Cecil W. Lui v. American University of Afghanistan (Board decision, June 16, 2025)

BRB interlocutory order. A Board majority reversed the administrative law judge's renewed denial of Defense Base Act coverage and returned the claim for consideration of disability, medical benefits, and potential officer liability. It affirmed the exclusion of exhibits filed after the evidence deadline. One judge concurred in part and dissented in part. Benefit entitlement remains unresolved. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may seek Board reconsideration within 30 days under § 802.407.

Plain-English summary

Cecil Lui sought Defense Base Act benefits for physical and alleged psychological injuries from an attack while he was lecturing at the American University of Afghanistan. On an earlier appeal, the Board held that his employment was covered, but the administrative law judge denied the claim again on coverage grounds. The Board held that its prior coverage ruling controlled and sent the case back for a decision on the remaining benefit issues. It also directed the judge to permit joinder of potentially liable university officers and to consider the psychological injury claim, while upholding the exclusion of exhibits submitted after the agreed deadline. Judge Boggs would have revisited the coverage question and sought more information about joining the officers.

Decision snapshot

• Authority: Defense Base Act coverage under 42 U.S.C. § 1651(a)(5); potential officer liability under 33 U.S.C. § 938(a).
• Outcome: Coverage denial and procedural rulings reversed in part; late exhibit exclusion affirmed; claim remanded.
• Key point: The judge must follow the Board's earlier coverage ruling and decide the remaining claim and liability issues.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 23-0367

CECIL W. LUI
)
)
Claimant-Petitioner
)
)
v. )
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PUBLISHED
AMERICAN UNIVERSITY OF
)
AFGHANISTAN
)
) DATE ISSUED: 06/16/2025
Employer-Respondent
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Respondent
)
DECISION and ORDER
Appeal of the Order Granting Summary Decision, Order Denying Claimant’s Motion for Reconsideration, and Order Denying Claimant’s Motion to Join Additional Parties and Granting Employer’s Motion to Preclude Claimant from Changing the Basis of his Disability Claim Post-Hearing and Exclude from Evidence Exhibits Submitted with [Claimant’s] Post-Hearing Brief of William P. Farley, Administrative Law Judge, United States Department of Labor.

Scott L. Thaler (Grossman Attorneys at Law), Boca Raton, Florida, for Claimant.

Andrew D. Lanphere (Pillsbury Winthrop Shaw Pittman LLP), San Francisco, California, for Employer.

Matthew W. Boyle (Jonathan Snare, Deputy Solicitor of Labor; Jennifer Feldman Jones, Acting Associate Solicitor; William M. Bush, Acting Counsel for Administrative Appeals), Washington, D.C., for the Acting Director, Office of Workers’ Compensation Programs, United States Department of Labor.

Before: GRESH, Chief Administrative Appeals Judge, BOGGS and ROLFE, Administrative Appeals Judges.

GRESH, Chief Administrative Appeals Judge, and ROLFE, Administrative Appeals Judge:

Claimant appeals Administrative Law Judge (ALJ) William P. Farley’s May 17, 2023 Order Granting Summary Decision, June 27, 2023 Order Denying Claimant’s Motion for Reconsideration, and May 3, 2022 Order Denying Claimant’s Motion to Join Additional Parties and Granting Employer’s Motion to Preclude Claimant from Changing the Basis of his Disability Claim Post-Hearing and Exclude from Evidence Exhibits Submitted with [Claimant’s] Post-Hearing Brief (2017-LDA-00775) rendered on a claim filed pursuant to the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§901-950 (Act), as extended by the Defense Base Act, 42 U.S.C. §§1651-1655 (DBA).1 The Benefits Review Board must affirm the ALJ’s determinations from his May 3, 2022 order unless they are arbitrary, capricious, an abuse of discretion, or not in accordance with law. 5 U.S.C. §556(c); McCracken v. Spearin, Preston and Burrows, Inc., 36 BRBS 136, 138 (2002); Jackson v. Universal Maritime Service Corp., 31 BRBS 103, 107 (1997); 20 C.F.R. §§702.338-702.339; 29 C.F.R. §18.16. As for the ALJ’s 2023 orders, we must affirm his findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C.
§921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). This case is before the Board for the second time.

Claimant, while lecturing at the American University of Afghanistan (Employer) 2 on August 24, 2016, sustained physical injuries and allegedly sustained psychological

1 This case arises within the jurisdiction of the United States Court of Appeals for

the Second Circuit because the office of the district director who filed the ALJ’s decision is located in New York. 33 U.S.C. §921(c); McDonald v. Aecom Tech. Corp., 45 BRBS 45 (2011); see also Global Linguist Solutions, L.L.C. v. Abdelmeged, 913 F.3d 921 (9th Cir. 2019).
2 Employer founded the University in 2006 to provide higher education for Afghans

and others in the region, ALJX 2 at 1. It entered into a cooperative agreement with the United States Agency for International Development (USAID) whereby USAID agreed to pay Employer forty million dollars over a five-year period from August 2013 through July 2 injuries from an attack on the campus by an insurgent group. He filed a claim under the DBA, which Employer controverted, asserting the DBA is inapplicable.

