Lamon v. A-Z Corporation, BRB published case number 11-0322, December 2011.
Although only one issue came up on appeal, there was another point made by the employer at the ALJ level that is of interest.
Lamon suffers from COPD. This condition was said by the doctors to be caused by his smoking. Lamon, however, claimed that he suffered disabling exacerbations when working at a shipyard, caused by the conditions at the shipyard. He claimed against Electric Boat, and against A-Z Corporation, who was his last employer. When he worked for A-Z he was working for them at the Electric Boat shipyard.
A-Z accepted that they were the last employer. They claimed, however, that the claimant was not a maritime employee, since his employment at Electric Boat, (the only maritime situs), was too episodic to invoke the cover under the Longshore Act. The ALJ held that the work was sufficient for LHWCA purposes; and that therefore A-Z was the last maritime employer to expose him to injurious stimuli. This decision was not appealed. There is no doubt that there were injurious stimuli. But suppose that (a) A-Z is a maritime employer, because other workers were working under LHWCA, and that (b) nonetheless the claimant is not a maritime employee. In that case, A-Z might be liable for state workers’ compensation benefits, but not LHWCA benefits. Does this combination render A-Z the last maritime employer, and therefore shield Electric Boat, who would otherwise be the last maritime employer to expose the claimant while he was in maritime employment?
A-Z Corporation appealed the ALJ’s award of benefits. A-Z claimed that (a) the claimant’s total disability was due only to his COPD caused by smoking and (b) that any temporary exacerbations in the past were not sufficient to invoke the §20(a) presumption relating to his current disability.
The BRB, looking at the established case law, agreed with the claimant that under the aggravation rule, where an employment-related injury aggravates, accelerates or combines with an underlying condition, employer is liable for the entire resultant disability, and that a claimant is entitled to benefits where his work-related condition subsides when he is removed from work, but would recur if he were to return to work. The ALJ had, based on the medical evidence, correctly found that there were conditions at work that could have exacerbated or aggravated his underlying condition; and that if he returned to the workplace, he would likely have another “flare-up”. Neither physician opined that work place exposure could not have aggravated the COPD, and indeed confirmed that it did, A-Z had not rebutted the presumption. Employer argues that since the doctors opined that workplace exposures played no permanent role with respect to claimant’s totally disabling COPD, which they each tied exclusively to his cigarette use, claimant did not establish a nexus between his temporary work-related exacerbation and his subsequent total disability. However, the BRB found, substantial evidence supported the ALJ’s finding that the claimant was totally disabled due to the work-related aggravation of his symptoms. Even if the underlying disease is not permanently worsened by the exposures, a likely exacerbation will support an award of total disability. The doctors confirmed that Mr. Lamon should not return to a workplace with irritants, and no evidence of other suitable employment had been presented. Accordingly, the ALJ’s award of benefits was upheld.
The award was for temporary total disability and for medical care. It will be interesting to see who seeks modification of the award, and on what grounds.
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