Ceres Marine Terminals, Inc. v. DOWCP
Filing
AMENDED OPINION filed amending and superseding opinion dated March 24, 2016. Originating case number: 14-0071,14-0071A . Copies to all parties. [15-1041]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1041
CERES MARINE TERMINALS, INC.,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; SAMUEL JACKSON,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(14-0071)
Argued:
December 8, 2015
Amended:
Decided:
March 24, 2016
January 27, 2017
Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.
Petition for review denied by published opinion. Judge Gregory
wrote the opinion, in which Judge Duncan and Judge Floyd joined.
ARGUED: Lawrence Philip Postol, SEYFARTH SHAW LLP, Washington,
D.C., for Petitioner.
Ira Michael Steingold, STEINGOLD &
MENDELSON, Suffolk, Virginia; Sarah Marie Hurley, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
ON
BRIEF: M. Patricia Smith, Solicitor of Labor, Rae Ellen James,
Associate Solicitor, Gary K. Stearman, Counsel for Appellate
Litigation, Mark A. Reinhalter, Counsel for Longshore, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent
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Director, Office of Workers’
States Department of Labor.
Compensation
2
Programs,
United
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GREGORY, Circuit Judge:
This
case
accident.
arises
Samuel
Terminals,
Inc.
P.
from
a
horribly
Jackson,
(“CMT”),
was
an
tragic
employee
operating
a
of
work-related
Ceres
forklift
Marine
when
accidently struck and killed his coworker, Paula Bellamy.
he
After
this event, Jackson, who was diagnosed with posttraumatic stress
disorder (“PTSD”), filed a claim with the Director of the Office
of
Workers’
disability
Compensation
benefits
under
Programs
the
(the
Longshore
“Director”)
and
Harbor
for
Workers’
Compensation Act (“LHWCA” or the “Act”), 33 U.S.C. § 901.
The
Administrative Law Judge (“ALJ”) reviewing the claim determined
that Jackson was entitled to benefits and the Benefits Review
Board (the “Board”) affirmed.
CMT
arguing
now
that
petitions
for
a
bringing
person
review
a
of
the
claim
Board’s
under
the
decision,
LHWCA
is
required to satisfy the “zone of danger” test outlined by the
Supreme
Court’s
decision
in
Consolidated
Gottshall, 512 U.S. 532 (1994).
Rail
Corp.
v.
“Under this test, a worker
within the zone of danger of physical impact will be able to
recover for emotional injury caused by fear of physical injury
to himself, whereas a worker outside the zone will not.”
U.S. at 556.
512
Had the Board adopted such a test, CMT asserts,
Jackson would have been precluded from any recovery under the
LHWCA because he was not in the zone of danger and thus did not
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suffer a compensable injury.
ALJ
erred
medical
in
failing
examiner,
to
In addition, CMT contends that the
give
appointed
dispositive weight.
Pg: 4 of 22
the
report
pursuant
to
of
33
an
independent
U.S.C.
§ 907(e),
We disagree on both points and therefore
deny the petition.
I.
A.
On
March
28,
2011,
Jackson,
employed
by
CMT
as
a
longshoreman, was operating a forklift on a pier in Portsmouth,
Virginia, when he accidently struck and killed Bellamy.
At the
time, Jackson was transporting barrels of container pins when he
veered the forklift to his left to avoid being struck by a
hustler truck that was backing up and carrying a forty foot
container.
When he veered, he hit Bellamy, a spotter, who had
her back towards him.
Jackson did not see Bellamy, and did not
realize he had hit her until another spotter “hollered at [him]
to let [him] know that [he] had just ran over . . . somebody.”
J.A.
61.
Jackson
immediately
got
off
his
forklift
to
help
extricate Bellamy who was almost completely pinned underneath
the forklift.
Another forklift driver drove over and, with his
machine, raised the back end of Jackson’s forklift.
Jackson and
others worked to free Bellamy from under his forklift.
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Once they were able to lift the forklift, it was apparent
that
Bellamy’s
condition
was
dire:
Jackson
testified
that
“[Bellamy] was bleeding from her mouth.
Her arm was burned and
pretty
63.
mangled,
hanging
off.”
J.A.
Jackson
further
testified that Bellamy’s leg was wrapped around the axle of the
forklift.
full
view
For about ten minutes, Bellamy’s condition was in
until
approximately
emergency
one
vehicles
arrived.
people
gathered
hundred
By
at
this
the
time,
scene,
including ambulance and fire truck personnel and CMT employees.