ALJ Morris D. Davis denied Claimant’s claim for benefits finding it does not fall within the DBA’s coverage under either Section 1(a)(4), 42 U.S.C. §1651(a)(4), or Section 1(a)(5), 42 U.S.C. §1651(a)(5).3 D&O at 11, 13, 14. Claimant appealed, asserting ALJ Davis erred in concluding his claim is not covered by Sections 1(a)(4) and 1(a)(5) of the DBA. Employer responded, urging affirmance. The Director, Office of Workers’ Compensation Programs (the Director) responded, seeking affirmance of ALJ Davis’s denial of coverage under Section 1(a)(4), but reversal of his denial of coverage under Section 1(a)(5). Claimant filed a reply brief. In its decision on appeal, the Board affirmed ALJ Davis’s denial of Section 1(a)(4) coverage, reversed his finding that Claimant is not covered under Section 1(a)(5), and remanded the case for the ALJ to address the remaining contested issues. Lui v. American Univ. of Afg., 57 BRBS 1, 3, 5 (2020) (Boggs, J., concurring in part and dissenting in part), recon. en banc denied, (Nov. 13, 2020) (unpub. Order).

On remand, the case was reassigned to ALJ Farley (ALJ) who, by order dated July 28, 2021, set a discovery and briefing schedule. On October 11, 2021, Claimant filed a motion requesting to join several individuals “as parties” pursuant to Section 38(a) of the Act, 33 U.S.C. §938(a).4 Employer opposed Claimant’s motion, in part, as untimely; it filed its own motions to exclude exhibits Claimant attached to his brief on remand and to preclude Claimant from raising new theories on the grounds that the exhibits and accompanying argument asserted a previously unraised basis for his disability claim; namely, that his psychological injuries are disabling.

2018. CX 19 at 1. This funding, which represented approximately 36% of Employer’s total program budget, ALJX 2 at 1, was provided, in part, to fund the hiring of Employer’s faculty and staff. CX 19 at 8, 28. In May 2013, Employer hired Claimant to serve as an Associate Professor of Finance from July 1, 2014, to June 30, 2017; USAID did not sign the parties’ employment contract. CX 23.
      3 The ALJ found Section 1(a)(4) inapplicable because, inter alia, the parties’
      cooperative agreement is not a “contract” as that term is used under the DBA. D&O at 14. He determined Section 1(a)(5) is similarly inapplicable because the United States or an agency thereof did not approve Claimant’s employment contract. Id. at 11, 13.
      4 Claimant sought to invoke Section 38(a) liability against Employer’s corporate
      officers as of the time of his injuries, including President Dr. Mark English, Secretary Dr. Rebecca Miller, and Treasurer Salahuddin Nastratyar, because he asserted Employer failed to secure DBA insurance.
      3
       In his order dated May 3, 2022, the ALJ denied Claimant’s motion to join as untimely. He also granted Employer’s motions to exclude and to preclude, stating he would not “consider Claimant’s exhibits attached to its closing brief” or “any arguments address[ing] Claimant’s psychological conditions that Claimant did not discuss during the hearing.” May 2022 Order at 3. Accordingly, he concluded the “record is now closed and the case ready for decision.” Id.

      On May 17, 2023, the ALJ issued his order on remand granting Employer’s motion
      for summary decision. Purportedly as instructed by the Board, he reviewed the facts of the case and concluded Claimant was not covered under Section 1(a)(5) of the Act. Accordingly, he denied Claimant’s claim for benefits under the DBA. The ALJ denied Claimant’s motion for reconsideration on June 27, 2023.

      On appeal, Claimant challenges the ALJ’s denial of coverage and, therefore,
      

      benefits under Section 1(a)(5), as well as his procedural and discovery rulings. Employer responds, urging affirmance. In response and focusing solely on the ALJ’s finding that Section 1(a)(5) is inapplicable, the Director asserts the ALJ’s orders cannot stand as he did not adhere to the Board’s 2020 decision on coverage or its remand instructions. The Director requests the Board remand the case to the ALJ for him to apply the Board’s ruling in its initial decision and to resolve, as previously instructed, any remaining contested issues in this case, including issues related to disability and medical benefits.

                                    Section 1(a)(5)
      
      Claimant and the Director contend the ALJ improperly addressed whether Claimant
      

      established the elements of Section 1(a)(5) in disregard of the Board’s 2020 decision and remand instructions. They assert that as the Board held Claimant is covered under Section 1(a)(5) of the DBA, the ALJ should not have revisited the issue on remand . Therefore, they contend his orders are contrary to the law of the case and must be reversed . Additionally, they assert the Board should, again, remand the case for the ALJ to carry out the Board’s original instructions.

