Sabanosh v. Navy Exchange Service Command/Nexcom
| Decision Date | 25 June 2020 |
| Docket Number | BRB 20-0019 |
| Court | Longshore Complaints Court of Appeals |
| Parties | LARA M. SABANOSH (Widow of CHRISTOPHER M. TUR) Claimant-Respondent v. NAVY EXCHANGE SERVICE COMMAND/NEXCOM Self-Insured Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
Appeal of the Decision and Order and the Order on Motion for Reconsideration and Erratum of J. Alick Henderson Administrative Law Judge, United States Department of Labor.
Lara D. Merrigan (Merrigan Legal), San Rafael, California, and David C. Barnett (Barnett, Lerner, Karsen & Frankel, PA) Fort Lauderdale, Florida, for claimant.
R John Barrett and Megan B. Caramore (Vandeventer Black L.L.P.), Norfolk, Virginia, for self-insured employer.
Matthew W. Boyle (Kate S. O'Scannlain, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: ROLFE, GRESH and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order and the Order on Motion for Reconsideration and Erratum (2018-LHC-00874) of Administrative Law Judge J. Alick Henderson rendered on a claim filed pursuant to the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq., (the Act), as extended by the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §8171 et seq. (the NFIA). We must affirm the administrative law judge's findings of fact and conclusions of law if they are rational supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Claimant sought benefits under the Act alleging the death of her husband, Christopher M. Tur (decedent), was causally related to his work as the Loss Prevention and Safety Manager for the employer's Base Exchange, a NFIA entity, at Naval Station Guantanamo Bay, Cuba. At the time of his death, decedent was engaged in a 24 month "tour of duty." Decedent's job required him and his family to live on base. Decedent and his family were encouraged but not required to participate in numerous on-base community events the Morale, Welfare, and Recreation (MWR) division of the base organized.
On the evening of January 9, 2015, decedent and claimant attended a "Hail and Farewell" party at the base's Officer's Club to honor both the outgoing and incoming executive officers. At the party, a verbal altercation arose between decedent, his wife, and Captain John R. Nettleton, the base commander, when decedent accused his wife and Captain Nettleton of having an extramarital affair. The two men subsequently left the gathering and did not return. Later that night, decedent appeared at Captain Nettleton's residence and a physical altercation between them ensued. Decedent never returned home.
A search commenced the next day and decedent's body was recovered from the Atlantic Ocean on January 11, 2015. Two autopsies were performed: Dr. Christopher Gordon listed decedent's cause of death as "probable drowning in the setting of ethanol and fluoxetine [an ingredient in Prozac] toxicity," EX 2; Dr. Zhongxue Hua listed it as "drowning with recent blunt injuries (circumstances unknown)," with "recent alcohol and Prozac intoxication" as contributing causes, EX 3.
Claimant filed a Claim for Compensation by Widow under the Federal Employees' Compensation Act, 5 U.S.C. §8101, on December 26, 2017, EX 8, which was denied on February 22, 2018, due to lack of jurisdiction. EX 8. Employer responded to claimant's December 26, 2017 claim by filing a First Report of Injury and Notice of Controversion under the Act on January 31 and February 1, 2018, respectively. EX 9. On
February 12, 2018, claimant and her two children with decedent, both full-time students under the age of 23, filed a claim for death benefits under the Act. 33 U.S.C. §909; EXs 10, 12, 14.
The administrative law judge found claimant's claim for death benefits timely filed and covered under the NFIA. He found the circumstances of decedent's employment placed him within a "zone of special danger" out of which his death arose, and claimant's claim compensable under the Act. The administrative law judge therefore awarded death benefits to claimant and her daughters in accordance with Sections 9(b) and (c) of the Act, 33 U.S.C. §909(b), (c). Order on Recon and Erratum at 1.
On appeal, employer challenges the administrative law judge's conclusion the claim is timely filed and his application of the "zone of special danger" doctrine to find decedent's death arose out of his employment.[1] Claimant and the Director, Office of Workers' Compensation Programs (the Director), both respond, urging affirmance of the administrative law judge's decision. Employer filed a reply brief.
