Featured Article: The American Equity Underwriters, Inc. “Part 2: Interesting Cases Decided During Calendar Year 2022”

This is part two of our look into interesting cases decided during calendar year 2022. Here are some non-DBA cases from the Benefits Review Board (BRB):

Louis Pena Garcia v. Calzadilla Construction Corporation and IMS Insurance Company of Puerto Rico; Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, BRB No. 21-0063, July 26, 2022

The claimant appealed the employer/carrier’s denial of reimbursement for medical treatment for a disabling back injury. The medical treatment at issue was a prescription for “medical cannabis-infused cookies and edibles.”

The claimant argued that medical cannabis is approved for use under Puerto Rican law (as well as in many states and territories).

The employer made the argument that while marijuana remains illegal under federal law, it cannot be approved as “reasonable and necessary” for medical treatment under section 7 (33 U.S.C. 907) of the Longshore and Harbor Workers’ Compensation Act (the Act). The U.S. Department of Labor’s (DOL) Administrative Law Judge (ALJ) found that marijuana is listed under Schedule 1 of the Controlled Substances Act (21 U.S.C. 801) and, as such, is illegal under federal law. Therefore, while marijuana remains classified as illegal under federal law, it cannot be considered reasonable and necessary medical treatment under the Act.

The BRB affirmed the ALJ’s findings. It acknowledged that while various federal appropriations bill riders prohibit the federal Department of Justice (DOJ) from interfering with state legalization laws and DOJ is directed not to prosecute anyone complying with state marijuana law, this is not applicable to a determination of reasonable and necessary medical treatment under a federal workers’ compensation statute. While marijuana remains illegal under federal law, it cannot be approved for medical treatment under section 7 of the Act. The BRB noted that 36 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands have all approved medical marijuana.

Note: There are two curious things I can’t resist observing about this case. Number one, the Act does not apply in Puerto Rico under the rulings in Guerrido v. Alcoa Steamship Company, 234 F.2d 349 (1st Cir., 1956), and Garcia v. Friesecke, 597 F.2d 284 (1st Cir., 1979). Apparently, none of the parties raised a jurisdictional objection. Number two, the insurance carrier providing coverage in this case is not, as near as I can tell, authorized by the DOL to provide coverage under the Act. Curious.

Bonnie Houston v. San Francisco Longshore Labor Relations Committee; Signal Mutual Indemnity Association, BRB No. 21-0444, April 11, 2022

The claimant longshoreman was injured at the ILWU’s dispatch hall when she was bumped or tripped “while waiting in the dispatch line for prep call/dispatch of job call.” The ALJ granted Summary Decision to the employer, finding that at the time of the injury, the claimant was not in an employer/employee relationship, so the alleged injury did not arise out of and in the course of employment. The claimant argued that she had already secured a job and was only waiting to be dispatched.

The BRB affirmed the ALJ’s grant of Summary Decision in favor of the employer. It held that when a worker is hired through a union hall, employment is not official until the employer accepts the worker at the job site. While the San Francisco Longshore Labor Relations Committee has employees who run the hiring hall, it is not the employer of the longshoremen who use the hiring hall to obtain jobs. Similarly, the International Longshore and Warehouse Union (ILWU) is the union that represents longshore workers, but it does not employ longshoremen, and the Pacific Marine Association (PMA) is an association of longshore employers who hire longshore workers, but it is not the employer of those workers. The claimant was not an employee at the time of the injury, so a workers’ compensation law does not apply.

Durand L. Turner, Sr. v. Electric Boat Corporation, BRB No. 21-0545, May 31, 2022

This is a case involving timely filing of a claim and the tolling provision of section 30(f). 

Note: This is not the same Turner whose case we cited earlier for its discussion of SAE.

The claimant was injured on November 1, 2017, when he struck his knee on a pipe, but he did not miss any time from work. He did not seek treatment until one year later on October 29, 2018, and the employer filed a Form LS-202, Employer’s First Report of Injury, on October 31, 2018. The claimant filed a claim for benefits on February 12, 2019, when he received a 5% impairment rating to his knee from a specialist he was referred to by his treating physician. The employer controverted the claim as untimely. The ALJ found that the disability was due to the November 1, 2017, incident, but that the February 12, 2019, claim was untimely. He did award medical benefits, which are never time barred. 

Under section 30(a), an employer is required to file a Form LS-202 with the DOL, “Within ten days from the date of any injury, which causes loss of one or more shifts of work, or death or from the date that the employer has knowledge” of the injury or death. Under section 13(a), a claim is untimely, “… unless … filed within one year after injury or death…. The time for filing a claim shall not begin to run until the employee or beneficiary is aware… of the relationship between the injury or death and the employment.”

Under section 30(f), “Where the employer or the carrier has been given notice… or has knowledge, of any injury or death of an employee and fails, neglects, or refuses to file report thereof… the limitations in subdivision (a) in section 13 of this Act shall not begin to run against the claim… until such report shall have been furnished …”. 

