Judge's Benchbook:

Longshore & Harbor Workers' Compensation Act
Supplement - January 2005
Topic Topic 85 - Res Judicata, Collateral Estoppel, Full Faith and Credit, Election of Remedies

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Res Judicata, Collateral Estoppel, Full Faith and Credit, Election of Remedies


  • Res Judicata, Collateral Estoppel, Full Faith and Credit, Election of Remedies--Introduction and General Concepts


  • Effect of Prior State Proceeding on a Subsequent Federal Claim


    • Election of Remedies--Federal/State Conflicts


  • "Law of the Case" Doctrine




Topic  85.1     Res Judicata, Collateral Estoppel, Full Faith and Credit, Election of Remedies�Introduction and General Concepts


Kirkpatrick v. B.B.I, Inc ., 38 BRBS 27 (2004).


            The Board affirmed the ALJ's finding that the claimant was covered by the OCSLA although the claimant was not directly involved in the physical construction of an offshore platform. The parties had stipulated that the worker's "primary job function was supervising the ordering and transportation of materials necessary to the construction of the Conoco platform complex, upon which he was injured." As the claimant's purpose for being on the platform was to procure supplies necessary to construct the platform, and his injury occurred during the course of his duties, his work satisfies the OCSLA status test.


            The Board also found that Sections 12 and 13 apply to a claimant's notice of injury and claim for compensation due to his injury; these sections do not apply to a carrier seeking a determination that another carrier is responsible for claimant's benefits. The Board stated, "There is, in fact, no statutory provision requiring a carrier seeking reimbursement from another carrier to do so within a specified period."


            Here INA claimed that it relied on Houston General's 12 year acceptance of this claim and, to its detriment, "is now facing a claim for reimbursement approaching three-quarters of a million dollars, without the opportunity to investigate contemporaneously, manage medical treatment, engage in vocational rehabilitation, monitor disability status, etc." The Board rejected this argument "as there was no representation or action of any detrimental reliance, there can be no application of the doctrine of equitable estoppel."


            Further, the Board noted that the doctrine of laches precludes the prosecution of stale claims if the party bringing the action lacks diligence in pursuing the claim and the party asserting the defense has been prejudiced by the same lack of diligence. Additionally the Board noted that because the LHWCA contains specific statutory periods of limitation, the doctrine of laches is not available to defend against the filing of claims there under. "As the claim for reimbursement is related to claimant's claim under the Act by extension of OCSLA, and as the Supreme Court has stated that the doctrine of laches does not apply under the OCSLA, the doctrine of laches does not apply to this case.


            The Board found that neither judicial estoppel or equitable estoppel applied and noted that "jurisdictional estoppel" is a fictitious doctrine.


            The Board vacated the ALJ's ruling that he did not have jurisdiction to address the issue of reimbursement between the two insurance carriers. "Because INA's liability evolved from claimant's active claim for continuing benefits, and because its responsibility for those benefits is based entirely on the provisions of the Act, as extended by the OCSLA, we vacate the [ALJ's] determination that he does not have jurisdiction to address the reimbursement issue, and we remand the case to him�."

Topic  85.1     Res Judicata, Collateral Estoppel, Full Faith and Credit, Election of Remedies


Porter v. Newport News Shipbuilding & Dry Dock Co ., 36 BRBS 113 (2002).


            In contrast to the facts in Jones v. Newport News Shipbuilding & Dry Dock Company , 36 BRBS 109 (2002), supra , the Board here notes that "[E]ven where a document on its face states a claim for modification, the circumstances surrounding its filing may establish the absence of an actual intent to pursue modification at that time."


            Here, unlike in Jones , the Board found that the context of the filing established that the claimant lacked the intent to pursue an actual claim for nominal benefits at the time she filed the petition for modification. The Board noted that the claimant's August 12, 1999 letter was filed only 18 days after the last payment of benefits and that while "it is conceivable claimant's condition could have changed in that short period of time, providing a basis for her assertion that she anticipated future economic harm, there is no evidence of record to support such a conclusion." It went on to note that the 1999 letter was filed well in advance of the December 2000 evidence of any deterioration of her condition and, thus, constituted an anticipatory filing.


            The Board found further evidence of an anticipatory filing in the claimant's actions. After receiving the 1999 letter, OWCP sought clarification of its purpose, asking the claimant whether the letter was to be considered "a request for an informal conference and/or Section 22 Modification so that we can [determine] what additional action needs to be taken by the office." The claimant responded stating that she did not want OWCP to schedule an informal conference, and, in so responding, she deliberately halted the administrative process.


            The Board found that because the claimant intentionally acted in a manner contrary to the pursuit of her claim, her actions were merely an effort at keeping the option of seeking modification open until she had a loss to claim. "[S]he did not have the requisite intent to pursue a claim for nominal benefits, but rather was attempting to file a document which would hold her claim open indefinitely." The total circumstances surrounding the filing of the 1999 letter establish that the application did not manifest an actual intent to seek compensation for the loss alleged. Because the 1999 motion was thus an anticipatory filing, it was not a valid motion for modification.


