Supplemental Appendix — Bazor v. Boomtown Belle Casino

Supreme Court of the United States

JERRY KATE BAZOR, Widow of BEN BAZOR,

Petitioner,

BOOMTOWN BELLE CASINO and LOUISIANA WORKERS’

COMPENSATION CORP.,

Respondents.

On Petirvion FoR A Writ oF CERTIORARI TO THE

Unrrep States Court OF APPEALS FOR THE FIFTH CIRCUIT

” SOytiSmmmete ALPLNP.

S U galme€ (rel a Ppotnde/

. Lloyd N. Frischhertz

- Counsel of Record

Frischhertz & Associates

1130 St. Charles Avenue

New Orleans, LA 70130

(504) 523-1500

Attorney for Petitioner

Curry & Tav.or ¢ (202) 393-4141 ¢ HTTeY/UsSsCINFO.cOoM

—

35a

CASE NO.:1999-LHC-1198

OWCP NO.: 07-135183 q

IN THE MATTER OF

JERRY KATE BAZOR,

Widow of BEN BAZOR

Claimant

V.

BOOMTOWN BELLE CASINO

Employer

and

LOUISIANA WORKERS’ COMPENSATION CORP.

Carrier

and

GREAT WEST LIFE & ANNUITY

INSURANCE CO.,

Intervener

APPEARANCES:

Marcus J. Poulliard, Esq.

For the Claimant

David K. Johnson, Esq.

For Employer/Carrier

Elizabeth S. Wheeler, Esq.

For Intervener

BEFORE: Clement J. Kennington Administrative Law

Judge

36a

DECISION AND ORDER AWARDING BENEFITS

This is a claim for benefits under the Longshore and

Harbor Workers’ Compensation Act (the Act), 33 U.S.C.

§ 901, et. seq., brought by Jerry Kate Bazor, widow of

Ben Bazor (Claimant) against Boomtown Belle Casino

(Employer) and Louisiana Worker’s Compensation

Corporation (Carrier). The issues raised by the parties

could not be resolved administratively, and the matter

was referred to the Office of Administrative Law Judges

for a formal hearing. The hearing was held in New

Orleans, Louisiana on January 26, 2000.

At the hearing all parties were afforded the opportunity

to adduce testimony, offer documentary evidence, and

submit post-bearing briefs in support of their positions.

Testifying on behalf of Claimant were Delores Bazor

McNutt, Delaina Bazor Moreau, Quincy Wade Moreau

_ and Jerry K. . Smith Moreau. Claimant introduced 23

exhibits including: Claimant’s wage and tax returns for

1990 through 1994; newspaper articles concerning

Employer; photographs of the dock/tent area where

Claimant Worked; discovery responses; Claimant’s

medical records from West Jefferson Hospital; an

ambulance run sheet; Claimant’s death certificate and

funeral expenses; Claimant’s marriage license; and

depositions from Robert Creighton, Reynold Gaspard,

John Dicken, Russell Chatelain, Dr. C.B. Scrignar, Peter

Banks, Somtop Pichakron and Dr. David C. Tong.fn1

Employer called Russell Chatelain, Robert A. Creighton,

Reynold J. Gaspard and Shannon Williams Blue and

introduced the following 3 exhibits: from LS-203

(Claimant’s Claim for Compensation) dated November

28, 1994: Claimant’s payroll, personnel and wage

information with Employer and medical records of

Claimant from West Jefferson Hospital. Intervenor

37a

introduced 53 exhibits including: Employer's health and

welfare plan, service agreement between Intervenor and

the plan; itemized statement of expenses for Claimant,

bills relating to the plan’s payments to Abbey Home

Healthcare; Dr. Anthony Albright, anesthesiology & Pain

Management, Inc.; Apria Health Care, Dr. Raymond

Baez, Dr. Thor Borresen, Dr. Francisco Candal, Care

Ambulance Service, Jill Chorba, PA, Dr. Frank

Culicchia, Emergency Physicians, Susan Estrada, Dr.

Diana Gilimore, Dr. Gary Glynn, Dr. Christy Graves,

Greenery Horizons, Dr. Thomas Irwin, Jr., Jayachandra

| Indru, Jefferson Radiology, JoEllen Smith Medical

Center, Dr. Howard Katz, Dr. Edmund Kerut, Dr. John

Kimble, Dr. John Less, Long Term Acute Care, Thomas

McCaffrey, Dr. Marcello Mora, M.S. Home Infusion,

Northlake Radiology, Northshore Regional Medical

Center, Dr. Stephen Orville, Pearl River County Nursing

Home, Priority EMS, Professional Radiology, Puckett

Laboratory, Dr. Michael Reed, Rhema Medical

Equipment, River Region Home Health, Jacob Sassone,

Dr. Hans Schuller, Dr. Richard Schunior, Slidell

Memorial Hospital, Smithkline Beecham, Dr. Paul Staab,

Dr. Rian Tanenbaum, Taylor Home Health, Dr. Walter

| Truax, Dr. Steve Venturatos, West Jefferson Medical

Center, and an affidavit from Patricia Fry.

Post-hearing briefs were filed by the parties. Based upon

the stipulations of the parties, the evidence introduced,

my observation of the witness demeanor and the

arguments presented, I make the following Findings of

Fact, Conclusions of Law, and Order.

|

| I. STIPULATIONS

|

At the commencement of the hearing the patties

stipulated and I find:

38a

l. Claimant was injured on July 13, 1994. Es

y The injury occurred during the course and scope

of Claimant's employment.

3. An employer/employee relationship existed at the

time of the injury.

4. Employer was advised of the injury on July 13,

1994.

5. Employer filed a Notice of Controversion on

| December 13, 1994.

6. An informal conference was held on June 27,

1998.

7. Claimant’s average weekly wage was $653.85.

8. Employer/Carrier paid no medicai_ beneftts.

Intervenor paid medical benefits amounting to

$606,306.64.

IT. ISSUES

The following unresolved issues were presented by the

parties:

3 Jurisdiction or coverage under the Act.

4 Causation of injury.

3. Nature and extent of injury.

4. Payment of medical bills by Employer.

5, Intervener’s right to recover medical benefits

39a

paid on behalf of Claimant.

; 6. Penalties, interest and attorney’s fees.

Ill. STATEMENT OF THE CASE

A. Chronology:

aie

Many of the facts concerning Claimant's work history

and employment with Employer were uncontested. The

records show Claimant, who was born on June 2, 1940,

to have a high school education followed by 4 years of

service in the U.S. Navy. On September 27,1962 he

married Jerry Kate Smith and had two children, Delores

Bazor McNutt and Delaina Bazor Moreau. (Tr. 28, 41,42

54-56).

| Prior to his employment with Employer, Claimant had

an extensive background in refrigeration and appliance

repair with state refrigeration and gas fitter licenses.

From 1962 to 1969, Claimant worked as a service

supervisor for Sears and Roebuck, supervising 45

employees in refrigeration and appliance repair. This

was followed by similar work at Montgomery Ward from

1970 to 1971, after which he was employed by Taylor

Diving and Salvage from 1971 to 1980 as a refrigeration

shop foreman. supervising 10 employees in air

conditioning and heating system maintenance along

with the fabrication and maintenance of environmental

control systems for diving chambers. From 1980 to 1989

he operated his own air condition and appliance

business followed by employment with Pool Offshore

Company from 1989 to 1992, where he worked as an

electrician, air conditioning and heating repair person

servicing appliances, gas detection, alarm, P.A. systems

on offshore drilling rigs. From September 1992 to June

1994, he worked for Casino Magic in Bay St. Louis,

40a

Mississippi, as a shift maintenance supervisor. (CX-8,

pp. 44, 45; Tr., 56-58).

On June 9, 1994, Employer hired Claimant as a facilities

manager on the recommendation of Russell Chatelain,

Director of Purchasing, who in turn reported to General

Manager, Jay Rabalais. (CX-18, pp.7-9; Tr., 59). fn2

Supervisors and employees regarded Claimant as

extremely conscientious fair and honest in his dealings

with others. (Tr. 59, 50). Claimant was responsible for

starting up and_ hiring the maintenance | and

housekeeping departments and getting Employer's

facilities ready for business. (Tr. 109). When Claimant

was hired the facilities included a boat which was under

construction at Avondale's Westwego shipbuilding yard;

a parking lot and large tent located about 50 feet from

the Harvey Canal off; an adjacent dock and office

building under construction; a warehouse and office at

3008 Engineers Road with additional office space in an

adjacent red brick building and another warehouse in

Terrytown.fn3 (Tr. 112, 113; CX-18,. p. 22; CX-20, p. 48).