Employer argues the administrative law judge erred in finding claimant's claim timely under Section 13(a), 33 U.S.C. §913(a), because it was filed on December 26, 2017, more than one year after decedent's January 11, 2015 death. Notwithstanding its failure to file a Section 30(a) report, 33 U.S.C. §930(a), employer contends it rebutted the Section 20(b) presumption, 33 U.S.C. §920(b), that claimant's claim was timely filed by presenting substantial evidence it had no knowledge of the work-relatedness of decedent's death until after claimant filed her claim. Employer further contends the administrative law judge's finding that its knowledge of the employee's death at Guantanamo, alone, triggered the Section 30(a) reporting requirement is not in accordance with established precedent providing an employer is not required to file a Section 30(a) report until it is aware of the work-relatedness of an employee's injury or death.
Section 13(a) applies in traumatic death cases and provides the right to compensation is barred unless a claim is filed within one year of the date the claimant becomes aware, or in the exercise of reasonable diligence should have been aware, of the relationship between the death and the employment. 33 U.S.C. §913(a);[2] Brown v. Jacksonville Shipyards, Inc., 893 F.2d 294, 23 BRBS 22(CRT) (11th Cir. 1990). In the absence of contrary substantial evidence it is presumed, pursuant to Section 20(b) of the Act, [3] the claim was timely filed. See Blanding v. Director, OWCP, 186 F.3d 232, 33 BRBS 114(CRT) (2d Cir. 1999). In order to rebut the Section 20(b) presumption, an employer must establish either the claimant gained "awareness" of the work-relatedness of the death before employer did and that the proscriptive period has expired, or the employer complied with the requirements of Section 30(a) by filing a first report of injury or death.[4] See Bustillo v. Southwest Marine, Inc., 33 BRBS 15 (1999); 20 C.F.R. §§702.201-702.205. Section 30(f), 33 U.S.C. §930(f), [5] provides that where an employer has been given notice or has knowledge of the death and fails to file the Section 30(a) report, the statute of limitations does not begin to run until the report is filed. Blanding, 186 F.3d 232, 33 BRBS 114(CRT); 20 C.F.R. §§702.201-702.202; Ryan v. Alaska Constructors, Inc., 24 BRBS 65 (1990); Aurelio v. Louisiana Stevedores, Inc., 22 BRBS 418 (1989), aff'd, 924 F.2d 105 (5th Cir. 1991) (table). Thus, for Section 30(a) to apply, the employer or its agent must have notice of the injury or death, or knowledge of the injury or death and its work-relatedness; the employer may overcome the Section 20(b) presumption by providing substantial evidence that it never gained knowledge or received notice of the injury or death for Section 30 purposes. See Blanding, 186 F.3d 232, 33 BRBS 114(CRT); Bustillo, 33 BRBS 15. Knowledge of the work-relatedness of an injury or death may be imputed where the employer knows of the injury or death and has facts that would lead a reasonable person to conclude compensation liability is possible and further investigation is warranted. Stark v. Washington Star Co., 833 F.2d 1025, 20 BRBS 40(CRT) (D.C. Cir. 1987).
The administrative law judge found employer had knowledge of decedent's death as early as January 12, 2015, but did not file a First Report of Injury until January 31, 2018. He then addressed whether and when employer had sufficient knowledge of the possible work-relatedness of decedent's death. The administrative law judge determined the "ambiguous circumstances" surrounding decedent's death "on a restricted, isolated island base" should have "led a reasonable man to conclude that compensation liability is at least possible." Decision and Order at 6.
This finding is within the administrative law judge's discretion. See Hullinghorst Industries, Inc. v Carroll, 650 F.2d 750, 759-760, 14 BRBS 373, 380 (5th Cir. 1981), cert. denied, 454 U.S. 1163 (1982) (administrative law judge is entitled to draw "the inferences he deems most reasonable in light of the evidence as a whole and the common sense of the situation"). Decedent had arguments and a physical altercation with the base commander, commencing at a base social event, on the night he disappeared. Additionally, at least part of decedent's alcohol consumption occurred at the Hail and Farewell party - a social event with a connection to decedent's job. Moreover, decedent's death prompted a contemporaneous investigation by the United States Navy. See EX 5. Thus, the administrative law judge reasonably found employer had adequate knowledge of the possible work-relatedness of decedent's death to warrant further investigation and to require the filing of a Section 30(a) report.[6] Steed v. Container Stevedoring Co., 25 BRBS 210 (1991); Kulick v. Continental Baking Corp.,...
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