The Ninth Circuit just published a new Longshore decision addressing the statute of limitations and medical permanency. I suspect that this decision, SSA Terminals and Homeport Ins. Co. v. Carrion, No. 13-72929, -72948 (9th Cir. 2016), will be considered one of the most important Longshore decisions of 2016.
The opinion’s Summary states:
The panel denied an employer/insurer’s petition for review, and granted a claimant’s cross-petition for review for a decision by the Benefits Review Board, in an action brought by a claimant seeking disability benefits under the Longshore and Harbor Workers’ Compensation Act.
The administrative law judge (“ALJ”) determined that the claimant’s claim was timely filed under the Longshore Act, and determined that the disability was temporary because the claimant was contemplating knee replacement surgery that would likely alleviate his symptoms. The Benefits Review Board affirmed.
The panel held that the claimant timely filed his claim against his employer. In determining whether the one-year statute of limitations on disability claims was met, pursuant to 33 U.S.C. § 913(a), the panel held that the ALJ and the Benefits Review Board correctly looked to the date when the claimant became aware that his work for the employer caused a second, cumulative traumatic injury resulting in an impairment of his earning power.
The panel held that claimant’s knee injury was a permanent, rather than a temporary, disability. The panel held that evaluating an individual’s condition based on the presumed effect of a theoretical future treatment was error. The panel held that the appropriate question is not whether a future surgery would ameliorate claimant’s knee condition, but whether there was actual or expected improvement to his knee after a normal and natural healing period.
Finally, the panel held that the doctrines of exhaustion and waiver were inapplicable because claimant presented his claim of permanent disability well before the conclusion of the administrative process and neither the employer nor the agency was blindsided by the argument.
Statute of Limitations:
First, the statute of limitations. For Longshore (and Defense Base Act) claims, the statute of limitations can be found at 33 U.S.C. § 913. This case addresses cumulative traumas, which means that we only have to look at Section 13(a):
Except as otherwise provided in this section, the right to compensation for disability or death under this chapter shall be barred unless a claim therefore is filed within one year after the injury or death. . . . The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment.
In Carrion, the claimant initially injured his ACL in January 1987. His knee deteriorated to the point that he took early retirement in 2002. At that point, the medial joint space in his knee was almost gone. Mr. Carrion would require a total knee replacement. In 2008, the claimant filed a Longshore suit against his earlier employer, listing his retirement date as his date of injury. In response, the employer and carrier sent Mr. Carrier to their own defense medical examiner (“DME”), who “also diagnosed Carrion’s knee condition as a result of both a ‘natural progression of [his] degenerative arthritis and also [the] cumulative trauma” he experienced in his physically demanding work.
So, the big question was when did Mr. Carrion become aware of the relationship between his injury and his employment? It was the date that he saw the DME report–months after filing his Longshore claim:
Both the ALJ and the BRB correctly applied this standard by looking to the date when Carrion became aware that his work for SSA caused a second, cumulative traumatic injury resulting in an impairment of his earning power. Substantial evidence supports the conclusion that Carrion did not “become aware of the full character, extent, and impact of the harm done to him” until he received [the DME’s] report, several months after Carrion filed his claim against SSA.
Before seeing [the DME] evaluation, Carrion had no understanding of the medical principle of cumulative trauma. Carrion’s treating physician . . . testified that he never explained the concept of cumulative trauma to Carrion, and as the ALJ noted, a layperson would not understand that “the incremental erosion or worsening of a knee condition can be the basis for a cumulative trauma claim.” . . . Although Carrion experienced ongoing pain and required ongoing medical treatment, those circumstances alone are insufficient to establish knowledge of a cumulative trauma.
The Ninth Circuit said that the crux of its case was whether Mr. Carrion’s injury was temporary or permanent. I’ve previously discussed the four different classifications in Longshore and Defense Base Act claims. An injured worker can be temporary total, temporary partial, permanent total, or permanent partial. The difference between the classification turns on two factors: medical permanency and the ability to return to work or engage in suitable alternative employment. In Carrion, the issue was whether the claimant was temporarily or permanently disabled–meaning, whether the claimant had reached medical permanency.
The court discussed two ways to reach medical permanency: (1) the claimant reaches maximum medical improvement when “the injury has healed to the full extent possible” and normal and natural healing is no longer likely; or (2) the condition has “continued for a lengthy period, and it appears to be of lasting or indefinite duration, as distinguished from one in which recovery merely awaits a normal healing period.” The second way is often called the Watson test, named after Watson v. Gulf Stevedore Corp., 400 F.2d 649, 654 (5th Cir. 1968). From there, the Ninth Circuit boiled down the two paths to medical permanency into one question:
Under either test, the question is whether the disability will resolve after a normal and natural healing period. If the answer is yes, the disability is temporary. If the answer is no, the disability is permanent.
But the question is not a one-off. The permanent/temporary classification may “reset” depending on “healing related to a flare up, relapse, surgery, or other major treatment.” See Pac. Ship Repair & Fabrication, Inc. v. Dir. OWCP (Benge), 687 F.3d 1182 (9th Cir. 2012). Even though there is only one question, the question could be asked multiple times.
For Mr. Carrion, there was an issue of future surgery. Would he get it? Does the prospect of an eventual surgery change a disability classification? The Ninth Circuit didn’t think so:
[T]he appropriate question to ask is not whether a future surgery would ameliorate Carrion’s knee condition, but whether there was actual or expected improvement to his knee after a normal and natural healing period.
The impact of a future knee replacement should be assessed after the surgery, not in anticipation of such a contingency. Importantly, the Longshore Act permits modification of disability awards to account for just such changed circumstances. See 33 U.S.C. § 922 (“[O]n the ground of a chance in conditions . . . the deputy commissioner may . . . issue a new compensation order which may terminate, continue, reinstate, increase, or decrease” compensation, within certain time limits).
Or, like Yogi Berra would have said, “It ain’t over til it’s over.” A claimant’s injury can swing between temporary and permanent disability, as determined by his actual–not anticipated–medical status.
Attribution: Photo courtesy of Flickr user Ken Lund.