The tent served as a temporary shelter to house casino

patrons as they were waiting to board the casino vessel

with bathrooms and a employee cafeteria. It was

replaced in December, 1994, by a permanent office

building built by Grimaldi, an independent contractor.

(Tr. 146, 147).

As facilities manager, Claimant hired housekeeping

manager Robert Allen Creighton on June 21, 1994.

Creighton in turn was responsible for all housekeeping

and janitorial services for Employer which included

routine housekeeping assignment such as cleaning,

mopping and dusting on the vessel as well as the offices

and warehouses. (Tr. 117-119, 134, 135). Creighton

interviewed and Claimant hired housekeeping

personnel. Claimant was also responsible for ordering

4la

housekeeping supplies. (Tr. 131, 132, 142, 143).

Creighton currently holds tine position of facilities

director, a position to which he was appointed in late

1995. (Tr. 135).

Claimant was also responsible for hiring maintenance

personnel and ordering supplies for that department. In.

June, 1994, Claimant hired the following maintenance

personnel: Peter J. Banks (Maintenance Supervisor),

Reynold Joseph Gaspard, Somtop “Tip” Pichakron,

Reynolds, Gili Thompson, and Jim Mantie. (Tr. 160, CX-

20), pp. 18-20; CX-21, p. 6). Besides hiring and staffing

the maintenance department, Claimant was also

responsible for cleaning up and repairing the Casino

vessel prior to delivery. (Tr. 125). In addition, he was

also responsible for the installation and wiring of slot

machines prior to delivery, because Avondale was

behind schedule in the ship construction, which

Employer found to be of poor quality. The casino vessel

was originally scheduled for delivery and operation on

July 4, 1994. However, the casino had to delay opening

until August 6, 1994. (CX-2; Tr. 126-128).

Indeed, it was because of poor workmanship and delays

in construction that forced Claimant to use his

housekeeping staff to clean the vessel, while Claimant

employed his maintenance staff to work considerable

hours of overtime installing and wiring slot machines.

(Tr. 114). Claimant worked up to 15 hours per day, from

July 5 to his stroke, while supervising a maintenance

crew that put in 10 to 12 hour days making sure that the

Casino vessel was properly outfitted with properly

wired slot machines. (Tr. 168, 169, 176) (CX-20, pp. 21-

23). Creighton even had to put in 50 to 60 hour weeks

fron: June21 to July 13, 1994 working 6 days a week. (Tr.

137, 138).

42a

Avondale’s poor performance caused Employer

considerable concern and stress, because every day the

opening was delayed Employer lost considerable

revenue. (Tr. 126-129). During the afternoon of July 13,

1994, between 3 p.m. and 6 p.m., Claimant, while sitting

in a chair in the tent collapsed and fell to the ground

unconscious. Employer had Claimant taken’ by

ambulance to West Jefferson Hospital, where he was

treated and diagnosed with a aneurismal subarachnoid

hemorrhage secondary to a MCA aneurysm. On the

same date, Claimant underwent a right frontal temporal

craniotomy, clipping of middle cerebral bifurcation

aneurysm, evacuation of intracerebral hemorrhage, and

anterior temporal lobectomy. (CX-11,12). .

Claimant remained at West Jefferson Hospital until

October 1994, when he was transferred to Greenery

Neurological Center in Slidell where he remained until

March 1995. He was readmitted to Slidell Memorial

Hospital on March 5,1995 and was discharged on March

31,1995. He remained at his daughter’s home in Marrero

irom March 31, 1995 te October 5, 1995 where he

received 24 hour care from nurse and family members

undergoing 80 hyperbaric treatments. When family

members could no longer provide the necessary care,

Claimant was transferred on October 5, 1995 he was

transferred to Pearl River County Hospital and Nursing

Home where he remained until his death on October 2,

1997. (CX-10). From the moment of his stroke and initial

collapse until his death Claimant never regained

consciousness. (CX-3 , CX-19, pp.76). Claimant’s death

certificate listed the immediate cause of death as

cardiorespiratory failure due to pneumonia. (CX-13).fn4

Claimant's medical bills were paid for by

Intervenor pursuant to a health and welfare policy

which Claimant applied for and accepted when hired. A

summary of the plan and service agreement were listed

43a

as EX-1 and 2 were attached to [X-53. A detailed list of

the medicals paid Claimant amounting to $606,306.64

were provided. Claimant's funeral bills consisted on a

monument bill of $1,840.00 and burial expenses of

$55,552,50. (CX-14).

B. Testimony of Jerry Kate Bazor (Claimant’s

Widow);

Jerry Kate Bazor’s, (Ms. Bazor) testimony dealt

primarily with Claimant's character, work history and

job responsibilities with Employer and the pressures

and stress caused by his employment with Employer.fn5

Ms. Bazor described her marriage to Claimant resulting

in two daughters, (Delores Bazor McNutt and Delaina

Bazor Moreau) and 5 grandchildren and detailed his

work history prior to Employer as noted above. (Tr. 54-

59). She described her husband as a good family man,

honest, a perfectionist about work, fair treatment of

fellow workers and a person with an easy going

personality not prone to complain. (Tr. 59-61).

Ms. Bazor testified that Claimant was hired to be in

charge of all land based and marine vessel repairs and

maintenance — including housekeeping and ground

facilities. (Tr. 62-67, 72-75), The maintenance Cuties

included repair of air conditioning and heating

equipment, ice and bar machines, stoves, refrigerators,

freezers, electrical, plumbing, and sewer work as well as

changing table tops for gaining tables on the casino

vessel. (Tr. 68-72). Ms. Bazor testified about Claimant’s

work at Avondale, where he supervised installation and

wiring of slot machines and purchase of related

supplies.

Ms. Bazor described at length the problems Claimant

faced in being unable to hire enough qualified

44a

employees because of low pay scales and the difficulties

in getting supplies on time requiring in some case 2 to 3

days for delivery. In addition, she testified about job

pressures: (1) to cut corners which he refused to do; (2)

to meet time schedules, causing him to_ utilize

maintenance and housekeeping personnel to do

Avondale work of cleaning the casino vessel, install and

wire slot machines. (Tr. 75-79). Claimant became so

obsessed with the job that he stopped eating, lost weight

and worked excessive 12 hour days, 7 days per week

prior to his stroke frequently going back to the jobsite

late at night to check on work. (Tr. 80-84).

Ms. Bazor described an argument her husband had with

Avondale superintendent, Octave Rainey, just prior to

his stoke, in which Claimant defended his men’s work

and the wire they had used in the slot machine hook up

and told Rainey not to "jump his people.” Reynold

Gaspard_told Ms. Bazor about the argument while he

(Gaspard) was in the West Jefferson ICU immediately

following Claimant's stroke. According to Ms. Bazor,

Gaspard described the argument as quite heated. She

also described other arguments that Claimant had with

Avondale personnel, involving the wearing of steel toe

shoes resulting in the temporary removal of

Employer personnel from the casino vessel. (Tr. 85-87,

186).fn6

Gg Testimony of Delores Bazor McNutt, Delaina

Bazor Moreau, and Quincy Wade Moreau:

Daughter, Delores Bazor McNutt, (McNutt), testified this

prior to her father’s stroke he had been working long

hours which prevented her from seeing him except for a

few hours apparently on July 3 and then on July 4, 1994.

During the week of July 4, 1994, Claimant did not stay at

45a

his home, but rather lived with his daughter, Delaina

Bazor Moreau, (Moreau), because of her close proximity

to the jobsite. McNutt confirmed her father's dedication

to family and perfectionist work tendencies and the

stress it caused because of his inability to get qualified

employees. She was also present when Gaspard relayed

the argument between Octave Rainey and her father.

(Tr. 28-3 9).

Moreau testified that her father stayed with her two

nights a week, when initially hired, but following the

July 4 holiday began staying there every night so that he

worked longer hours. According to Moreau, her father

would leave for work at 6:00 a.m. and return at 6:30p.m.,

only to go back to work again to check on night crew

work. Moreau testified that her father was preoccupied

with running behind schedule and complained about

headaches, but refused to seek medical attention, (Tr.

