This posts addresses the frequently misapplied Marino-Sewell doctrine. This doctrine is often used as a basis for denying Defense Base Act workers compensation benefits to injured workers. The problem is that the Marino-Sewell doctrine does not support the denial of benefits when a legitimate adverse personnel decision co-exists with injurious working conditions or events.
A Typical Real Life Example:
In his Form LS-203, an Afghanistan-based employee alleged that he was exposed to war-risk hazards that led to the development of a psychological injury and disability. A “war-risk hazard” is a term that is often used to describe attacks, explosions, indirect fire, and more.
In response to the injured worker’s claim, the carrier filed a Form LS-207. The carrier controverted—i.e., denied—the claim. The claim was controverted for the following reason: “Claimants inability to work is due to RIF in May 2019 from employment.” In this context, “RIF” means “reduction in force.”
The carrier’s controversion made the Marino-Sewell doctrine a central focus of the claim. Therefore, it is worthwhile to know how the carrier misapplied the Marino-Sewell doctrine.
Explaining the Marino-Sewell Doctrine:
First, I need to explain the Marino–Sewell doctrine. The name of the doctrine comes from the interplay between two Benefits Review Board cases: Marino v. Navy Exchange Serv., 20 BRBS 166 (1988) and Sewell v. Noncommissioned Officers Open Mess, 32 BRBS 134 (1998). The Ninth Circuit faithfully described these cases in Pedroza v. Director, OWCP, 624 F.3d 926, 932 (9th Cir. 2010).
The Ninth Circuit described Marino as follows:
In Marino, the BRB reversed the ALJ’s decision to grant a claimant benefits under the Longshore Act for his work-related psychological injuries, because the claimant’s injuries were caused by a layoff. 20 BRBS 166 (1988). The BRB determined layoffs or a reduction in force do not constitute “working conditions” that would give rise to a compensable injury under the Longshore Act. Id. The Board reversed the ALJ’s determination that a layoff constituted “working conditions.” On appeal, the Board directed the ALJ to consider if the claimant’s injuries were caused by working conditions such as “cumulative stress on the job due to supervising a number of locations, insufficient personnel to perform the job, working more than the required hours, and performing the duties of his subordinates, in addition to the notification that he was being laid off.” Id.
And the Ninth Circuit described Sewell as follows:
Nine years later, the BRB addressed this issue again in Sewell, when a claimant filed a claim alleging her stress related psychiatric problems were caused by her poor working conditions. Sewell, 32 BRBS 127 Sewell, 32 BRBS 127. The claimant was employed as a civilian bartender, and her supervisor had a very aggressive management style. Id. . . . On the second appeal, the Board reversed the ALJ’s findings because uncontroverted medical evidence showed the claimant’s psychological injuries were caused by her stressful working conditions, irrespective of the disciplinary and termination proceeding. Id.
What does all of this mean? It means that if the claimant’s psychological condition was caused solely or wholly by a legitimate personnel decision, then the condition is not a compensable injury. But, if the claimant’s employment conditions contributed to the psychological injury, then the claimant does have a compensable work injury.
So, a claimant, an employer, and a carrier should ask itself: is claimant’s psychological problem related only to the personnel action? If not, then Marino does not preclude benefits no matter the existence of disciplinary proceedings, layoffs, reductions in force, or shift changes. What matters is the coexistence of injurious working conditions.
Examples of Marino-Sewell Disputes:
I was only able to find one Marino-Sewell Defense Base Act case on the Office of Administrative Law Judges website. It just so happens to be one of my favorite decisions of 2020.
In Khalji v. Deloitte Touche, LLP, 2015-LDA-00726 (OALJ Apr. 22, 2020), the manner in which claimant was terminated created a compensable psychological injury. The claimant’s supervisor positioned claimant in front of a guard armed with an AK-47 and demanded the claimant’s resignation. When the claimant asked what would happen if he didn’t resign, the supervisor quipped that the man holding the AK-47 would “take care of [the claimant].” As the ALJ correctly noted: “That is as intimidating and coercive as it gets. It is an extremely example of what is outside the scope of legitimate personnel action.”
Khalji got it right. While an employee may be fired, doing so under threat of physical harm is not a legitimate personnel decision. And doing so, in itself, created injurious working conditions prior to (and during) the adverse personnel action. So, Khalji shows that working conditions prior to and through the personnel action can render Marino inapplicable.
Applying Marino-Sewell to War Zone Claims:
Let’s go back to the example presented above. The claimant alleged that his psychological condition was caused by his lengthy exposure to war events that he experienced working in Afghanistan. The carrier denied the claim based on a “reduction in force.”
But, that is beyond the point, isn’t it? The claimant’s inability to work in Afghanistan is related to his psychological condition, which was caused by war events. The claimant never said peep about a reduction in force, and he has always taken the position that working conditions caused his psychological injuries–which multiple medical professionals diagnosed.
Perhaps even more telling is the lack of appellate court war zone cases involving the Marino-Sewell doctrine. Typically, the Marino-Sewell doctrine is applied in Longshore claims, not war zone Defense Base Act claims. Indeed, Marino, Sewell, and Pedroza are Longshore, not DBA, claims. And if one searches for “Marino-Sewell” through the OALJ’s Keyword Search, the only DBA claim (also known as an LDA claim) that appears is the Khalji opinion mentioned above.
Perhaps the reason why there are so few war zone Marino-Sewell claims is because courts recognize that war zone working conditions can lead to the development of a psychological injury no matter whether a legitimate personnel decision exists.
And as for the “reduction in force” denial referenced above–an illegitimate excuse that I unfortunately see in many, many claims–that basis for denial is destined to fail. A healthy employee who is laid off can get a job elsewhere in CENTCOM, perhaps on the exact same base; but an injured employee–especially a psychologically injured employee–cannot work in CENTCOM absent a medical waiver. It’s the injury and the working conditions that matter, not the reduction in force.
Take a look at the photograph at the top of this post. Imagine an employee was psychologically disabled as a result of experiencing this suicide bombing. Does a reduction in force somehow wash away the employee’s psychological distress? Does a reduction in force somehow alleviate his need for psychotropic medications? Of course not. And it doesn’t wash away the responsible carrier’s Defense Base Act liability either.