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Brownstein | Rask News

Brownstein Rask LLP Portland Oregon Attorneys

Quarterly LHWCA caselaw summary 2022/03

| Norman Cole, Of Counsel

Attached is a new quarterly LHWCA caselaw summary.

In the last three months the Board issued no published decisions and seven unpublished decisions – a very unimpressive output. In some decisions it complained COVID restrictions caused a long delay in securing hearing records. Perhaps that accounts for some delay. This reviewer has no way to know if COVID provides a full explanation for the extremely low volume of decisions.

  • In Mockel v. SSA Terminals, LLC, Claimant’s appeal resulted in the loss of entitlement to disability. The Board held if claimant was able to return to regular work the employer had no obligation thereafter to prove suitable work was available. The ALJ held claimant was able to return to regular work on June 9, 2015. Claimant requested reinstatement October 29, 2015 but was not allowed to return to work until March 9, 2017. The ALJ awarded total disability from October 29, 2015 through March 9, 2017, except for four months in 2016 when claimant impeded employer’s reasonable effort to identify suitable alternative employment by his recalcitrance in agreeing to meet with employer’s vocational expert. Claimant appealed, seeking total disability for all periods after June 9, 2015. The Board held claimant failed to establish a prima facie case of total disability as of June 9, 2015. Employer therefore had no burden to establish availability of alternative employment after June 9, 2015, and claimant, as a matter of law, was not entitled to any disability after June 9, 2015.
  • Roberts v. Huntington Ingalls, Inc.-Pascagoula Operations provides a good summary of the law applicable to aggravation vs. new injury disputes.
  • Howard v. Dyncorp International held the district director and the ALJ have authority to suspend compensation, but not simultaneous authority. Only the entity before whom the case is pending has that authority.
  • Rivera v. Director, OWCP is a 5th Circuit decision interpreting §28(b) and holding an OWCP recommendation that is central to a question of how much compensation employer owes requires the employer to accept the recommendation within fourteen days or be subject to attorney fees, even if a subsequent recommendation modifies the first recommendation. Note: The 5th Circuit strictly interprets §28(b). The Ninth Circuit has a much more liberal interpretation of that statute.