41-47).fn7

Quincy Wade Moreau, ( Quincy Moreau), Claimant's son

in law, testified about Claimant’s devotion to family and

work and confirmed Claimant's long work hours leaving

home at 6 am. and returning at 7p.m., only to leave

again at 8 p.m. and return at 11 p.m. Quincy Moreau

testified that Claimant was concerned about not being

able to meet job deadlines because Avondale was

behind schedule. (Tr. 49-52).

B. Testimony of Peter J. Banks: |

Maintenance supervisor, Peter J. Banks, (Banks), who

was, hired by Bazor in June 1994 and later replaced

Claimant when he suffered a stroke on July 13,1994,

provided first hand knowledge about Claimant's job

46a é

responsibilities and the pressures he endured during the

initial start up of operations. (CX-15, p. 40).fn8 a

maintenance supervisor, Banks testified that be was

initially hired to perform all facility maintenance

including buildings, tent, warehouses and offices,

grounds and casino vessel. This included routine

maintenance such as changing light bulbs, replacing

door knobs and making sure the air conditioning was

functioning properly. Claimant was required to get 3

separate bids or prices on maintenance supplies before

being allowed to purchase such supplies. (CX-20, pp. 7-

14, 47-49).

Concerning the casino vessel, Banks was. responsible

with Claimant for running wire and setting up slot

machines, and making sure the air conditioning was

running properly on the casino vessel. Claimant had a

check list of maintenance items that he and Banks

would go over daily and resolve to make sure he casino

vessel would function properly. Claimant and Banks

were responsible for supervising a maintenance crew of

Somtop "Tip" Pichakron, Reynold Gaspard, Gill

Thompson, Jim Mantie, who worked on the casino

vessel installing and wiring up slot machines. (CX-18-

20).

Claimant and Banks were initially responsible for all

casino vessel maintenance which required both men to

spend considerable time learning vessel schematics. The

only vessel maintenance not initially assigned to

Claimant and Banks the steering, navigation.and power

trains. Both Claimant and Banks were responsible for

vessel plumbing, electrical, refrigeration and lighting.

About 5 to 6 days after Claimant’s stroke, Employer

brought in an outside contractor and maritime crew.

(West Bank River Boat Services), to perform vessel

maintenance except for replacing gaming tables carpets

47a

and oils, painting, wallpapering which Employer left to

its maintenance staff. (CX-.20,pp,8, 59-62, 69, 73-74; Tr.

111).

Banks confirmed Ms. Bazor testimony about disputes

between Claimant and Octave Rainey. Banks testified

that Claimant had frequent arguments with Rainey

concerning the method of pulling wire and the supposed

need to work Claimant's crew up to 15 hours per day,

which Claimant refused. (CX-20, pp.21-23, 68, 69). Banks

also confirmed the pressures Employer, (Russell

Chatelain), placed on Claimant by: (1) making him

secure multiple bids and purchase orders which delayed

receipt of necessary supplies, (CX-20, pp. 24-27; (2) not

allowing Claimant to purchase the right tools and

equipment, (CX-20, pp. 43-46, 63); (3) not allowing

Claimant the ability to hire enough qualified personnel,

(CX-20, 30-33, 64,65; and (4) imposing additional

assignments such as forming and running a

(ransportation department (CX-20, pp. 28, 29).

Banks described Claimant as a man under considerable

stress to accomplish all assign tasks on a timely basis,

who often complained of headaches and worked

considerable hours. (CX-20. pp. 36,38, 67). In addition to

these pressures, Claimant and Banks ran into frequent

air conditioning problems, especially in the tent which

was hard to cool, plus maintenance problems on the

bulkhead and casino vessel gangplank which had to be

rebuilt. (CX-20, pp. 51-58).

E. Testimony of Somtop (Tip) Pichakron

Somtop "Tip" Pichakron, (Tip), testified that he was

hired in either June or May 1994 as a maintenance

engineer for the air conditioning system on both the

casino vessel and the land facilities. ( CX-21, pp 6-8). His

48a

initial assignment involved the casino vessel stationed in

Avondale’s Westwcgo shipyards where he was assigned

to run data lines from the shot machines to the vessel

computers. Tip described problems with Octave Rainey,

trying to give him orders and the pressure Claimant was

placed under prior to his stroke to complete work on

schedule. It was because of such pressure that Tip

declined Claimant's job when offered it following

Claimant’s stroke. Tip also confirmed the fact that he

and other maintenance crew personnel were working 10

to 12 hour days, 6 to 7 days a week prior to Claimant's

stroke. (CX-21, pp 9-32).

F. Testimony of Russell Chatelain

Russell Chatelain's, Employer’s director of purchasing

since October 15, 1994, testimony dealt with casino

operations and Claimant’s duties. (Tr. 108). According to

Chatelain, Claimant was hired to be Employer’s eventual

facilities director. Claimant was responsible for starting

up the maintenance and housekeeping department,

hiring the necessary personnel to commence

commercial operations. (Tr. 109). When Claimant was

hired the dock and main office building were under

construction as was the boat or casino vessel. Vessel

maintenance operations were eventually assigned to an

outside contractor, West Bank River Boat Services, (Tr.

111). Prior to completion of the dock and office building

by independent contractor, Grimaldi, in December,

1994, Employer used a tent located in a parking lot area

about 50 feet from where the boat eventually docked to

hold casino patrons prior to vessel loading and

discharge. (Tr. 112,113).

Chatelain admitted that it was not unusual for

department heads to make requisitions for supplies

which were in turn denied because of lack of funds. (Tr.

49a

110, 111, 115, 116). Chatelain confirmed Claimant’s

maintenance and housekeeping responsibilities as well

as his work on the casino vessel prior to delivery. (Tr.

117-125) Chatelain also admitted that Avondale was

responsible for poor workmanship and late delivery of

the casino vessel resulting in substantial loss of

revenues, which in turn created a pressure filled and

stressful atmosphere. (Tr. 126-129).

Chatelain described the operations and supervisory

structure as previously noted as well as the stroke

incident wherein security guard, John Dicken, reported

Claimant’s collapse followed by Employer’s head of

security, Jack Lott calling for an ambulance which took

Claimant to West Jefferson Hospital. (CX- 18 , CX17)fn9

G. Testimony of Robert Allen Creighton:

Robert Allen Creighton, (Creighton), who was hired by

Claimant as housekeeping manager on June 20, 1994,

and eventually in late 1995 became facilities director,

testified about his duties which included housekeeping

duties both on land shore and marine facilities including

the casino vessel. Creighton described his role with

Claimant in removing trash from the vessel while under

construction at Avondale’s Shipyard and Claimant’s-

work in running wire for vessel computers and slot

machines confirming the fact that Claimant prior to his

stroke worked up to 60 hours per week. (Tr. 131, 134-

137).

Creighton confirmed Claimant’s job of hiring personnel

and the fact that Avondale was behind on boat

construction which required Employer to help install

wires and clean the vessel prior to delivery. However,

Creighton, unlike Chatelain and Banks, denied the

existence of job stress associated with construction

—

50a

delays or the lack of materials or equipment. (Tr. 133,

138, 139, 155). Creighton did confirm however,

Claimant's complaints about headaches and_ his

maintenance department’s duties on the vessel limited

to minor repairs such as changing table tops, -and

carpeting with all major repairs being performed by

West Bank River Boat Services. (Tr. 135, 154; CX-15, pp.

24, 25).fn10

H. Testimony of Reynold Joseph Gaspard:

Reynold Joseph Gaspard, who was hired as a

maintenance man by Claimant in June 1994 and

currently is Employer's Maintenance: Manager, testified

that he was initially assigned to run wire on the casino

vessel while it was still under construction at Avondale's

Shipyard. (Tr. 160-164). Gaspard admitted that material

did not arrive on time, but contended it did not affect his

work and that he was under no pressure to get the job

done on time. (Tr. 165, 167). However, Gaspard did

admit working up to 12 hours per day with 4 other

employees prior to Claimant's stroke, and the fact that

Claimant complained of headaches while working long

hours. (Tr. 168, 176, 177).

When questioned about Claimant’s arguments with

Octave Rainey, Gaspard admitted that Rainey openly

doubted the work capabilities of Claimant and his crew,

but denied witnessing any argument between Claimant

and Rainey and could not remember telling Ms. Bazor

about arguments between Rainey and Claimant. (Tr.

171-179).

