Here’s a tip for carriers that plan to apply for reimbursement under the War Hazards Compensation Act: don’t let your vendors charge flat fees. Why? Because the Division of Federal Employees’ Compensation will not reimburse flat fee charges, no matter what. What are Flat Fees? A flat fee, or flat rate, is a pricing structure where a single fixed fee is charged for a service, regardless of usage. These fees could arise for any number of services in Defense Base Act case. For instance, vendors may change flat rates for medical repatriation to the United States following an injury in Afghanistan; for surveillance or overseas document retrieval services; or even for legal fees. Why are Flat Fees Denied Reimbursement? Flat fees are not addressed in the War Hazards Compensation Act statutes. See 42 U.S.C. § 1701 et. seq. The regulations, however, do address flat fees. Specifically, 20 C.F.R. § 61.403,Read more
The Supreme Court Refused to Review Lincoln v. Director, OWCP
On October 14, 2014, the Court issued its second Order List for the 2014 term. One of the cases that the Supreme Court denied was Lincoln v. Director, OWCP. Lincoln was an interesting case that involved the attorneys fee provision of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) and the meaning of the term “compensation.” The facts of Lincoln are fairly straight forward. The employee filed a hearing loss claim on May 24, 2011. Initially, the employer filed a notice of controversion stating that the hearing loss was noise-induced, but it needed additional information to determine the correct disability payment. On June 14, 2011, the district director served notice that the claim was filed. Then, on July 7, 2011, the employer voluntarily paid employee $1,256.84, amounting to compensation for “0.5% [binaural] hearing loss” and the equivalent of one week of permanent partial disability benefits under the maximum compensation rate.Read more
The Supreme Court Denied Review in Dize and Other Maritime Cases
The Supreme Court is back in session. On October 6, 2014, the Court issued its Orders list, wherein a large number of cases were denied certiorari. Accordingly, the Court will not review: Dize v. Association of Maryland Pilots. The question presented in Dize was whether, when applying the Chandris, Inc. v. Latsis thirty-percent rule–that, ordinarily, a qualifying “seaman” under the Jones Act must spend thirty percent or more of his time in service of a vessel in navigation–a court may consider the time a maritime worker spends in the service of a vessel in navigation that is moored, dockside, or ashore, as the Third, Fifth, Sixth, and Ninth Circuits have held, or whether a court must categorically exclude such time, as the Eleventh Circuit and the Maryland Court of Appeals have held. Gonzalvez v. Celebrity Cruises, Inc. The petitioners asked the Court to consider whether seamen are statutorily exempt from the 3-month limitationsRead more
Defense Base Act Resolution and the Direct Payment of Future Benefits
When a Defense Base Act injury is caused by a “war-risk hazard,” then both the Defense Base Act and the War Hazards Compensation Act applies. The application of both statutory schemes is important for all parties to a Defense Base Act claim because the War Hazards Compensation Act offers additional resolution options. Specifically, employers and carriers may seek the direct payment of future Defense Base Act benefits if the underlying injury and disability was caused by a “war-risk hazard.” The “War-Risk Hazard” Definition: Generally, a “war-risk hazard” includes any hazard arising from the use of weapons or explosives; an “action” of a hostile force or person; the discharge of munitions intended for use in war no matter whether a hostile force or person is involved; the collision of vessels or aircraft in a zone of hostilities; and any mishap arising during “the operation of vessels or aircraft in a zoneRead more
Longshore Conferences and the Louisiana Comp Blog
First, there’s a new workers’ compensation blog in town. Louisiana Comp Blog (http://compblog.com/), which is published by LCI Workers’ Comp, looks great. I’m a fan of the design and the content, and I look forward to many insightful discussions in the future. I have already subscribed and I suggest you do the same. The following snippet explains Louisiana Comp Blog’s mission: Louisiana Comp Blog’s fresh and original content ranges from features and profiles of industry leaders to commentary/opinion articles and event coverage. We also publish a daily Comp News Bulletin every morning, which allows our readers to get a head start on their day with the top three to five stories affecting Louisiana’s workers’ comp industry on both the local and national scale. All of this makes us your one-stop source for the best workers’ comp reporting from across Louisiana. Second, we are one month away from the annual DOLRead more
