Decedent was exposed to asbestos dust and fibers in the 1940s and 1950s. In 1977, he was diagnosed with severe chronic obstructive pulmonary disease (COPD). By 1979, Decedent was totally disabled due to extensive arthritis, chronic heart condition, and chronic pulmonary condition. Twenty years later, in 1999, Claimant was first diagnosed with lung cancer. Then, in 2001, Decedent passed away. The question raised in this case was whether or not the employer was entitled to Section 8(f) relief for continuing death benefits payments to Decedent’s widow. In the Fourth Circuit, “to establish entitlement to Section 8(f) relief in a case involving a post-retirement occupational disease, an employer need show only that an employee’s pre-existing permanent partial disability pre-dated the manifestation of the occupational disease that constitutes the ‘second injury,’ and that the employee’s death is not due solely to the subsequent work injury but was contributed to or hastened by the pre-existingRead more
No Statute of Limitations for War Hazards Reimbursement Requests
Is there a statute of limitations for an insurance carrier’s claim for reimbursement under the War Hazards Compensation Act? Without any statutory or regulatory language to the contrary, the answer is, “No.” If a Defense Base Act (“DBA”) claimant was injured by a “war-risk hazard,” as that term is defined by 42 U.S.C. § 1711, then a carrier may seek reimbursement for the benefits it was required to pay on account of that injury. 42 U.S.C. § 1704. The carrier is “entitled to be reimbursed for all benefits so paid or payable, including funeral and burial expenses, medical, hospital, or other similar costs for treatment and care; and reasonable and necessary claims expense in connection therewith.” Id. There is no statement in Section 104 that would limit the time when an initial request for reimbursement can be filed. There is, however, a time limit for appealing a denial, so long as theRead more
Eleventh Circuit’s Borrowed-Employment Standard for Longshore Cases
Section 905(a) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provides that an employer’s liability for workers’ compensation benefits to an employee “shall be exclusive and in place of all other liability of such employer to the employee.” 33 U.S.C. § 905. This statute reflects the “industrial bargain” between employers and employees on which the LHWCA and all workers’ compensation laws are based. The bargain is simple: “The covered employee has surrendered the right to sue the employer for negligence, and thus has eschewed the possibility of a more significant damages award from the employer; the employer, similarly, has relinquished its common law defenses available in employee negligence actions. In consideration, the employee receives more certain compensation for injuries arising from the employment, regardless of fault; the employer, in turn, eludes litigation expenses and pays only scheduled LHWCA benefits.” In a new published decision, the United States Court of Appeals, EleventhRead more
“Earnings” under Section 8(j) Includes Income Obtained from Illegal Activities
Claimant was hired as a chipper in 1983. He hurt each of his knees on separate dates in 1983 while working for Employer. In 1992, the Benefits Review Board affirmed an Administrative Law Judge’s award of permanent total disability benefits because Employer failed to establish suitable alternative employment. Employer sought modification of benefits in 1997. A hearing was scheduled; however, because Claimant became incarcerated, an ALJ judge issued a stay of compensation until Claimant’s 2004 release. A formal hearing on the reinstatement of benefits was held on October 14, 2009. At the hearing, Employer asserted that Claimant’s illegal activity prior to his incarceration, as well as maintenance work he performed while in prison and the singing he performed at funerals constituted suitable alternative employment. The ALJ judge rejected these positions as suitable alternative employment, but found that ten other jobs identified by Employer were sufficient. Therefore, the ALJ judge awarded theRead more
BRB: A Claimant Cannot Be More than Totally Disabled
Claimant sustained a work-related back injury on October 10, 1990, which rendered him temporarily totally disabled for a period of nearly one year, and permanently totally disabled thereafter. Over seventeen years later, Claimant underwent an audiogram demonstrating a 24.4 percent binaural hearing loss which was attributed to employment-related noise exposure that last occurred on October 10, 1990, when Claimant stopped working for Employer. Claimant argued that he was entitled to receive a scheduled award for his hearing loss concurrently with the temporary total disability award for his back injury. The Administrative Law Judge determined, however, that the scheduled hearing loss claim for PPD benefits was subsumed in Claimant’s total disability award. Claimant appealed, but the Benefits Review Board (“BRB”) affirmed the ALJ’s decision. A claimant may not receive concurrently a scheduled permanent partial disability award for one injury and a total disability award for another injury, as a claimant cannotRead more
