Vickers Decision: Inapplicability of Sec. 20(a) Presumption to Secondary Conditions Under the LHWCA

By Monica F. Markovich and Krystal L. Layher, Brown Sims, P.C., Houston, Texas

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Should the Section 20(a) presumption linking an injury to a claimant’s employment apply in cases involving secondary conditions? Until 2013, the courts that wrestled with this question provided inconsistent results. In Insurance Company of the State of Pennsylvania v. Director, Office of Workers’ Compensation Programs (Vickers), the Fifth Circuit eliminates this issue by firmly establishing that the claimant bears the burden to link secondary conditions to employment without aid from the Section 20(a) presumption (33 U.S.C.S. § 920(a)). 713 F.3d 779, 47 BRBS 19(CRT) (5th Cir. 2013).

A claimant seeking benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA, 33 U.S.C.S. § 901 et seq.) or an extension act must demonstrate that he or she sustained an injury that arose “out of and in the course of employment.” 33 U.S.C.S. § 902(2). Section 20(a) of the LHWCA provides a claimant with a presumption that any disabling condition is causally related to the employment if the claimant demonstrates that he or she suffered a harm and that employment conditions existed that could have caused, aggravated, or accelerated such condition. 33 U.S.C.S. § 920(a); see Bath Iron Works Corp. v. Preston, 380 F.3d 597, 605, 38 BRBS 60(CRT), at 65 (1st Cir. 2004). Claimants often use the Section 20(a) presumption to connect the initial injury to the claimant’s employment.

Compensable injuries extend to and include conditions that are causally related to the original injury or to treatment for that injury. See, e.g. Amerada Hess Corp. v. Director, OWCP, 543 F.3d 755, 761, 42 BRBS 41(CRT) at 44-45 (5th Cir. 2008).  Compensable secondary conditions are those conditions or diseases which stem from a covered injury or treatment for that injury. An employer is responsible for medical treatment for these secondary conditions. See id. Where questions exist about whether secondary conditions were caused by the claimant’s employment and the claimant’s primary injury, there has been ambiguity on whether courts should apply the Section 20(a) framework to link secondary conditions to the original injuries or employment. See id. at 763 n.3 (noting that the Benefits Review Board’s application of the Section 20(a) presumption to secondary conditions has been inconsistent). The Fifth Circuit reconciled these inconsistencies through its holdings in Amerada Hess Corporation v. Director, Office of Workers’ Compensation Programs and Insurance Company of State of Pennsylvania v. Director, Office of Workers’ Compensation Programs (Vickers).

The Fifth Circuit specifically addressed the application of the Section 20(a) presumption to secondary conditions in Amerada Hess in 2008. In that case, the Administrative Law Judge applied the Section 20(a) presumption to a heart condition that allegedly resulted from medical care for a claimant’s compensable back and groin injury. 543 F.3d at 757-758. The Fifth Circuit disagreed with the application of the 20(a) presumption in that circumstance. Id. at 763. The Fifth Circuit held that the Section 20(a) presumption did not apply to the claimant’s heart condition because it was a secondary condition. Id. The Fifth Circuit explained that the LHWCA “does not support a presumption that any medical condition that an injured claimant suffers after a work-related injury is caused by the work-related injury.” Id. The court went on to opine that “not all ‘secondary’ injuries are covered under the LHWCA simply because the claimant demonstrates a subsequent harm that could have stemmed from the covered injury.” Id. (emphasis in original). Instead, a claimant seeking benefits for a secondary condition “must present substantial evidence that the secondary condition ‘naturally or unavoidably’ resulted from the first covered injury....” Id.

Following Amerada Hess, the courts wavered on how to apply the Section 20(a) presumption to secondary conditions. Some courts endeavored to limit Amerada Hess to its specific facts. See, e.g. W.B. v. Wackenhut International, Inc., 43 BRBS 815(ALJ) (2009) (distinguishing Amerada Hess by holding that due to the factual differences between the cases, the claimant was entitled to the Section 20(a) presumption for his secondary conditions). Other courts held that the Section 20(a) presumption does not apply to secondary conditions. See, e.g. Honea v. IIT Industries, Inc., 44 BRBS 337(ALJ) (2010) (holding that a claimant’s alleged psychological condition could not be considered a compensable secondary condition where there was no medical evidence linking the claimant’s alleged psychological condition to his compensable orthopedic injuries); McDonald v. Aecom Technology Corp., 44 BRBS 247(ALJ) at 253-54 (2010).

