by Matthew H. Ammerman on October 2nd, 2018

Seaman status is determined by the well-established--though imprecise--test of Chandris v. Latsis: (1) a worker’s duties must contribute to the function of the vessel or to the accomplishment of its mission; and, (2) the worker’s connection to the vessel or identifiable group of vessels must be substantial “in both its duration and nature.”[1]

The “identifiable group” requirement (a/k/a fleet requirement) and vessel status were at issue in the Eastern District’s Young v. T.T. Barge Services Mile 237, LLC.[2] The district court held that a barge cleaner, Marcus Young, was not a seaman as a matter of law. Young worked on barges docked at his employer’s set of work barges connected to shore by a permanently-installed walkway, steel cables, and utility lines. He was injured when he fell into an open hatch of one of the work barges. The court relied on Lozman v. City of Riviera Beach to hold that that the work barges did not move in the ordinary course of business, were moved only infrequently, and would not be considered practically capable of carrying people or things over water.[3] Consequently, they were not vessels-in-navigation supportive of seaman status.[4]

Young also sought to establish seaman status based on his connection to the customers’ barges, testifying that he spent about thirty percent of his time on Kirby Inland’s barges.[5] But Young’s connection to Kirby Inland’s barges was transitory. He cleaned several a day, and the nature of his work meant that he worked on the customers’ barges that happened to be at his employer’s facility. The district court distinguishes Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014), because the supervisor in that case was assigned to his employer’s fleet of lift-boats.[6] Young was not assigned to a specific set of Kirby Inland’s barges. Young’s connection to Kirby Inland’s barges was transitory, and, consequently, he did not have a substantial connection to an identifiable fleet of vessels.[7] The court granted the employer’s motion for summary judgment and dismissed Young’s complaint.

The court’s distinction of the Naquin case is key. There is no question that Naquin was working on lift-boats owned by his employer, i.e., an “identifiable group of vessels acting together or under one control.”[8] Young, however, worked on barges owned by several different entities.[9] Young’s employer serviced barges owned by several different entities--like a shipyard doing classic LHWCA-covered ship repair work.[10] Naquin, however, worked either mostly or exclusively on his employer’s specialized fleet of lift-boats. In that capacity, Naquin’s connection and range of duties having to do with his employer’s fleet was broader than working on a third-party customer’s boat.[11] Naquin was not a transitory maritime worker who performs a specific service on a vessel owned by one customer and then moves on to the next job.[12]

The Western District of Louisiana also touched on the fleet requirement in Tsuhlares v. Adriatic Marine, LLC,[13] involving a third-party contract cook. Tsuhlares was a payroll employee of Bailey’s Catering, L.L.C., assigned to work for 13 different clients at 20 different locations, including vessels and fixed platforms.[14] He fell and was hurt while assigned to work on borrowing employer Adriatic Marine’s OSV ARABIAN. He was not a seaman, however, because he only worked 9% of his time on vessels owned by Adriatic Marine.[15] Tshulares had only a “transitory or sporadic connection” to Adriatic Marine’s vessels, and, consequently, failed to satisfy the durational element of the substantial-connection requirement.[16] The court granted Adriatic Marine’s motion for partial summary judgment, which was unopposed by Tsuhlares, leaving him to pursue vessel negligence claims against Adriatic Marine through 33 U.S.C. § 905(b).

The bottom line: an employee of a service company working on a various customers' barges does not have a substantial connection to an identifiable group or fleet of vessels. Those types of workers have only a transitory connection to the barges. They are not seaman.


[1] Chandris, Inc. v. Latsis, 515 U.S. 347, 376, 115 S. Ct. 2172, 2194 (1995)(emphasis added).
[2] 290 F. Supp. 3d 562, 2018 AMC 144 (E.D. La. 2017).
[3] Id. at 567, citing Lozman v. City of Riviera Beach, 568 U.S. 115, 126, 133 S. Ct. 735, 184 L. Ed. 2d 604 (2013).
[4] Young, 290 F.Supp. 3d at 567 (“…barges are not vessels when they are permanently attached to land, and when any transportation function is incidental to their primary purpose as a non-vessel work platform.”)(citations omitted).
[5] Id. at 568.
[6] Id. at 569.
[7] Id. at 567, citing Daniel v. Ergon, Inc., 892 F.2d 403, 407 (5th Cir. 1990).
[8] Naquin, 744 F.3d at 930 (“Naquin's primary responsibility as a vessel repair supervisor was the maintenance and repair of EBI's fleet of lift-boat vessels.”). The fleet definition comes from Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir. 1986)(en banc).
[9] Young, 290 F.Supp. 3d at 568.
[10] 33 U.S.C. § 902(3).
[11] Naquin, 744 F.3d 927, 930 (Naquin’s duties included inspecting the liftboats for repairs, cleaning them, painting them, replacing defective or damaged parts, performing engine repairs, going on test runs, securing equipment, and operating the vessels’ marine cranes and jack-up legs. Naquin was injured while operating a crane in his employer’s yard.).
[12] See, e.g., Lirette v. N.L. Sperry Sun, Inc., 831 F.2d 554, 556-7 (5th Cir. 1987)(wireline operator was a transitory maritime worker and not a seaman), citing Barrett, 781 F.2d 1067, 1074 (5th Cir. 1986)(en banc).
[13] No. 6:16-CV-00742, 2018 U.S. Dist. LEXIS 130154 (W.D. La. 2018).
[14] Tsuhlares, 2018 U.S. Dist. LEXIS 130154, at *3
[15] Id.
[16] Id. at *10, citing Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S. Ct. 2172, 2189 (1995).