During the entire time that the first responders worked to save
Bellamy, Jackson stood ten to fifteen feet away, with a clear
view of her.
After the ambulance left for the hospital, Jackson spent
the rest of the day reporting the accident to the Portsmouth
Police
Department,
Virginia
International
Terminals
Police
Department, the Occupational Safety and Health Administration,
and
CMT
officials.
conversation
with
Jackson
Gregory
testified
Concepcion,
the
that
after
superintendent
his
for
CMT, he sought medical attention.
B.
Jackson saw several medical professionals for mental health
treatment
after
the
March
2011
accident.
Jackson
visited
Dr. Margaret Stiles, his primary care physician, on March 29,
2011, one day after the incident.
5
Dr. Stiles noted that Jackson
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was
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“acutely
extremely
treated him for PTSD.
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upset,
stressed,”
and
J.A. 351, 354, 360.
diagnosed
and
At and around this
time, Dr. Stiles recommended that Jackson not return to work
because of his condition.
On April 6, 2011, Dr. Stiles referred
Jackson to Gregory Griffin, a licensed clinical social worker,
for counseling.
Griffin recommended brief supportive crisis-
debriefing counseling and that Jackson not return to work for
four to six weeks.
Griffin diagnosed Jackson with an adjustment
reaction with depressed mood.
After Jackson’s family noticed “dramatic changes” in his
behavior,
they
collectively
Dr. Norbert Newfield.
psychologist,
Dr. Newfield
“persuade[d]”
J.A. 286-87.
first
evaluated
found
that
to
see
Dr. Newfield, a clinical
Jackson
Jackson
Jackson
on
July
11,
2011.
suffered
from
PTSD
with
significant levels of anxiety and depression resulting from the
work-related accident.
Over the course of his treatment – from
mid-2011 through 2013 – Dr. Newfield usually saw Jackson on a
weekly basis, sometimes twice a week.
almost
Jackson
levels
a
year
was
of
after
still
guilt,
the
accident,
experiencing
shame,
and
Dr.
extremely
grief
6
On February 20, 2012,
that
Newfield
bad
noted
nightmares
prevented
him
that
and
from
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returning to work.
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Dr. Newfield monitored Jackson for suicide
as well. 1
Dr.
Patrick
conducted
an
September
14,
Thrasher,
independent
2011,
and
a
psychiatrist
medical
retained
examination
reviewed
Jackson’s
of
by
CMT,
Jackson
medical
on
records.
Dr. Thrasher diagnosed Jackson with PTSD and major depression,
and he concluded that these diagnoses were causally related to
the work accident.
Jackson’s
returning
aggressive
Dr. Thrasher stated that the severity of
depression
to
work.
and
Dr.
psychiatric
PTSD
rendered
Thrasher
treatment
further
and
him
incapable
stated
that
psychotherapy,
of
with
Jackson
might be able to return to work within six to twelve months.
After
reviewing
updated
medical
records,
Dr.
Thrasher,
on
February 12, 2012, noted that Jackson was undermedicated, and
recommended a more aggressive psychotropic treatment targeting
Jackson’s depressive symptoms and sleep disturbance.
Based
on
Dr.
Thrasher’s
recommendation
that
Jackson
was
undermedicated, CMT requested, pursuant to 33 U.S.C. § 907(e),
an independent medical examination to determine if Jackson was
1
Dr.
Newfield
referred
Jackson
to
a
psychiatrist,
Dr. Deborah
Giorgi-Guarnieri.
Dr.
Giorgi-Guarnieri
began
treating Jackson on November 14, 2011.
Dr. Giorgi-Guarnieri’s
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.
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receiving proper medical care.
Office
of
Workers’
psychiatrist
Dr.
examination.
In light of this request, the
Compensation
Paul
Mansheim
Programs
for
an
referred
Jackson
independent
to
medical
Dr. Mansheim evaluated Jackson on November 15,
2012, and reviewed Jackson’s medical records, as well as the
results of a standardized personality assessment inventory test.
In his December 8, 2012 report, Dr. Mansheim stated that the
diagnoses suggested by the personality assessment inventory test
were
extremely
broad
and
suggested
major depressive disorder.
the
[PTSD]
threat
diagnosis”
to
accident.
himself”
J.A. 154.
schizophrenia,
and
Dr. Mansheim, however, “rule[d] out
because
and
PTSD,
Jackson
“was
never
“did
in
not
experience
danger”
during
a
the
Dr. Mansheim further opined that Jackson
demonstrated “significant evidence of malingering, attempting to
appear
more
Dr. Mansheim
ill
than
concluded
is
actually
that
the
case.”