Il. Shannon Williams Blue:

Shannon Williams Blue, (Blue), a senior claims

5la

representative for Carrier testified that she was the

claims representative responsible for handling

Claimant’s file and that she never received copies of

medical bills or medical reports concerning Claimant’s

stroke and subsequent treatment. Blue testified that she

requested, but never received such information from

Claimant’s counsel, Lloyd Frischhertz. (Tr. 181, 182).

On cross Blue admitted however, that she understood

that when Ms. Bazor filed this claim for compensation

on November 2~8, 1994, Claimant had sustained a

cerebral vascular accident, (CVA), which left him

comatose and in need of hospitalization. (Tr. 182, 183).

The claim, EX-2, noted not only the nature of the injury,

(cerebral vascular accident), but the cause, (pressure in

getting casino vessel ready for operation) and

subsequent treatment at West Jefferson Hospital and

Greenery Neurological Rehabilitation Center in

Slidell.fn1 t

Blue further admitted not reviewing her file before

testifying and being unable to recall the date she

requested medical information from Frischhertz , and

also being unable to recall any details from an informal

conference, wherein she allegedly requested medical

records from Claimant's trial counsel, Marcus Pilewort.

(Tr. 184, 185),

Ps Medical Testimony of Dr. C.B. Scrignar:

Dr. Chester Bruno Scrignar, (Scrignar), a psychiatrist

and professor in clinical psychiatry at Tulane University

school of Medicine testified as an expert in trauma,

stroke and stress cases and clearly identified stress as a

causative factor in cardiovascular disease, hypertension,

and strokes injuries. Dr. Scrignar testified that stress

caused elevated heart rates, blood pressure, headaches

~

52a

and weigh loss and forms the genesis of cerebral

vascular accident. (CX-19, pp. 21,22, 30-35).

Dr. Scrignar performed a psychological autopsy of

Claimant to determine the psychiatric and psychological

factors contributing to his death by reviewing the

medical records and gathering information from

Claimant's family and coworkers. Dr. Scrignar found

Claimant to be a very conscientious, well liked and

loved person who put pressure on himself and was

subjected to job stressors associated with his work with

Employer including long hours of work time constraints,

inability to delegate responsibilities, limited resource,

(Tr. 23- 28). Dr. Scrignar described. Claimant as having a

Type A personality, i.e., person who puts stress on self,

and a person who suffered from chronic, unrelenting

work stress that contributed to his aneurysm. (CX-19,

53, 59, 60, 65, 70). The stress was manifest by anorexia

and muscle tension headaches. (CX-19 pp. 46-50).

Dr. Scrignar testified that Claimant was subjected to

excessive responsibilities at work without the necessary

help which combined with a natural conscientiousness

which eventually led to or contributed to his stroke.

(CX-19, pp. 64,65).

K. Medical Testimony of Dr. David Tong:

Dr. David Tong, an assistant professor of neurology at

Stanford Medical Center, testified that stress could

cause a stroke, i.e., persistent of acute stress could

cause elevated blood pressure which in turn could cause

an aneurysm to burst (CX-22, pp. 7-11). Dr. Tong after

reviewing Claimant’s medical records, testified that

Claimant suffered a subarachnoid hemorrhage or

rupture of two brain aneurysms which eventually led to

his death and that working conditions as verified by

53a

family and coworkers produced considerable stress

contributing to the hemorrhage. (CX-22, pp. 11-13). Dr.

Tong further testified that a one time event was not

likely to lead to a stroke, but stress of short or long

duration contributed to it, and that hypertension

doubled or tripled Claimant’s likelihood of a stroke

which was further doubled by Claimant's smoking. (CX-

22, pp. 18-21).

IV. DISCUSSION

A. Contention of the Parties:

Concerning jurisdiction or coverage, Claimant's Counsel

contends that Claimant's work satisfied both the situs

and status requires of Section 903 of the Act and in

support thereof sites the following cases: (Situs)

Texports Stevedore Co. v. Winchester, 63 F.2d 504 (5th

Cir. 1980); Jacksonville Shipyards, Inc. v. Perdue 539

F.2d 433 (4th Cir. 1970); Odem Construction Co. Inc., v.

United States Department of Labor 622 F.2d 110, 113

(5th Cir. 1980); Cooper v. Offshore Pipelines

International, Inc., 33 BRBS 46(1999); (Status)P.C.

Pfeiffer Co. v. Ford. 444 U.S. 69 at 77( 1979); Northeast

Marine Terminal Co., v. Caputo, 432 U.S. 249 (1977);

Trotti & Thompson v. Crawford, 631 F.2d 1214 (5th Cir.

1980); Sanders v. Alabama Dry Dock and Shipbuilding

Co., 841 F.2d 1085 (11th Cir. 1988); Hullinghorst

Industries Inc., v. Carrol, 650 F.2d 750 (5th Cir. 1981);

McKay v. Bay City Marine Inc., 23 BRBS 332 (1990).

Counsel argues that Claimant clearly worked in an

adjoining an customarily used by Employer in the

loading, unloading, repair and building of its casino

vessel, i.e., a tent area 50 feet from the vessel gang

plank, Avondale’s Westwego Shipbuilding facility.

Further, Claimant's regular duties involved the repair

and maintenance of the casino vessel and the fact that

54a

he was injured while either standing or sitting inside a

tent should not detract from his overall maritime

employment status, for employee can be based either

upon the nature of the activity at time of injury or upon

the maritime nature of Claimant’s employment as a

whole. Hullinghorst Industries, supra, at 754.

Employer’s counsel argues that Claimant lacks the

necessary: (1) situs since the injury did not occur over

navigable waters, but rather in a tent over one hundred

feet from the Harvey Canai with no connection to

maritime commerce; and, (2) status since casino

employees are employees of a recreational facility and

exempt from coverage under Section 902(3)(B) of the

Act lacking a substantial nexus to maritime commerce.

Arnest v. Mississippi River Boat Ltd. ,29 BRBS 423 (ALJ)

1995 and Peters v. Roy Anderson Building Corp., 29

BRBS 437 (ALJ) (1995). Counsel contends that 's work

on the Casino vessel was done solely in furtherance of

the gambling enterprise and had nothing to do with the

construction or operation of the vessel and was merely

"gratuitous performance” of work “to expedite delivery

of the vessel.”

Concerning causation Claimant's counsel argues that

Section 920(a) creates a presumption that Claimant’s

disabling condition was casually related to his

employment and that in order to invoke the -

presumption, Claimant must prove that he suffered a

harm and that conditions existed at work which could

have caused, aggravated or accelerated the condition.

Merrill v. Todd Pacific Shipyards Corp., BRBS 140 (199

1); Stevens v. Tacoma Boat Building Co., 23 BRBS

191(1990). Counsel contends that there is no question

that Claimant suffered an injury while at work and that

Employer offered no evidence to rebut the presumption

as required by James v. Pate Stevedoring Co., 22 BRBS

55a

271 (1989). Further, Employer failed to rebut the

testimony of Drs. Tong and Scrignar directly linking

work related stress to Claimants stroke thereby

convincingly establishing causation.

Employer’s counsel invokes Director, QWCP v.

Greenwich Collieries, 114 S. Ct. 2252 (1994) arguing that

factual doubts, when evenly balanced by evidence,

cannot be decided in Claimant’s favor and that Claimant

failed to prove the second factor of Kelaita v. Triple A

Machine Shop. 13 BRBS 326 (1981), i. e., that conditions

existed at work which could have caused Claimant’s

stroke. Phillips v. Union Texas Petroleum, 27 BRBS 625

(ALJ) (1994); Oargeron v. Mack Greves, Inc., 30 BRBS

423 (ALT)(1996): Dvale v. Department of the Army, 30

BEDS 52a (AU) (1996).

Concerning the payment of medical costs, Claimant’s

counsel contends that Employer is responsible for

Claimant’s extensive medical costs and funeral

expenses which are the natural and unavoidable result

of his work injury, and that Employer has a continuing

obligation to pay an_ injured employee’s medical

expenses. 33 U.S.C. § 907: Parnell v. Capitol Hill

Masonry, 11 BRBS 532, 539 (1979); Strachan Shipping

Co., v. Hollis, 460 F.2d 1108 (5th Cir. i972). Further,

Employer was aware of Claimant’s injury on July. 13,

1994 and received a claim for compensation filed on

November 28, 1994, followed by a _ notice of

controversion filed on December ~13, 1994. Section

907(d) is not applicable, since Intervenor and not

Claimant, is seeking reimbursement for medical

expenses. Claimant 6led ‘a claim for benefits on

November 28, 1994, which Employer rejected.

