Tripped up by the presumption under the LHWCA

by Matthew H. Ammerman on March 10th, 2012

The LHWCA’s Section 20 presumption in favor of the worker flips the burden of proof. If the presumption is not rebutted by the employer with substantial evidence, the worker will be entitled to benefits. Disputes often center on causation-- was the problem really caused or aggravated by work? To evaluate, determine if there is proof (not speculation) that the worker’s symptoms are not caused by work. This recent unpublished opinion from the Fifth Circuit is an example of what happens when the employer does not produce sufficient rebuttal evidence. Island Operating Co. v. Dir. OWCP [Doucet], 2012 U.S. App. LEXIS 3714 (5th Cir. February 24, 2012).

To get the ball rolling, all the worker has to do is credibly show that (1) he sustained physical harm or pain, and (2) an accident occurred in the course of employment, or conditions existed at work, which could have caused the harm or pain. Once the presumption is invoked, the employer has to rebut the presumption with substantial evidence that the worker’s symptoms were not caused by work. If the employer does that, the Section 20 presumption is gone. The worker then has the burden to win benefits by showing entitlement by the greater weight of the credible evidence.

Brian Doucet worked as a D operator for Island Operating Company on a fixed offshore oil platform on the Outer Continental Shelf. Doucet had a heavy work day on July 15, 2008, lifting, carrying, and exchanging fire extinguishers. He woke up the next day suffering back pain. Doucet says he told the lead man his back hurt but did not report an injury. Administrative Law Judge Patrick Rosenow states in his findings that Doucet was credible in his explanation that Doucet thought he slept wrong and did not relate his pain to the fire extinguisher work. This despite an Island Operating supervisor who testified that Doucet told him it was an old back injury and he might have aggravated it. Also, prior to the incident Doucet told a doctor he was seeing for flu symptoms that he had a spinal condition that occasionally hurt. However, Doucet passed a pre-employment physical and there was no evidence of back complaints prior to the fire extinguisher incident. The judge found that Island Operating had not rebutted the presumption of causation, and, as a result, Doucet was entitled to medical and total disability benefits.

Island Operating and its insurance carrier LWCC appealed, arguing that Judge Rosenow should have found that there were preexisting back injuries and that the presumption was rebutted. The Benefits Review Board and Fifth Circuit affirmed the award. Appellate bodies cannot re-weigh evidence or determine facts. Appellate review is limited to determining whether evidence exists to support the ALJ's findings. The Fifth Circuit affirmed, holding that there was evidence in the record supporting the ALJ’s findings because:

Doucet and his wife testified that Doucet never had back problems prior to July 18, 2008.
Doucet testified that he had no trouble completing pre-employment assessment.
The ALJ found Doucet’s testimony "very credible."
Doucet never missed a day of work because of back pain prior to the day in question.
Although the record contained some conflicting evidence of preexisting back problems, the appeals court could not re-weigh that evidence.

Bottom line: the employer’s threshold to rebut the presumption is low but must be met by producing relevant evidence. Here, the trial judge thought the limited evidence of a prior back injury was too scant to rebut the presumption.

Posted in LHWCA: Presumption, LHWCA; Causation: Invoking Presumption, Causation: Rebutting Presumption    Tagged with Longshore, presumption, compensation



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