5th Circuit reiterates standard to rebut presumption and affirms LHWCA benefit denial in welding fumes claim

by Matthew H. Ammerman on June 13th, 2011

Warren Joseph was an unrepresented claimant who alleged he got sick from welding fumes. His employer, Northrop Grumman, paid benefits for almost two months. Joseph returned to work but sought additional benefits under the LHWCA. The ALJ and Board rejected his claim on the grounds that his continuing problems were not work-related. In an unpublished opinion, the U.S. Court of Appeals for the Fifth Circuit affirmed the benefit denial. Joseph v. Dir., OWCP, 2011 U.S. App. LEXIS 11739, 1-7 (5th Cir. June 9, 2011).

Joseph, an electrician, left work early on February 8th due to sickness from welding fumes. On February 10, he was transported to a hospital and diagnosed with a condition not caused by fumes: "septic shock and bacterial community-acquired pneumonia." Id. at *2. Joseph returned to work in mid-March after consulting with a number of physicians. Joseph claims he has a continuing illness related to his exposure to smoke and fumes on February 8th.

Joseph invoked the presumption. Under the LHWCA, a claimant must show some evidence of the following to invoke the presumption of coverage: (1) an injury was suffered, and (2) the injury occurred in the course of employment or was caused, aggravated or accelerated by conditions at the work place. Id., citing Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 287 (5th Cir. 2003). An employer must rebut this presumption if established by the injured worker. Charpentier, 332 F.3d at 287.

The Fifth Circuit reiterated what is sometimes forgotten in LHWCA cases: "This evidentiary standard [to rebut the presumption]is less demanding than the ordinary civil requirement that a party prove a fact by a preponderance of the evidence." Id. (emphasis added). In other words, an employer need not prove its position by a preponderance to rebut the presumption -- it need only come forward with evidence a reasonable mind could accept supporting its position. If rebutted, the burden of persuasion then shifts back to the injured worker to prove his case by a preponderance. Northrop rebutted the presumption by the medical evidence that the illness was not work-related, and Joseph failed to prove otherwise.

The appellate court also dealt with a side issue of medical privacy. Northrop apparently did not obtain a signed release for medical records. Joseph claimed his privacy rights under the Health Insurance Portability and Accountability Act ("HIPPA") were violated. The court rejected this challenge because medical providers are required to provide an initial report to the employer within 10 days under the Act. And, Northrop obtained the records by subpoena. In short, though a release is preferable, it is not absolutely required in treatment related to an alleged LHWCA-covered injury.

Joseph also threw in accusations that his treating physicians, the ALJ, and Northrop conspired to deny him medical care and benefits and that the ALJ and the BRB engaged in "corrupt and unethical conduct." The Fifth Circuit panel called these "frivolous and entirely unsupported arguments."

The ALJ's denial of benefits was affirmed.

Joseph v. Dir., OWCP, 2011 U.S. App. LEXIS 11739 (5th Cir. June 9, 2011)(unpublished).

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