The Ninth Circuit covered a lot of ground in reviewing the Benefits Review Board's ("BRB") determination that the claimant was entitled to benefits in Hawaii Stevedores, Inc. v. Ogawa, 2010 U.S. App. LEXIS 12767(9th Cir. June 22, 2010).
Ogawa was a storeroom maintenance clerk at the employer's marine terminal from 1977 to November 2002. He enjoyed the work, but found it stressful. He suffered a stroke in November 2002. After six months of convalescing, Ogawa attempted to return to work. In June 2003, Ogawa was medically retired.
Thereafter, believing that the job stress caused his high blood pressure and stroke, Ogawa filed a disability compensation claim under the Longshore Harbor and Workers Compensation Act. After a hearing, the ALJ found Ogawa was temporarily disabled before March 15, 2005, and was permanently and totally disabled thereafter. The BRB affirmed.
On appeal, the employer asserted that the claim for compensation was untimely because it was not filed thirty days after the date of injury. The Ninth Circuit noted that the LHWCA excused late notice where the employer was not prejudiced. Here, the employer was aware of Ogawa's medical condition following the stroke because it had access to all of his medical records, his doctors, and Ogawa himself, who had submitted to five independent medical examinations over nearly four years. Therefore, Ogawa's late notice was properly excused.
Next, the court considered whether the employer had submitted substantial evidence that Ogawa's stroke did not arise in the course of his employment. The LHWCA creates a presumption that a disabling injury is work-related and thus compensable. This presumption may be invoked by the claimant upon a prima facie showing that: (1) he suffered a harm, and (2) a workplace condition could have caused the harm. If the claimant successfully invokes the presumption at the first step, the employer may rebut the presumption at the second step by presenting evidence to sever the potential connection between he disability and work environment. If the employer does so, the ALJ moves to the third step by weighing the evidence to determine whether the claimant has established the causal link between the injury and employment.
Here, the ALJ mistakenly ignored the employer's evidence that the injury was not work related, giving more weight to Ogawa's evidence. Although it was error for the ALJ to weigh the evidence and consider questions of credibility at the second step, it was harmless. The ALJ's ultimate conclusion that the totality of the evidence showed a relationship between stressful work conditions and Ogawa's stroke was supported by substantial evidence.
Finally, the employer and Ogawa both argued that the ALJ erred in determining the date of Ogawa's maximum medical improvement (MMI), the date which triggers a change in the classification of a claimant's disability from temporary to permanent. The ALJ set the MMI on March 14, 2005, two and a half years after the stroke. The Ninth Circuit agreed that the ALJ's determination of the MMI was not supported by substantial evidence. Although the ALJ expressed concern that the MMI testimony was speculative and unexplained, she did not take additional evidence on this point.
Accordingly, the petition for review was granted in part on the issue of Ogawa's MMI date, but denied with respect to all other issues.
