The Ninth Circuit Court of Appeals recently confirmed that the harmless error analysis applies to petitions for review filed under the Longshore and Harbor Workers’ Compensation Act, explicitly bringing it in line with the majority of other Circuit Courts. As noted by the court, “[t]hat a path is a beaten one…is a persuasive reason to follow it.”
With the harmless error analysis in mind, the Ninth Circuit went on to discuss the Claimant’s injuries. Here, Claimant, who was employed as a supply clerk, alleged that his slow-developing left parietal stroke was caused by job stress, and he admitted medical evidence in support of his allegations. The Ninth Circuit upheld the administrative law judge’s determination that Claimant’s stroke was a compensable injury. Although challenges were made that the ALJ’s decision was based on an improper analysis of the parties’ burden of proof under Longshore claims, the Ninth Circuit determined that the ALJ’s error–which the Ninth Circuit referred to as a mislabeling–was harmless.
Two interesting paragraphs were devoted to the credibility of one of Claimant’s doctors. The ALJ found Claimant’s doctor credible, but complaints were made that Claimant’s doctor “altered the language in his report after learning from [Claimant’s] attorney about how medical reports are used in litigation…” Despite this questionable nature of this change, the Ninth Circuit stated that “[t]he mere fact that an expert witness has talked with a party’s lawyer and then altered his or her opinion language, though it might be considered relevant, does not require a factfinder to find that expert witness is other than credible.” The Ninth Circuit appears to draw a distinction between changing substance and changing language, but it nonetheless covers its bases by leaving open the possibility that a factfinder could still find this tactic relevant and could still determine that the affected expert witness lacks credibility.
Finally, it is important to note that the Employer and Carrier in this claim were granted Section 8(f) relief, likely on the basis that Claimant was diagnosed with hypertension in 1987 and regularly reported job stress. Because Section 8(f) was awarded, the date of maximum medical improvement became exceptionally important as that date would determine the Employer’s and Carrier’s duration of liability. The Ninth Circuit determined that it was not harmless error to arbitrarily pick a date for maximum medical improvement. The date of MMI “may affect the calculation of the compensation award,” and the amount of temporary total disability benefits owed by the Employer prior to the Special Fund acceptance and the 104 week cap on Employer’s permanent disability benefits.
Hawaii Stevedores, Inc., v. Ogawa, — F.3d —-, 2010 WL 2489588 (9th Cir. 2010).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
