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Brownstein Rask LLP Portland Oregon Attorneys

Quarterly LHWCA caselaw summary 2022/12

| Norman Cole, Of Counsel

Decisions this quarter include several with unexpected results. 

In a published decision, Albnonajim v. AECOM, the claimant developed PTSD due to work as a translator in Iraq in 2010 and 2011.  He returned to the United States in 2011 and secured gainful employment.  In 2020 a clinical psychologist diagnosed PTSD and concluded he could never return to his workplace overseas.  The ALJ held average weekly wage should be based on earnings when claimant became aware PTSD was work related, and because he remained employed, he had no disability.  The Board reversed, concluding average weekly wage should be based on earnings before his last day of employment.  §10(i) did not require use of an injured employee’s wages at time of diagnosis to calculate average weekly wage in cases involving delayed onset PTSD.   

In Terry v. Electric Boat Corporation in 2004 claimant received PPD for bilateral carpal tunnel syndrome.  Sixteen years later he filed a second claim for bilateral carpal tunnel syndrome, contending additional work had aggravated his condition.  Medical evidence indicated work duties contributed to symptoms evaluated in 2020 but there was no change in impairment.  The Board held the claim was compensable and directed the ALJ to calculate a new average weekly wage based on 2020 earnings and award PPD for the same impairment, but with a credit for PPD previously paid.   

In Brooks v. United Stevedores of America, Inc., after an informal conference, the employer announced it accepted the OWCP recommendation.  Due to a misunderstanding and math error its check to claimant was $765.26 less than the amount due.  Employer discovered the error more than fourteen days after the recommendation and issued a check for the unpaid balance.  Claimant’s attorney requested a fee.  The District Director denied a fee, and the Board affirmed.  Employer did not refuse to accept the written recommendation, and claimant did not obtain a greater award than the amount employer was willing to pay.  Dissent, Judge Boggs, argued the plain language of the statute requires actual compliance, i.e., full payment, within fourteen days of the recommendation, and an employer should not be allowed to avoid a fee liability by simply stating an intent to accept the recommendation.

In a Defense Base Act claim, Butcher v. SEII, claimant’s injury in Thailand, 5000 miles from work in Iraq, when on leave for rest and recreation encouraged by employer but not required, was not in the zone of special danger.  To hold employer liable for every injury sustained on a frolic like a vacation would expand DBA coverage beyond its intended limits.  Dissent, Judge Buzzard, argued prior zone of danger decisions involving recreational or non-employment related activities provided no basis to exclude claimant’s injury from DBA coverage.