Jackson
was
able
to
J.A.
work
155.
as
a
longshoremen.
After
reviewing
Dr.
Mansheim’s
report,
CMT
–
who
had
voluntarily paid Jackson temporary total disability benefits –
terminated its payments on December 17, 2012.
C.
Jackson filed a claim for disability benefits under the
LHWCA, alleging that he suffered from PTSD as a result of the
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work-related incident. 2
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CMT disputed the claim, arguing that
Jackson was not entitled to compensation under the LHWCA for a
psychological
injury
because
he
did
not
sustain
a
physical
injury or was placed in immediate risk of physical injury by the
incident.
In
danger.
CMT
other
words,
further
Jackson
contended
was
that
not
in
the
the
ALJ
zone
should
of
give
dispositive weight to Dr. Manshiem’s conclusion that Jackson did
not suffer from PTSD.
In his November 13, 2013 decision, the ALJ rejected CMT’s
“contention
that
a
claimant
cannot
recover
for
psychological
injury unless he sustains a physical injury or is placed in
immediate
risk
of
harm.”
J.A.
44.
The
ALJ
held
that
“[l]ongshore case law has established that a claimant can obtain
benefits for a work-related psychological injury,” and declined
“to carve out a negligence law based exception whereby claimants
are
not
entitled
to
benefits
if
2
they
are
emotionally
harmed
In addition to filing a claim under the LHWCA, Jackson
filed
a
claim
with
the
Virginia
Workers’
Compensation
Commission.
The commission denied Jackson’s claim for medical
benefits and compensation, holding that Jackson was not in the
zone of danger.
See Jackson v. Ceres Marine Terminals, Inc.,
769 S.E.2d 276, 277 (Va. Ct. App. 2015).
The Court of Appeals
of Virginia reversed, declining to adopt a zone of danger test
under Virginia law.
The court held that “psychological injury
must be causally related to either a physical injury or an
obvious sudden shock or fright arising in the course of
employment, without a specific requirement that the claimant be
placed at risk of harm.”
Id. at 280.
The court remanded the
case back to the commission to apply the correct legal standard.
That case is currently pending.
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without
being
physically
harmed
or
threatened
with
physical
harm.”
Id.
Addressing the medical evidence, the ALJ first
refused, as contrary to Board precedent, to accord dispositive
weight to Dr. Manshiem’s opinion.
After weighing the evidence,
the ALJ found that Jackson suffered from PTSD which was causally
related to the March 28, 2011, work incident.
The ALJ concluded
that, because Jackson “is suffering from work-accident related
PTSD,” he was entitled to temporary total disability benefits
and medical benefits under the LHWCA.
Id. at 50.
CMT appealed, raising the same arguments to the Board.
its
November
25,
2014
opinion,
the
Board
rejected
In
CMT’s
contention that the zone-of-danger test precluded Jackson from
recovery in this case.
is
a
“tort
concept
The zone-of-danger test, the Board held,
which
does
not
apply
to
compensation provisions of the Longshore Act.”
Board
stated
critical
between
that
CMT’s
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
negligence principles, and worker’s compensation claims, which
are
not
governed
established,
the
by
those
Board
principles.”
concluded,
“that
Id.
a
It
is
well
work-related
psychological impairment, with or without an underlying physical
harm, may be compensable under the Act.”
10
Id. at 9-10.
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In
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addition,
Dr. Mansheim’s
the
Board
opinion
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rejected
should
be
CMT’s
given
contention
dispositive
that
weight,
holding that Dr. Mansheim’s opinion “should be weighed along
with the other medical opinions in the record.”
Because
the
ALJ
properly
weighed
the
evidence,
Id. at 12.
the
Board
affirmed the ALJ’s finding that Jackson sustained a compensable
work-related injury.
II.
CMT has petitioned this Court for review, and we possess
jurisdiction pursuant to 33 U.S.C. § 921(c).
In reviewing the
Board’s decision, we must determine “whether the Board observed
its
statutorily-mandated
factual findings.”
Stallings,
250
standard
for
reviewing
the
ALJ’s
Newport News Shipbldg. & Dry Dock Co. v.
F.3d
868,
871
quotations and citations omitted).
(4th
Cir.