      Employer responds, asserting the ALJ correctly interpreted the Board’s 2020
      

      decision as not completely resolving the issue of Section 1(a)(5) coverage. Although the Board held the agreement satisfied the “approved by the United States” element of Section 1(a)(5), Employer maintains the Board had remanded the case for the ALJ to determine whether the terms of the agreement included the requisite requirement that it obtain DBA insurance for its workers. Consequently, it asserts the ALJ properly addressed whether the entirety of the parties’ employment agreement had the necessary terms to bring it within the DBA’s coverage. Further, it argues the ALJ’s factual analysis and resulting conclusion on that issue should be affirmed as the ALJ’s factual analysis is not disputed in this appeal
      4
      and his conclusion is otherwise consistent with relevant case law and supported by substantial evidence. Employer urges the Board to affirm the ALJ’s denial of coverage under Section 1(a)(5) of the DBA. In his reply brief, Claimant reiterates the Board should reverse the ALJ’s finding of no coverage as Employer’s position as to the conclusiveness of the Board’s prior holding “is simply wrong.”

      In its 2020 decision, the Board addressed Claimant’s contention that, contrary to the
      ALJ’s decision, “his claim is covered by Sections 1(a)(4) and 1(a)(5) of the DBA.” Lui, 57 BRBS at 2. After a discussion of the requisite elements for DBA coverage under Section 1(a)(5) and review of ALJ Davis’s corresponding findings,5 the Board held:

      The indisputable evidence demonstrates USAID had approval authority over
      many aspects of the business relationship with employer, including staff
      salaries, despite it not having approved claimant’s specific employment
      contract. As claimant’s employment contract fell within the broad spectrum
      of overseeing and approving employer’s budget and its international staff’s
      salaries, we reverse the administrative law judge’s finding that claimant
      is not covered under Section 1(a)(5).

      For the reasons stated, we hold USAID’s oversight and approval of
      employer’s budget, including its international staff salaries, constitutes
      “approval” by the United States of claimant’s employment contract under
      Section 1(a)(5). As claimant has established all necessary elements for
      DBA coverage, we reverse the administrative law judge’s denial of
      coverage under Section 1(a)(5).

Lui, 57 BRBS at 5 (emphasis added). As evidenced above, the Board’s prior decision unequivocally and conclusively held Claimant’s claim falls under Section 1(a)(5). Therefore, the Board fully considered and resolved the issue of Claimant’s coverage under Section 1(a)(5) of the DBA in the prior appeal of this case; that holding constitutes the law of the case.6 See Schwirse v. Marine Terminals Corp., 45 BRBS 53, 55 (2011), aff’d sub

5 The Board stated, “[t]he [ALJ] framed the sole contested issue as whether the contract between employer and claimant was ‘approved’ by the United States,” Lui, 57 BRBS at 3, because he “found claimant established the other two prongs of Section 1(a)(5).” Id. n.5. Specifically, the Board noted the ALJ found Claimant’s “employment was ‘to be performed outside the continental United States’ and there is sufficient evidence the United States ‘financed’ the contract.” Id.
6 No exception to the law of the case doctrine applies here, as there has not been a

change in the underlying factual situation, there has been no intervening controlling case 5 nom. Schwirse v. Director, OWCP, 736 F.3d 1165 (9th Cir. 2013) (a fully and previously addressed issue is law of the case); Irby v. Blackwater Security Consulting, 44 BRBS 17, 20 (2010); Kirkpatrick, 39 BRBS at 70 n.4; Ravalli v. Pasha Maritime Services, 36 BRBS 91, 92 (2002), denying recon. in 36 BRBS 47 (2002).

The ALJ’s statement that the Board “ordered the OALJ [Office of Administrative Law Judges] to further review DBA Section 1(a)(5),” Order at 2, is inaccurate and directly contradicts the Board’s decision. He then compounded this interpretative error by premising his denial of Claimant’s claim on his finding that the funding instruments financing Claimant’s faculty position did not include a requirement to secure workers’ compensation insurance – a finding directly contrary to law and inconsistent with the procedural posture of this case.7

When the Board remands a case, the ALJ must comply with its instructions and “implement both the letter and spirit of the . . . mandate,” absent appropriate legal basis for not applying the mandate rule. See Edd Potter Coal Co. v. Dir., OWCP [Salmons], 39 F.4th 202, 209-210 (4th Cir. 2022) (quoting United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)); see also Scott v. Mason Coal Co., 298 F.3d 263, 267 (4th Cir. 2007). “Deviation

authority, nor has there been any demonstration that the Board’s first decision was clearly erroneous. See generally Kirkpatrick v. B.B.I., Inc., 39 BRBS 69, 70 n.4 (2005).
7 In its prior decision, citing Delgado v. Air Serv. Int’l, Inc., 47 BRBS 39, 43-44

