Members of the claimant’s bar will be pleased with Fraker v. Triple Canopy, which the Board designated as published in a February 27, 2023 order. (Summary in available download still lists it as unpublished.) If an employer withdraws a controversion, but there are any remaining unresolved disputes, the ALJ lacks authority to remand the claim to the OWCP. 

In Fraker Employer paid TTD for a lumbar, right knee, right hip, right groin, and cervical injury, authorized surgery for the knee, but refused to authorize surgery for the shoulder, which claimant contended had been injured when his injured knee gave out, causing a fall. Just before a formal hearing employer requested remand to OWCP, stating it would withdraw the controversion of the shoulder and there was no reason to award ongoing TTD for the shoulder because it had not controverted claimant’s right to that controversion. The ALJ remanded, concluding there no longer was a controversion. The Board reversed. When employer withdrew the controversion there remained a dispute regarding entitlement to TTD. There was no agreement on all issues, so the district director lacked the power to dispose of the claim. The ALJ should not have granted the motion to remand.

There were several decisions concerning the Section 20(a) presumption.

If the claimant produces evidence of an injury in maritime employment that could have been caused by a work injury or work exposure, §20(a) creates a presumption the injury was work-related. The employer can rebut the presumption by producing evidence the injury was not work-related. If successful, the judge weighs the evidence, imposing on the claimant the ultimate burden of persuasion. In this quarter the Board issued several decisions interpreting and applying the presumption.

If the claimant produces evidence of an injury in maritime employment that could have been caused by a work injury or work exposure, §20(a) creates a presumption the injury was work related. The employer can rebut the presumption by producing evidence the injury was not work-related. If successful, the judge weighs the evidence, imposing on the claimant the ultimate burden of persuasion. 

In Rose v. Vectrus Systems Corporation, a published decision, the Board held credibility does not come into play in addressing whether a claimant has established a prima facie case. This does not require examination of the entire record, an independent assessment of witness’ credibility, or weighing of the evidence. 

Applying Rose in Hood v. Reefer Express LLC, the Board reversed and remanded when an ALJ did not invoke the §20(a) presumption because claimant lacked credibility due to his varying iterations of how the incident occurred. In Apaza v. SOC-SMG, Inc., however, the Board did not apply Rose in a case subject to 5^th Circuit precedent. Bis Salamis, Inc. v. Director, OWCP [Meeks], 819 F.3d 116 (5^th Cir. 2016), held the ALJ has authority to address witness credibility in determining whether the claimant made a prima facie case and may draw inferences and conclusions from the evidence. 

In Barwari v. Titan Corporation and Hill v. Northrop Grumman, employers failed to produce evidence to rebut in presumption. In  Barwari employer’s expert stated “I really can’t tell you if it is more likely than not [stress from overseas employment] may have contributed to [claimant’s diabetes occurring sooner],” and in Hill, a claim for interstitial lung disease related to burn pit exposures, the expert testified ILD could develop without work exposures but did not address whether exposure to environmental dust or other particulates could aggravate the underlying ILD.

Pelker v. Owens Corning Fiberglas concerns Section 33. In a controverted claim for asbestos-related death, claimant contended employer/carrier’s attorney agreed to approve all past and future settlements if proceeds, other than fees and costs, were held in trust until compensability and responsibility was determined. A short time before the hearing employer/ carrier contended claimant was not entitled to compensation because employer/carrier had not approved settlements and a form LS-33 was never sent to the OWCP. The ALJ (in the Opinion and Order) stated “it appears that claimant is relying on [employer’s] professed consent to future settlements” but she nevertheless held the failure to file a LS-33 resulted in waiver. This decision was appealed to the 9^th Circuit. Claimant will ask the Court to decide if forfeiture is appropriate when the employer/carrier confirmed consent to past and future settlements in communication with claimant’s attorney but an LS-33 was not filed.