Prior LHWCA employer responsible for COPD says Fifth Circuit

by Matthew H. Ammerman on August 4th, 2017

Last responsible employer fights under the LHWCA often look like pin the tail on the donkey. If the LHWCA’s Section 20 presumption is invoked against a later employer because it exposed an injured worker to harm or stimuli that “could have” aggravated the original injury and that employer cannot rebut the presumption, it is liable even if a previous employer may have caused the harm. The result in last responsible employer cases may defy common sense – such as a later employer pinned with responsibility for a worker’s longstanding cumulative knee injury after only one day of work.[1] In occupational disease cases, the widely-adopted Cardillo[2] rule provides that the responsible employer is the last employer during whose employment the worker was exposed to injurious stimuli prior to the date the employee became aware of employment-connected occupational disease.

The later employer was not pinned, however, in the Fifth Circuit’s decision in Bollinger Shipyards, Inc. v. Dir., OWCP [Worthey].[3] Kenneth Worthey was a welding supervisor for Bollinger Shipyards on and off for 15 years and was exposed to welding fumes, dust, and chemicals. In 2008, Robert Bourgeois, M.D., told Worthey he could no longer wear a respirator due to breathing problems. On March 22, 2010, Dr. Bourgeois told Worthey he had chronic obstructive pulmonary disease (COPD). The doctor told Worthey he could not return to work and recommended he apply for Social Security Disability.

Instead, Worthey applied for work with another employer – Thoma-Sea – the same day.[4] He worked for Thoma-Sea for two months as a welding supervisor until he was fired for sleeping on the job. Worthey asserted claims against Bollinger and Thoma-Sea, and, after two trials, the administrative law judge (ALJ) found that Thoma-Sea rebutted the presumption and Bollinger was solely liable for LHWCA benefits.

Though the evidence was mixed, the ALJ credited a post-Thoma-Sea pulmonary function test that was identical to the test he took when he stopped working for Bollinger, indicating no new harm. Worthey’s testimony and medical tests also supported the finding that Worthey’s condition resulted from work with Bollinger. The ALJ found and the Fifth Circuit affirmed that Worthey’s condition was not aggravated by his two months of work with Thoma-Sea.

The Fifth Circuit also takes a shot at the Benefits Review Board’s insistence that both employers rebut the presumption, which here led to a second trial. The court was puzzled why that was necessary if the ALJ first determined Worthey was aware of his disease and disability on March 22, 2010, when he left Bollinger and was advised he should stop work. The Board could have held that finding was sufficient to rebut the presumption against the later employer – even if the ALJ did not work through that procedural exercise. The Fifth Circuit also rejected Bollinger’s argument that Worthey’s disability date was later than March 22, 2010, because he worked for Thoma-Sea thereafter. That might have helped Bollinger under the Cardillo rule because then Thoma-Sea would have been the last employer prior to Worthey’s awareness of his disease. But that argument was not raised before the Board. And it was contrary to the evidence showing Worthey was first aware of his COPD and disability by Dr. Bourgeois when he stopped working for Bollinger. His several weeks of work with Thoma-Sea thereafter did not change that.[5]
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[1] Metro. Stevedore Co. v. Crescent Wharf & Warehouse Co. [Price], 339 F.3d 1102, 1107 (9th Cir. 2003), cert. denied, 543 U.S. 940, 125 S. Ct. 309, 160 L. Ed. 2d 248, 2004 U.S. LEXIS 6914 (U.S., Oct. 12, 2004) (“However, there is inherent virtue in the "last responsible employer" rule. Each employer subject to the LHWCA shares the risk that it will bear the burden of compensation at one point or another, even if it was not predominantly responsible for the compensable injury. The unfairness to the last employer is mitigated by two factors: the spreading of the risk through mandatory insurance, and the availability of the second injury fund to the last employer in some cases.”).
[2] Travelers Insurance v. Cardillo, 225 F.2d 137, 145 (2d Cir. 1955)(“Thus we conclude that the Congress intended that the employer during the last employment in which the claimant was exposed to injurious stimuli, prior to the date upon which the claimant became aware of the fact that he was suffering from an occupational disease arising naturally out of his employment, should be liable for the full amount of the award.”).
[3] No. 16-60370, 2017 U.S. App. LEXIS 8842, 2017 WL 2196736 (5th Cir. 2017).
[4] Worthey v. Bollinger Shipyards, Inc., 50 BRBS 59(UBD)(2016).
[5] Bollinger Shipyards, Inc., 2017 U.S. App. LEXIS 8842, at *6.



Posted in LHWCA: Presumption, LHWCA: Aggravation Rule    Tagged with LHWCA, last responsible employer rule, 5th Circuit, occupational disease

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