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USDOL/OALJ Longshore Benchbook Supplement

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USDOL/OALJ Longshore Benchbook Supplement JUDGES' BENCHBOOK LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT January 2005 SUPPLEMENT VOLUME I TOPICS 1 - 21 Prepared by the U.S. Department of Labor Office of Administrative Law Judges Washington, DC EDITOR’S NOTE: This supplement to the January 2002 edition of the Longshore Benchbook is a compilation of Digests and Errata, plus several re-workings of portions of original Benchbook subsections. It is current through January 3, 2005. (For the most recent case law that has developed since January 3, 2005, see the Significant Case Digests beginning with January--February 2005.) Periodically information contained in new Significant Case Digests will be added and citations will be updated as publishers provide volume and page numbers. Topics 1 through 21 are contained in Supplement Volume 1. Topics 22 through 90 can be found within Volume 2. TOPIC 1 Topic 1.1 Jurisdiction/Coverage—Generally [ED. NOTE: The following case is included for informational value only.] Amerault v. Intelcom Support Services, Inc, (S. Ct. of Guam Case No. CVA03-007)(2004 Guam LEXIS 27 (Supreme Court of Guam Dec, 20, 2004). In this worker’s compensation case the court noted that it would consider as persuasive case law interpreting provisions of the LHWCA that are similar to provisions of Guam’s worker’s compensation law. It’s rationale was that the LHWCA was modeled after the New York State statutory scheme regarding workers’ compensation. Spencer- Kellogg &Ssons, Inc. v. Willard, 190 F.2d 830, 832 n.1 (3rd Cir. 1951). Thus, it looked to LHWCA case law to interpret “compensation” and “medical benefits.” _______________________________ Topics 1.1 Jurisdiction—Generally Hernandez v. Todd Shipyards Corp. (Unreported)(No. Civ. A. 04-1629)(E.D. La. July 8, 2004). At issue here was whether an action should be remanded to state court because of a lack of federal question. Originally the widow filed an action in Orleans Parish Civil District Court alleging only state court claims against her husband's former employers and other defendants arising from her husband's on-the-job exposure to asbestos and his death from malignant mesothelioma. The Defendants removed the action asserting that the plaintiff's state law claims were preempted by the LHWCA. The defendants asserted that the LHWCA was the plaintiff's sole and exclusive remedy and that the district court had original federal question jurisdiction pursuant to 28 U.S.C. § 1331 and, therefore, that the action was removable pursuant to 28 U.S.C. § 1441. Notwithstanding circuit precedent holding that the LHWCA "does not create federal subject matter jurisdiction supporting removal," Garcia v. Amfels, Inc, 254 F.3d 585, 588 (5th Cir. 2001); see also Aaron v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 876 F.2d 1157 (5th Cir. 1989), defendants argue that the analysis used in those cases was "expressly overruled" by the United States Supreme Court in Beneficial Nat'l Bank v. Anderson, 539 U.S. 1 (2003), and "abandoned" by the Fifth Circuit in Hoskins v. Bekins Van Lines, 343 F.3d 769 (5th Cir. 2003). Here, the court stated that "In Hoskins, the Fifth Circuit explained the effect of the Beneficial decision as follows: (1) the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law; (2) there is a specific jurisdictional grant to the federal courts for enforcement of the right; and (3) there is a clear Congressional intent that claims brought under the federal law be removable." (Emphasis supplied by the Fifth Circuit.) The district court noted 1 that the circuit court concluded, "We view Beneficial as evidencing a shift in focus from Congress's intent that the claim be removable, to Congress's intent that the federal action be exclusive." (Emphasis supplied by the Fifth Circuit.) The district court concluded, "Accordingly, because the LHWCA has been raised as a defense to plaintiff's state law causes of action and because defendants cannot demonstrate that the LHWCA satisfies the Fifth Circuit's three-prong complete preemption analysis as modified in Hoskins, this Court does not have subject matter jurisdiction over this action." _________________________________ Topics 1.1 Jurisdiction—Generally Hernandez v. Todd Shipyards Corp., ___ F. Supp 2d ___ (Civil Action No. 04-1629 Section: I/1)(E.D. La. July 8, 2004). The LHWCA does not completely preempt state law claims. The district court noted that the Fifth Circuit has held that the LHWCA does not contain a civil enforcement provision that creates a federal cause of action, and that the LHWCA does not contain a specific jurisdictional grant to the federal courts for the enforcement of a right created by the LHWCA. Garcia v. Amfels, Inc., 254 F.3d 585 (5th Cir. 2001); see also Aaron v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 