Annual Longshore Conference, March 2018

Loyola University Law School Presents Its Annual Longshore Conference in Conjunction with the U.S. Department of Labor, March 15-16, 2018

By Ralph R. Lorberbaum, Zipperer, Lorberbaum & Beauvais, Savannah, Georgia

Well, it is March in New Orleans, and that means only one thing. No, not that Mardi Gras is over. It is time for the Annual Longshore Conference, sponsored by Loyola University, New Orleans, School of Law, in conjunction with the United States Department of Labor. The conference took place on March 15-16, 2018. In fact, it was the 40th anniversary of the Conference.

Congratulations must be given to Natasha Lacoste, the Director of Continuing Legal Education at Loyola, and her staff. They are to be commended for the great job they did. She announced this year’s Conference had the largest attendance in the forty years it has been held.

Second, the Advisory Board should be commended because they were able to get Chief Judge Betty Jean Hall, Vice Chair Judge Ryan C. Gilligan, and Clerk Tom Sheppard, all of the Benefits Review Board, to attend again. Chief Judge Stephen Henley and Associate Chief Judge Paul Almanza, as well as most of the Chief Judges from the regional OALJ offices, were all in attendance again. The Chief Judges were Paul Johnson, Jr., Jennifer Gee, Colleen Geraghty, Lystra Harris, Lee Romero, Jr., and John Paul Sellers, III. Additionally, the Advisory Board was able to get Douglas Fitzgerald, Director of Longshore, to attend and he brought most of the District Directors: Tirzah Lieman-Carbra; Kristina Hall, the newly appointed Branch Chief of Policy and Procedure; David Abejon; David Duhon; Marco Adame, II; Todd Bruininks; and David Widener.

The conference started out with attorneys Mark Reinhalter, Norman Cole and Joshua Gillelan presenting an in-depth presentation on significant judicial decisions during the last year which affect claims under the Act and its Extensions. The first case addressed whether retirees are entitled to income benefits. This issue arose in Moody v. Huntington Ingalls, 879 F.3d 96 (4th Cir. 2018), where the Court focused on inability to work versus unwilling to work in awarding benefits. There is another case on appeal on similar issues, Christie v. Georgia Pacific, in the 9th Circuit.

Watson v. Wardell Orthopedics, 51 BRBS 17 (2017) dealt with medical issues. In this case, the BRB held that Section 19 gives the ALJ jurisdiction to address the reinstatement rate under the OWCP fee schedule, and the employers’ liability for medical treatment under Section 7. However, the ALJ does not have jurisdiction to address the employers’ defense to a doctor’s claim based on rights of a private contract. The Board held that private insurance reimbursement rates are irrelevant.

In another medical issue case of Billman, Cole and Wardell Orthopedics v. Huntington Ingalls, 51 BRBS 23 (2017), the BRB held that medical providers are persons seeking benefits and are entitled to attorney fees for securing payment. The Board also held that a doctor’s letter to the District Director is sufficient to constitute a “claim” so that an employer is liable if benefits are not paid within thirty days.

In Ports America Louisiana v. Director, OWCP, 2018 U.S. App. LEXIS 1561 (5th Cir. 1-23-2018) (unpublished), the Court of Appeals held that a change in doctors is authorized where the ATP “effectively discharged” the claimant by not recommending treatment and telling the claimant to return to work. Under Section 7(b), treatment can be changed by the District Director. Under Section 7(c), a change can be made if there is good cause.

In Jones v. Huntington Ingalls, 51 BRBS 29 (10/10/2017) (request for reconsideration pending), the BRB held an audiologist is not a physician, and therefore, a claimant has no right to make an initial selection of an audiologist. The choice is left to the District Director’s supervision, and the ALJ lacks jurisdiction to supervise claimants’ medical treatment.

In Taylor v. SSA Cooper, 51 BRBS 11 (2017), the Board held the liability of claimant attorney fees shifts to the employer under Section 28(a) where it denies liability during the thirty day period for “either” medical benefits or periodic disability compensation.

Martin v. Atlas Mfg. & Repair, ____ BRBS _____ (2017) (BRB 17-0376, 12-14-2017) (unpublished), and Price v. Director, OWCP, 682 F.Appx 327 (5th Cir. 2017) (unpublished), are cases that dealt with a presumption that was not involved when claimant lacked credibility. Then in Harrison v. Huntington Ingalls, ____ BRBS ____ (BRB 17-0138, 9-13-2017) (unpublished), the Board held that the claimant is not required to produce affirmative evidence to establish a prima facie case. He need only establish the existence of an accident or working condition that could have caused the harm or aggravated the harm. Therefore, the claimant’s testimony without medical evidence invoked the presumption.

Douglas Fitzgerald, Director of Longshore, and District Directors headed the second presentation, which was an overview and updates to the Act from the point of view of the District offices. Fitzgerald noted that in the last five years, NAFI claims are down, but Longshore claims are up, and DBA claims, which were down, are now going back up. Hearing loss claims are down since 2014. Occupational disease claims are significantly up, while traumatic claims are slightly up. Fatality cases are trending down.

David Abejon noted that (202) 513-6814 is the new case creation fax number under Industry Notice No. 166-2018. David Duhon noted that the old LS-206 is being done away with, but will be used until June; thereafter, a new LS-208 Notice of Payments form has been created and is already being used.

