Beruflich Dokumente
Kultur Dokumente
December 8, 2015
Decided:
case
accident.
arises
Samuel
Terminals,
Inc.
P.
from
horribly
Jackson,
(CMT),
was
an
tragic
employee
operating
of
work-related
Ceres
forklift
Marine
when
he
After
Workers
disability
Compensation
benefits
under
Programs
the
(the
Longshore
Director)
and
Harbor
for
Workers
The
now
that
petitions
for
bringing
person
review
a
of
the
claim
Boards
under
the
decision,
LHWCA
is
Courts
decision
in
Consolidated
Rail
Corp.
v.
512
Jackson would have been precluded from any recovery under the
LHWCA because he was not in the zone of danger and thus did not
3
erred
medical
in
failing
examiner,
to
give
appointed
dispositive weight.
report
pursuant
to
of
33
an
independent
U.S.C.
907(e),
I.
A.
On
March
28,
2011,
Jackson,
employed
by
CMT
as
At the
61.
Jackson
immediately
got
off
his
forklift
to
help
Jackson and
Bellamys
condition
was
dire:
Jackson
testified
that
pretty
63.
mangled,
hanging
off.
J.A.
Jackson
further
testified that Bellamys leg was wrapped around the axle of the
forklift.
full
view
approximately
emergency
one
vehicles
arrived.
people
gathered
hundred
By
at
this
the
time,
scene,
Department,
Virginia
International
Terminals
Police
CMT
officials.
conversation
with
Jackson
Gregory
testified
Concepcion,
the
that
after
superintendent
his
for
after
the
March
2011
accident.
Jackson
visited
was
acutely
extremely
upset,
stressed,
and
diagnosed
and
they
collectively
persuade[d]
J.A. 286-87.
first
evaluated
found
that
to
see
Jackson
Jackson
Jackson
on
July
11,
2011.
suffered
from
PTSD
with
year
was
of
after
still
guilt,
the
accident,
experiencing
shame,
and
Dr.
extremely
grief
that
Newfield
bad
noted
nightmares
prevented
him
that
and
from
returning to work.
as well. 1
Dr.
Patrick
conducted
an
September
14,
Thrasher,
independent
2011,
and
psychiatrist
medical
retained
examination
reviewed
Jacksons
of
by
CMT,
Jackson
medical
on
records.
depression
to
work.
and
Dr.
psychiatric
PTSD
rendered
Thrasher
treatment
further
and
him
incapable
stated
that
psychotherapy,
of
with
Jackson
reviewing
updated
medical
records,
Dr.
Thrasher,
on
on
Dr.
Thrashers
recommendation
that
Jackson
was
Dr.
Newfield
referred
Jackson
to
a
psychiatrist,
Dr. Deborah
Giorgi-Guarnieri.
Dr.
Giorgi-Guarnieri
began
treating Jackson on November 14, 2011.
Dr. Giorgi-Guarnieris
notes indicate that she treated Jackson every two to four weeks.
Dr. Giorgi-Guarnieri recorded that Jackson had been battling
depression and anxiety and suffered from flashbacks and
nightmares.
Dr. Giorgi-Guarnieri continued to see Jackson for
medication management.
7
of
Workers
psychiatrist
Dr.
examination.
Compensation
Paul
Mansheim
Programs
for
an
referred
Jackson
independent
to
medical
extremely
broad
and
suggested
[PTSD]
threat
diagnosis
to
accident.
himself
J.A. 154.
schizophrenia,
and
because
and
PTSD,
Jackson
was
never
did
in
not
experience
danger
during
the
more
Dr. Mansheim
ill
than
concluded
is
that
actually
the
case.
Jackson
was
able
to
J.A.
work
155.
as
longshoremen.
After
reviewing
Dr.
Mansheims
report,
CMT
who
had
work-related incident. 2
injury
because
he
did
not
sustain
physical
In
danger.
CMT
other
words,
further
Jackson
contended
was
that
not
in
the
the
ALJ
zone
should
of
give
that
claimant
cannot
recover
for
psychological
risk
of
harm.
J.A.
44.
The
ALJ
held
that
not
entitled
to
benefits
if
they
are
emotionally
harmed
without
being
physically
harmed
or
threatened
with
physical
harm.
Id.
the ALJ found that Jackson suffered from PTSD which was causally
related to the March 28, 2011, work incident.
Id. at 50.
November
25,
2014
opinion,
the
Board
rejected
In
CMTs
tort
concept
does
not
apply
to
stated
critical
between
that
CMTs
distinction,
tort
actions,
argument
[as
fails
recognized
which
rely
on
in
to
the
workers
J.A. 10.
The
acknowledge
the
Consolidated
common
law
Rail],
fault
and
not
governed
established,
the
by
those
Board
principles.
concluded,
that
Id.
a
It
is
well
work-related
10
Id. at 9-10.
In
addition,
Dr. Mansheims
the
Board
opinion
rejected
should
be
CMTs
given
contention
dispositive
that
weight,
the
ALJ
properly
weighed
the
evidence,
Id. at 12.
the
Board
II.
CMT has petitioned this Court for review, and we possess
jurisdiction pursuant to 33 U.S.C. 921(c).
In reviewing the
statutorily-mandated
factual findings.
Stallings,
250
standard
for
reviewing
the
ALJs
F.3d
868,
871
(4th
Cir.
