fifth and Ninth Circuits and relied on by the Review Board. This test focuses on whether there exists a functional working relationship between the main and adjoining sites by looking at a variety of factors, including the physical continuity between the areas, the suitability of the site at issue for maritime use, and the unavailability of sites closer to the waterfront.
In a lengthy, detailed opinion, the Court held that the main BIW shipyard and the East Brunswick facility were not adjoining. Instead, they were two distinctly separate locations, as the EBMF was not on a navigable waterway, and the miles between the sites included many nonmaritime properties, thus this was not a continuous complex of BIW sites. As Judge Coffin stated, "the substantial expanse of unrelated land uses" between the main shipyard and the EBMF facility foreclosed a finding that the two areas were adjoining.
The Court emphasized that it was not using the Fourth Circuit's strict definition of "adjoining," which requires unbroken physical contiguity of maritime sites between the water and the site of the injury. Thus, the area in between the water and the site can include nonmaritime uses such as public roadways; however, the area should be largely maritime.
The Court also affirmed that the EBMF site itself was not on a navigable waterway. Though the New Meadows River was nearby, the employer did no work on this waterway and did not own the property between the EBMF and the river. Meanwhile, the Thompson Brook that crossed the EBMF property was deemed not navigable. Judge Coffin explained that where a worksite like the EBMF is far from navigable waters used by the employer, the situs test cannot be met by the site's proximity to a waterway not used by the employer. There must be both a geographic and functional link between the waterway and the worksite; otherwise, the definition of adjoining area is extended without "precedent []or logic."
The Court also rejected the employee's argument of a statutory presumption in favor of Longshore Act coverage. While section 920(a) states that a claim is "within the provisions of this chapter" absent substantial contrary evidence, Judge Coffin ruled that this does not apply to the legal interpretation of whether a worksite is an "adjoining area" that meets the situs test requirements of the Act.