by Matthew H. Ammerman on September 14th, 2018

     The Supreme Court calls it a “trap for the unwary.”[1] Section 33(g) provides that an injured LHWCA worker must get written approval from his employer and its insurance carrier prior to a third-party settlement that is less than his LHWCA entitlement or his LHWCA benefits will be forfeited.[2] That written approval must be filed with the U.S. Department of Labor within 30 days of the date the settlement.[3] Also, the worker must notify his employer of any settlement with or judgment rendered against a third person before LHWCA benefits are awarded by an administrative law judge.[4] Section 33(g) is interpreted by its plain terms.[5]
     The Fifth Circuit in Parfait v. Director, OWCP, focuses on the notice requirement of Section 33(g)(2) in holding LHWCA benefits were forfeited.[6] The ALJ’s formal award of LHWCA benefits to Parfait of only $1,493.60 was not final because it was on appeal. Therefore, a Section 33(g)(1) comparison of Parfait’s LHWCA entitlement to the amount of his third-party settlement was not ripe.[7] But Parfait did not provide actual notice to his employer of a $325,000 settlement with third-party Apache or a $41,542.17 civil judgment against another third party, Wood Group, prior to the ALJ’s award.
     Parfait argued that his employer at the time of injury, Performance Energy Services, LLC, was on notice of the settlement with Apache because Performance’s counsel was invited to participate in mediation of the third-party lawsuit. The Fifth Circuit rejected that argument because, at best, Parfait only notified the employer of the possibility of settlement.[8] As to the judgment against Wood Group, Parfait argued the LHWCA employer was on constructive notice because the U.S. District Court for the Southern District of Texas, Galveston Division, published the verdict on the PACER system on June 2, 2017. The Fifth Circuit held that was inadequate to satisfy Section 33(g)(2). The worker has an “affirmative duty to notify [the employer of a settlement or judgment].”[9] Constructive notice of the judgment in a public record was insufficient.
     The court says that there is a dearth of federal circuit opinions on the type of notice required to be provided to the employer to satisfy Section 33(g)(2).[10] The takeaway from Parfait is that constructive notice of a judgment and a phone call advising of mediation is not enough.


[1] Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 483, 112 S. Ct. 2589, 2598 (1992).
[2] 33 U.S.C. § 933(g)(1).
[3] Id.
[4] Bethlehem Steel Corp. v. Mobley, 920 F.2d 558, 561 (9th Cir. 1990); Fisher v. Todd Shipyards Corp., 21 BRBS 323 (1988).
[5] Nicklos Drilling Co. v. Cowart, 927 F.2d 828, 832 (5th Cir. 1991)(en banc), aff’d, Estate of Cowart, 505 U.S. 469, 484, 112 S. Ct. 2589, 2598 (1992).
[6] 2018 U.S. App. LEXIS 25736 (5th Cir. September 11, 2018).
[7] Id. at *12.
[8] Id. at *15.
[9] Id., citing Fisher, 21 BRBS 323 (2015); see also Edwards v. Marine Repair Services, Inc., 49 BRBS 71 (2015).
[10] Id. at *13-14.

by Matthew H. Ammerman on September 12th, 2018

   The LHWCA provides that the Secretary of Labor shall allocate regional administration of the LHWCA to district directors.[1] District directors are not judges, and most are not lawyers. But they have discretion over limited questions such as a LHWCA worker’s change of treating physician.[2] The director’s decision is reviewed on appeal under a broad, abuse-of-discretion standard.

   An injured worker is entitled to one free choice of physician within each specialty.[3] Such a worker cannot change treating physicians, whose opinions are often provided great weight by administrative law judges,[4] unless his employer or the presiding district director permits a change.[5] These competing rules act to minimize doctor-shopping by the worker or his employer.