2001)
(internal
33 U.S.C. 921(b)(3).
Norfolk
Shipbldg. & Drydock Co. v. Faulk, 228 F.3d 378, 38081 (4th Cir.
2000).
the basis that other inferences might have been more reasonable.
Deference
must
be
given
the
fact-finders
11
. . .
credibility
reasonable
Director
should
be
interpretation
respected.
of
the
Stallings,
LHWCA
250
F.3d
by
the
at
871
III.
The
LHWCA
compensation
light
of
statute
the
compensation
was
enacted
for
Supreme
statutes
to
create
longshoremen
Courts
and
decision
constitutionally
compensation
federal
harbor
that
could
workers
workers,
state
not
in
workers
apply
to
legislation,
represents
compromise
12
also
904(b)
33
U.S.C.
(Compensation
shall
be
payable
See 33
. . .
results
from
an
injury.);
see
also
Metro.
Stevedore Co. v. Rambo, 515 U.S. 291, 294 (1995) (stating that
the LHWCA is a comprehensive scheme to provide compensation in
respect
of
disability
or
death
of
an
employee
. . .
if
the
LHWCA provides,
The term injury means accidental injury or
death arising out of and in the course of
employment, and such occupational disease or
infection as arises naturally out of such
employment or as naturally or unavoidably
13
v. Dir., OWCP, 455 U.S. 608, 615 (1982) (Not only must the
injury have been caused by the employment, it also must have
arisen
during
the
employment.).
Once
the
presumption
is
not
related.
mere
speculation
that
the
harm
was
not
work
Cir. 1999).
whether
employment.
the
harm
was
caused
by
the
claimants
IV.
In
its
arguments.
petition
for
review,
CMT
makes
two
primary
14
was not in the zone of danger; that is, only those who suffer a
physical injury or were within the zone of danger of physical
impact
can
recover
for
work-related
psychological
injury.
did
not
suffer
any
compensable
injury
under
the
LHWCA.
The Director
does
not
dispute
that
Jackson
can
recover
for
CMTs contention is
of
the
case
on
which
it
relies
so
heavily
Consolidated Rail.
The LHWCA plainly does not encompass such a limitation by
its
express
terms.
The
LHWCA
does
not
distinguish
between
have
easily
written
the
statute
To be sure, Congress
to
contain
such
& Dry Dock Co. v. Hall, 674 F.2d 248, 251 (4th Cir. 1982).
good reason.
established
For
concept
of
negligence.
Consolidated
The
16
compensation scheme. 3
courts
interpreting
902(2)
of
the
LHWCA
have
Dir., OWCP, 624 F.3d 926, 931 (9th Cir. 2009) (It is well
settled that a psychological impairment, which is work related,
is presumed to be compensable under the Act.
Therefore, to
at
9-10
([I]t
is
well
established
that
See,
work-
Moreover,
misplaced.
CMTs
reliance
on
Consolidated
Rail
is
wholly
Court
held
that
claims
for
negligent
infliction
of
believed
infinite
might
liability
otherwise
for
be
unpredictable
defendants,
id.
at
and
552,
nearly
the
Court
Id. at 554-55.
basis
of
an
employers
liability
under
FELA
is
its
Unlike the
statute at issue here, FELA does not make the employer the
insurer of the safety of his employees while they are on duty.
The basis of his liability is his negligence, not the fact that
injuries occur.
Co.,
329
U.S.
Consolidated
Rail
is
653
(1947)).
inapposite
to
18
Thus,
a
by
claim
its
for
terms,
workers
Because
we
are
not
free
to
engraft
on
the
statute
of
Dr.
Mansheim,
an
independent
medical
examiner
that
indicates
that
Congress
intended
to
give
the
U.S.C.
statute
as
907(e)
CMT
(emphasis
does,
we
added).
would
Were
nullify
the
we
to
second
read
clause
the
of
physician
if
party
19
is
dissatisfied
with
the
invitation
to
do
so,
as
the
We therefore decline
second
clause
clearly
Hinton, 243 F.3d 222 (5th Cir. 2001), CMT argued, an opinion of
a Department of Labor IME is entitled to great weight.
not
to
say
dispositive.
that
the
Department
of
Labor
IMEs
This is
opinion
is
Hinton, 243 F.3d 222 (5th Cir. 2001) (No. 00-60171), 2000 WL
34004373, at *46, with CMTs Br. at 40 (Dr. Mansheims opinion
should have been dispositive.
. . .
Fifth
Circuit
rejected
CMTs
argument,
holding
that
the
20
Dr.
Mansheims
Dr. Mansheims
opinion.
One
unsubstantiated
reason,
statement
among
that
the
many,
was
traumatic
would
not
meet
the
criteria
for
PTSD
because,
if
Jackson
qualified, then more than half the population would meet the
diagnosis, as that population has seen an image of a mangled
body.
The
population
ALJ
concluded
experience
that
raise
Dr.
concerns
Manshiems
that
his
J.A. 49.
estimates
report
is
on
not
Indeed.
expert
psychiatrist,
Dr.
21
Thrasher,
credible;
both
found
that
those
opinions
outweighed
Dr.
The ALJ
Mansheims
opinion that Jackson did not meet the criteria for a diagnosis
of
PTSD.
CMTs
arguments
on
appeal,
in
effect,
seek
V.
For the foregoing reasons, CMTs petition must be denied.
22