David Widener discussed waiver forms, and the fact that all forms must be signed. Additionally, if there are multiple claims, then each claim must have a valid waiver form filed.

The third presentation was moderated by Ken Engerrand and Mark Solomon, who discussed whether Article I Judges are constitutional. The question is proceeding on to the United States Supreme Court, but has not yet been raised in LHWCA/DBA case settings.

The next presentation had a panel of judges, to wit: Hon. Stephen Henley, Chief Administrative Law Judge; Hon. Paul R. Almanza, Associate Chief Judge for Longshore; Hon. Jennifer Gee, District Chief Judge in San Francisco; Hon. Colleen A. Geraghty, District Chief Judge in Boston; Hon. Paul C. Johnson, Jr., District Chief Judge in Newport News; the Hon. Lee J. Romero, Jr., District Chief Judge in Covington; Hon. Richard Morgan, District Chief Judge in Pittsburgh; and Hon. Lystra Harris, District Chief Judge in Cherry Hill. The panel tried to give some thoughts on making the system work better, more efficiently and quicker. The panel felt that reducing the number of issues for trial would speed up getting decisions. The panel discussed subpoenas and objections as well as supplemental discovery responses. The panel noted that Black Lung cases were not getting priority. It was also noted that proposed hiring freezes could have an impact, but that the Courts would do what they could to push cases through. Additionally, it was noted that decisions were up in the last year.

The next presentation was on emerging trends in medical care and was moderated by Jill Allen, Dr. Cesar Roca, Jr., and David Widener. The first area discussed was telemedicine and telepresence whereby nurse practitioners would assess over the phone. This would be done in hopes of saving money on medical costs. Typically, it is done for follow-up appointment instances. The average time with a doctor (including travel and wait time) is 121 minutes versus 2 hours at the emergency room versus 15 minutes in a televisit.

The last topic for the first day was Judge Patrick Rosenow’s Longshore Jeopardy. No one left early because the audience wanted to see and participate in what has become an annual interesting and enjoyable topic. Everyone was amused and enjoyed the presentation.

Chris Schoffer of Charles Taylor, PLC; Andrea Perry of Abercrombie, Simmons & Gillette; and Candi Gainer of AIG led a discussion on properly adjusting claims and teaching their adjusters claims handling first thing Friday morning. This might include having experienced adjusters and having proper investigation of the potential claims in order to provide the best and proper care on every case. The best and proper care includes timely investigation, proper filing and proper payment on claims.

The conference was excited again to next have the Honorable Betty Jean Hall, Chair of the Benefits Review Board; the Honorable Ryan Gilligan, Vice Chair of the Board; Karen Koenig, Associate Counsel to the Board; and the Hon. Thomas O. Shepherd, Jr., Clerk of the Board present to discuss appeals before the Benefits Review Board. Chief Hall noted that 97.9% of their decisions were affirmed on appeal to the Circuit Courts of Appeal last year. Their goal is timeliness, and the Board is emphasizing using electronic filings of appeals. Judge Gilligan reported that the goal of the Board is to get any and all decisions out in eleven months. Clerk Tom Shepherd noted that in fiscal year 2016, they closed 175 of 182 new appeals in an average of 9.44 months. Judge Gilligan explained new electronic methods of sharing decisions for comments and internal communications. Karen Koenig reminded all that attorney fee petitions have to be timely filed or would not be considered unless there is a request to accept a late petition and valid reasons for the request. Regulations 20 C.F.R. § 802.203(c) and § 802.19(e) controls attorney fee applications.

The next to last program was on Section 10(i), traumatic injuries and occupational diseases. The panel members were Kirk Karmanian, Michael Quinn and Edwin Barnes. They noted that Section 10(i) primarily involves occupational diseases which do not manifest right away and result in disability or death. It was noted that PTSD cases could be an occupational disease or might simply be a traumatic event. Since the date of disability or awareness becomes the date of the injury, the wage rate on the new “date of injury” may not be representative of what the injured worker was making when the events took place. The panel also indicated that manifestation of symptoms could be used as the date of injury.

The final presentation had another panel of attorneys: Virginia Coco and Paul Howell. They spoke on secondary injuries and the Section 20(a) presumption. The panel noted a conflict between the Fourth and Fifth Circuits as to the applicability of the Section 20(a) presumption to secondary injuries based upon interpretations of the same Supreme Court decision of U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608 (1982). The Fifth Circuit in Amerada Hess v. Director, OWCP, 543 F.3d 755 (5th Cir. 2008) held the presumption does not apply to secondary injuries. The Fourth Circuit disagreed in Metro Machine Corp. v. Director, OWCP, 846 F.3d 680 (4th Cir. 2017). The Director has sided with the Fourth Circuit.

Overall, the ratings for the Conference were outstanding. The Conference is always looking for new topics and people who would like to speak. If you have a topic, or would like to be a presenter, just send word to Natasha Lacoste at Loyola or any Advisory Board member.

See you all again next year at the Hotel Intercontinental on March 21-22, 2019.

© Copyright 2018 Zipperer, Lorberbaum & Beauvais. All rights reserved. Reprinted with permission. This article will appear in an upcoming issue of the Benefits Review Board Service, Longshore Reporter (LexisNexis).