   When the injured worker does not make a choice of physician and treats with a physician selected by his employer, he may still be unable to change physicians if he has acquiesced to treatment by that physician.[6]

  The Fifth Circuit in Ports America Louisiana, Inc. v. Director, OWCP [Scott],[7] tackles the question of when a LHWCA worker may switch treating physicians from an employer-chosen physician. Alexander Scott injured his hip and lower back in a forklift accident at work with Ports America. He consented to treatment from Ports America's physician, Dr. Steiner, that lasted approximately five months. Dr. Steiner then told Scott he had reached maximum medical improvement, did not need additional treatment, and was capable of full-duty work without medical restrictions.[8] Scott’s complaints of back pain persisted. He consulted other physicians but later returned to Dr. Steiner who assessed subjective complaints and maintained his released to full-duty work. But Dr. Steiner recommended a lumbar MRI. Scott was then examined by Dr. Bostick, who recommended he not return to work and undergo further treatment.

   Ports America refused to pay for treatment with Dr. Bostick. Ports America viewed Dr. Steiner as Scott’s treating physician and did not consent to a change. The district director for the Seventh Compensation District ordered Ports America to pay for Dr. Bostick’s treatment and for a Special Examination by a physician chosen by the director. Ports America refused and appealed to the Benefits Review Board, which affirmed the director’s decision.

   The Fifth Circuit was not writing on a clean slate. The court held in Atlantic & Gulf Stevedores, Inc. v. Neuman that when an injured worker is released by an employer-chosen physician, he has, in effect, been refused treatment by the employer.[9] The employer must pay medical treatment the worker thereafter procures if the worker shows it was necessary treatment for the injury. Here, Ports America argued that Dr. Steiner did not refuse to treat Scott, and, in fact, had sent him for an MRI. Therefore, Scott should be required to continue treatment with Dr. Steiner. The Fifth Circuit reasons that the preponderance of the evidence at the time the district director made his decision was that Dr. Steiner did not have any further medical treatment to offer Scott. Consequently, the director did not abuse his discretion in ordering Ports America to pay for treatment by Scott’s choice of physician, Dr. Bostick.[10] Ports America was also required to pay for the director-ordered Special Examination because Dr. Steiner disagreed whether Scott required more treatment and should return to work.

   The key points from this case: (1) the Director, OWCP, has considerable discretion when ordering a change of treating physician under the LHWCA; and, (2) this was a special case in which the worker’s initial treating physician was chosen by the employer, and, consequently, that physician’s release was viewed as a “refusal” of treatment by the employer.[11] It is unlikely that if the same worker chose his treating physician without the employer’s input that a change would have been granted under the same circumstances.

[1] 33 U.S.C. § 939(b); (viewed 7/1/2018).
[2] 33 U.S.C. § 907(b)( “… and [the district director] may, on his own initiative or at the request of the employer, order a change of physicians or hospitals when in his judgment such change is desirable or necessary in the interest of the employee ….”).
[3] 33 U.S.C. §§ 907(a).
[4] Petron Indus. v. Dir., OWCP [Courville], 2015 U.S. App. LEXIS 16230, *10 (5th Cir. 2015)(within ALJ’s discretion to afford greater weight to treating physicians).
[5] 33 U.S.C. §§ 907(b), (c)(2).
[6] See, e.g., Hunt v. Newport News Drydock & Shipbuilding Company, 28 BRBS 364 (1994).
[7] 714 F. App'x 398, 2018 AMC 350 (5th Cir. 2018).
[8] Id. at *2.
[9] 440 F.2d 908, 911 (5th Cir. 1971).
[10] Ports America, 714 F. App'x 398, *7-8.
[11] 33 U.S.C. § 907(d)(2)(worker may recover self-procured medical treatment where his employer refuses or neglects to provide treatment after a request for same).

by Matthew H. Ammerman on September 7th, 2018

Medical records are essential to handling LHWCA claims. But they are not always easy to get. In Mugerwa v. Aegis Defense Servs., 52 BRBS 11 (April 27, 2018), the Benefits Review Board holds administrative law judges (ALJs) have the authority to compel claimants to sign narrowly-tailored medical releases when it is reasonable under the circumstances to do so.

A claimant puts his or her medical condition at issue when a LHWCA claim is filed.[1] The Act gives an ALJ broad powers to inquire fully into the matters at issue.[2] And the scope of discovery before the ALJ includes “any nonprivileged matter that is relevant to any party's claim or defense….”[3] Therefore, the employer and its carrier have a right to medical records relevant to the claim that is made.

