The Ninth Circuit just issued a primer on pain as a disabling Longshore and Defense Base Act consideration. The case is Jordan v. SSA Terminals, LLC. I anticipate that this published decision will be cited in many legal briefs for a long time to come.
In Jordan, the claimant significantly injured his back in 2014. He received conservative treatment and then, in 2018, a spinal fusion surgery. In the time between the injury and the surgery, the Longshore and Harbor Workers’ Compensation Act’s insurance company conducted surveillance. The videos from the surveillance, which were recorded in 2015 and 2016, showed the claimant engaging in various physical activities.
A formal hearing was held to determine whether the claimant was “disabled” between 2016 and 2018. The Ninth Circuit focused on a few statements the claimant made at the hearing about his pain level. The claimant testified that he could perform tasks. But when he did, the task was painful; or the task elevated the pain; or the pain reached the point where he could not perform his job in the same way as before his accident.
The judge denied benefits for the requested period. The Ninth Circuit’s opinion suggests that the judge created a binary choice of sorts: either the claimant “can” or “cannot” perform his job.
What is “Disability”?
“Disability” is the “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment.” See 33 U.S.C. 902(10). By its terms, “disability” is more of an economic concept than a medical concept. That’s one of the reasons why medical records are not needed to prove the existence (or start date) of disability.
If a claimant cannot perform their usual employment, then they are presumed to be totally disabled. A claimant has the initial burden of proving that their work-related injury prevented their return to their pre-injury work. If successful, then the employer must prove “that suitable alternative work was available in the community.”
So, the question in Jordan wasn’t about whether the claimant had an “injury.” It was about whether pain from his injury made him incapable of performing his pre-injury job to the extent that he performed it before. That is, “whether [the claimant’s] complaints of pain described a covered disability.”
Pain as a Spectrum:
The Ninth Circuit quantified pain on a spectrum. As the court explained (with internal citations omitted, and some of my favorite lines in bold):
We hold, as a matter of first impression, that credible complaints of severe, persistent, and prolonged pain can establish a prima facie case of disability, even if the claimant can literally perform his or her past work.
Our holding should not be taken to mean that any amount of pain is per se disabling. As the Sixth Circuit observed . . . there are some “aches and pains that are not disabling and thus not compensable” under the LHWCA. Even judges must endure some degree of physical discomfort inhering in their work.
On the other hand, a claimant need not experience excruciating pain to be considered disabled. According to one reputable dictionary, “excruciating” is defined as “so intense as to cause great pain or anguish” . . . and is synonymous with “agonizing, harrowing, racking, raging, tormenting, torturing, torturous [and] wrenching” . . . . Torture should not be the benchmark for disability under the LHWCA, a statute which “is to be liberally construed in favor of injured employees.”
Moreover, although the Fifth Circuit and the BRB have made reference to the term, neither has suggested that “excruciating” is the threshold for disabling pain. Both the circuit court and the agency simply rejected the proposition that continued employment precluded a finding of disability in the face of evidence that the work subjected the claimant to such extreme pain. Indeed, the Fifth Circuit has elsewhere acknowledged that the LHWCA does not “require that a longshoreman be bed-ridden before he is considered totally disabled.”
Between the poles of “any” pain (which is not sufficient), and “excruciating” pain (which is not necessary to show), lies a considerable range. There is, in other words, a vast middle ground between occasional discomfort and torture. Although the cases have not clearly identified the quantum of pain that is sufficient to create a disability under the LHWCA, the statute’s definition of “disability” and the case law in this area support our holding that the level of pain must be sufficiently severe, persistent, and prolonged to significantly interfere with the claimant’s ability to do his or her past work.
Pain-Related “Guideposts” for Future Courts:
The Ninth Circuit also provided some “guideposts” for administrative law judges to consider when analyzing the existence of disabling pain in the “considerable range” between “any” pain and “excruciating” pain:
- The pain must relate to a work injury.
- The pain must be “sufficiently severe, persistent, and prolonged to adversely impact the claimant’s ability to do his or her job in some significant way.”
- Of course, if pain makes performing the job impossible, then disability exists.
- And, if the pain is “excruciating,” then disability exists.
- But, disability might also exists if pain “impact[s] the employee’s ability to perform the activity over a full work day.”
- Or, disability might exist if the pain is severe, persistent, and prolonged enough that it “would make a reasonable employee stop doing the [work] activity.”
- An employee is not required to “perform work that, according to the medical evidence, will exacerbate his or her injury to a degree that significantly impedes the claimant’s ability to perform his or her past work.”
Jordan is an important decision, not just for Longshore claims but for Defense Base Act claims, too. Considering the very heavy demand work of DBA contractors, I expect that Jordan will dovetail nicely with the minimal standards of fitness for deployment. And, I have to wonder how Jordan will be applied to psychological disabilities.
The decision is worth a read. Heck, it’s worth a few reads. Congratulations to the claimant’s attorneys.
Jordan v. SSA Terminals, LLC, No. 19-70521 (9th Cir. 2020).