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Longshore Insider
Arising Out of and In the Course of Employment
May 18, 2020 - Jack Martone, The American Equity Underwriters, Inc.

There is a principle basic to the concept of workers’ compensation laws that must be resolved at the initial stage of a claim: In order for compensation to be payable under a workers’ compensation law, the disability must have arisen out of employment and must be the result of an injury that occurred in the course of employment.

This requirement is central to the purpose of the workers’ compensation remedy. It is based on a Progressive Era social reform compromise. Workers gave up the right to sue employers for on-the-job injuries and in return received prompt no-fault statutory indemnity and medical benefits. Employers gave up the common law defenses of contributory negligence, assumption of risk, and negligence of a fellow employee and received freedom from lawsuits and more predictability.

The purpose of workers’ compensation laws is to provide a remedy for workers injured on the job, i.e., for injuries, illnesses, and deaths that arise out of employment and that occur in the course of employment.

State workers’ compensation laws vary. In this article, we’ll look specifically at the federal Longshore and Harbor Workers’ Compensation Act (Longshore Act). Changes to states’ workers’ compensation laws are not applicable to claims under the Longshore Act.

Section 2(2) (33 U.S.C. 902(2)) of the Longshore Act states,

“902. Definitions

When used in this Act

(2) 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 results from such accidental injury …”

“Arising out of employment” and “in the course of employment” are separate elements. The former refers to injury causation. There must be a causal connection between the injury and an employment-related risk.

The latter refers to the time, place, and circumstance of the injury. Not only must the injury have been caused by the employment, it must also have arisen during the employment. It must have occurred within the time and space boundaries of the employment and in the course of an activity whose purpose is related to the employment.

 

How these concepts apply to a typical Longshore Act claim

Initially, the employee must establish what is called his prima facie case. He must show that, 1) he sustained harm, and 2) an accident occurred or working conditions existed at his job that could have caused the harm. This requirement does not include the burden of proving a causal relationship between the injury and employment at this point.

NOTE: An “accidental injury” has been defined as, “An unlooked for mishap or untoward event which was not expected or designed.” Or, something out of the usual course of events and which happens suddenly and unexpectedly, and without any design on the part of the person injured.

Once the employee satisfies the relatively light burden of establishing his prima facie case, a rebuttable presumption arises under Section 920(a) that the injury did arise out of employment.

The prima facie case, however, must at least allege an injury or physical impairment arising out of and in the course of employment based on the “could have caused” standard. The claimant can establish his prima facie case simply by testifying that he had pain or an illness at work even if it is not supported at this stage by witnesses or medical evidence. But it must be based on more than speculation. There has to be a plausible connection to actual working conditions.

Once the employee has established his prima facie case, the burden of proof shifts to the employer to rebut the presumption by “producing” “substantial evidence” that the injury was not caused (or “aggravated”) by the employment.

NOTE: We are using colloquial terms with special meanings within the framework of the Longshore Act.

The burden of “producing” evidence at this stage is not the same as the burden of “persuading” an adjudicator. Evaluation of the weight and credibility of the evidence comes later. At the rebuttal stage, all that is required is that relevant evidence be produced that, if believed, would show the harm or pain is not work-related.

“Substantial evidence” has been defined as, “That relevant evidence that is more than a scintilla but less than a preponderance – that would cause a reasonable person to accept the fact finding.” In a common formulation, it must “throw factual doubt on the claimant’s case”.

“Aggravation” is a topic which we have discussed on previous occasions. Basically, a work-related aggravation of a pre-existing condition is an “injury” entitled to the presumption, and the employer responsible for the aggravation pays for the entire disability.

 

Let’s get back to the Longshore Act’s claim’s handling framework’s requirement that an injury arise out of and occur in the course of employment.

NOTE: A finding that an injury occurred in the course of employment usually strengthens the presumption that the injury also arose out of the employment.

If the employer meets its burden of proof and produces substantial evidence to rebut the presumption, then the presumption drops from the case and the burden of proof shifts back to the claimant to persuade on the issue of causation by a preponderance of the evidence in the record as a whole.

This is by no means a straightforward proposition in many cases.

There are instances of injuries incurred during recreational activities, both on and off the employer’s property, that were found to have occurred in the course and scope of employment. In these cases, employers typically acquiesced in or even encouraged these regular activities and/or provided the space and equipment.

There are instances where an employee disregarded or intentionally violated an employer’s instructions or policies but injuries were still found to have occurred within the course and scope of employment. These cases have not gone so far as to sanction illegal activity or purely personal deviations from the job duties that take the employee completely outside of the usual risks of the employment, but workers’ compensation laws are typically liberally interpreted and contributory negligence (or good judgment) is not a factor.

