A new decision from the Fifth Circuit is important for Longshore and Defense Base Act cases because it explains the Section 20(a) presumption that runs in favor of claimants. Below, I first address the opinion, Ramsay Scarlett v. Director, OWCP. After that, I give my take away from the case.
Ramsay Scarlett v. Dir., OWCP:
The case involved an injured employee of Ramsay Scarlett & Company. The employee, Ferdinand Fabre, had worked for Ramsay Scarlet for 30 years (from 1969 to 1991). After Ramsay Scarlett, Mr. Fabre worked for Westway at the Port of Baton Rouge. Both Ramsay Scarlett and Westway were covered by the Longshore and Harbor Workers’ Compensation Act.
In 2011, Mr. Fabre received an asbestosis diagnosis. The parties did not dispute the fact that Mr. Fabre was exposed to asbestos while working with Ramsay Scarlett. Accordingly, Mr. Fabre filed a claim for Longshore benefits, which he won. The administrative law judge (“ALJ”) ordered Ramsay Scarlett to pay for all “reasonable and necessary medical expenses arising out of [Fabre’s] work-related occupational disease pursuant to 33 U.S.C. § 907.” Ramsay Scarlett appealed first to the Benefits Review Board, which affirmed. This appeal to the Fifth Circuit followed.
The Fifth Circuit started the meat of its discussion by describing the Longshore Act’s burden-shifting framework:
Under the [Longshore Act], the claimant establishes a prima facie case for coverage by showing that (1) a harm occurred and (2) the harm may have been caused or aggravated by a workplace condition. Ceres Gulf, Inc., 683 F.3d at 229. If the claimant establishes these elements, a presumption arises that the claim falls under the [Longshore Act]. Id.; 33 U.S.C. § 920(a). The burden then shifts to the employer to rebut the presumption “through facts–not mere speculation–that the harm was not work-related.” Ceres Gulf, Inc., 683 F.3d at 229 (citation omitted). This burden can be met by showing that working conditions did not cause the harm or that the employee was exposed to the same working conditions at a subsequent covered employer. Avondale Indus., Inc. v. Dir., Office of Workers’ Compensation Programs, 977 F.2d 186, 190 (5th Cir. 1992). If the ALJ finds that the employer rebutted the presumption, then the ALJ must weigh all of the evidence to determine whether the harm was caused by the claimant’s employment at the covered situs. See Ceres Gulf, Inc., 683 F.3d at 229.
Here, the ALJ properly applied each step of the burden-shifting framework. The ALJ relied on Mr. Fabre’s deposition testimony and the report of an industrial hygienist. The ALJ “credited [this] evidence when finding that Fabre had met the low burden required to establish a prima facie case–that he suffered a harm that a workplace condition could have caused or aggravated.”
Ramsay Scarlett’s problem was that it did not rebut the presumption. It attacked Mr. Fabre’s credibility “because his belief that he was exposed to asbestos arose only after he read a newspaper article describing the presence of asbestos in certain machinery.” The Fifth Circuit was not impressed with this argument. Quite simply ALJs are allowed to weigh the evidence and, here, the ALJ found that Mr. Fabre was credible. Besides, it wasn’t just Mr. Fabre’s testimony that was relied upon; the expert’s qualifications were also relied upon.
Likewise, the Fifth Circuit rejected Ramsay Scarlett’s argument that it rebutted Mr. Fabre’s prima facie case. “With what?” asked the court. Besides an Occupational Health and Safety Administration regulation, Ramsay Scarlett offered no evidence about the implementation of safety measures at the Port of Baton Rouge. More importantly, Ramsay Scarlett failed to “present any evidence contradicting Fabre’s deposition testimony and Parker’s report that there was asbestos in the brakes and clutches Fabre changed.”
The Fifth Circuit also rejected Ramsay Scarlett’s last responsible employer argument, wherein it contended that Mr. Fabre was exposed to asbestos at Westway. Still, Ramsay Scarlett was required to rebut the Section 20(a) presumption with “substantial evidence.” Yet, Mr. Fabre testified that he was not exposed to asbestos at Westway. The ALJ accepted this testimony, and Ramsay Scarlett “did not put forth any factual evidence that contradicted Fabre’s testimony . . . .”
Finally, the Fifth Circuit affirmed the ALJ’s order requiring Ramsay Scarlett to pay for annual flu and pneumonia vaccines, and treatment for the conditions of pneumonia and flu. In doing so, the Fifth Circuit relied on the ALJ’s statements regarding vaccines and the likelihood of the development of pneumonia and flu. Based on the Fifth Circuit’s “liberal causation standard when determining the coverage of initial and subsequent injuries,” the court affirmed the ALJ’s Order.
At first blush, Ramsay Scarlett may appear like a simple case about ALJ discretion. I think it is a little more important than that.
I recently engaged in a debate with opposing counsel about the evidence that is required to prove a prima facie case. Unfortunately, the debate is all too common and it robs injured workers of medical and indemnity benefits. The defense argument is that a prima facie case is only proven when reports exists. That is nonsense…complete and utter nonsense. Even a cursory reading of the Office of Administrative Law Judge’s Benchbook shows that “the claimant is not require[d] to introduce affirmative medical evidence that the working conditions in fact caused his harm; rather, the claimant must show that working conditions existed which could have caused the harm.” In other words, records are not an absolute condition precedent to a claimant proving a prima facie case. The Benefits Review Board has stated multiple times that credible complaints of subjective symptoms and pain can be sufficient to establish harm. (To be sure, I wouldn’t recommend relying solely on testimony–but it is possible.)
Perhaps Ramsay Scarlett will resolve some misconceptions about the requirements for a prima facie case. In Ramsay Scarlett, Mr. Fabre proved his prima facie case with deposition testimony and an industrial hygienist’s report. There is no mention in the Section 20(a) presumption portion of the opinion about medical records being required–much less used–to establish the Section 20(a) presumption. In fact, the Fifth Circuit went so far as to cite another case where “the claimant’s testimony and the testimony of one other employee was substantial evidence to justify a prima facie case”. See Sonat Offshore Drilling v. Avondale Indus., 37 F. App’x 91, at *2 (5th Cir. 2002).
Work comp is all about paying quickly. The trade-off for quickly paid work comp benefits is the loss of the injured worker’s right to sue in tort. But when unnecessary arguments are lodged, there is a lengthy delay in the payment of benefits while defense medical experts are hired, depositions taken, etc. All the while, the injured worker drains their bank account trying to stay afloat. This isn’t what Congress had in mind when it enacted and subsequently amended the Longshore Act.
Attribution: Photo courtesy of Flickr user Jasleen Kaur.