Claimant’s initial treatment was emergency treatment

for which there was no time to first obtain Employer's

authorization. Employer had an obligation to investigate

56a

Claimant’s treatment knowing that it might be liable far

such and is imputed with knowledge of his treatment.

See Harris v. Sun Shipbuilding & Dry Dock, Co., 6 BRBS

4 94 (1977); rev’d on other grounds sub nom; Aetna Life

Insurance Co., v. Harris, 578 F. 2d 52 (8rd Cir. 1978).

Further, Intervenor has no right to reimbursement from

the first monies Claimant may receive as compensation

since medical expense awards are independent from

money received by Claimant under Section 8 or 9 of the

Act. Intervenor may recover for medical cost only from

Employer. See Union Stevedoring Corp v. Norton, 98

F.2d 1012(3rd Cir. 1938).

Employer's counsel argues that -intervention was

untimely since it was not filed until November, 1999,

with Intervenor providing no medical bills until time of

trial to either Claimant or carrier, in violation of 33

U.S.C. 907 and 20 C-F-R-§ 702.421 which : equires carrier

to be provided with ongoing medica reports, thus

preventing carrier from determining the necessity,

character or sufficiency of the treatment furnished to

Claimant or the opportunity to contest the

reasonableness of the charges, i. e., whether the charges

exceeded the prevailing charges within the community

for the same or similar services.

Intervener’s counsel states that Intervenor paid

Claimant’s medical bills although its plan expressly —

exclude coverage for work related accidents after it

learned that Carrier denied liability for Claimant’s on the

job. injury. Intervenor asserts that it intervened to

protect its subrogation right against Carrier as provided

for in its health plan, and further it is entitled to a first

lien on any recovery by Claimant including

compensation payments. Aetna Life Ins. Co., v. Harris,

578 F.2d 52 3rd Cir. 1978); E.P. Paul Co., v. Director,

OWCP, 999 F.2d 1341, 1351(9th Cir. 1993); Mijangos v.

57a

Avondale Shipyards. 19 BRBS 15(1986); Janusviewiez v.

Son Shipbuilding & Dry Dock Co., 677 F.2d 286, 292 (3"

Cir. 1982); Sunbeam-Oster Co., Benefit Plan v.

Whitehurst, 102 F.3d 1368 (5th Cir. 1996); Walker v. Wal-

Mart Stores, Inc. 159 F.3d 938, 940 (5" Cir. 1998); Barnes

v. Independent Automobile Dealers Ass’n of California

Health & Welfare Benefit Plan v. Whitehurst 64 F.3d

1389, 1394 (9" Cir. 1995); Health Cost Controls, Inc. v.

Isbell. 139F.3d 1070 (6" — Cir. 1997);Ryan v. Federal

Express Corp., 78 F.3d 123 (3" Cir. 1996); United McGill

v. Stinnett 154 F.3d 168, 173 (4" Cir. 1998); Blue Cross &

Blue Shield of Alabama v. Sanders. 138 F. 3d 1347, 1355

(11" Cir. 1998); Zeller v. UNUM Life Insurance Company.

1997 WL 732420 (E.D. La. 1997) aff'd, 161 F.3d 8(5" Cir.

1998).

Counsel for Intervenor also asserts that Section 907(d)

of the Act does not bar its right to recover its lien

because Employer had ample notice of claimant’s injury

and even advised Ms. Bazor to pursue health coverage

benefits with Intervenor. Base Billeting Fund Laughlin

Air Force Base v. Hernandez. 588 F.2d 173, 177-178 (5"

Cir. 1979Roger's Terminal & Shipping Corp., v. Office of

Worker's Comp., 784 F.2d 687, 694 (5" Cir. 1986); cert.

denied, 107 S. Ct. 101(1986); Nardella v. Campbell

Machine 525 F.2d 46, 50-51(9" Cir. 1975). Further,

Employer/Carrier failed to show that any treatment

received was unnecessary or unrelated to Claimant’s

work injury, or that it had been harmed by strict

compliance with Section 907 (d) and further, that I have

the discretion in the interest of justice to excuse a

failure of claimant's treating physician to file reports

within the 10 day period specified in Section 907(d).

Eikel Norris. 101 F. Supp. 963 (D.C. Tex. 1951), aff'd. 200

F.2d 724, reversed on other grounds, 346 U.S. 328;

Shahady. Atlas Tile & Marble Co., 682 F.2d 968, 970

(D.C. Cir. 1982), cert. denied. 103 S. Ct. 786 (1983);

58a

Plappert v. Marine Corps Exchange, 31 BRBS 13(1997):

Buckaults v. Shippers Stevedore Co., 2 BRBS 277,

280( 1975).

B. Credibility of Witnesses:

It is well-settled that in arriving at a decision in this

matter, the finder of fact is entitled to determine the

credibility of the witnesses, to weigh the evidence and

draw his own inferences from it, and is not bound to

accept the opinion or theory of any particular medical

examiner. Banks v. Chicago Grain Trimmers

Association, Inc., 390 U.S. 459. 467, reh. denied, 391 U.S.

929 (1968); Todd Shipyards Corporation v. Donovan, 300

F.2d 741(5" Cir. 1962); Atlantic Marine, Inc. and Hartford

Accident & Indemnity Co., v, Bruce, 551 F.2d 898, 900

(5" Cir. 1981).

It has been consistently held that the Act must be

construed liberally in favor of the claimant. Voris v.

Eikel, 346 U.S. 328, 333(1953); J.B. Vozzolo, Inc. v.

Britton. 377 F.2d 144 (D.C. Cir. 1967), The United States

Supreme Court has determined, however, that the "true

doubt” rule which resolves factual doubt in favor of a

claimant when the evidence is evenly balanced, violates

Section 7(c) of the Administrative Procedure Act, 5

U.S.C. § 556 (d) and that the proponent of a rule or

position has the burden of proof. Director OWCP v.

Greenwich Collieries. 512 U.S. 267, 114 S. Ct,

2251(1994), aff'g 990 F.2.d 730(3" Cir. 1993).

In this case, I was impressed with the testimony of

Banks, who was the maintenance supervisor under

-Claimant and later replaced him as facilities director

and Chatelain, director of purchasing, as well as family

members (Ms. Bazor, Delores Bazor McNutt, Delaina

Bazor Moreau and Quincy Wade Moreau), fellow

59a

employee Somtop “Tip” Pichakron and Drs. Scrignar

and Tong. On the other hand, I was not impressed with

Blue who was a totally unprepared witness, nor was |

impressed with Gaspard who denied job pressures that

were admittedly present and was unable to recall

arguments between Rainey and Claimant which were

verified by Banks, and to some extent verified by

Gaspard’s admission of Rainey’s open criticism of

Claimant and his staff's competence.

i. Jurisdiction or Coverage Under the Act:

Following the 1972 Amendments to the Act, an injured

party seeking coverage must satisfy both a status and a

situs test. See Northeast Marine Terminal Co., supra 432

U.S. 249, 264-65, 97 S. Ct. 2348, 2357(1977); Herb’s

Welding. Inc. v. Gray, 470 U.S. 416, 105 S. Ct. 1421,

1423( 1985). The status requirement for coverage under

the Act is established in 33 U.S.C. § 902(3):

The term “employee” means any person engaged in

maritime employment, including a longshoreman or

other person engaged in longshoring activities, aud any

harbor-worker including a ship repairman, shipbuilder,

and ship-breaker, . . .

The Supreme Court stated that a claimant. satisfies the

status for coverage if he spends "at least some of his

time engaged in indisputably covered activities” Caputo,

supra. This language was strictly interpreted by the Fifth

Circuit in Boudloeche v. Howard Trucking. Co., Inc., 632

F.2d 1346(5" Cir. 1980), where that court specifically

rejected the “substantial portion” requirement in holding

that 2'° to 5 percent of the claimant’s time spent loading

and unloading was satisfactory. Id at 1347. Recently, in

McGoev v. Chiquita Brands International 30 BRBS

2:37(1997), the Board held that the Administrative Law

60a

Judge’s finding that claimant spent 3 to 5 percent of his

time in a covered activity alone was enough to invoke

coverage under Caputo and Baudloche, citing Ferguson

v. Southern States Cooperative, 27 BRBS 16(1993).

Even more recently, in Lewis v. Sunnen's Crane Service.