            While the Board found moot the claimant's argument that the ALJ erred in applying the doctrine of equitable estoppel, it nevertheless addressed it "for the sake of judicial efficiency." The Board found that, "Although, it was reasonable for employer to have relied on the statement that claimant did not wish to proceed to informal conference at that time, there was no detrimental reliance by employer. While employer may have thought the issue was abandoned or resolved in some manner it suffered no injury because of the letter: it took no action in reliance on the letter and it did not pay any benefits or place itself in a position of harm.

Topic  85.1     Res Judicata, Collateral Estoppel, Full Faith and Credit, Election of Remedies�Generally Concepts


Holmes v. Shell Offshore, Inc ., 37 BRBS 27 (2003).


            The Board held that a claimant was not in privity with her stepmother and was not bound by the prior finding that her father's death was not compensable.  Although the two claims arose out of the same death, raising the same question of compensability, and the same attorney prosecuted both claims, under the law of the circuit, the claimant was not adequately or virtually represented in the prior claim and was free to bring her own claim.


            Here, a widow's claim for benefits after the apparent suicide of her husband was summarily dismissed when the ALJ found that the decedent did not suffer any work-related injury or illness prior to taking his own life.  The ALJ had found that the widow had failed to invoke the Section 20(a) presumption and that the decedent had willfully intended to take his own life, and therefore Section 3(c) barred the claim for compensation.  The widow had failed to respond to the employer's motion for summary decision and to the ALJ's motion to show cause.  Thus, the ALJ deemed such failure as a waiver of rights and denied the widow's motion for reconsideration.  One year later the decedent's daughter by his first marriage filed a claim for death benefits and the employer filed a motion to dismiss based on the principle of collateral estoppel.  Finding the now adult child to stand in privity with her stepmother, the same ALJ dismissed the claim.


            On appeal, the Board noted that, in order to determine whether collateral estoppel and res judicata applied, the Board had to determine whether the claimant stood in privity with her stepmother, the decedent worker's widow.  The Board found that according to the Fifth Circuit and Louisiana law (case arises within Louisiana), �privity,� exists only in three narrowly-defined circumstances.  The Board found that of the three concepts of privity, only �virtual representation� would be applicable in the instant case.  The Board noted the, according to the jurisprudence, to be �closely aligned,� so as to be one's virtual representative, it is not enough to merely show that the party and the nonparty have common or parallel interests in the factual and legal issues presented in the respective actions.  It further noted that both the state courts and the Fifth Circuit have narrowly interpreted virtual representation, and that even close familial relationships, without something more, are insufficient to invoke virtual representation.


            The Board stated that the concept of privity attempts to define how one party stands, legally, with respect to another.  As the concept of virtual representation in the Fifth Circuit requires either express or implied consent to legal representation, and as there was no evidence of either in the instant case, the Board found that virtual representation could not apply, and thus, the claimant could not be held to be in privity with her stepmother.

Topic  85.2     Effect of Prior State Proceeding on a Subsequent Federal Claim


Hennessey v. Bath Iron Works Corp ., (Unpublished) (BRB No. 01-0872) (Aug. 7, 2002).


            Here the worker filed claims under both the LHWCA and the Maine Workers' Compensation Act. The Board affirmed the ALJ's determination that the doctrine of collateral estoppel does not bar his reaching the merits of the case since the state board's decision regarding the extent of disability was not final at the time the ALJ issued his decision. (The state board decision had been appealed and thus was not a final decision.)

Topic  85.3     Election of Remedies�Federal/State Conflicts


Gorman v. Garlock, Inc .,     Wash. App.     (No. 52188-8-I (consolidated w/52329-5-I) (May 3, 2004).


            Noting that Washington State law precluded a claim under the Washington Industrial Insurance Act, when a worker qualifies for compensation under the LHWCA, the appealant court upheld the trial court's dismissal of actions brought against maritime employers as a result of asbestos-related injuries. While the court found that the LHWCA does not preempt Revised Code of Washington (RCW) claims, the RCW itself preempts them. "Because they have the right to compensation under federal law, they cannot state a claim under the Washington statute."

Topic  85.5     "Law of the Case" Doctrine


Ravalli v. Pasha Maritime Services , 36 BRBS 91 (2002).


            This is a denial of a Motion for Reconsideration. Previously the Board adopted the construction of Section 22 given by the Second Circuit in Spitalieri v. Universal Maritime Services , 226 F.3d 167 ( 2d Cir. 2000), cert. denied , 532 U.S. 1007 (2001) (Termination of benefits is a "decrease" of benefits; held, effective date of termination could be date of change in condition.). The Board found Motion for Reconsideration of several issues not properly before it as these issues had not been addressed at most recent appeal and there was settled "law of the case."