Defense Base Act Compensation Blog

The Modern Day DBA Casualty

Resolution of Doubt

Posted by defensebaseactcomp on September 5, 2009


Stephen C Embry
Resolution of Doubt
This is a good post you’ll want to read in it’s entirety at

“the purpose of passing the Longshore Act was a humanitarian one, to provide a remedy for injured workers, and that the duty of the U.S. Department of Labor is to provide vigilance in protecting those workers.

The administrative law judge must resolve doubts in favor of the worker.”

One Response to “Resolution of Doubt”

  1. daffodils said

    What, exactly, is the point of having ALJ decisions reversed on appeal after years of costly court battles if they and the Benefit Review Board just continue to ignore those rulings to the detriment of workers?

    Excerpt: [“ Under these circumstances, the mere statement of a witness that there was no industrial causation was not substantial evidence to rebut the presumption. An opinion alone, even when stated with reasonable medical probability, is not substantial evidence without a proper factual and scientific foundation. The Court had to look beyond the opinion to determine if it was based upon ”probative, reliable and substantial evidence.”
    In evaluating the evidence the Court cannot simply adopt an opinion, or find that merely because an expert expresses it, a reasonable person could credit it. Instead the Court must inquire as to whether there was a reliable and probative basis for the opinion and whether a reasonable judge could believe the underlying factual basis for the opinion.]

    But in this decision issued on 2 February 2009 (KC v SEI 2008-LDA-244) ALJ Lee Romero states once again that: “The testimony of a physician that no relationship exists between an injury and a claimant’s employment is sufficient to rebut the presumption. See Kier v.Bethlehem Steel Corp., 16 BRBS 128 (1984).”

    What this means is that any “expert-for-hire” can rebut the presumption in their courts, just on his or her say-so at a rate of $250 dollars an hour from AIG. Even a previously discredited AIG doctor (who always diagnoses malingering) is routinely used to overturn the presumption. And far from the obligation to “look beyond the opinion” many ALJ judges can’t even be bothered to read the 6-page PTSD diagnosis in the DSM-IV. If they did, they would have realized something as basic that this particular disorder has a delayed onset, as its very name implies.

    It’s high time to do some serious house-cleaning at the Labor Department.

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