So, an employer must file a report of an injury within ten days of when it has knowledge of the injury, and the one-year claim filing time limit does not begin to run against the claimant until this reporting requirement is met. The claimant argued that his claim was timely filed because under section 30(f) the employer did not file Form LS-202 until 10/31/2018, thus delaying the start of the one-year time limit until that time. This argument was unsuccessful, as the BRB affirmed that the injury did not result in lost time, so section 30(f) did not apply.

The claimant was successful, however, on his timeliness argument based on the issue of “awareness.” Under Stancil v. Massey, 436 F.2d 274 (DC Cir., 1970), the time for filing a claim is based on when the claimant is aware of the full character, extent, and impact of the injury when he knows or should know that the injury is work-related and will impair his earning power. The BRB reversed the ALJ on the timeliness question, finding that the claimant did not have the required “Stancil awareness” until he received his impairment rating in 2019. It is very difficult for an employer to succeed on a section 13(a) timeliness argument.

Menal Balo v. Waterfront Staffing, Inc. and Insurance Company of the State of Pennsylvania; D, OWCP, BRB No.21-0529, August 31, 2022

This case illustrates another challenging issue for employers under the Act, i.e., Suitable Alternate Employment (SAE). 

Remember, if an employee presents a prima facie case of total disability, that he cannot return to his former job because of the effects of an injury, then the burden shifts to the employer to convert total disability to partial disability by establishing a wage-earning capacity (WEC) in SAE.

The employer presented 14 jobs which it argued represented Suitable Alternate Employment. The ALJ rejected 13 of the jobs because he found that they required the use of a computer or customer service skills not consistent with the claimant longshoreman’s work experience. He accepted one job, a greeter at Walgreens, because it had no minimum age, educational requirement, or specific job skills.

Note:  In the federal Fifth Circuit Court of Appeals (TX, LA, MS), an employer may meet its burden of establishing SAE by one job, unlike in the Fourth Circuit (MD, VA, WV, NC, SC) where it is likely that a single job will be found to be automatically insufficient.

When the appeal reached the BRB, the employer encountered New Orleans (Gulfwide) Stevedores v. Turner, which we have discussed in Part One in the Barhorst case. The BRB found that the ALJ had not adequately considered the second part of Turner’s two-part test, whether the claimant had a reasonable chance to “realistically and likely” secure the Walgreens job. It was insufficient to show that the job existed in the claimant’s community. On remand, the ALJ must also consider and discuss the one job criteria.

Note: It will be interesting to see what happens on remand. Short of accompanying the claimant to Walgreens and getting him a job, how will the employer be able to satisfy the BRB’s interpretation of the Turner standard?

Robert Tower v. Total Terminals International; Signal Mutual Indemnity Association, and D, OWCP, BRB No. 21-0319, July 26, 2022

This is an unusual case involving monaural hearing loss and tinnitus.  

A June 12, 2019, audiogram showed a 0% right monaural hearing loss and a 9.375% left monaural hearing loss for a combined binaural hearing loss of 1.56%. The employer paid $7,361.03 under section 8(c)(13)(A), which is the provision governing loss of hearing in only one ear. The payment included nothing for tinnitus. The claimant sought an additional $16,799.65 to include an enhancement for tinnitus under section 8(c)(13)(B), the provision governing binaural hearing loss.

Note: Section 8(c)(13)(E) provides that claims for hearing loss shall be determined in accordance with the AMA Guides for permanent impairment.  

Note: The 6th Edition of the AMA Guides (2007) provides for enhancement of compensation for tinnitus in cases of binaural hearing loss. It also provides a formula for converting monaural hearing loss to binaural hearing loss.

Note: Tinnitus is sometimes a constant high-pitched whining or low rumble. It cannot be measured and is entirely subjective based on the claimant’s complaints.

The ALJ found that section 8(c)(13)(A) applied and stopped there (compensation for monaural hearing loss, no tinnitus enhancement).

The BRB reversed. The ALJ should have added the tinnitus enhancement after the conversion of monaural to binaural. The 6th Edition provides a formula for converting monaural to binaural hearing loss, and it does provide for up to a 5% enhancement for tinnitus. The BRB’s decision does not completely read section 8(c)(13)(A) out of the Act. It would still apply in cases of monaural hearing loss without tinnitus. Of course, a claimant could simply make subjective tinnitus complaints.

ABOUT THE AUTHOR

Jack Martone joined The American Equity Underwriters, Inc. in 2006, where he serves as Senior Vice President, AEU Advisory Services. Prior to AEU, Jack served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers' Compensation for the U.S. Department of Labor. As Branch Chief, Jack directed the licensing and regulation of insurance carriers and self-insured employers under the Longshore and Harbor Workers’ Compensation Act. Jack received his bachelor’s degree from Fordham University and his Juris Doctorate from St. John’s University School of Law.

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