2001)
(internal
We are also guided by the
principle that an ALJ’s factual findings “shall be conclusive if
supported by substantial evidence in the record considered as a
whole.”
33 U.S.C. § 921(b)(3).
Substantial evidence requires
“more than a scintilla but less than a preponderance.”
Norfolk
Shipbldg. & Drydock Co. v. Faulk, 228 F.3d 378, 380–81 (4th Cir.
2000).
Further, an ALJ’s findings “may not be disregarded on
the basis that other inferences might have been more reasonable.
Deference
must
be
given
the
fact-finder’s
11
. . .
credibility
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assessments, and . . . the scope of review of ALJ findings is
limited.”
Newport News Shipbldg. & Dry Dock Co. v. Tann, 841
F.2d 540, 543 (4th Cir. 1988).
In reviewing legal issues, the
Board’s “adjudicatory interpretation of the LHWCA is entitled to
no special deference, and is subject to our independent review.
However,
a
reasonable
Director
should
be
interpretation
respected.”
of
the
Stallings,
LHWCA
250
F.3d
by
the
at
871
(internal quotations and citations omitted).
III.
The
LHWCA
compensation
light
of
statute
the
compensation
was
enacted
for
Supreme
statutes
to
create
longshoremen
Court’s
and
decision
constitutionally
injured maritime workers.
compensation
federal
harbor
that
could
workers’
workers,
state
not
in
workers’
apply
to
See Nogueira v. N.Y., New Haven &
Hartford R. Co., 281 U.S. 128 (1930).
workers’
a
legislation,
between employer and employee.
The LHWCA, like most
represents
a
compromise
“Consistent with the central
bargain of workers’ compensation regimes - limited liability for
employers; certain, prompt recovery for employees - the LHWCA
requires that employers pay benefits voluntarily, without formal
administrative proceedings.”
Roberts v. Sea-Land Servs., Inc.,
132 S. Ct. 1350, 1354 (2012).
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In other words, the LHWCA strikes a balance between the
competing interests of injured workers and their employers in
which the certainty of benefits is exchanged for tort immunity.
See Morrison-Knudsen Constr. Co. v. Dir., OWCP, 461 U.S. 624,
636 (1983); Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S. 268,
281-82 & n.24 (1980).
The LHWCA, therefore, “imposes liability
without fault and precludes the assertion of various common-law
defenses . . . .”
Potomac Elec. Power Co., 449 U.S. at 281; see
also
§ 904(b)
33
U.S.C.
(“Compensation
shall
be
payable
irrespective of fault as a cause for the injury.”).
To be entitled to benefits under the LHWCA, a claimant must
have sustained an injury within the meaning of the Act.
See 33
U.S.C. § 903(a) (“Compensation shall be payable under this [Act]
in respect of disability . . . of an employee, but only if the
disability
. . .
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
disability or death results from an injury occurring upon the
navigable waters of the United States”).
Section 902(2) of 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
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results from such accidental injury, and
includes an injury caused by the willful act
of a third person directed against an
employee because of his employment.
33 U.S.C. § 902(2).
Injuries are presumed to be work related under 33 U.S.C.
§ 920 after the claimant establishes a prima facie case that the
injury not only was caused by the employment, but that it also
arose during employment.
See U.S. Indus. Fed. Sheet Metal, Inc.
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
invoked, the burden shifts to the employer to rebut it through
facts
-
not
related.”
mere
speculation
-
that
the
harm
was
not
work
Conoco, Inc. v. Dir., OWCP, 194 F.3d 684, 687-88 (5th
Cir. 1999).
“If the ALJ finds that the employer rebutted the
presumption, then the ALJ must weigh all of the evidence to
determine
whether
employment.”
the
harm
was
caused
by
the
claimant’s
Ramsey Scarlett & Co. v. Dir., OWCP, 806 F.3d 327,
331 (5th Cir. 2015).
IV.
In
its
arguments.
petition
for
review,
CMT
makes
two
primary
First, CMT argues that Jackson did not suffer a
compensable injury within the meaning of the LHWCA because he
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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
a
work-related
psychological
injury.
Because Jackson was outside of the zone of danger, CMT asserts,
he
did
not
suffer
any
compensable
injury
under
the
LHWCA.
Second, CMT contends that the ALJ committed error by failing to
give Dr. Mansheim’s opinion dispositive weight.
The Director
maintains, on the other hand, that it is well established that
psychological injuries – with or without physical injury or the
threat of physical injury – are compensable under the LHWCA.