BRB: Ninth Circuit Does Not Require New Hourly Rate Determination in Each Case
Following a settlement between the parties, Claimant’s attorney filed fee petitions for work performed before the District Director and the Office of Administrative Law Judges. In each petition, the attorney requested an hourly rate of $412, an amount which was consistent with the rate received by the same attorney in recent attorney fee cases. Both the District Director and the Administrative Law Judge (“ALJ”) refused to analyze the requested hourly rates anew, citing instead the Benefits Review Board’s recent analysis in the other cases that addressed the same attorney’s hourly rates. On appeal, the Employer argued that the Director and the ALJ had to make their own analysis of the market data, and that Supreme Court precedent requires “that a case-specific hourly rate must be calculated at each adjudicatory level of proceedings.” The BRB disagreed, stating that the “Ninth Circuit does not require that a new determination of the relevant community and market hourly rate be madeRead more
BRB Addresses Section 14(f) and the Automatic Approval of Settlements
Claimant sustained a series of injuries to his neck, back and right knee which resulted in his filing ten claims against seven employers. Ultimately, the parties entered into a settlement agreement, which was submitted to an Administrative Law Judge (“ALJ”) on March 22, 2010. Nearly one month later, on April 20, 2010, the ALJ received an amendment to the settlement agreement which resolved the issue as to the apportionment of Claimant’s attorney’s fees. The ALJ’s decision approving the settlement was filed with the District Director on April 29, 2010. Payment was issued to Claimant on May 3, 2010, which he received on May 5, 2010. The issue before the Benefits Review Board (“BRB”) was whether or not Claimant was entitled to a Section 14(f) assessment for the late payment of compensation. Claimant’s argument rested on a technicality. The Longshore and Harbor Workers’ Compensation Act provides that, if the parties are representedRead more
Justice Scalia Questions Validity of Deference to Agency Interpretations
Yesterday, the Supreme Court of the United States issued its opinion in Talk America, Inc. v. Michigan Bell Telephone Co. While the opinion, which dealt in part with the Federal Communications Commission’s interpretation of its regulations, is not particularly relevant for Longshore and Harbor Workers’ Compensation Act claims, Justice Scalia’s concurrence is nonetheless interesting. Justice Scalia discusses whether the present rule regarding deference to an agency’s interpretation of a statute is valid. In doing so, the concurring Justice questions the validity of Auer v. Robbins, 519 U.S. 452 (1997), an agency deference case, which is an unanimous decision that Judge Scalia authored. The following is taken directly from the concurrence: “It is comforting to know that I would reach the Court’s result even without Auer. For while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity. On the surface, it seems to be a natural corollary–indeed, an aRead more
LexisNexis: Update From the Benefits Review Board
An article about the state of the Benefits Review Board has been published at LexisNexis’ Workers’ Compensation Law Community page. Karen Koenig, Associate General Counsel of the Longshore Benefits Review Board, wrote the article, which is entitled Update from the Benefits Review Board. Among other things, it discusses the applicable law for DBA claims, as well as the Supreme Court’s grant of certiorari in Pacific Operators Offshore, LLP v. Valladolid. It is certainly an article worth reading. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Section 14(f) Waivers Allowed in Longshore Settlements
A Section 14(f) waiver may be included in a Section 8(i) settlement agreement. In a new unpublished decision, the Benefits Review Board (“BRB”) addressed the claimant’s request for a Section 14(f) assessment due to the late payment of settlement proceeds. After the underlying settlement agreement, which contained a Section 14(f) waiver, was approved by the District Director, the employer and carrier sent a wire transfer to the claimant’s Canadian bank account, but the transfer was rejected because the bank account did not exist. The claimant had provided incorrect wire transfer information that prevented delivery. Nonetheless, the claimant requested a 20% assessment against the employer and carrier for late payment of the settlement funds. After an informal conference, the District Director recommended payment of the assessment. The employer and carrier requested referral to the Office of Administrative Law Judges, but the claimant requested a default order against the employer and carrier. WhenRead more
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