In a recent unpublished opinion, the U.S. Fifth Circuit Court of Appeals affirmed the Administrative Law Judge’s award of benefits to a longshoreman who sustained work-related psychological injuries.  Claimant was operating a forklift when he accidentally struck and killed his co-worker.  Although Claimant was not physically injured, he attempted to assist the deceased co-worker by untangling her from under the forklift. During the entire time that first responders were attempting to save the co-worker, Claimant stood ten to fifteen feet away with a clear view of her.  Claimant spent the rest of the day reporting what he saw to multiple state and federal law enforcement agencies.

 

Claimant was subsequently diagnosed with post-traumatic stress disorder, depression, and anxiety; he was also being monitored for suicide.  Both Claimant’s treating physicians as well as the Employer’s Second Medical Opinion physician opined that Claimant was disabled from returning to work.  However, the SMO physician opined that Claimant was under-medicated, and Employer requested a Department of Labor (“DOL”) Independent Medical Examination (“IME”). The DOL IME physician opined that Claimant did not suffer from PTSD because Claimant did not experience a threat himself and was never in danger during the accident.  Further, the DOL IME opined that Claimant demonstrated significant evidence of malingering.   Based on this report, Employer terminated indemnity and medical benefits, and Claimant filed a claim.

 

Employer disputed the claim, arguing that Claimant was not entitled to compensation under the LHWCA for a psychological injury because he did not sustain a physical injury or was not placed in immediate risk of physical injury, i.e., Claimant was not in the “zone of danger” set forth in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).  Employer further contended that the DOL IME’s opinion that Claimant did not suffer from PTSD was dispositive.

 

The Fifth Circuit (in affirming the ALJ and the BRB) held that the “zone of danger” test was a tort concept inapplicable to the LHWCA.  Further, Section 2(2) defining “injury” did not distinguish between physical and psychological injuries. Nowhere in the statute was there a requirement that physical injury accompany a psychological injury.  The Fifth Circuit further affirmed the ALJ’s findings that the DOL IME physician’s report was to be given little weight.  In examining the plain language of Section 7(e), the court held nothing in the LHWCA required an ALJ to adopt a DOL IME physician’s opinion as binding.  The ALJ’s finding that the numerous other doctors who diagnosed PTSD and disabled Claimant was supported by substantial evidence.

 

Ceres Marine Terminal Inc. v. Director, OWCP