Doctors Were Not Entitled to Intervene in Defense Base Act Case at the OALJ
Claimant was injured while working as a linguist in Iraq. His claim was referred to the Office of Administrative Law Judges (“OALJ”) for adjudication, in part because of a medical payment dispute. Employer paid some of the medical bills in question after it received itemized statements. Believing that the disputed medical payment issue was resolved, Claimant and Employer/Carrier submitted Stipulations which outlined Claimant’s injury, medical treatment, entitlement to benefits, and Claimant’s responsibility to provide itemized invoices and statements for medical expenses. The Administrative Law Judge (“ALJ”) then remanded the claim to the district director at the Division of Longshore and Harbor Workers’ Compensation. While the parties were resolving their issues, but before the ALJ remanded the claim, two doctors attempted to intervene in the Defense Base Act litigation. The doctors alleged that they had not been paid for their treatment of Claimant’s work injuries. After the ALJ remanded the claim,Read more
Benefits Review Board Accepts Electronic Filings
This following notice is posted on the Benefits Review Board’s home page. Notice Regarding Availability of Electronic Filing and Electronic Service All parties to appeals before the Benefits Review Board (BRB) may now use the Board’s Electronic File and Service Request (EFSR) system. The EFSR portal allows parties to file new appeals electronically, receive electronic service of Board issuances, file briefs and motions electronically, and check the status of existing appeals via a web-based interface accessible 24 hours every day in lieu of paper documents. The EFSR system is open to any party to an appeal before the Board. An e-Filer must register as a use and must be validated by the Board before e-filing any document. An e-Filer will complete an online registration form. A valid e-mail address is required to register as an e-Filer. Once registered, an e-Filer will be able to use the EFSR for electronic filingRead more
DOL Issued 2014-15 National Average Weekly Wage Increase for Longshore Claims
On October 1, 2014, the National Average Weekly Wage applicable to Longshore claims (including Longshore extensions like the Defense Base Act) will increase pursuant to Section 10 of the Longshore and Harbor Workers’ Compensation Act. The new compensation rates are: National Average Weekly Wage: $688.51 Maximum Compensation: $1,377.02 Minimum Compensation: $344.26 Percentage Increase: 2.25% (Note: I first published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Punitive Damages Available to Seamen in Asbestos Litigation
Judge Eduardo Robreno recently ruled that punitive damages were available to seamen in the consolidated asbestos products liability multidistrict litigation pending in the Eastern District or Pennsylvania. After discussing the history of punitive damages and maritime law, Judge Robreno reasoned (with internal citations omitted, and emphasis added): Having concluded that maritime law does not impose a general bar on punitive damages in unseaworthiness claims, the Court turns to the question of whether punitive damages are appropriate when such claims arise in the context of asbestos cases. This issue underpins the availability of punitive damages and necessarily must be addressed in this context. Although various rationales have historically been used to justify punitive damage awards, the consensus today is that punitive damages are not intended to compensate the plaintiff for a loss suffered, but instead are “imposed for purposes of retribution and deterrence.” Courts also generally limit punitive damages to casesRead more
Do You Need a Medicare Set Aside for Your Longshore or Defense Base Act Settlement?
In every case where a Longshore worker or Defense Base Act contractor agrees to close or limit their right to future medical benefits, the parties must consider whether a Medicare Set Aside is needed. What is a Medicare Set Aside and why is it needed? Essentially, the Centers for Medicare and Medicaid Services (“CMS”) does not want to pay for workers’ compensation injuries. The Medicare Secondary Payer laws protect CMS from workers’ compensation litigants who may want to shift the liability for payment of future medical benefits to CMS. Consequently, in certain situations, the parties to a workers’ compensation settlement must prepare “a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury, illness or disease. These funds must be depleted before Medicare will pay for treatment related to the [injury].” Moreover, CMS will want proof (inRead more
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