In a short unpublished decision, the United States Court of Appeals, Sixth Circuit, vacated the decision of the Benefits Review Board and remanded the case to the Administrative Law Judge.  As quoted by the Sixth Circuit, the Administrative Procedure Act requires the factfinder to render a decision that includes a discussion of “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.”  5 U.S.C. § 557(c)(3)(A).  Here, the ALJ determined without sufficient explanation that the claimant reached MMI upon his failed attempt to return to work.  The Sixth Circuit casted doubt on this unexplained finding: “[w]hile Williams’ inability to perform his prior job duties may indicate that he was permanently disabled as of May 31, 2005, it does not necessarily indicate that this was the date he reached MMI.” Marathon Ashland Petroleum v. Williams, 2010 WL 2711316 (6thRead more

The Benefits Review Board recently addressed the payment of a scheduled hearing loss impairment rating when a Claimant is simultaneously receiving disability benefits for a different, unscheduled injury.  In Bogden, the Claimant sustained a back injury.  For this injury, he received temporary total disability benefits for roughly ten months, then permanent total disability benefits for nineteen months, and finally, he received continuing permanent partial disability benefits. In addition to the back injury, Claimant also sustained a work-related hearing loss injury resulting in a 30.938% binaural impairment.  In the court below, the Administrative Law Judge determined that Claimant was entitled to 61.876 weeks of compensation for his hearing loss, but that the “hearing loss [was] subsumed in the total disability award for claimant’s back injury and, thus, [was] not payable.” The BRB disagreed, holding that a claimant is entitled to a resumption of his scheduled permanent partial disability award on the date that his disability statusRead more

The Ninth Circuit Court of Appeals recently confirmed that the harmless error analysis applies to petitions for review filed under the Longshore and Harbor Workers’ Compensation Act, explicitly bringing it in line with the majority of other Circuit Courts.  As noted by the court, “[t]hat a path is a beaten one…is a persuasive reason to follow it.” With the harmless error analysis in mind, the Ninth Circuit went on to discuss the Claimant’s injuries.  Here, Claimant, who was employed as a supply clerk, alleged that his slow-developing left parietal stroke was caused by job stress, and he admitted medical evidence in support of his allegations.  The Ninth Circuit upheld the administrative law judge’s determination that Claimant’s stroke was a compensable injury.  Although challenges were made that the ALJ’s decision was based on an improper analysis of the parties’ burden of proof under Longshore claims, the Ninth Circuit determined that the ALJ’s error–whichRead more

In May, 2010, the Benefits Review Board issued yet another attorney fee decision for practitioners in the Ninth Circuit.  In the newest Christensen v. Stevedoring Services of America (BRB No. 03-0302R) decision, the BRB determined that (1) Oregon state workers’ compensation attorney rates could not establish a Longshore rate where Oregon rates were capped by statute “absent extraordinary circumstances;” and (2) workers compensation rates for defense attorneys do not establish the market rate for claimants’ attorneys.  Additionally, but without citing the Supreme Court’s recent decision in Perdue v. Kenny A., the BRB determined that Claimant’s counsel was not entitled to an enhancement of fees (in the form of a fee calculation based upon counsel’s present market rate instead of his market rate when the services were performed) due to delay.  The Ninth Circuit previously determined the “delay in the payment of a fee award distinguishable  from a delay in payment of feesRead more

In a matter of first impression, the Benefits Review Board (“BRB”) addressed “whether a claimant’s failure to disclose a pending compensation claim in bankruptcy proceedings can affect her right to pursue her claim under the [Longshore and Harbor Workers Compensation Act, as extended by the Defense Base Act].”    In Sparks v. Service Employees Int’l, Inc., BRB No. 09-0649, the BRB reversed the Administrative Law Judge’s application of the judicial estoppel doctrine, reasoning that the plain language of Section 16 prevented the LHWCA/DBA claim from attachment by Claimant’s bankruptcy creditors.  Specifically, the BRB stated, “[u]nder the plain language of Section 16, claimant’s claim is not an asset which can be attached by creditors, and the administrative law judge erred as a matter of law in relying on a discretionary [judicial estoppel] doctrine as a bases for denying benefits while ignoring an applicable statutory provision.” (Note: I originally published this post on Navigable Waters: ARead more

The United States Court of Appeals for the Fifth Circuit issued a published Longshore and Harbor Workers’ Compensation Act (“LHWCA”) opinion wherein it dismissed a claimant’s appeal for lack of subject matter jurisdiction.  A longshore claim has three stages: “1) informal mediation before the district director; 2) formal hearings and fact-findings by an ALJ; and 3) appellate review by the [Benefits Review] Board (potentially followed by a circuit court).”  In Craven v. Director, OWCP, the claimant bypassed the ALJ stage and tried to appeal a district director’s informal recommendations directly to the Benefits Review Board.   This is “particularly problematic because the LHWCA grants the ALJ the exclusive authority to create an evidentiary record upon which an appeal must be based.”  If there is no evidentiary record, then there is nothing for the BRB to review.  And, if the BRB does not issue a final order, then the Court of Appeals lacks subjectRead more