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Howell Gives Presentation to National Workers’ Compensation Conference

On March 16, 2018, Paul B. Howell gave a presentation at the Loyola University Annual Longshore and Harbor Workers’ Compensation Act Conference in New Orleans, Louisiana. This Act applies to maritime workers who are injured in the course and scope of their employment on the waterfront. Mr. Howell spoke on the issue of whether the § 20 presumption that maritime claims are compensable applies to secondary injuries. For example, in a claim for a knee injury, does the presumption apply to the subsequent development of a back condition due to limping from the knee condition. He spoke on behalf of employers and the defense bar while Virginia L. LoCoco of LoCoco & LoCoco, PLLC, in D’Iberville, Mississippi, spoke on behalf of injured workers and the plaintiffs’ bar.

Mr. Howell’s presentation noted that there is a conflict between the Fourth and Fifth Circuits as to whether the presumption applies to secondary injuries. In Amerada Hess v. Director, OWCP, 543 F.3d 755 (5th Cir. 2008), the Fifth Circuit found in a split decision that the presumption does not apply to a series of heart attacks in a claim for a back injury. Likewise, in Ins. Co. of the State of Pennsylvania v. Director, OWCP, the Fifth Circuit found that in a claim for a left arm injury, the Claimant was not entitled to a presumption that a subsequent autoimmune disorder was work related. However, the Fourth Circuit found in Metro Machine Corp. v. Director, OWCP, 846 F.3d 680 (4th Cir. 2017), that the presumption does apply to a vertebrae fracture due to coughing in a claim for work-related chronic obstructive pulmonary disease.

Mr. Howell noted that this conflict in the circuits will probably have to be resolved by the U.S. Supreme Court. He further noted that while the Fourth Circuit precedent makes some valid points, it does not distinguish a U.S. Supreme Court case that seems entirely on point and which is the basis for both Fifth Circuit decisions. That case, U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608 (1982), held that the presumption only applies to a claim for an “injury”. Since the definition of “injury” requires that it arise out of and in the course of employment, then the presumption does not apply to an attack of neck pain at home in bed. The Fifth Circuit has followed U.S. Industries and similarly reasoned that the heart attack at home in Amerada Hess and the development of an autoimmune disorder at home in Ins. Co. of the State of Pennsylvania, could not be considered injuries to which the § 20 presumption of compensability would apply since they did not occur during the course of employment.

Finally, Mr. Howell noted that although there are some conflicts between the Fourth and Fifth Circuit, both circuits are unanimous in concluding that the presumption of compensability only applies to the claim that is made.