(2013), the Board held “the contracts’/agreements’ omission of the requirement for securing compensation under the DBA did not preclude coverage under Section 1(a)(5).” Lui, 57 BRBS at 4 n.6. It further explicitly noted ALJ Davis “in this case properly held the absence of any reference to DBA coverage in the cooperative agreement is not dispositive of the coverage issue.” Id.; see also ALJ Davis Order dated January 19, 2018, at 4 (ALJ Davis recognized Employer’s argument that the failure to include a DBA insurance requirement precludes reading DBA coverage into the agreement “was considered and rejected in Delgado.”). Moreover, in furtherance of the Board’s remand instructions, Claimant and Employer each filed briefs on remand addressing the remaining unresolved issues left to the ALJ, none of which involved further consideration of the coverage issue. Cl’s Second Post-Hearing Brief (Cl’s Remand Br.) and Emp’s Final Brief on Remand (Emp’s Remand Br.), both dated October 11, 2021. In fact, Employer specifically conceded its “brief addresses the remaining contested issues following the BRB’s determination of coverage under Section 1(a)(5)” of the DBA. Emp’s Remand Br. at 1 (emphasis added). For these reasons, we reject Employer’s position on appeal that the ALJ, on remand, was required to conduct further inquiry as to the inclusion of a DBA insurance provision for purposes of the applicability of Section 1(a)(5).

6 from the mandate rule is permitted only in a few exceptional circumstances, which include (1) when ‘controlling legal authority has changed dramatically;’ (2) when ‘significant new evidence, not earlier obtainable in the exercise of due diligence, has come to light’; and (3) when ‘a blatant error in the prior decision will, if uncorrected, result in a serious injustice.” Invention Submission Corp. v. Dudas, 413 F.3d 411, 415 (4th Cir. 2005) (citing United States v. Aramony, 166 F.3d 655, 662 (4th Cir.1999) (quoting Bell, 5 F.3d at 67) (internal quotation marks omitted)). None of the limited exceptional circumstances exist in this case to allow the ALJ to deviate from the Board’s remand instructions.

For these reasons, we agree with Claimant’s and the Director’s positions that the ALJ’s reconsideration of coverage under Section 1(a)(5) on remand did not follow the Board’s prior decision. Therefore, we reverse the ALJ’s finding that Claimant has not met the requirements to bring his employment agreement within the scope of Section 1(a)(5), as well as his consequent denial of Claimant’s DBA claim. We reiterate that, as a matter of law, Claimant’s work for Employer is covered under Section 1(a)(5) of the DBA. Consequently, we remand this case for the ALJ to address the remaining disputed issues as raised in the parties’ 2021 briefs on remand which included Claimant’s claim of entitlement to disability and medical benefits.8 See, e.g., Cl’s Remand Br.; Emp’s Remand Br.

In the interest of judicial economy, we shall address Claimant’s challenges to the ALJ’s procedural findings, as they may affect his reconsideration of this case on remand.

Procedural Findings

Denial of Claimant’s Motion for Joinder

Claimant asserts the ALJ erred by not granting his motion to include Employer’s corporate officers as parties because they are, by virtue of Section 38(a) of the Act, necessary to the resolution of his DBA claim. He maintains that in their corporate capacity, Dr. English, Dr. Miller, and Mr. Nastratyar may be personally and severally liable or jointly liable with Employer for any compensation Employer failed to secure pursuant to Section 32 of the Act, 33 U.S.C. §932. In response, Employer contends the Board should affirm the ALJ’s denial of Claimant’s joinder motion as untimely because the ALJ was correct

8 In their briefs on remand, the parties addressed: the nature and extent of any work-

related disability; the calculation of Claimant’s average weekly wage and wage-earning capacity for purposes of determining any post-injury loss in wage-earning capacity; reimbursement of out-of-pocket medical expenses; penalties and interest; Employer’s entitlement to offset for amounts it previously paid to Claimant; and Claimant’s counsel’s entitlement to attorneys’ fees. Cl’s Remand Br. at 2; Emp’s Remand Br. at 2-14.

7 and because neither the Department of Labor (DOL) nor the ALJ has personal or subject matter jurisdiction over any of these three individuals. It further asserts that even if Claimant’s motion was timely and if the DOL had jurisdiction over the individuals, Section 38 is inapplicable because it applies only to Longshore Act claims and not to DBA claims, and it applies only in instances where the “employer is a corporation” and not, as in this case, where Employer is a non-profit institution of higher learning under Afghani law.

Section 38(a) outlines the consequences for an employer who fails to secure the payment of longshore compensation:

Any employer required to secure the payment of compensation under this chapter who fails to secure such compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than one year, or by both such fine and imprisonment; and in any case where such employer is a corporation, the president, secretary, and treasurer thereof shall be also severally liable to such fine or imprisonment as herein provided for the failure of such corporation to secure the payment of compensation; and such president, secretary, and treasurer shall be severally personally liable, jointly with such corporation, for any compensation or other benefit which may accrue under the said chapter in respect to any injury which may occur to any employee of such corporation while it shall so fail to secure to payment of compensation as required by section 932 of this title.