The Director further contends that Dr. Mansheim’s opinion was
not entitled to dispositive weight and is not binding on the
factfinder.
For the reasons explained below, we agree with the
Director on both issues.
A.
CMT
does
not
dispute
that
Jackson
psychological injury under the LHWCA.
can
recover
for
a
Rather, CMT contends that
Jackson cannot, under the LHWCA, recover for a psychological
injury unless he sustains a physical injury or was placed in
immediate risk of physical harm.
In support of this argument,
CMT relies exclusively on the zone-of-danger test set forth by
the Supreme Court in Consolidated Rail – a case that did not
involve the statute at issue in this case.
CMT’s contention is
not only inconsistent with the statute’s text, the structure of
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the statute, and precedent but is also contradicted by the very
reasoning
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
psychological and physical injuries – the statute simply says
“injury.”
See 33 U.S.C. § 902(2) (defining “injury,” without
limitation, as any “accidental injury or death arising out of
and in the course of employment”).
Nowhere in the statute is
there a requirement that psychological injuries be accompanied
by actual or threatened physical harm.
could
have
easily
written
the
statute
requirement, but it did not.
To be sure, Congress
to
contain
such
a
We therefore refuse to “amend
[the] statute under the guise of statutory interpretation, a
task we are not at liberty to perform.”
Newport News Shipbldg.
& Dry Dock Co. v. Hall, 674 F.2d 248, 251 (4th Cir. 1982).
good reason.
established
For
The zone-of-danger test is, after all, a “wellcommon-law
concept
of
negligence.”
Consolidated
Rail, 512 U.S. at 555 (quotations and alterations omitted).
The
rules of the common law for tort actions, however, generally do
not apply to cases arising under LHWCA – a “no-fault workers
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compensation scheme.” 3
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See Newport News Shipbldg. and Dry Dock
Co. v. Brown, 376 F.3d 245, 249 (4th Cir. 2004).
Further,
courts
interpreting
§ 902(2)
of
the
LHWCA
have
held that claimants can recover for a work-related psychological
injury, and have never mandated actual or threatened physical
harm to be a prerequisite for coverage.
See, e.g., Pedroza v.
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
receive the benefit of this § 920(a) presumption, the claimant
must prove not only that he has a psychological impairment, but
that an accident occurred, or working conditions existed, which
could have caused the impairment.” (citation omitted)); Dir.,
OWCP v. Potomac Elec. Power Co., 607 F.2d 1378, 1385 (D.C. Cir.
1979); Am. Nat’l Red Cross v. Hagen, 327 F.2d 559, 561 (7th Cir.
1964).
e.g.,
Nor has the Board endorsed such a limitation.
J.A.
at
9-10
(“[I]t
is
well
established
that
a
See,
work-
related psychological impairment, with or without an underlying
physical harm, may be compensable under the Act.”).
3
We recognize that, under certain limited circumstances,
the longshore worker may seek damages in a statutory negligence
action from the owner of the vessel on which he was injured
under 33 U.S.C. § 905(b).
This case does not present such
circumstances.
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Moreover,
misplaced.
CMT’s
reliance
Pg: 18 of 22
on
Consolidated
Rail
is
wholly
In Consolidated Rail, a case in which a railroad
worker experienced severe psychiatric problems after witnessing
the death of a fellow worker while on the job and was required
to continue working within sight of the coworker’s body, the
Supreme
Court
held
that
claims
for
negligent
infliction
of
emotional distress are cognizable under the Federal Employers’
Liability Act (“FELA”).
it
believed
infinite
might
liability
512 U.S. at 550.
otherwise
for
be
But to curtail what
“unpredictable
defendants,”
id.
at
and
552,
nearly
the
Court
adopted the zone-of-danger test developed as common law in many
jurisdictions.
Id. at 554-55.
The Court expressly stated that
FELA was not a workers’ compensation statute and emphasized that
the
basis
of
an
employer’s
liability
under
FELA
negligence, which turns on common-law principles.
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
Id. at 543 (quoting Ellis v. Union Pac. R.
649,
Rail
is
653
(1947)).
inapposite
to
compensation benefits under the LHWCA.
18
Thus,
a
by
claim
its
for
terms,
workers’
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Because
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we
are
not
Pg: 19 of 22
free
to
engraft
on
the
statute
a
requirement that Congress did not place there, we decline to
adopt the zone-of-danger test.
B.
CMT next contends that the ALJ erred in failing to give the
report
of
Dr.