In Mugerwa, the carrier’s need for a signed medical release was compelling. It did not have subpoena power over the claimant’s medical records in Uganda. It needed the release to get those records. The Board held that the ALJ had the power to make the claimant a medical release. But, the releases at issue were overbroad. The Board remanded the case. On remand, the ALJ must first determine if the records at issue were relevant. If so, the releases had to be narrowly tailored to the claimants’ medical records that bear on his claim and exclude information regarding non-medical providers or the records of the claimant’s beneficiaries. If the claimant refused to agree upon a tailored release, the ALJ could compel him to sign a one.

That is helpful if a case is referred up to the U.S. Office of Administrative Law Judges (OALJ). But what if the case is before the District Director? A carrier has no way to compel a claimant sign a medical release. Instead, the carrier’s counsel can order a subpoena from the OALJ in Washington, D.C., for relevant records from a specific provider. Alternately, have the case referred up for formal discovery and a hearing with an ALJ if warranted by the seriousness of the claim. Be warned, however, that you need to be ready to try the case as well.

[1] See, e.g., McKnight v. Blanchard, 667 F.2d 477, 482 (5th Cir. 1982) (discussing discoverability of medical records in injury claim).
[2] 33 U.S.C. § 927(a); 20 C.F.R. § 702.338.
[3] 29 CFR § 18.51.

by Matthew H. Ammerman on September 7th, 2018

The U.S. Court of Appeals for the Ninth Circuit has not adopted the plain-language approach to the situs element of LHWCA statutory coverage like the Fourth[1] or Fifth[2] Circuits. Instead, the Ninth Circuit relies on the Herron factors to determine whether an injury site qualifies as “adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel”[3] based on its functional relationship with navigable waters. The Herron factors are: (1) the particular suitability of the site for the maritime uses; (2) whether adjoining properties are devoted primarily to uses in maritime commerce; (4) the proximity of the site to the waterway; and, (5) whether the site is as close to the waterway as is feasible given all of the circumstances in the case.[4]
The Ninth Circuit holds that the Herron factors were not satisfied with regard to an intermodal facility in Ahmed v. Western Ports Transportation, Inc.[5] Ahmed, a truck driver for Western Ports, was usually assigned to employer’s rail group and drove trailers between a terminal at the Port of Seattle and the Union Pacific Intermodal Facility. The trip was approximately two or three miles over several public streets, a highway, and a draw bridge.[6] He was injured at the intermodal facility. The Ninth Circuit holds that facility is not particularly suitable for maritime activities. It is a mixed-use facility located near the port for economic rather than functional reasons. The primary purpose of the intermodal facility is to facilitate landward (rail) transportation.[7] The Ninth Circuit affirms the administrative law judge’s finding that the intermodal facility was not an “adjoining area.”[8]

[1] Sidwell v. Express Container Services, Inc., 71 F.3d 1134, 1138 (4th Cir. 1995).
[2] New Orleans Depot Services, Inc. v. Director, Office of Worker's Comp. Programs [Zepeda], 718 F.3d 384, 394 (5th Cir. 2013)(en banc).
[3] 33 U.S.C. § 903(a).
[4] Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141 (9th Cir. 1978).
[5] 731 F. App'x 661, 2018 U.S. App. LEXIS 12486 (9th Cir. 2018).
[6] Ahmed v. Western Ports Transportation, Inc., 50 BRBS 41 (2016), aff’d, 731 F. App'x 661 (9th Cir. 2018).
[7] Ahmed, 731 F. App'x at 662-63; cf. BPU Mgmt. v. Dir., OWCP, DOL [Martin], 732 F.3d 457, 464 (5th Cir. 2013)(surrender of cargo to land transport is where functional relationship ends).
[8] Id. at 663.

by Matthew H. Ammerman on March 16th, 2018

The U.S. Department of Labor's Division of Longshore & Harbor Workers' Compensation (DLHWC) is where all LHWCA claims begin.

An employer is required to file an Employer's First Report of Injury (LS-202) with the DLHWC for a lost-time injury within 10 days of injury or notice of injury. The maximum penalty for an employer's failing to timely file an LS-202 is now up to $23,426.

For no-lost-time injury, an LS-202 is not required. The DLHWC used to reject no-lost-time LS-202s if they were filed. But no more. At the Annual Longshore Conference in New Orleans on March 15, 2018, one of the DLHWC's district directors stated that no-lost-time LS-202s are now accepted.

Why does that matter? If a worker has a serious injury that may turn into a lost-time injury, filing a no-lost-time injury report will ensure that the 1-year statute of limitations will start when disability starts or the last payment is made. 33 U.S.C. Sec. 930(e).

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]

[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.

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