33 U.S.C. §938(a) (emphasis added). For purposes of this claim, the relevant aspect of Section 38(a) is that certain officers – the president, secretary, and treasurer – may be held liable for benefits if the employer failed to secure the compensation. And, they “shall be severally personally liable, jointly with the corporation.” Id.

Section 19(c) of the Act, 33 U.S.C. §919(c), requires the ALJ to give notice of the hearing to all potentially liable entities, both corporate and individual, as well as to the claimant and the Director. Sullivan v. St. John’s Shipping Co., Inc., 36 BRBS 127, 130 (2002);9 20 C.F.R. §702.335. The Board has held corporate officers are “interested parties”

9 In Sullivan, the employer was not present at the formal hearing, and the ALJ awarded benefits based solely on the claimant’s evidence. The Board remanded the case for a hearing on the limited issue of whether the employer was served with notice of the hearing under Section 19(c), and if not, with instructions for the ALJ to vacate the award of benefits and hold a new hearing in which the employer is allowed to participate. In reaching this conclusion, the Board stated, “[f]ailure to give notice of a proceeding to an 8 under Section 19(c), even if Section 38(a) operates as a matter of law, because they are entitled to the opportunity to argue that Section 38(a) is not applicable. J.T. [Tisdale] v. American Logistics Services, 41 BRBS 41, 44 (2007);10 Sullivan, 36 BRBS at 129. Nevertheless, the Board has held that where an “interested” party has not received notice as required by statute, there exists a due process violation which taints any award of benefits. Sullivan, 36 BRBS at 130. In such instances, the ALJ must vacate the award and, after proper notification to all parties, hold a new hearing thereby enabling any missing parties to participate. Tisdale, 41 BRBS at 45; Sullivan, 36 BRBS at 132.

Despite having knowledge of Employer’s corporate officers in 2017,11 Claimant made no effort to join them until he submitted his October 11, 2021 motion to the ALJ. Thus, there is no dispute Employer’s corporate officers were not a part of the original case and neither received notice of, nor participated in, ALJ Davis’s February 26, 2018 hearing. Although ALJ Davis granted Claimant’s motion for partial summary decision on the

interested party violates ‘the most rudimentary demands of due process of law.’ Armstrong v. Manzo, 380 U.S. 545, 550 (1965). ‘[The] right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.’ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314.” Sullivan, 36 BRBS at 129.
10 In Tisdale, the Board vacated the ALJ’s award of benefits, finding the employer’s

corporate officers liable as the notice requirements of Section 19(c) were not followed. The Board distinguished Sullivan, 36 BRBS 127, where the award of benefits was not vacated, as the notices were patently deficient in Tisdale. Tisdale, 41 BRBS at 44. In this regard, the claimant first filed a claim against the potentially liable corporate officers six days before the hearing. Because that document did not have the proper address, the corporate officers failed to receive notice of the hearing. The ALJ nevertheless awarded the claimant benefits and held the corporate officers liable. Holding the corporate officers are entitled to separate, proper notice of the hearing, the Board vacated the ALJ’s finding that the corporate officers are liable and remanded the case for a new evidentiary hearing . Id. at 45.
11 Employer’s October 17, 2017 responses to Claimant’s first interrogatories identified its corporate officers as of the August 24, 2016 date of injury and general contact information as follows: Dr. English, president; Dr. Miller, chief of staff (which it admitted is akin to a corporate secretary); and Mr. Nastratyar as its director of finance/treasurer. For Drs. English and Miller, whom Employer admitted it no longer employed, it provided only personal email addresses, whereas it instructed that Mr. Nastratyar “may be contacted through counsel for Employer.”

9 specific issue that “the omission of a DBA requirement in a grant agreement does not defeat coverage,” October 2018 Order at 4, there is nothing to suggest any specific determination has been made as to whether Employer failed to secure payment of compensation as required by Section 32 and, thus, whether Section 38(a), applies in this case.12 Rather, both ALJs denied coverage and did not adjudicate the potential liability of Employer, its corporate officers, or both.13 For these reasons, Claimant’s motion to join Employer’s corporate officers is timely. After all, given the present procedural posture of this case – coverage assessed but liability not yet adjudicated – joining the corporate officers as parties to this case does not violate their respective due process rights of notice and an opportunity to be heard at a reasonable time and in a reasonable manner. See generally Mathews v. Eldridge, 424 U.S. 319, 349 (1976); see also Goldberg v. Kelly, 397 U.S. 254, 267 (1970). Their entry at this juncture would still provide them with the opportunity to argue the yet undecided issue of whether Section 38(a) applies.14 Tisdale, 41 BRBS at 44. Accordingly, we reverse the ALJ’s denial of Claimant’s motion to join Employer’s officers.
On remand, the ALJ must give notice of these proceedings to all potentially liable entities, including Employer’s corporate officers at the time of injury. In addition to addressing the general merits of Claimant’s entitlement to benefits, he must also address any issues properly raised by the parties and allow them the opportunity to submit

