By Catherine Ho
When longshore worker Sandra Towne learned in 2002 that she needed surgery for carpal tunnel syndrome, she turned to her most recent employer to pay for it.
“Don’t look at us,” was the message Towne said she got.
Since Towne’s injury wasn’t severe enough to stop her from working, she continued doing stints for other companies. But each subsequent employer fought having to cover her treatment and workers’ compensation in hopes that the next one would shoulder the liability, said Towne’s lawyer, Charles Naylor.
Three years later, Towne got an employer to pay for the surgery, but legal fees were not included, and the litigation dragged on another five years.
“Employers realized that if they could discourage the claimant from going off work on their watch, they could pass the responsibility onto the next guy,” Naylor said.
This legal hurdle for thousands of port workers like Towne could shrink, thanks to a decision in her case last week by the 9th U.S. Circuit Court of Appeals. In California United Terminals (CUT) v. Sandra Towne, the 9th Circuit ruled that CUT must pay the attorney fees accumulated over the eight years it took to litigate what began as a straightforward $24,000 claim for carpal tunnel treatment. The ruling could discourage employers from ducking responsibility for paying workers’ compensation, because doing so puts them at risk of having to foot the entire legal bill if a worker litigates the matter.
Naylor, whose San Pedro practice is one of a small cadre of California firms specializing in maritime workers’ compensation, said a 2002 9th Circuit decision in Metropolitan Stevedore Co. v. Crescent Wharf & Warehouse (Price) created an incentive for employers to shirk responsibility. The Price ruling said that the last port employer to hire the worker must pay for that individual’s workers’ compensation. That encouraged “this bizarre game of musical chairs where the last employer standing gets struck with the compensation,” Naylor said.
Although the appellate ruling comes in a niche area of the law, it highlights the hard-fought battles waged regularly at California ports over who must pay to cover on-the-job injuries and the tab for legal bills. The issue is tricky because unlike other laborers, longshore workers often are paid by various employers during a short period of time, loading and unloading cargo, operating machinery to transport goods and doing clerical work.
The legal issues have particular resonance in Southern California, where the ports of Long Beach and Los Angeles receive 40 percent of the nation’s containerized imports. Of the roughly 15,000 longshore workers in California, 85 percent of them work in Long Beach and Los Angeles, according to the International Longshore and Warehouse Union, which represents most unionized dock workers on the West Coast. Last year, 1,495 workers’ compensation claims were filed by California longshore workers.
Port workers’ compensation is a niche legal practice. The longshore section of the Workers’ Injury Law & Advocacy group, the national group of claimants’ lawyers, boasts about 100 attorneys.
“We have a lot of litigation on attorneys fees,” said Steven Birnbaum, who represents injured longshore workers in compensation claims.
That’s partly because the law that governs workers’ compensation for longshore workers, the federal Longshore and Harbor Workers’ Compensation Act, is one of the only workers’ compensation laws where if a worker successfully gets his or her employer to pay benefits – their lawyer’s fees are paid entirely by the employer or insurance provider, according to Birnbaum, who has represented workers in several states, including California. That means employers fight harder to get out of paying, he said.
More longshore workers’ compensation cases are litigated on the West Coast than any other region of the country, according to Joshua Gillelan, director of the Longshore Claimants’ National Law Center, a Washington, D.C.-based appellate practice that gets involved with port workers’ compensation cases nationally.
In the Towne case, CUT in 2006 agreed to pay approximately $24,000 for Towne’s operation, temporary disability benefits and partial permanent disability. But the question before the 9th Circuit was whether the company also was responsible for legal fees accumulated over the 270 hours Towne’s lawyer spent on the case since 2002. It’s unclear exactly how much those fees are, Naylor said.
Roy Axelrod, the attorney representing California United Terminals, declined to comment. In papers filed with the 9th Circuit, he argued that CUT should not be liable to pay fees because they were not one of original employers listed when Towne filed her claim with the Office of Workers’ Compensation Programs, the division of the Department of Labor that handles workers’ claims. CUT was later brought into the case by the administrative law judge overseeing the matter because Towne worked for CUT after she filed the claim.
See the story as it appeared in print here.