Inc,. 31 BRBS 34 (1997), the Board stated that the

determination of whether an employee spends “some of

his time in covered work” is not dependent on

mathematical percentages. Rather, the key factor is the

nature of the work to which the claimant could be

assigned. Id. at 40. The Board went on to recognize that

while at some point work is so episodic or momentary

that the claimant will not be covered, that point is yet to

be defined. Id. The First Circuit has defined episodic” to

be those activities which are "discretionary or

extraordinary”, as opposed to those which are “a regular

portion of the overall tasks to which [claimant] could be

assigned”. Levins v. Benefits Review Board, 724 F.2d 4,

8, 16 BRBS 23, 33 (CRT) (1" Cir. 1984). It was this

definition which was relied upon by the Board in both

McGoev and Lewis. Further, activities cannot be said to.

be “discretionary or extraordinary” merely because they

occur infrequently. McGoey, 30 BRBS at 239, see also

Lennon t Waterfront Transport. 20 F.3d 658, 28 BRBS 22

(CRT) (5th Cir 1994). It is not the overall frequency with

which Claimant performed the activity which is

controlling. See McGoey, 30 BRBS at 239 Rather, it is

whether the covered activity is one which is regularly

performed as a portion of the overall tasks which

Claimant is assigned which makes the _ ultimate

determination. See Boudloche, 632 F.2d at 1348;

McGoey, 30 BRBS at 239, citing Levins, 724 F.2d 4, 16

BRBS 24 (CRT) (1* Cir. 1984). x

In this case Claimant’s status can be judged either by the

nature of the activity at the time of injury or upon his

6la

employment as a whole. Hullinghorst Industries, supra,

at 754. Since the record does not reveal the nature of his

activity in the rent at time of injury, I must look to his

overall employment. On that issue, the record is clear

that prior to his injury, he spent a substantial portion of

his time in the outfitting and cleaning the casino vessel.

In addition his duties clearly included all maintenance

on the vessel with the exception of the steering,

navigation and power train systems. Thus, Claimant had

to spend considerable time learning about the vessels

design in order to be able to do necessary refrigeration,

plumbing, electrical and lighting work. Besides the

vessel which was clearly required to sail and pass Coast

Guard certification, Claimant was responsible for

maintenance and repair of the tent and dock area and in

fact had supervised the reconstruction of the vessel

ramp.

Although Bank’s duties were later changed to include

only replacement of gaming tables, carpets, and stalls,

painting and wallpapering following Claimant’s stoke, it

is the nature of Claimant’s duties while working which

determines his status.

I find no merit to Employer's argument that Claimant’s

duties were solely limited to furtherance of the gambling

enterprise consisting merely “gratuitous performance”

of work “to expedite delivery of the vessel” and thus

lacked a substantial nexus to maritime commerce.

Rather, I find that Claimant’s work was essentially

linked to vessel construction ar outfitting which

included installation and wiring of gambling equipment

and vessel cleaning prior to delivery with subsequent

maintenance and repair following delivery and hence

had a substantial connection to maritime commerce. In

addition, Claimant was responsible for dock and

adjoining building and tent maintenance which

62a

permitted the loading and unloading of passengers from

the vessel. Thus Claimant met the status requirement of

Section 902(3).

The situs requirement for coverage under the Act is set

forth at 33 U.S,C, § 903(a);

Compensation shall be payable under this chapter in

respect of disability or death of an employee, but only if

the disability or death results from an injury occurring

upon the navigable waters of the United- States

(including any adjoining pier, wharf, dry dock, terminal,

building way, marine railway, or other adjoining area

customarily used by an employer in loading, unloading,

repairing, or building a vessel),

The Board has recently upheld a finding that an

employer's entire facility was a maritime situs for the

purposes of the Act, as it was adjacent to the Houston

shipping channel and was customarily used for loading

and loading and unloading. Gavronovic v. Mobile Mining

& Minerals, 33 BRBS 1, 4 (1999). In this ease, there is no

question that the tent and dock area where Claimant

worked with the air conditioning system and had his

stroke was within 100 feet of the Harvey Canal and

constituted the only area where passengers could get on

or leave the casino vessel. Thus, under applicable

precedent, this area met the situs requirements of the

Act. Texports Stevedore Co., supra; Jacksonville

Shipyards, supra; Odem Construction Co., supra.

D. Prima Facie Case, Section 20(a) presumption and

Causation.

To establish a prima facie case for invocation of the

Section 20(a) presumption, a claimant must prove that:

(1) he suffered a harm, and (2) an accident occurred or

63a

working conditions existed which could have caused the

harm. See e. g., Noble Drilling Company v. Drake. 795

F.2d 478, 19 BRBS 6(CRT) (5" Cir. 1986); James v. Pate

Stevedoring Co., 22 BRBS 271 (1989). If claimant’s

employment aggravates a non-work-related, underlying

disease so as to produce incapacitating symptoms, the

resulting disability is compensable. See Gardner v. Bath

Iron Works Corp., 11 BRBS 556(1979), aff'd sub nom.

Gardner v. Director. OWCP, 640 F.2d 1385, 13 BRBS 101

(1" Cir. 1981). If employer presents “specific and

comprehensive” evidence sufficient to sever the

connection between claimant’s harm and _his

employment, the presumption no longer controls, and

the issue of causation must be resolved on the whole

body of proof. See e.g., Loone v. Sealand Terminal

Corp., 19 BRBS 100(1986).

Once a claimant has carried his burden of establishing

the existence of a prima facie case, he is entitled to rely

on the presumption supplied by Section 20(a) of the Act.

This presumption functions to link the harm suffered by

Claimant to his employment. Noble Drilling v. Drake.

795 F.2d 478 (5'" Cir. 1986): Hampton v. Bethlehem Steel

Corp., 24 BRBS 141(1990); Kelaita, 13 BRBS 326(1981).

The Section 20(a) presumption shifts the burden to

employer to come forward with — substantial

countervailing evidence that the injury or harm was not

caused by claimant’s employment. Brown v. Pacific Dry

Dock 22 BRBS 284(1989). Brennen v. Bethlehem Steel, 7

BRBS 947(1978). Thus, once the presumption applies,

the relevant inquiry is whether employer has succeeded

in establishing the lack of a causal nexus. Dower v.

General Dynamics Corp., 14 BRBS 324(1981). When

there has been a work-related accident followed by an

‘inquiry, the employer need only introduce medical

testimony or other evidence controverting the existence

of a causal relationship and need not necessarily prove

04a

another agency of causation to rebut the presumption of

Section 20(a) of the Act. Stevens v. Todd Pacific

Shipyards Corp., 14 BRBS 626(1982), aff'd mem., 722

F.2d 747 (9" Cir. 1983), cert. denied, 467 U.S. 1243

(1984). If employer fails in this attempt, claimant may

properly rely on the Section 20(a) presumption to link

his injury with his employment. If the presumption is

rebutted, it no longer controls and the record as a whole

must be evaluated to determine the issue of causation.

Del Vecchio v. Bowers 296 U.S. 280, 56 S. Ct. 190 (1935);

Volpe v. Northeast Marine Terminals, 671 F.2d 297(2™

Cir. 1932).

In this case, I find that Claimant clearly showed that he

suffered an injury (stroke) while at work and that this

injury was directly related to work induced stress

associated with unreasonable expectations for boat

completion and delivery considering Avondale’s poor

workmanship and construction delay combined with

Claimant’s inability to hire sufficient personnel and

supplies due to budgetary restraining. Claimant was

forced to work long hours and endure further stress

associated with interference from Avondale

superintendent, Octave Rainey. The unquestioned and

credible medical evidence showed that Claimant was

subjected to chronic work which lead to high blood

pressure arid eventually the stoics which he suffered on

July 13, 1994.

Employer offered no credible evidence to rebut these

facts. To the extent that Creighton or Gaspard denied

being under considerable pressure, I discredit such

testimony especially in light of Chatelain’s admission

that Avondale delays and poor workmanship created a

stressful atmosphere causing Employer to delay its

opening and suffer substantial revenue loss.

65a

Thus, I find that Claimant’s work had a direct link and

was at least an aggravating factor in the stroke he

suffered.

