Fifth Circuit: Longshore Modification Statute Has a Broad Scope

Claimant injured his right knee while working for Employer on an oil production platform.  Over the next month, Claimant’s left knee began hurting, too.  Claimant performed light duty work for Employer until he was terminated.  Not long thereafter, Claimant filed a Longshore and Harbor Workers’ Compensation Act (“LHWCA”) claim.  Initially, the administrative law judge (“ALJ”) denied the claim, but the Benefits Review Board (“BRB”) reversed.  On remand, the ALJ awarded closed periods of temporary partial and temporary total disability benefits.  Prior to the passage of one year, Claimant filed a Section 22 modification application.  The ALJ modified the previous judgment to provide for permanent partial disability benefits equal to a 25% impairment of each knee.  The BRB affirmed and Employer appealed to the Fifth Circuit, which also affirmed.

The Fifth Circuit addressed the two avenues by which a party to a LHWCA claim may move for a Section 22 modification: (1) a change in conditions, or (2) a mistake in a determination of fact by the ALJ.  Employer wanted to restrict a “mistake of fact” to “completely new and previously unattainable evidence,” but the Fifth Circuit disagreed.  Prior caselaw from the Supreme Court concluded that Section 22’s “mistake in a determination of fact” language was intended to have a broad scope, and that there was no limitation requiring modification only when there is new evidence.  Here, modification was appropriate because the testimony of two different physicians supported the 25% impairment rating to both knees.

Island Operating Co., Inc. v. Dir., OWCP, — F.3d —- (5th Cir. 2013).