12 We reject Employer’s contentions regarding the inapplicability of Section 38(a).
First, the DBA, 42 U.S.C. §§1651-1655, extends the provisions of the Longshore Act to persons covered thereunder, including Section 38(a) of the Act. Second, the provisions of the DBA pertaining to coverage and liability use the phrases employer and contractor interchangeably, see e.g., 42 U.S.C. §1651(c), and define “contractor” as “any individual, partnership, corporation, or association, and includes any trustee, receiver assignee, successor, or personal representative thereof,” 42 U.S.C. §1651(d). Therefore, Employer’s assertions that it is not subject to the DBA because it is not a corporation but instead is a non-profit institution of higher learning and that the ALJ does not have jurisdiction over its corporate officers are unpersuasive.
13 Because disability has not been adjudicated, and benefits have not been awarded,

Employer cannot have failed to pay any award of compensation; therefore, the event that could trigger personal liability of Employer’s officers has not yet occurred. See 33 U.S.C.
§938(a). These facts distinguish this case from Sullivan and Tisdale.
14 We recognize Sullivan and Tisdale both involved improper notice or service on

parties apparently already named in the proceedings, whereas the lack of participation by Employer’s corporate officers in this case is more the result of them not having been named as parties. This distinction is insignificant because Section 38(a) clearly articulates corporate officers’ potential liability in DBA cases.

10 additional evidence and argument relevant to the Section 38(a) issues of whether the three named individuals were Employer’s corporate officers at the relevant time and, if they were, whether they are “severally personally liable, jointly with [the] corporation,” for Claimant’s benefits.15 33 U.S.C. §938(a); Tisdale, 41 BRBS at 45. Grant of Employer’s Motions to Exclude

Preclusion of Claimant’s Alleged Efforts to Alter the Basis of his Claim

Claimant next contends the ALJ erred in granting Employer’s motion to exclude as, from the inception of the claim, he has alleged he is disabled because of both physical and psychological work-related injuries. Thus, he states Employer had sufficient notice of his intent to pursue a psychological injury claim. Claimant asserts the ALJ’s decision to grant Employer’s motion to exclude cannot stand as it lacks any rationale or support in the record and is not in accordance with the law. In contrast, Employer maintains the record introduced in pre-hearing discovery and at the hearing before ALJ Davis establishes Claimant claimed he was unable to work only due to his orthopedic injuries. It asserts the ALJ correctly found Claimant untimely raised psychological disability as an issue for the first time on remand and properly granted its motion.16

Having laid out the parties’ respective positions in his order, the ALJ granted Employer’s motion to exclude based on his finding that “Claimant’s assertion of a psychological condition after this claim has already gone forward for hearing is untimely.” ALJ Order dated May 3, 2022, at 3. The ALJ’s rationale for granting Employer’s motion is contrary to the record.

15 In accordance with Section 23(a) of the Act, an ALJ “shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure…but may make such investigation or inquiry or conduct such hearing in a manner as to best ascertain the rights of the parties.” 33 U.S.C. §923(a); see also 33 U.S.C.
§927(a); 20 C.F.R. §702.339. Pursuant to this duty, and to protect the due process rights of Employer’s corporate officers, the ALJ may, on remand, reopen the record for receipt of additional evidence and/or hold a new evidentiary hearing on the relevant issues, including the applicability of Section 38(a). 33 U.S.C. §§907, 908, 938(a); 20 C.F.R.
§§702.336(b), 702.338, 702.339.
16 Employer asserts allowing Claimant to change the basis of his disability claim

nearly four years after the hearing would significantly prejudice its ability to defend against the claim.

11
 From the start, Claimant has maintained he is entitled to disability and medical benefits for both physical and psychological injuries sustained because of the 2016 work incident.17 At the 2018 hearing before ALJ Davis, Claimant unequivocally expressed his position that he is entitled to temporary total disability from “emotional/psychologica l injury, specifically his PTSD” and “orthopedic injuries” related to his left shoulder, elbow, and wrist. HT at 38. In response, Employer stated “our position is there’s no competent evidence here of disability” because, for example, Claimant “admitted in his deposition” that “no doctors ever told him he’s unable to work physically or psychologically at all.” 18 Id. at 47-48. Additionally, the record, as established by ALJ Davis, already contains medical evidence in support of Claimant’s claim for benefits for an alleged work-related psychological condition. CX 17; see also ALJ Davis’s Post-Hearing Evidentiary Order and Deadline for Final Briefs dated April 18, 2018, at 2. Furthermore, the parties’ respective briefs on remand before the ALJ addressed Claimant’s claim for benefits for his alleged work-related psychological condition. Cl’s Remand Br. at 9;19 Emp’s Remand Br.