K Nature and Extent of Injury:

Disability under the Act is defined as “incapacity

because of injury to earn wages which the employee

was receiving at the time of injury in the same or any

other employment.” 33 U.S.C. § 902(10). Disability is an

economic concept based upon a medical foundation

distinguished by either nature (permanent or

lemporary) or extent (total or partial). A permanent

disability is one which has continued for a lengthy

period and is of lasting or indefinite duration, as

distinguished from one in which recovery merely awaits

a normal healing period. Watson v. Gulf Stevedore

Corp., 400 F.2d 649 (5" Cir. 1968); Seidel v. General

Dynamics Corp., 22 BRBS 403, 407 (1929): St Stevens

v. Lockheed Shipbuilding Co., 22 BRBS 155, 157 (1989).

The traditional approach for determining whether an

injury is permanent or temporary is to ascertain the date

of maximum medical improvement (MMI). The

determination of when MMI is reached, so that the

claimant's disability may be said to be permanent, is

primarily a question of fact based on medical evidence.

Hite v. Dresser Guiberson Pumping. 22 BRBS 87,

91(1989); Care v. Washington Metro Are Transit

Authority, 21 BRBS 248 (1988).

An employee is considered permanently disabled if he

has any residual disability after reaching MMI. Lozada v.

General Dynamics Corp., 903 F.2d 168, 23 BRBS (CRT)

(2d Cir. 1990); Sinclair v. United Food & Commercial

Workers, 13 BRBS 148 (1989); Trask v. Lockheed

Shipbuilding & Construction Co., 17 BRBS 56(1985). A

condition is permanent if Claimant is no longer

66a

undergoing treatment with a view toward improving his

condition Leech v. Service Engineering Co., 15 BRBS_ -

18(1982), or if his condition has stabilized. Lusby v.

Washington Metropolitan Area Transit Authority, 13

BRBS 446(1981). If the medical evidence indicates that

the treating physician anticipates further improvement,

unless the improvement is remote or hypothetical, it is

not reasonable for a judge to find that MMI has been

reached. Dixon v. John J. McCullen & Assoc., 19 BRBS

243, 245( 1986); Mills v. Marin Repair Serv., 21 BRBS 115,

117(1988). The mere possibility of surgery does not

preclude a finding that a condition is permanent,

especially what the employee’s recovery or ability is

unknown. Worthington v. Newport News Shipbuilding &

Dry Dock Co., 18 BRBS 200, 202(1986); White v. Exxon

Co., 9 BRBS 138. 142(1978), aff'd, mem., 617 F.2d 292(5"

Cir. 1980).

Furthermore, the Act does not provide standards to

distinguish between classifications and degrees of

disability. Case law has established that in order to

establish a prima facie case of total disability under the

Act, Claimant must establish that he can no longer

perform his former work due to his job related injury.

Orleans (Gulfwide) Stevedores v. Turner, 661 F.24 1031,

1038, 14 BRBS 156 (5th Cir. 1981), rev 5 BRBS 418

(1977); P&M Crane Co. v. Hayes, 920 F.2d 424, 429-

30(5th Cir. 1991); SGS Control Serv. v. Director, Office

of Worker's Comp. Programs, 86 F.3d 438, 444 (5th Cir.

1996). He need not establish that be cannot return to any

employment, only that he cannot return to. his former

employment. Elliot v. C&P Telephone Co., 16 BRBS

89( 1984). The same standard applies whether the claim

is for temporary or permanent total disability. If the

claimant meets this burden, he is presumed to be totally

disabled. Walker v. Sun Shipbuilding & Dry Dock Co., 19

BRBS 171(1986).

67a

In this case, I find that Claimant's condition never

improved from the moment of his stroke in that he

failed to regain consciousness. As such, I find that the

stroke of July13, 1994 left him permanently and totally

disabled.

~

F. Medical Expenses and _ Intervenor's Right of

Reimbursement:

In general an employer found liable for the payment of

compensation is, pursuant to Section 7(a) of the Act,

responsible for those medical expenses reasonably and

necessarily incurred as a result of a work related injury.

Perez v. Sea-Land Services, Inc., 8 BRBS 130 (1978). The

- test is whether or not the treatment is recognized as

appropriate by the medical profession for the care and

treatment of the injury. Colburn v. General Dynamics

Corp., 21 BRBS 219, 22 (1988); Barbour v. Woodward &

Lothrop, Inc., 16 BRBS 300 (1984), Entitlement to

medical services is never time-barred where a disability

is related to a compensable injury. Addison v. Ryan-

Walsh Stevedoring Company, 22 BRBS 32, 36(1989);

Mayfield v. Atlantic & Gulf, Stevedores, 16 BRBS 228

(1984); Dean v. Marine Terminals Corp., 7 BRBS

234(1977). Furthermore, an employee's right to select

his own physician, pursuant to Section 7(b), is well

settled. Bulone v. Universal Terminal and Stevedore

Corp., 8 BRBS 515 (1978). Claimant is also entitled to

reimbursement for reasonable _ travel expenses in

seeking medical care and treatment for his work-related

injury. Tough v. General Dynamics Corporation, 22

BRBS 356 (1989); Gilliam v. The Western Union

Telegraph Co., 8 BRBS 278 (1978).

In Shahady v. Atlas Title & Marble, 13 BRBS 1007 (1981),

rev'd on other grounds, 682 F.2d 968 (D.C. Cir. 1982),

cert. denied. 459 U.S. 1146, 103 S. Ct. 786 (1983), the

68a

Benefits Review Board held that a_ claimant's

entitlement to an initial free choice of a physician Under

Section 7(b) does not negate the requirement under

Section 7(d) that claimant obtain employer's

authorization prior to obtaining medical services. Banks

v. Bath Iron Works Corp., Iron Works, Corp., 22 BEDS

301, 307, 308 (1989); Jackson v. Ingalls Shipbuilding

_ Division, Inc., 15 BRBS 299 (1983); Beynum v.

Washington Metropolitan Area Transit Auth9S 14 BRBS

956 (1982). However, where a claimant has been refused

treatment by the employer, he need only establish that

the treatment he subsequently procures on his own

initiative was necessary in order to be entitled to such

treatment at the employer's expense. Atlantic & Gulf

Stevedores, Inc., v. Neuman, 440 F.2d 908 (5th Cir.

1971); Matthews v. Jeffboat, Inc., 18 BRBS at 189 (1986).

Under Section 7(d)(1), an injured employee cannot

receive reimbursement for medical expenses which he

provided payment unless he has first requested

authorization, prior to obtaining the treatment, except in

cases of emergency, refusal, or neglect. 20 C.F.R. §

702.421; Shahady v. Atlas Tile & Marble Co., 682 F.2d

968(D.C. Cir. 1982) rev'g 13 BRBS 1007 (1981), cert.

denied, 459 U.S. 1146 (1983); McQuillen v. Horne Bros.,

Inc., 16 BRBS 10 (1983). The burden of proof regarding

compliance with this requirement is on the employee.

Maryland Shipbuilding & Dry Dock Co., v. Jenkins, 594

F.2d 404, 407, 10 BRBS 1, 8, (4th Cir. 1979), rev'g 6 BRBS

550 (1977). ss

In this case there is no question that Employer was

aware of Claimant's stroke and his emergency

hospitalization from his initial admission to West

Jefferson Hospital on July 13, 1994. Employer declined

to cover the medical expenses, but rather, informed

Claimant to seek coverage from Intervenor. Where

Employer has ample notice of an injury it may not

u

aa ala el ate aa

69a

invoke Section 907 of the Act to defeat coverage. Base

Billeting Fund., supra, Nardella, supra, Employer should

have investigated the issue of Claimant's medical care

further. It cannot in good faith claim either claim a lack

of notice or an inability to challenge the reasonableness

of the charges or services provided, where as in the

present case it did made no inquiry into the care

provided Claimant In fact knowledge of Claimant's care

is under such circumstances imputed to Employer. See

Harris v. Sun Shipbuilding & Dry Dock Co., 6 BRBS 494

(1977); rev'd on other grounds sub nom. Aetna Life Inc.,

Co., v. Harris, 578 F.2d 52 (3rd Cit 1978).

Regarding Intervenor's right of reimbursement, there

again is no question that Intervenor has a right of

reimbursement for the medical care and expenses which

it provided Claimant because of Employer/Carrier's

Unlawful refusal to acknowledge and pay for such care.