In McDonald v. Aecom Technology Corp., the claimant sustained a pulmonary condition in the course and scope of his employment. 44 BRBS 247(ALJ) at 248. The claimant alleged that he suffered from multiple compensable secondary conditions, including diabetes. Id. at 253. Some physicians attributed the claimant’s diabetes and high blood sugar to his use of Prednisone for his pulmonary condition, while other doctors found no causal connection between the claimant’s lung injury and his diabetes. Id. The Administrative Law Judge concluded “[a]t best, true doubt exists as to the cause of Claimant’s diabetes, and consequently, I find Claimant has not met his burden of showing by substantial evidence that his diabetes is the natural or unavoidable consequence of his lung condition.” Id. The Administrative Law Judge applied the holding from Amerada Hess when determining that the claimant was not entitled to the benefit of the Section 20(a) presumption for his diabetes condition. Id.

Due to the inconsistent application of Amerada Hess, the standard of proof for secondary conditions remained unclear until earlier this year. In February, the Fifth Circuit expanded the Amerada Hess doctrine in Vickers to further clarify the inapplicability of the Section 20(a) presumption to secondary conditions.  In Vickers, the claimant sustained an arm injury as the result of a gas explosion, resulting in carpal tunnel syndrome. 713 F.3d at 781. The claimant sought disability benefits for an arm injury and for injuries to “other parts of [his] body, [and] other related problems associated with [his] injury and working conditions in Iraq.” Id. The claimant later sought benefits for chronic inflammatory demyelinating polyneuropathy (CIDP), which he asserted was causally related to the work-related injury. Id. at 781-782. At the trial level, the Administrative Law Judge invoked the Section 20(a) presumption with respect to the Claimant’s CIDP and awarded Claimant benefits. Id. at 782. This decision was upheld by the Benefits Review Board, as the Board found Amerada Hess distinguishable from Vickers. Id.

The Fifth Circuit disagreed with the Benefits Review Board’s analysis. The Fifth Circuit opined that the CIDP condition was a secondary condition based on the fact that it arose from the claimant’s work-related injuries and treatment for those injuries. Id. at 785-786. The Fifth Circuit concluded that the secondary condition was subject to the “naturally or unavoidably” causation standard articulated in Amerada Hess. Id. at 786. The Fifth Circuit reiterated that the Section 20(a) presumption does not apply to secondary conditions; the Fifth Circuit held that a claimant must produce substantial evidence that the secondary condition is the natural or unavoidable result of a work-related injury in order for the secondary condition to be compensable. Id. A claimant may not avoid this burden of proof by including a “catch-all clause” in his claim. Id. at 785.

The Vickers decision is in line with decisions which require proof that a secondary condition is the natural or unavoidable result of the original injury. For example, in the Ninth Circuit, compensability of a secondary condition rests on “whether the second injury was or was not the natural or the unavoidable result of the first injury….” See Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454, 458, 17 Cal. Comp. Cases (MB) 175 (9th Cir. 1954); see also Bailey v. Bethlehem Steel Corp., 20 BRBS 14, 16 (1987) (“When an employee sustains an injury at work which is followed by the occurrence of a subsequent injury or aggravation outside work, employer is liable for the entire disability and for medical expenses due to both injuries if the subsequent injury i[s] the natural or unavoidable result of the original work injury.”).

After Vickers, at least one court has summarily dismissed a claim involving a secondary condition for lack of substantial evidence. In Deleon v. Superior Labor Services, Inc., a claimant sustained an electrical shock injury to his left wrist, which resulted in a burn injury and an infection. Case No. 2012-LHC-01955, pg. 2 (ALJ Aug. 6, 2013) (slip op.). The claimant was later diagnosed with right femoral osteomyelitis and a right thigh abscess; the claimant alleged that these conditions were compensable secondary conditions. Id. at 2-3. The employer disagreed. In its motion for summary decision, the employer asserted that the claimant had not produced substantial evidence linking the secondary conditions to the compensable burn injury. Id. at 3. The Administrative Law Judge ruled in favor of the employer as the claimant had merely presented testimonial evidence of hypothetical situations which did not constitute the substantial evidence needed to prove that the secondary conditions were linked to the compensable injury. Id. at 3-4 (citing Amerada Hess).

In summary, a claimant may not rely upon the Section 20(a) presumption to link secondary conditions to employment. The claimant must produce substantial evidence that the claimed secondary condition is the natural and unavoidable result of the original work-injury; without substantial evidence linking the secondary condition to employment, the claim for the secondary condition must fail. 

© Copyright 2013 Brown Sims PC. All rights reserved. Reprinted by permission. This article will appear in an upcoming issue of Benefits Review Board Service Longshore Reporter.

Lexis.com Links:

33 U.S.C.S. § 920

Insurance Company of the State of Pennsylvania v. Director, Office of Workers’ Compensation Programs (Vickers), 713 F.3d 779

33 U.S.C.S. § 901

33 U.S.C.S. § 902

33 U.S.C.S. § 920

Bath Iron Works Corp. v. Preston, 380 F.3d 597

Amerada Hess Corp. v. Director, OWCP, 543 F.3d 755

Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454