17 Employer does not dispute Claimant’s position that his LS-203 Claim for Compensation Form, as well as the parties’ 2018 pre-hearing statements before ALJ Davis, all list a psychological injury among those he allegedly sustained due to the August 2016 work incident. See, e.g., CX 1; Cl’s and Emp’s 2018 Prehearing Statements. Moreover, Claimant’s first set of interrogatories in this case, numbers 10 and 14, as well as Employer’s October 17, 2017 responses to Claimant’s interrogatories, seek the legal, factual, and/or medical basis for Employer’s denying compensability for the “Claimant’s left wrist, left elbow, and psychological/emotional injuries.” See Exhibit 1, at 4, 6 (emphasis added), as attached to Cl’s October 11, 2021 Motion to Join Additional Parties.
18 Employer admitted that while “there are some medical records that use that term,”

it is unclear what disability “means in the context of [the] Hong Kong” medical community from which those records came. HT at 47. Employer further argued Claimant’s “case entirely hinges upon” whether his medical records “are admissible” and more specifically “admissible as opinion testimony to establish his disability.” Id. at 48. The medical records that Employer maintained were not “admissible” were ultimately entered into the record by ALJ Davis post-hearing in his April 2018 order.
19 Claimant’s remand brief repeatedly referenced his treatment for a psychological

condition related to the 2016 work incident, his diagnoses of “an adjustment stress reaction for the sequela of the trauma,” CX 13 at 13, and PTSD, CX 13 at 17, and his claim that he “has continued to [be] disabled from returning to work as a result of his work-related psychological condition until at least October 17, 2021.” Claimant’s brief on remand also noted the record contains a medical certificate dated January 25, 2018, from Dr. Fang Xinshuo Christian recommending Claimant remain on sick leave at least through March 21, 2018, due to his left wrist fracture and PTSD, CX 16. Cl’s Remand Br. at 9. Claimant 12 at 7.20 The record conclusively establishes Claimant’s entitlement to disability and medical benefits for his alleged work-related psychological condition has been an ongoing disputed issue from the outset of this case, and it was appropriately before the ALJ to address on remand. Consequently, we reverse the ALJ’s finding that Claimant’s assertion of an employment-related psychological injury and disability is untimely, and we reverse his order granting Employer’s motion to exclude.21

Preclusion of Claimant’s Exhibits on Remand

Finally, Claimant argues the ALJ improperly struck the five exhibits attached to his post-hearing brief on remand. He contends these medical records fall within the “limited” discovery the ALJ permitted per his July 29, 2021 order. Employer counters by asserting the ALJ acted within his broad discretion when he excluded this evidence as it had not been introduced during the 2018 hearing, it was unauthenticated, and it did not satisfy the

also argued on remand that the record evidence establishes invocation of the Section 20(a) presumption, 33 U.S.C. §920(a), in terms of his work-related psychological injury, and argues Employer presented no evidence to rebut. Id. at 12-13.
20 Although Employer’s brief on remand primarily focused on Claimant’s “physical

injuries” as not precluding his return to work, it also explicitly argued the record does not “support any finding of disability based on Claimant’s psychological condition.” Employer asserted Claimant’s evidence that he may suffer from PTSD “is contrary to the weight of the evidence that Claimant was not suffering significant psychological effects in the aftermath of the attack – and certainly does not establish Claimant has been prevented from working by any such psychological effects.” Emp’s Remand Br. at 8 n.6. Moreover, its brief explicitly addressed Claimant’s allegation that he sustained a work-related psychological injury, referenced record evidence supporting Claimant’s position, id. at 7- 8, and argued the ALJ should “accord Dr. Fang’s June 12, 2017 report no deference, particularly when weighed against the voluminous other evidence showing Claimant’s recovery long before June 2017,” id. at 11.
21 Because of this and the ALJ’s failure to address the merits on remand, we cannot

discern what, if any, limitations the ALJ intended to impose on Claimant when he stated he would not consider “any arguments” addressing “Claimant’s psychological conditions that Claimant did not discuss during the hearing.” ALJ Order dated May 3, 2022, at 3. Nevertheless, as evidenced above, Claimant raised this issue at the 2018 hearing before ALJ Davis, so the ALJ must fully discuss this issue on remand when addressing the merits of the claim.

13 requirements of 20 C.F.R. §702.344.22 Moreover, Employer maintains Claimant could have, but did not, move to re-open the record to admit this evidence on remand.

The ALJ has great discretion concerning the admission of evidence, Hughes v.
Bethlehem Steel Corp., 17 BRBS 153, 155 n.1 (1985), and any decisions regarding the admission or exclusion of evidence are reversible only if arbitrary, capricious, an abuse of discretion, or not in accordance with law. Irby, 44 BRBS at 21; Cooper v. Offshore Pipelines Int’l, Inc., 33 BRBS 46, 51 (1999). Moreover, an ALJ has the discretion to exclude even relevant and material testimony for failure to comply with the terms of an order. See Burley v. Tidewater Temps, Inc., 35 BRBS 185, 187 (2002); see also G.K.
[Kunihiro] v. Matson Terminals, Inc., 42 BRBS 15, 17 (2008), aff’d sub nom. Director, OWCP v. Matson Terminals, Inc., 442 F. App’x 304 (9th Cir. 2011); Picinich v. Seattle Stevedore Co., 19 BRBS 63, 64-65 (1986). In his May 2, 2022 order, the ALJ found the five exhibits Claimant submitted with his closing brief “are outside the scope of [his] allotted discovery” and were not submitted in compliance with the pre-hearing order. Thus, the ALJ granted Employer’s motion, struck them from the record, and informed the parties that those five exhibits “will not be considered.”