However, Intervenor does not have a first lien or right to

reimbursement from the first: monies Claimant” may

receive in this matter for an award of medical expenses

is independent of awards under Sections 908 or 909 of

the Act. See Union Stevedoring Corp., v. Norton, 98 F.2d

1012, 1016-1017 (3rd Cir. 1938). Moreover, none of the

cases cited by Intervenor in support of first lien rights

dealt with subrogation rights in the context of a

longshore claim,

G. Death Benefits:

Initially it must be noted that Section 33 U.S.C. 908

disability benefits must be distinguished from Section 33

U.S.C. 909 death benefits as two separate causes of

action, one for disability lying with the disabled

employee, and one for death lying with the specified

survivor of the decedent. Henry v. George Hymann

Construction Co., 749 F.2d 65, 73 (D.C. Cir. 1984).

70a

Section 9 of the Act provides in pertinent part:

If the injury causes death, the compensation therefore

shall be known as a death benefit and shall be payable in

the amount and to or for the benefit of the persons

following:

(a) Reasonable funeral expenses not exceeding $3,000,

(b) If there be a widow or widower and no child of the

deceased to such widow or widower 50 per centum of

the average weekly wages of the deceased, during

widowhood

(c) In computing death the average weekly wages of

the deceased shaft not be less than the national average

weekly wage as prescribed in section 6(b), but —

(1) the total weekly benefits shall not exceed the lesser

of the average weekly wages of the deceased or the

benefit which the deceased employee would have been

eligible to receive under section 6(b)(1); and

(2) in the case of a claim based on death due to an

occupational disease for which the time of injury (as

determined under section 10(i)) occurs at the employee

has retired, the total weekly benefits shall not exceed

one fifty -second part of the employee's average annual

earnings daring the 52-week period proceeding

retirement.

33 U.S.C. 909.

A claim for death benefits under the Act is a separate

and distinct right from a claim for disability, and such a

right does not arise until the death occurs, Puig v.

Standard Dredging Corp., 599 F.2d 467, 469 (ist Cir.

1979). In such a claim, the time of injury cannot be prior

to the employee's date of death. Lynch v. Washington

7la

Metro Area Transit Auth., 22 BRBS 351, 354 (1989).

Consequently, Claimant's widow is entitled to death

benefits pursuant to Section 9 of the Act beginning

October 2, 1997 and continuing.

H. Section 14(c) Penalty

Section 14 (e) provides:

(c) If any installment of compensation payable without

an award is not paid within fourteen days after it

become due, as provided in subdivision (b) of this

section, there shall he added to such unpaid installment

an amount equal to 10 per centum thereof, which shall

be paid at the same time as, but in addition to, such

installment, unless notice is filed under subdivision

(d) of this section, or unless such nonpayment is

excused by the deputy commissioner after a showing by

the employer that owning to conditions aver which be

bad ne control such installment could not be paid within

the period prescribed for the payment

In order to avoid this penalty, the Employer must either

pay the correct compensation, controvert liability or

show irreparable injury. Frisco v. Perini Corp., Marine

Div., 14 BRBS 798, 800 (1981). Moreover, the assessment

of this penalty is mandatory wt Section 14(e). An

Employer's good faith is not relevant under Section 14

(e). Director, OWCP v. Cooper Assoc., Inc., 607 F. 2d

1385, 1389 (D.C. Cir. 1979). In addition, an employer may

escape this penalty if it can show that either its failure to

inake timely payment or file a timely controversion were

due to circumstances beyond its control. Gulley v.

Ingalls Shipbuilding, 22 BRBS 262, 266 (1989), aff's in

pert. part sub nom. Ingalls Shipbuilding v. Director.

OWCP, 898 F.2d 1088.(5th Cir. 1990).

72a

In this case Employer, did not controvert until

December 13, 1994 which was clearly untimely and

failed to provide any justification for such conduct.

Claimant is thus entitled to an additional 10 percent

compensation under Section 14(e) on all installment

benefits not timely paid prior to the December 13, 1994

controversion. -

l. Interest and Attorney Fees:

Claimant is entitled to an award of interest on all

benefits outstanding. Strachan Shipping Co., v.

Wedemeyer, 452 F.2d 1225 (5th Cir. 1971), cert. denied,

406 U.S. 958(1972); Grant v. Portland Stevedoring Co.,

16 BRBS 267 (1984), on recon., 17 SRBS 20(1985). The

appropriate rate shall be determined as of the filing date

of this Decision and Order with the District Director.

Section 28 of the Act and implementing Code off Federal

Regulations Section 702.132 provide for approval of

attorney's fees. Claimant’s counsel is hereby allowed

thirty (30) days from the date of service of this decision

to supplement his present application and submit the

application for attorney’s fees, A service sheet showing

that service has been made on all parties, including

Employer, must accompany the petition. Parties have

twenty (20) days following the receipt of such

application within which to file any objections thereto.

The Act prohibits the charging of a fee in the absence of

an approved application.

ORDER

Based on the foregoing Findings of Fact and

Conclusions of Law and the record in its entirety, I

enter the following Order:

73a

l. Employer/Carrier shall pay Claimant’s widow

compensation for Claimant’s permanent total disability

from July 13, 1994 to October 1, 1997 based on

Claimant’s average weekly wage of $653.85 in

accordance with the provisions of Section 908(a) of the

Act.

2. Employer/Carrier shall pay Claimant's widow the

annual compensation benefit increase pursuant to

Section 910(f) of the Act effective July 13, 1994, for the

applicable period of permanent total disability.

3. Employer/Carrier is liable for a _ penalty

assessment wider Section 9 14(e) of the Act on all

installment benefits not timely paid prior to its

December 13, 1994 controversion.

4. Employer/Carrier shall pay Claimant’s widow

funeral expenses and death benefits from the date of

Claimant's death on October 2. 1994. to present and

continuing pursuant to Section 909 of the Act.

5, Employer/Carrier shall reimburse Intervenor for

all reasonable and necessary medical expenses it paid

on behalf of Claimant as a result of his July 13, 1994

stroke in the amount of 606,306.64.

6. Employer/Carrier shall pay Claimant's widow

interest on any accrued unpaid compensation benefits.

The applicable rate of interest shall be calculated at a

rate equal to the 52-week U.S. Treasury Bill Yield

immediately prior the date of judgment in accordance

with 28 U.S.C. $1961.

7. Claimant's counsel shall have thirty (30) days to

file a fully supported fee application with the Office of

Administrative Law Judges, serving a copy thereof on

74a

Claimant and opposing counsel who shall have twenty

(20) days to file any objection thereto.

ORDERED this 4th day of May 2000, at Metairie,

Louisiana.

CLEMENT J. KENNINGTON

Administrative Law Judge

Footnotes

fnl References to the transcript and exhibits are as

follows: trial transcript-Tr.; Claimant’s exhibits- CX- p. ;

Employer exhibits- EX: p. ; Intervenor exhibits-IX- p.

fn2 The facilities manager position was later changed to

Facilities Director, a position currently held by Robert

Allen Creighton. (CX-15, Tr. 109).

fn:3 Witnesses provided several estimates of the distance

between the tent and the waters edge ranging from 50

feet, (Tr. 64-66;CX-3), to 300-350 feet. (Tr. 134).

fn4d Claimant was terminated’ on August 13, 1994

because of his inability to return to work after 30 leave

of absence. (CX-8)

fn5 Claimant’s tax returns from 1990 to 1994 show

earnings between $31,844 (1994) and

$36,250 in 1991. (CX-1).

fn6 Employer objected to Ms. Bazor’s testimony as

hearsay. I permitted it as information relayed to her by

her husband. Subsequent testimony from other

witnesses with direct knowledge confirmed Ms. Bazor's

testimony.

75a

fn7 Ms. Bazor confirmed the fact that Claimant when

initially hired spent 1 to 2 days a week with daughter

Delaina. After July 4, 1994, Ciaimant never came home

staying instead with Delaina and her family. (Tr. 99.100).

fn8 Banks placed the date of his hire in May 1994 when

in fact it was June 1994. (CX-20, p.6). Banks was

hired about June 16 or 2 days before Claimant hired Bob

Creighton. (CX-20. p. 20; CX-15, p. 5).

fn9 CX-17 contains the deposition of security guard John

Ronald Dicken, who reported Claimant's stroke and the

tent area where Claimant was found unconscious.

fnl0 As noted previously Claimant’s maintenance duties

were not limited to minor maintenance, but rather

included all vessel maintenance with the exception of

steering, navigation and power trains. _

fnll EX-4 contained detailed medical records for

Claimant's treatment at West Jefferson Hospital

immediately following his stroke.