Longshore Harbor Workers Compensation Act

The Parties

Russell Robinson was a welder for Electric Boat about four decades ago. He was a smoker and he also suffered exposure to asbestos while working for Electric Boat. Electric Boat is a subsidiary of General Dynamics and has a history dating back to 1899. The company has a shipyard in Groton, Connecticut, an outfitting facility in Quonset Point, Rhode Island, and it also has an engineering building in New London, Connecticut. The company makes submarines, including nuclear powered subs.

The Director of the Office of Workers’ Compensation Programs, United States Department of Labor has intervened as a party in this case because of the questions of Workers’ Compensation and the fact that Mr. Robinson did make a claim under it.

 The Facts

Mr. Robinson worked for Electric Boat as a welder in the 1970s.  Afterwards, he worked for other, non-covered employers and he retired voluntarily.  Robinson was exposed to asbestos during the course of his employment with Electric Boat. In 2009, he was diagnosed with stage IIIB non-small cell carcinoma of the right lung.  Thereafter, in August of 2010, Mr. Robinson filed a claim for benefits under the Connecticut workers’ compensation law.  In January 2011, Dr. Christiani concluded that Mr. Robinson’s history of smoking along with work-related asbestos exposure combined to result in Mr. Robinson’s lung cancer. Robinson sought compensation under the Longshore and Harbor Workers’ Compensation Act. He had also sought compensation, earlier, under the Connecticut Workers’ Compensation laws.

The Legal Timeline

In 2012, the state commissioner approved a settlement between the parties.  An order was issued and Mr. Robinson received payment from Electric Boat on the same day or soon afterward. Robinson then filed a claim in October of 2013. Then in September of 2014, Electric Boat filed for summary judgment, saying that the case had not been brought in a timely manner. At a February 2015 hearing on the merits, the administrative law judge addressed and then denied Electric Boat’s motion in a bench ruling. The administrative law judge then incorporated this ruling into his decision. However, he did not reiterate the rationale.  Afterwards, he awarded Mr. Robinson permanent partial disability benefits.

The Bench Ruling

The administrative law judge, Jonathan C. Calianos, said: “payment in a state forum on an occupational disease does operate under this provision [Section 13(b) (2)], and the last payment will give the Claimant a year to file something in this forum to proceed with his or her claim.”

As a result, the administrative law judge denied Electric Boat’s motion for summary decision.  Electric Boat appealed the awarding of benefits solely on the grounds that the motion for summary decision had been wrongly denied.  Electric Boat asserted that Robinson’s claim for compensation under the Act was not timely filed.  Mr. Robinson and the Director of the Office of Workers’ Compensation Programs (the Director), urged an affirmation of the bench ruling. They argued that the claim was timely filed since it had been filed within one year of the state settlement payment.

The Appeal

In this instance, the parties agree, and there is no question as to fact that Mr. Robinson’s claim under the Act was not filed within two years of his date of awareness of his injury.  As a result, a claim such as this is generally time-barred unless the Statute of Limitations is tolled due to Electric Boat’s voluntary “payment of compensation” under the state award.  Hence if the state settlement payment constitutes a voluntary “payment of compensation” under Section 13(b)(2), then Mr. Robinson’s October 2013 claim would be considered to be timely filed. Furthermore, the administrative law judge would be considered to have properly denied the motion for summary decision.  If the state settlement is not found to be a “payment of compensation,” then the claim would not be filed in a timely manner and therefore summary decision would have to be granted.

The Ruling on Appeal

This case is considered to be one of first impression, in that the question being presented is whether the matter can be reopened due to a payment under state law even though this is a federal case. The Director argued that the state payment should be considered as compensation because the tolling of the Statute of Limitations can occur even if payments are not voluntary in nature. Compensation should be interpreted broadly and should be able to encompass a state award, such as is the case herein. For payments to be seen as a payment of compensation without an award, such an award specifically refers to benefits under the Act.

Therefore, any awards or payments as made pursuant to Connecticut Workers’ Compensation law would not cancel out the requirement that the employer’s voluntary payments had to have been made without an award. This is because, under a strict interpretation of the Act, the payments in question truly were made without an award under the Act.

The Benefits Review Board found that both requirements of the Act had been satisfied. One, that there had been voluntary payments made by the employer to the claimant, and two, there was no award under the Act. Hence the Administrative Law Judge’s bench ruling was affirmed.

The Takeaway

For a claimant with a long history of employment and a slow-acting and long-term injury such as non-small cell carcinoma due to exposure to asbestos, it should be expected that an injured worker would seek compensation under all of his or her employment situations, whether they  are covered by the Longshore and Harbor Workers’ Compensation Act or not. This can include seeking Workers’ Compensation under state law, if that applies. The awarding of benefits under state law, however, does not constitute an award under the Act and, therefore, such a case can be reopened if payments to the claimant were voluntary and in the absence of an award under the Act.