The ALJ’s July 29, 2021 order stated that based on Employer’s request and the parties’ agreement, discovery would consist of “Employer’s seven interrogatories and document requests and Claimant’s responses” and would “be limited to Claimant’s relevant medical care since the end of the previous discovery period ,” presumably, as of ALJ Davis’s April 18, 2018 post-hearing order at which time ALJ Davis admitted the parties’ exhibits and closed the record.23 He also stated the parties waived a formal hearing and agreed to a submission schedule whereby Employer would submit its seven interrogatories and document requests by August 9, 2021, Claimant would get to respond by August 30, 2021, and then the parties would file their respective briefs by October 11, 2021. Although Claimant’s post-hearing exhibits appear to fall within the subject matter of the agreed upon

22 Section 702.344 explicitly requires “[a]ll evidence upon which the administrative

law judge relies for his final decision shall be contained in the transcript of testimony either directly or by appropriate reference.” 20 C.F.R. §702.344.
23 At the February 2018 hearing, ALJ Davis admitted ALJ Exhibits 1 and 2, Employer’s Exhibits 1-15, and Claimant’s Exhibits 1-8, 19, and 22-25. HT at 3. In his April 2018 order, ALJ Davis admitted Claimant’s Exhibits 9 through 17 and 26 into the evidentiary record.

14 limited discovery,24 they fall outside the allotted time frame for submission. The July 29, 2021 Order provided Claimant’s responses/evidence on remand were due by August 30, 2021; Claimant did not submit these exhibits until October 11, 2021. As the submission violated the ALJ’s discovery order, Claimant has not shown the ALJ’s denial action is arbitrary, capricious, or an abuse of discretion. Burley, 35 BRBS at 187; Ezell v. Direct Labor, Inc., 33 BRBS 19, 29 (1999) (citing Smith v. Ingalls Shipbuilding Div., Litton Systems, Inc., 22 BRBS 46, 50 (1989) (party seeking to admit evidence must exercise due diligence in developing its claim prior to the hearing)). Therefore, we affirm the ALJ’s exclusion of this evidence as Claimant failed to comply with the submission schedule the parties agreed on and the ALJ ordered. Burley, 35 BRBS at 187; Ezell, 33 BRBS at 29.

Accordingly, we reverse the ALJ’s Order Granting Summary Decision and Order Denying Claimant’s Motion for Reconsideration which concluded Claimant is not covered under Section 1(a)(5) of the DBA, as the matter was resolved and is the law of the case. We also reverse the ALJ’s refusal to grant Claimant’s request to join Employer’s corporate officers and his refusal to allow Claimant to pursue entitlement to benefits for his alleged work-related psychological injuries, and we remand this case for further consideration

24 These exhibits include information regarding “Claimant’s relevant medical care

since the end of the previous discovery period.” ALJ’s Order Setting Discovery and Briefing Schedule dated July 29, 2021, at 1.

15 consistent with this opinion. We affirm the ALJ’s exclusion of the exhibits accompanying Claimant’s remand brief.

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

BOGGS, Administrative Appeals Judge, concurring and dissenting:

I agree with my colleagues that, if the case falls within the DBA’s provisions, reversal of the ALJ’s findings excluding consideration of Claimant’s psychological injuries and affirmance of the ALJ’s exclusion of exhibits are warranted. I also agree, as a matter of law, that the ALJ erred in ruling the DBA does not apply merely because insurance was not secured or mentioned in the contract.

However, I would remand the case, per my original dissent, for the ALJ to reconsider whether this injury falls within the DBA – specifically addressing whether there was approval of the contract, or merely review, to ensure the proper spending of funds under the cooperative agreement. Lui, 57 BRBS at 3 (cooperative agreement is not a “contract” under Section 1(a)(4) of the DBA). I also would have the ALJ obtain more information, and closely address that information, regarding the dismissal of the officers, including any prejudice to their ability to adequately present defenses, as well as equitable considerations pertaining to Claimant’s failure to timely act given the length of time before the attempted joinder. See Tisdale, 41 BRBS at 45; Sullivan, 36 BRBS at 132; see also Baptist Physician Hosp. Org, Inc. v. Humana Military Healthcare Serv., Inc., 481 F.3d

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337, 353 (6th Cir. 2007) (inexcusably long delay in commencing action which causes defendants prejudice warrants claim preclusion due to invocation of the doctrine of laches).

JUDITH S. BOGGS
Administrative Appeals Judge

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