We have seen cases where symptoms arose related to an underlying condition, such as chest pains, that satisfy the definition of injury arising out of and in the course of employment.

A psychological impairment, even in the absence of a physical harm, can constitute an injury under the Longshore Act.

We have seen cases in which injuries incurred during medical examinations scheduled at the employer’s request in connection with a work-related disability, or incurred during vocational rehabilitation, have been found to have arisen out of employment and to have occurred in the course of employment.

We have seen cases of injuries that have occurred during fights at work fights at work that meet the definition of injury under the Longshore Act meet the definition of injury under the Longshore Act.

Finally, as a general rule, injuries that occur during the commute to or from work do not occur in the course and scope of employment or arise out of employment. There are several exceptions to this rule; for example, if the employer pays for or provides the means of transportation, or the employee is on an employment-related errand, an injury may be found to have arisen out of and in the course of employment.

 

The COVID-19 pandemic has caused many employers to wonder if “arising out of and in the course of employment” applies to an employee who gets sick or contracts an illness.

I don’t mean an Occupational Disease such as asbestosis which is caused by injurious exposure peculiar to a particular job or workplace exposure and has a gradual onset, but something like the flu or a virus or any number of diseases occurring in the population generally. Common infectious diseases have typically not been treated as Occupational Diseases under workers’ compensation laws.

Are there circumstances in which these illnesses can be said to have occurred in the course of employment and arisen out of the employment?

At the prima facie case stage of the claim, the employee must demonstrate that the “harm” – in this case, illness – arose during the time and space boundaries of employment and was caused by the working conditions of the employment.

The workers’ compensation remedy requires that the illness arose out of the employment. Do working conditions exist that increase the probability of being exposed to the illness, or is there no greater degree of risk than that to the general public? There has to be a connection between working conditions and the illness. If the employee cannot show this then he fails to establish his prima facie case. There is no viable claim. Common infectious diseases have, up to now, typically not been treated as “accidental injuries” under workers’ compensation laws.

On the other hand, there is nothing in the Longshore Act that specifically excludes contracting an infectious disease from consideration as an “accidental injury”.

That said, working conditions must exist that caused the illness or put the employee at a higher risk of exposure than the general public. You must have contracted the illness as the result of this higher risk exposure that occurred while you were doing your job.

NOTE: In response to the COVID-19 pandemic, we have seen the beginning of what may be a trend in the states to amend workers’ compensation laws to create a presumption in favor of employees such as first responders and medical personnel that any virus infection is caused by and arises out of employment. There has even been discussion about expanding this type of presumption to “front-line” workers in food service and other occupations considered to be “essential”. There will be more of this.

 

What about employees who work from home?

Obviously, an employee is not covered by workers’ compensation for the entire day and for all of their daily activities. This does not, however, rule out the possibility that circumstances will exist that satisfy the arising out of and in the course of employment requirement.

Personal daily activities such as dog walking, changing diapers, or cooking, for example, would not qualify. Nor would showering in your private residence.

NOTE: We are not talking about the Defense Defense Base Act, the Zone of Special Danger, and the case of Mr. Steven Ritzheimer Act, the Zone of Special Danger, and the case of Mr. Steven Ritzheimer. (Steven Ritzheimer v. Triple Canopy Co. and Allied World National Assurance Co. and Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, BRB Bo. 15-0233, 02/23/2016) Let’s stick to the Longshore Act.

If an employee is working from home as part of the conditions of their employment, then some of their activities are going to be directly related to their job performance. Moving or installing office machines, carrying boxes of supplies, or similar work activities would qualify as “in the course of employment”.

NOTE: Working from home would not satisfy the situs requirement for a claim under the Longshore Act.

During a period of pandemic, a term we are all familiar with at this point, it seems to me that it would be more difficult to establish that contracting an illness while working at home is in the course of employment and arising out of employment. The nature of “pandemic” is broad, across the board danger of exposure to the general public.

Work-related travel opens up a new set of questions. Does this exposure heighten the risk of contracting an illness? The same general principles apply.

I think that we are all in the process of learning things about the intersection of workers’ compensation laws and pandemic conditions. Specifically, we may learn some things with regard to the application of the Section 920(a) presumption.

 



ABOUT THE AUTHOR

John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.

The opinions and comments expressed in this article are those of the authors and do not reflect the opinion of ALMA, AEU or AmWINS. None of ALMA, AEU, AmWINS or the authors are responsible for any inaccuracy of content or for any loss or damages incurred by any party as a result of reliance on information contained in this article. Content may not be published or reproduced without the written consent of the authors. Prior articles may not be updated for accuracy as pertinent information changes over time. The Longshore Insider is intended to provide general information about the industry and should not be construed as legal advice under any circumstances. For legal advice, please consult a licensed attorney.
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