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Brownstein Rask LLP Portland Oregon Attorneys

Quarterly LHWCA caselaw summary 2022/09

| Norman Cole, Of Counsel

In this quarter the Board, in Seachris v. Brady Hamilton Stevedore Co., held interest on costs is allowed if there was an extraordinary outlay and an exceptionally protracted delay.  If due, interest should be based on 29 USC §1961, i.e., the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment – the same rate payable to injured workers.  There was no specific discussion of whether interest should be simple or compound. 

Medical marijuana, even in states that deem its use legal, and even when prescribed by the treating doctor, is not reasonable and necessary treatment under the LHWCA, per Garcia v. Calzadilla Construction Company.  The Controlled Substance Act’s classification of marijuana as having no currently accepted medical use in treatment is dispositive.   

Workers who have work related monaural hearing loss, i.e., more than 0% hearing impairment in only one ear, are eligible for an additional award for tinnitus that interferes with activities of daily living,  Tower v. Total Terminals International held the monaural award should be converted, mathematically, to a binaural award, the additional value for tinnitus added, and compensation paid as binaural PPD.

Following the 9th Circuit’s 2020 decision in Jordan v. SSA Terminals LLC, holding a worker’s credible complaints of severe, persistent, and prolonged pain can establish a prima facie case of disability, the same court held in Miken v. ICTSI the claimant’s credible testimony could support entitlement to temporary disability.  Medical evidence in support of temporary disability is not always required