876 F.2d 1157 (5th Cir. 1989). In the case at hand where exclusive remedial provisons of the LHWCA were raised by the defendant in response to the plaintiff’s purely state law claims, the LHWCA was nothing more than a statutory defense to a state court cause of action, and thus the matter could not be removed. _______________________________ Topic 1.1.1 Standing to File a Claim Hernandez v. Todd Shipyards Corp. (Unreported)(No. Civ. A. 04-1629)(E.D. La. July 8, 2004). At issue here was whether an action should be remanded to state court because of a lack of federal question. Originally the widow filed an action in Orleans Parish Civil District Court alleging only state court claims against her husband's former employers and other defendants arising from her husband's on-the-job exposure to asbestos and his death from malignant mesothelioma. The Defendants removed the action asserting that the plaintiff's state law claims were preempted by the LHWCA. The defendants asserted that the LHWCA was the plaintiff's sole and exclusive remedy and that the district court had original federal question jurisdiction pursuant to 28 U.S.C. § 1331 and, therefore, that the action was removable pursuant to 28 U.S.C. § 1441. Notwithstanding circuit precedent holding that the LHWCA "does not create federal subject matter jurisdiction supporting removal," Garcia v. Amfels, Inc, 254 F.3d 585, 588 (5th Cir. 2001); see also Aaron v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 876 F.2d 1157 (5th Cir. 1989), defendants argue that the analysis used in those cases was "expressly overruled" by the United States Supreme Court in Beneficial Nat'l Bank v. 2 Anderson, 539 U.S. 1 (2003), and "abandoned" by the Fifth Circuit in Hoskins v. Bekins Van Lines, 343 F.3d 769 (5th Cir. 2003). Here, the court stated that "In Hoskins, the Fifth Circuit explained the effect of the Beneficial decision as follows: (1) the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law; (2) there is a specific jurisdictional grant to the federal courts for enforcement of the right; and (3) there is a clear Congressional intent that claims brought under the federal law be removable." (Emphasis supplied by the Fifth Circuit.) The district court noted that the circuit court concluded, "We view Beneficial as evidencing a shift in focus from Congress's intent that the claim be removable, to Congress's intent that the federal action be exclusive." (Emphasis supplied by the Fifth Circuit.) The district court concluded, "Accordingly, because the LHWCA has been raised as a defense to plaintiff's state law causes of action and because defendants cannot demonstrate that the LHWCA satisfies the Fifth Circuit's three-prong complete preemption analysis as modified in Hoskins, this Court does not have subject matter jurisdiction over this action." ___________________________________ Topic 1.1.1 Jurisdiction/Coverage--Standing to File a Claim Hymel v. McDermott, Inc., 37 BRBS 160)(2003). Here the claimant sued his employer under the LHWCA as well as in state court against his employer and others, for negligence and intentional exposure to toxic substances in the work place. Executive officers of the employer during the claimant's employment (who were named as defendants in the state court suit) moved to intervene in the LHWCA claim. The ALJ denied the motion to intervene, finding that the issue raised by the interveners was not "in respect of "a compensation claim pursuant to Section 19(a) of the LHWCA. In a subsequent Decision and Order, the ALJ granted the claimant's motion to dismiss the claimant's claim with prejudice, pursuant to Section 33(g), as he settled a part of his state tort claim for less than his compensation entitlement without employer's prior written approval. The interveners filed an appeal with the Board. The Board dismissed the appeal, on the ground that as claimant's claim was no longer pending, the interveners were not adversely or aggrieved by the denial of their motion to intervene. Interveners then filed a motion for reconsideration of the Board's dismissal. The Board granted the motion for reconsideration, finding that the interveners are adversely affected or aggrieved by the ALJ's denial of their petition. The Board noted that Section 21(b)(3) of the LHWCA states that the Board is authorized to hear and determine appeals that raise a "substantial question of law or fact taken by a party in interest from decisions with respect to claims of employees" under the LHWCA. However, turning to the merits of the appeal, the Board found that the ALJ's decision was legally correct. The Board noted Fifth Circuit case law to support the ALJ's determination that he was without jurisdiction to rule on interveners' entitlement to tort immunity in a state court suit, as that issue was not essential to resolving issues related to the claimant's claim for compensation under the LHWCA.
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