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Brownstein Rask LLP Portland Oregon Attorneys

Quarterly LHWCA caselaw summary 2022/06

| Norman Cole, Of Counsel

Attached is a new quarterly LHWCA caselaw summary.

The Board continues to restrict the number of decisions designated as “published.” In this quarter one decision, Duvall v. Mi-Tech Incorporation, was designated as published. The US Navy’s Military Sealift Command contracted with a Croatian shipyard to overhaul the USS Mt. Whitney. It did not require the shipyard to obtain Defense Base Act coverage for the project. The shipyard contracted with McHenry Management Group who hired Mi-Tech to supervise the ship’s turbine rotator and gear assembly overhaul. Decedent, a Mi-Tech employee, had a heart attack and died when working on the Mt. Whitney overhaul. His spouse filed a claim for death. The ALJ held the claim was not subject to the DBA because the Mt. Whitney overhaul was not a project for the public use of the United States or its allies and thus was not for the purpose of engaging in public work. The Board reversed, concluding a project with a military aspect was by definition a public work, and failure to require DBA coverage in the contract did not defeat coverage.

  • In two unpublished decisions, Beamon v. Huntington Ingalls Industries, Inc. and DeFalco v. Electric Boat Corporation, employer failed to provide affirmative evidence a condition was not work related and therefore failed to rebut the §20(a) presumption.
  • In Gindo v. Director, OWCP, a district court decision in Texas, on appeal from a BRB decision in a Defense Base Act case, parties stipulated claimant was totally disabled as of July 23, 2014, but the ALJ held claimant could not receive TTD because, as worker with a latent occupational disease, he was only entitled to PPD. That decision was vacated and remanded because the ALJ lacked authority to reject a stipulation without first giving notice to the parties and an opportunity to respond.
  • If readers of these quarterly summaries receive district court DBA decisions worth noting, please send a copy to me at ncole@brownsteinrask.com. (Thanks to Lara Merrigan for forwarding a copy of the Gindo decision.)