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Longshore Insider
Office of Administrative Law Judges (OALJ), Part III
Sep 2, 2014 - Jack Martone, The American Equity Underwriters, Inc.
The Appeal

We are at the third tier of the Department of Labor’s three step adjudication process. The first step was informal proceedings at DOL district offices; the second step was formal hearings at the OALJ; the third step is the appeal to the Benefits Review Board (Board).

The Board was established by section 921 (33 U.S.C. 921) of the Act as amended in 1972 (effective date 11/26/72). Members are appointed by the Secretary of Labor and serve indeterminate terms at the Secretary’s discretion. There are five permanent members, with three members constituting a quorum.

First, let’s understand the Board’s “scope of review”. This defines the manner in which the Board reviews an ALJ’s Order or other actions taken by the ALJ. It varies according to the nature of what is being reviewed, and it is important in determining the outcome of an appeal.

In the first paragraph of every Board Decision on Appeal, there is the same boilerplate language, “We must affirm the findings of fact and conclusions of law of the ALJ if they are rational, supported by substantial evidence, and in accordance with law.” So, the Board reminds us that it is mindful that it is the ALJ’s prerogative to assess the credibility of all witnesses and to determine the weight to be accorded to the evidence.

NOTE: What is “substantial evidence”? According to the U.S. Supreme Court, it is “… more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” So, the catchphrase is, more than a mere scintilla, which means evidence sufficient so that a rational conclusion may be based on it.

The Board repeatedly reminds us that it cannot reweigh the evidence, and that it must affirm a decision supported by substantial evidence. The ALJ conducts the hearing and observes the witnesses and is the trier of fact.

The legality of the ALJ’s findings, whether they conform to the statute, are reviewed “de novo” by the Board, i.e., from the beginning. This is the same standard by which ALJ’s grants of Summary Decision are reviewed. Note that under “de novo” review there is no presumption of correctness that attaches to the ALJ’s legal conclusions. The issue is reviewed “anew”.

Certain other actions by the ALJ are reviewed by a different standard, i.e., “abuse of discretion”. For example, an ALJ’s denial of a motion for reconsideration is reviewed under the abuse of discretion standard. His decision will be affirmed unless it was arbitrary or capricious.

As for the appeal process itself, it is orderly but time consuming.

Any party in interest may appeal an ALJ’s Compensation Order to the Benefits Review Board within 30 days of the Order’s effective date by filing a Notice of Appeal with the Clerk of the Board in Washington, DC. At this point, they are the “petitioner”. If the petitioner files the Notice with the DOL district director who served the ALJ’s order, the district director will forward it to the Board with the filing date protected.

Within 30 days after receipt of the acknowledgement of the Notice of Appeal from the Clerk, the petitioner must submit a Petition for Review, listing the issues being appealed, along with a supporting brief presenting arguments on each issue appealed. He must serve this on all parties.

Within 30 days of receipt of a Petition for Review, each party may submit its own response brief, served on all the parties.

Any reply briefs are due within 20 days.

The Board may enlarge any of these times on the appropriate and timely motion of a party.

Any party may file a cross appeal of its own. This is done by filing a Notice of Appeal within 14 days of the date on which the first notice of appeal was filed or within the 30 day time limit for filing an appeal.

NOTE: Electronic filing of appeals, briefs, and motions is now available through the Board’s internet based Electronic File and Service Request System. An “e-Filer” must register as a user before using the System. Information regarding registration and a user guide is at https://dol-appeals.entellitrak.com.

ANOTHER NOTE: parties cannot submit new evidence to the Board on appeal. The Board will only consider the record established at the formal hearing by the ALJ along with the parties’ briefs to the Board. Any party who believes that it has indispensable new evidence should request a modification under section 22 on the grounds of a mistake in fact or a change in circumstances. The Board will then dismiss the appeal without prejudice.

At this point, when all of the filings are in place, and if the Board does not take the unusual step of ordering oral argument on any issue, it proceeds to review the record established at the formal hearing within its scope of review.

Finally, the Board will issue its written decision affirming, modifying, vacating, or reversing the ALJ’s Compensation Order, or it may remand the case back to the OALJ for additional action or proceedings. The Board will usually follow the law of the federal circuit appropriate to the location of the injury, since there are conflicts among the circuits on many issues, or at least differences in analytic framework.

NOTE: section 928(b) states that, “the deputy commissioner or Board shall set the case for informal conference ….” In spite of this statement, the Board has held that under section 921 it has no authority to hold informal conferences. It is restricted to appellate review.

The Board’s decision is final in 60 days. It may be appealed within this time limit to the appropriate U.S. Court of Appeals.

The Courts of Appeal review decisions by the Board to determine whether it has adhered to its proper scope of review, i.e., whether the ALJ’s findings of fact are supported by substantial evidence and are consistent with the law. This scope of review of Board decisions is the same as the Board’s review of ALJ decisions.

Personal note: the scope of review can be a tricky business in the hands of the BRB. Brace yourself when the Board goes out of its way to emphasize that the ALJ is the trier of fact and it is his exclusive prerogative to evaluate the credibility of witnesses and to weigh the evidence. There have been times when the Board has misapplied the burden of production of substantial evidence (as opposed to the burden of persuasion) necessary to rebut the section 20(a) presumption, and they have been lectured on the point by the federal circuits. And there have been cases of muscle strains that resolve within a week that are turned into a running Order for temporary total disability by virtue of the “aggravation rule” applied to a pre-existing, non work related, degenerative condition. The Board has on occasion reweighed medical evidence and even credibility determinations to turn ALJ denials into awards or serial remands.

It must be acknowledged that among the employer and defense community the Board has the reputation of being very liberal in favor of injured workers. The fact of the matter, however, is that the Longshore Act, as remedial legislation, is written to favor the injured worker, and the U.S. Supreme Court has instructed that it be liberally interpreted. With this as its mandate, and the statute written as it is, in spite of occasional lapses, in my humble opinion the Board generally does a very good job fulfilling its role.

At any rate, as I noted, the Board’s decisions may be appealed to the federal circuit courts of appeal.


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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