Six-Day Delay in Getting Offshore Worker Medical Treatment For Stroke Supports Aggravation Claim Under Longshore Act

One of the important axioms of workers’ compensation law is that, generally, the employer takes the employee as it finds that employee [see Larson’s Workers’ Compensation Law, § 9.02]. That is to say preexisting disease or infirmity generally does not disqualify a claim under the “arising out of the employment” requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce death or disability.

In an unusual case decided under the Longshore and Harbor Workers’ Compensation Act [33 U.S.C. §§ 901-950], Island Operating Co., Inc. v. Director, Office of Workers’ Comp. Programs (Crawford), 2012 U.S. App. LEXIS (5th Cir. Feb. 16, 2012), the Fifth Circuit Court of Appeals recently affirmed a decision by the Benefits Review Board that held an offshore oil worker’s working conditions aggravated the worker’s stroke. 

Minor Injury Disembarking From Helicopter; Stroke Occurred Sometime Later

Crawford was employed as a lead operator on an offshore oil production platform. As part of his usual routine, he was taken by helicopter to an offshore platform to begin a week-long shift. As he disembarked from the helicopter, his knee buckled, and he fell down two stairs. He completed an accident report detailing minor injuries, but performed his job duties for the remainder of the day. In later testimony, he indicated that when he awoke the following morning, he experienced numbness in his left foot and three of the fingers on his left hand. According to his testimony, Crawford asked his supervisor to send a replacement to relieve him so that he could be examined by a physician (there were no physicians on the platform). Crawford testified that the supervisor denied his request because a replacement was not available. Crawford also testified that his condition continued to worsen in the days that followed and that he was finally replaced by a relief operator on Monday, five days after his fall. Crawford was immediately taken by helicopter to a medical center where physicians diagnosed him with a stroke. Crawford did not return to any kind of work following the diagnosis.

Stroke Aggravated by Length of Time Worker Had to Spend Before Medical Care

Crawford sought benefits under LHWCA. An administrative law judge (“ALJ”) concluded that Crawford’s stroke was a preexisting condition that was not caused by Crawford’s work, but that the stroke was aggravated by his working conditions because of the time Crawford spent on the offshore platform before he was able to seek treatment. Ultimately, the ALJ awarded Crawford compensation for temporary total disability for a short time period and permanent total disability benefits thereafter. The ALJ also held the employers liable for the medical expenses related to Crawford’s stroke.

The employers appealed the ALJ’s decision and the BRB affirmed. The employers further appealed the decision of the BRB.

Longshore § 902(a) Presumption

The LHWCA has an important presumption of coverage provision [§ 920(a)] that generally provides that a claim is presumed to come within the provisions of the LHWCA in the absence of substantial evidence to the contrary. To invoke the presumption, the claimant must make a prima facie showing of causation: (1) that he or she suffered harm, and (2) that conditions existed at work, or an accident occurred at work, that could have caused, aggravated, or accelerated the condition. Once a claimant makes a prima facie case of causation, the burden shifts to the employer to rebut it with “substantial evidence to the contrary.

Employers: Damage Done Before Worker Notified It of Difficulties

The employers challenged the ALJ’s finding that the worker was entitled to the presumption under § 920(a) that working conditions had aggravated the disability resulting from Crawford’s stroke. The employers observed that Crawford did not report that he was experiencing the symptoms of a stroke until at least twenty-four hours after his fall, that one of the medical experts testified that a stroke such as Crawford’s would cause permanent and irreversible damage, except in some cases where blood thinner is administered within three hours of the stroke’s onset. The employers contended, therefore, that Crawford’s stroke had already caused permanent and irreversible damage by the time Crawford reported his symptoms. They contended any aggravation of Crawford’s condition was caused solely by Crawford’s own inaction and could not have been caused by his working conditions, meaning that Crawford did not present sufficient evidence to entitle him to the presumption under § 920(a).

Bludworth Case Related to Aggravation

The employers cited Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046 (5th Cir. 1983), in which the worker sought LHWCA benefits for, inter alia, the cost of a drug detoxification program. Prior to working for the employer, Lira was addicted to heroin. While working at the employer, he injured his back and received pain-killing narcotics as part of his treatment. Shortly thereafter, Lira began using heroin again, and he contended that his work-related injury had aggravated his preexisting condition (i.e., his propensity to use heroin). The BRB determined that the employer had failed to rebut the presumption that Lira’s readdiction was caused by his work injury, but the Fifth Circuit reversed, indicating that Lira had failed to disclose his past drug use on his employment application because “he did not think he would get the job if he told the truth” and that he again deliberately failed to disclose his past drug use to the physicians treating him for his back injury. The Fifth Circuit ruled that Lira’s deliberate failure to disclose his past drug use “overpowered and nullified the causal connection between his prior back injury and his subsequent readdiction to heroin.”

The Fifth Circuit indicated the instant case was distinguishable, however from Bludworth. The court indicated that in Bludworth, its holding stood for the limited proposition that an employee’s unjustified, intentional misconduct might constitute an intervening cause. The Fifth Circuit indicated the inquiry should be focused on whether Crawford set out sufficient facts to entitle him to the ß 920(a) presumption. This is a relatively low threshold to meet and required Crawford to set out that conditions existed at work that could have caused, aggravated, or accelerated his stroke.

Substantial Evidence Supported ALJ’s Findings

The court also indicated that the three-hour time frame the expert discussed as being particularly critical in treating Crawford’s stroke was not necessarily the only time period relevant to Crawford’s treatment. The physician repeatedly stressed in his testimony that treatment should be administered as soon as possible. He further testified that post-stroke treatment includes controlling a patient’s blood pressure, diabetes, and stopping the patient from smoking. Moreover, although there was some evidence to the contrary, Crawford testified that he repeatedly requested to be relieved from his post on the offshore platform so that he could receive treatment. As a consequence, the Fifth Circuit agreed with the BRB that substantial evidence supported the ALJ’s inference that the damage caused by Crawford’s stroke was aggravated by the six days he spent on the offshore platform before he received treatment.