In claims filed under the Longshore Act, there is no requirement that psychological injuries be accompanied by actual or threatened physical harm. So says the Fourth Circuit in its new unpublished decision, Ceres Marine Terminals, Inc. v. Director, OWCP.
In a prior post, I wrote about the oral arguments in this case, and how employers and carriers approach psychological injury claims under both the Longshore Act and the Defense Base Act. The facts of this case are tragic. The claimant was operating a forklift when he struck and killed a co-worker. The claimant testified that the co-worker was bleeding from her mouth. Her leg was wrapped around the the axle of the forklift. While waiting ten minutes for the ambulance to arrive, the claimant stood ten to fifteen feet away from the co-worker. Once the co-worker was transported to the hospital, the claimant spent the day explaining the accident to the police, OSHA, and his employer. One day later, he first saw a doctor for psychological distress related to the forklift accident.
Although the employer initially paid benefits, a dispute arose when a Department of Labor independent medical examiner “rule[d] out the [PTSD] diagnosis” because the claimant “did not experience a threat to himself” and “was never in danger” during the accident. The examiner also stated that the claimant was malingering. The employer latched onto that evidence and terminated benefits.
Psychological Injuries Do Not Require a Physical Threat/Harm Component:
From the OALJ through the United States Court of Appeals, Fourth Circuit, the employer maintained the same argument: the claimant “was not entitled to compensation under the LHWCA for a psychological injury because he did not sustain a physical injury or was placed in immediate risk of physical injury.” This argument is an import of a tort concept called the “zone-of-danger test” (which should not be confused with the Defense Base Act’s zone of special danger doctrine). Every court that reviewed this claim rejected the employer’s argument. More or less, the Fourth Circuit stated that the employer’s argument had no place in Longshore claims:
[Employer] does not dispute that [Claimant] can recover for a psychological injury under the LHWCA. Rather, [Employer] contends that [Claimant] cannot, under the LHWCA, recover for a psychological injury unless he sustains a physical injury or was placed in immediate risk of physical harm. In support of this argument, [Employer] relies exclusively on the zone-of-danger test set forth by the Supreme Court in Consolidated Rail–a case that did not involve the statute at issue in this case. [Employer’s] contention is not only inconsistent with the statute’s text, the structure of the statute, and precedent but is also contradicted by the very reasoning of the case on which it relies so heavily–Consolidated Rail.
The LHWCA plainly does not encompass such a limitation by its express terms. The LHWCA does not distinguish between psychological and physical injuries–the statute simply says “injury.” See 33 U.S.C. § 902(2) (defining “injury,” without limitation, as any “accidental injury or death arising out of and in the course of employment”). Nowhere in the statute is there a requirement that psychological injuries be accompanied by actual or threatened physical harm. To be sure, Congress could have easily written the statute to contain such a requirement, but it did not. We therefore refuse to “amend [the] statute under the guise of statutory interpretation, a task we are not at liberty to perform.” Newport News Shipbldg. & Dry Dock Co. v. Hall, 674 F.2d 248, 251 (4th Cir. 1982). For good reason. The zone-of-danger test is, after all, a “well-established common-law concept of negligence.” Consolidated Rail, 512 U.S. at 555 (quotations and alterations omitted). The rules of the common law for tort actions, however, generally do not apply to cases arising under LHWCA–a “no-fault workers compensation scheme.” See Newport News Shipbldg. and Dry Dock Co. v. Brown, 376 F.3d 245, 249 (4th Cir. 2004).
Further, courts interpreting § 902(2) of the LHWCA have held that claimants can recover for a work-related psychological injury, and have never mandated actual or threatened harm to be a prerequisite for coverage. See, e.g., Pedroza v. Dir., OWCP, 624 F.3d 926, 931 (9th Cir. 2009) (“It is well settled that a psychological impairment, which is work related, is presumed to be compensable under the Act. Therefore to receive the benefit of this § 920(a) presumption, the claimant must prove not only that he has a psychological impairment, but that an accident occurred, or working conditions existed, which could have caused the impairment.” (citations omitted)); Dir., OWCP v. Potomac Elec. Power Co., 607 F.2d 1378, 1385 (D.C. Cor. 1979); Am. Nat’l Red Cross v. Hagen, 327 F.2d 559, 561 (7th Cir. 1964). Nor has the [Benefits Review] Board endorsed such a limitation. See., e.g., J.A. at 9-10 (“[I]t is well established that a work-related psychological impairment, with or without an underlying physical harm, may be compensable under the Act.”)
There you have it. The Fourth Circuit read the statute, applied the statute, and came to the correct result. Psychological injuries do not require a physical threat or physical harm component.
A DOL Independent Medical Examiner’s Opinion is Not Binding:
Another important issue in the Ceres Marine Terminals case concerned DOL independent medical examiners. The Fourth Circuit determined that “there is nothing in the plain language of the statute that indicates that Congress intended to give the opinion of an independent medical examiner dispositive weight or to make the examiner’s opinion binding on the parties.” The referenced statue is Section 7(e), 33 U.S.C. § 907(e), which states:
In the event that medical questions are raised in any case, the Secretary shall have the power to cause the employee to be examined by a physician employed or selected by the Secretary and to obtain from such physician a report containing his estimate of the employee’s physical impairment and such other information as may be appropriate. Any party who is dissatisfied with such report may request a review or reexamination of the employee by one or more different physicians employed or selected by the Secretary. The Secretary shall order such review or reexamination unless he finds that it is clearly unwarranted.
The Fourth Circuit italicized the second sentence of Section 7(e) to prove a point. If the employer’s argument was correct, and the DOL IME opinion was dispositive, then the second sentence of Section 7(e) would be nullified. Worthless. But statute’s are read and interpreted to give every word meaning. As such, the very fact that the examiner’s opinion may be reviewed and the claimant reexamined means that “the independent medical examiner’s opinion must be weighed along with the other medical opinions of record . . . .”
I really hope that either the claimant’s attorney or the Solicitor is planning to request that the Fourth Circuit publish this decision. It is a good decision. Perhaps the decision isn’t published because the Fourth Circuit panel thought that the employer’s arguments were completely out of place, and so foreign to the Longshore Act, that they do not pop up often. Actually, they do. Publication would help.
Photo Attribution: By Acroterion – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=39911325