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
ALJ Can Determine Audiogram Reliability For Special Fund Relief
In an unpublished decision, the Ninth Circuit found that an audiogram not provided to the Claimant within thirty days of its administration could establish evidence of the amount of hearing loss sustained on a particular date for the purposes of Section 8(f) relief. 33 U.S.C. §908(f) (2011). Under 33 U.S.C. §908(c)(13)(C) and 20 C.F.R. § 702.321(a)(1), preexisting hearing loss must be documented as required by 20 C.F.R. § 702.441. Section702.441(b) states that an audiogram shall be presumptive evidence of the amount of hearing loss on the date it was administered if it meets certain requirements, including the requirement that the employee must be provided with the report within thirty days of the administration of the audiogram. The court held that while the plain language of the statute and regulations establish a safe harbor for employers seeking to use the audiogram as presumptive evidence of hearing loss for Section 8(f) relief, an administrativeRead more
Jones Act Plaintiff’s 10-Year Old PTSD Claim Was Time-Barred
A pro se plaintiff filed a Jones Act suit against Defendants, Dyncorp International and DynMarine Services of Virginia, complaining of post-traumatic stress disorder (“PTSD”) stemming from a sexual assault that allegedly occurred over 10 years before she filed her complaint. Plaintiff’s hand-written complaint contained no factual or legal allegations other than two phrases: “Post Traumatic Stress Disorder (sexual assault)” and a demand of “Amount Undecided” for “lost wages, pain & suffering.” In response to Plaintiff’s suit, Defendants filed motions for summary judgment arguing inter alia that her Jones Act claim was time-barred. A claim under the Jones Act must be brought within three years after the cause of action arises. A cause of action under the Jones Act and general maritime law accrues when a plaintiff has had a reasonable opportunity to discover the injury, its cause, and the link between the two. The discovery rule applies such that the statuteRead 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
Louisiana: A State Employee May Sue Louisiana Under the Jones Act
On July 1, 2011, the Supreme Court of Louisiana held that Louisiana waived its sovereign immunity from suit for injury to persons, and that the Louisiana legislature has not limited that waiver concerning suits by state employees under the Jones Act. In Fulmer, the state employee was assigned to the crew of a state-owned vessel in navigation. While patrolling Plaquemines Parish, and traveling at a high rate of speed, the employee was thrown into the air. He allegedly herniated a number of discs and suffered additional spinal injuries when he landed on the deck of the watercraft. After the employee sued the State, the State argued that it could not be sued because of sovereign immunity. Further, all of the employee’s claims would fall under the Louisiana Workers’ Compensation Act (“LWCA”), and not tort law. For the sovereign immunity argument, the State cited to the Supreme Court of the United States’ decisionRead more
LA Third Circuit: Moored Casino Boat Is Not a Vessel
In a split decision, the Louisiana Court of Appeal, Third Circuit, determined that a floating casino permanently moored to to a dock is not a vessel. The M/V Crown was originally placed into service as a functioning gambling boat that would cruise the Calcasieu River in Lake Charles. Thereafter, the Louisiana legislature amended gambling laws to prohibit gambling boats from conducting cruises or excursions. In accordance with law, the M/V Crown was docked, and it stopped conducting cruises. Since then, the vessel has been held to the dock by four steel cables. Utilities, such as electricity and phone service, were attached to the M/V Crown from land-based sources. Further, the M/V Crown has not been licensed by the Coast Guard since the Louisiana legislature’s gambling law amendments took effect. Still, though, the M/V Crown has all of the equipment necessary for maritime navigation, making navigation a theoretical possibility. The question of whether aRead 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
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