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Brownstein | Rask News

Brownstein Rask LLP Portland Oregon Attorneys

Quarterly LHWCA caselaw summary 2024/03

| Norman Cole, Of Counsel

In the last quarter, the Board posted on its website three published decisions and six unpublished decisions. It is an unimpressive output.

In Harper v. TEMCO the Board attempted to clarify the standard for compensability of attorney travel time. Often-cited caselaw held attorney travel time was compensable where the travel was necessary, reasonable, and in excess of overhead. The Board held “overhead” was a confusing term. The standard for evaluating compensability of fees for travel time was a discretionary one of reasonableness and necessity based on the ALJ’s evaluation of the facts. Local versus non-local travel was merely one factor to consider.

In an unpublished decision, Ramsey v. Ports America Gulfport, Inc., the claimant alleged he sustained multiple injuries when a crane lifted a truck he was driving and dropped it several feet. The ALJ held claimant did not invoke the §20(a) presumption because the truck was set back down under control without violent impact. The Board reversed. To invoke the §20(a) presumption the claimant must produce evidence an accident occurred that had potential to cause harm or pain, rather than evidence it occurred exactly as alleged. The evidence satisfied that burden.

Ballard v. U.S. Marine Corps/MCCS (published) and Smith v. Vectrus Systems Corporation (unpublished) involve initial physical injuries with onset of psychological conditions at a later date. They raise questions regarding whether a §8(i) settlement of disability can prevent claimant from receiving disability for the conditions related to the injury but not yet known or diagnosed and whether it is necessary to file additional claims when new conditions are diagnosed.

In Ballard, claimant filed a claim for injuries to neck, back, bilateral knees, and bilateral wrists. After a hearing, in post-hearing briefs, claimant raised a psychological claim. The ALJ refused to reopen the record to consider the psychological condition. The Board held claimant may be entitled to medical benefits despite a failure to timely raise his psychological sequela claim for disability benefits, but it affirmed the ALJ’s refusal to reopen the record because a party has an obligation to exercise diligence in developing its claims and arguments prior to and during the hearing.

In Smith, claimant claimed compensation for a pulmonary injury from a 2013 fire. She settled her entitlement to disability per §8(i) in June 2017. In November 2018 she filed a claim for disability and medical benefits for a psychological condition that arose from the 2013 fire. The ALJ held claimant was aware in June 2014 her psychological condition was work-related and aware in June 2015 her disability was work-related and therefore should have filed her claim by June 2016. Her claim for disability was untimely but she was entitled to medical services. The Board held when employer learned in December 2016 claimant had a psychological condition that could be work-related it had an obligation to file a LS-202. Failure to file the LS-202 tolled the statute of limitations, so the claim for disability in November 2018 was timely.