Mansheim,
an
independent
medical
examiner
appointed pursuant to 33 U.S.C. § 907(e), dispositive weight.
We disagree, as there is nothing in the plain language of the
statute
that
indicates
that
Congress
intended
to
give
the
opinion of an independent medical examiner dispositive weight or
to make the examiner’s opinion binding on the parties.
Section 7(e) provides in part,
In the event that medical questions are
raised in any case, the Secretary shall have
the power to cause the employee to be
examined by a physician employed or selected
by the Secretary and to obtain from such
physician a report containing his estimate
of the employee’s physical impairment and
such
other
information
as
may
be
appropriate.
Any party who is dissatisfied
with such report may request a review or
reexamination of the employee by one or more
different physicians employed or selected by
the Secretary.
The Secretary shall order
such review or reexamination unless he finds
that it is clearly unwarranted.
33
U.S.C.
statute
as
§ 907(e)
CMT
(emphasis
does,
we
added).
would
Were
nullify
the
we
to
second
read
clause
the
of
§ 907(e), which provides the opportunity for further review by
another
physician
if
a
party
19
is
dissatisfied
with
the
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Pg: 20 of 22
independent medical examiner’s opinion.
CMT’s
invitation
to
do
so,
as
the
We therefore decline
second
clause
clearly
indicates that the independent medical examiner’s opinion is not
binding on the ALJ or the parties.
Rather, the independent
medical examiner’s opinion must be weighed along with the other
medical opinions of record, as the Board has repeatedly held.
See Cotton v. Newport News Shipbldg. & Dry Dock Co., 23 B.R.B.S.
380, 387 (1990); Shell v. Teledyne Movible Offshore, Inc., 14
B.R.B.S. 585 (1984).
Our interpretation of this provision is not only consistent
with other circuits but is also consistent with the position
advanced by CMT in a separate case.
In Ceres Marine Terminal v.
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
IME’s
This is
opinion
is
Compare Br. of Pet., Ceres Marine Terminal v.
Hinton, 243 F.3d 222 (5th Cir. 2001) (No. 00-60171), 2000 WL
34004373, at *46, with CMT’s Br. at 40 (“Dr. Mansheim’s opinion
should have been dispositive.
. . .
Indeed, isn’t the whole
purpose of a section 7(e) evaluation to resolve the case?”).
The
Fifth
Circuit
rejected
CMT’s
argument,
holding
that
the
ALJ’s conclusions – after weighing all the medical evidence,
including the independent medical examiner’s report - must only
20
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Pg: 21 of 22
be “supported by substantial evidence in the record as a whole.”
Hinton, 243 F.3d at 225.
CMT further argued in Hinton that if the ALJ “is going to
reject the Department of Labor IME’s opinion, the [ALJ] needs a
very good reason for doing so.”
34004373 at *46.
Br. of Pet., Hinton, 2000 WL
Here, CMT should take solace in the fact that
the ALJ provided several “good reason[s]” in giving less weight
to
Dr.
Mansheim’s
Dr. Mansheim’s
opinion.
One
unsubstantiated
reason,
statement
among
that
the
many,
was
traumatic
event experienced by Jackson – the prime actor in this incident
–
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
well-reasoned and well-documented.”
Manshiem’s
that
his
J.A. 49.
estimates
report
is
on
not
Indeed.
Because the statute clearly does not contemplate an ALJ
giving dispositive weight to an independent medical examiner’s
opinion, we decline to “amend [the] statute under the guise of
statutory interpretation.”
Hall, 674 F.2d at 251.
C.
In weighing the evidence as a whole, the ALJ found the
opinions of Jackson’s treating psychologist, Dr. Newfield, and
CMT’s
expert
psychiatrist,
Dr.
21
Thrasher,
credible;
both
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physicians diagnosed Jackson with PTSD and concluded that this
diagnosis was causally related to the work accident.
further
found
that
those
opinions
outweighed
Dr.
The ALJ
Mansheim’s
opinion that Jackson did not meet the criteria for a diagnosis
of
PTSD.
CMT’s
arguments
on
appeal,
in
effect,
seek
a
reweighing of the evidence, which we are not empowered to do.
Thus, the ALJ’s conclusion that Jackson suffered a work-related
psychological injury is amply supported by substantial evidence
when the record is considered as a whole.
V.
For the foregoing reasons, CMT’s petition must be denied.
PETITION FOR REVIEW DENIED
22
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