A new Administrative Notice provides guidance for Defense Base Act claims involving foreign nationals. The Administrative Notice, known as In Re: Cases Involving Foreign Parties, Witnesses, and/or Evidence or 2021-MIS-00006, addresses issues regarding foreign testimony and “documentary evidence obtained outside the territorial jurisdiction of the United States . . . .” The Administrative Notice states (with footnotes omitted): Case No.: 2021-MIS-00006 In Re: CASES INVOLVING FOREIGN PARTIES, WITNESSES, AND/OR EVIDENCE ADMINISTRATIVE NOTICE Proceedings before the Office of Administrative Law Judges (“OALJ”) involving foreign parties, foreign witnesses, and/or foreign evidence may present complex adjudicative issues, particularly when a party is located outside the territorial jurisdiction of the United States, or when a party seeks to present testimony of a person located outside the territorial jurisdiction of the UnitedStates and/or evidence obtained outside the territorial jurisdiction of the United States. I issue this Administrative Notice in order to minimize the risk that the partiesRead more
National AWW Percent Increase for Longshore and DBA, Fiscal Year 2022
Each fiscal year, the Secretary of Labor must calculate a new National Average Weekly Wage for Longshore and Defense Base Act claims. See 33 U.S.C. 906(b)(3). The Secretary made those calculations for fiscal year 2022. The Fiscal Year 2022 Numbers: For the period between October 1, 2021, and September 30, 2022, the following values apply: National Average Weekly Wage: $863.49 Maximum Compensation Rate: $1,726.98 Minimum Compensation Rate: $431.75 Percent Increase: 5.77% (but there’s a catch) Percent Increase: What does all this mean? First, I want to address the percent increase. This entire percent increase does not apply to death or permanent total disability benefits. Although cost of living adjustments apply annually to those classification of benefits, no percent increase may exceed 5%. Section 10(f) of the Longshore Act, which also applies to the Defense Base Act, states: (f) Effective October 1 of each year, the compensation or death benefits payable for permanent total disabilityRead more
Hurricane Ida Updates – September 6, 2021
Hurricane Ida devastated Louisiana. Three days later, power and internet remain down for the vast majority of southeastern Louisiana. Thank you to all of the clients and colleagues who have reached out over the past few days. Today, Chief Administrative Law Judge Stephen Henley issued an Administrative Order that postpones and tolls pending deadlines. Specifically, the order states: All proceedings before the Office of Administrative Law Judges (“OALJ”), including formal hearings, oral arguments, mediations, and pre-hearing conferences, scheduled to take place in or within 150 miles of New Orleans, Louisiana–or involving any party, attorney, or law firm located in or within 150 miles of New Orleans, Louisiana–are POSTPONED until further notice. All associated hearing-related deadlines, such as pre-hearing exchanges, discovery deadlines, post-hearing briefs and similar matters, are TOLLED until subsequent order. I am thankful for the order. I am relying on generator power and a hotspot to provide this update.Read more
CBD Oil as a Covered Medical Expense Under the Longshore Act and DBA
CBD oil can be a covered workers’ compensation expense under the Longshore and Defense Base Acts. As of now, medical marijuana is not. Section 7 of the Longshore and Harbor Workers’ Compensation Act requires employers to pay for reasonable and necessary medical treatment associated with an employee’s work-related injury. See 33 U.S.C. 907. That same law also applies to the Defense Base Act. See 42 U.S.C. 1651. Recently, Judge Carrie Bland juxtaposed the completely legal use of CBD oil with the lack of coverage typically afforded by federal administrative courts to medical marijuana. The following passage is from Rykaczewski v. Ceres Marine Terminals, OALJ No. 2018-LHC-00075 (OALJ Dec. 12, 2020) (internal record citations omitted): Ceres next posits that it cannot be held responsible for providing Rykaczewski with Cannabidiol (“CBD”) or marijuana. Rykaczewski testified that he uses CBD to help with his anxiety. Further, Ceres indicates that Rykaczewski submitted as an exhibit a prescription fromAndersonRead more
The Misapplication of the Marino-Sewell Doctrine in War Zone DBA Claims
This posts addresses the frequently misapplied Marino-Sewell doctrine. This doctrine is often used as a basis for denying Defense Base Act workers compensation benefits to injured workers. The problem is that the Marino-Sewell doctrine does not support the denial of benefits when a legitimate adverse personnel decision co-exists with injurious working conditions or events. A Typical Real Life Example: In his Form LS-203, an Afghanistan-based employee alleged that he was exposed to war-risk hazards that led to the development of a psychological injury and disability. A “war-risk hazard” is a term that is often used to describe attacks, explosions, indirect fire, and more. In response to the injured worker’s claim, the carrier filed a Form LS-207. The carrier controverted—i.e., denied—the claim. The claim was controverted for the following reason: “Claimants inability to work is due to RIF in May 2019 from employment.” In this context, “RIF” means “reduction in force.” The carrier’s controversionRead more
Let’s Talk About Attack Logs in Defense Base Act Claims…
Let’s talk about the use of attack logs in Defense Base Act claims. These incredibly helpful logs, which many contracting companies maintain in the regular course and scope of business, are directly relevant to the existence of working conditions which could have caused or contributed to a DBA claimant’s injury. Yet, some insurance carriers often try to hide this discoverable information. Some have even claimed that they “have no records of attacks relating to Claimant or Employer’s property” even though they have attack logs (and more) in their possession. That’s a lie. So, I am going take the mystery out of attack logs. I am going to explain what they are, why they are relevant, what insurance carriers use them for, how the Office of Administrative Law Judges have responded to motions to compel, and how it prejudices a claimant when an insurance carrier hides relevant information. Finally, I willRead more
Viewing Pain on a Spectrum for Longshore (and DBA) “Disability”
The Ninth Circuit just issued a primer on pain as a disabling Longshore and Defense Base Act consideration. The case is Jordan v. SSA Terminals, LLC. I anticipate that this published decision will be cited in many legal briefs for a long time to come. Factual Background: In Jordan, the claimant significantly injured his back in 2014. He received conservative treatment and then, in 2018, a spinal fusion surgery. In the time between the injury and the surgery, the Longshore and Harbor Workers’ Compensation Act’s insurance company conducted surveillance. The videos from the surveillance, which were recorded in 2015 and 2016, showed the claimant engaging in various physical activities. A formal hearing was held to determine whether the claimant was “disabled” between 2016 and 2018. The Ninth Circuit focused on a few statements the claimant made at the hearing about his pain level. The claimant testified that he could perform tasks. But whenRead more
Major Change at OWCP: DFEC and DLHWC Merged!
Breaking news affecting all Defense Base Act claimants, employers, and carriers! The Office of Workers Compensation Programs merged the divisions that administer the Federal Employees Compensation Act, the Longshore and Harbor Workers’ Compensation Act, and the Defense Base Act. The news came in an e-mail from Director Rios. Notice from Antonio Rios: Here is Director Rios’ e-mail in full: Longshore Stakeholders, I am pleased to announce that the Office of Workers’ Compensation Programs (OWCP) is merging the Division of Longshore and Harbor Workers’ Compensation (DLHWC) with the Division of Federal Employees’ Compensation (DFEC). The two divisions will be consolidated into the Division of Federal Employees’, Longshore and Harbor Workers’ Compensation (DFELHWC), which I am excited and honored to lead as Director. The new organizational structure will allow OWCP to carry out its mission more efficiently and effectively. This merger will not change any processes, addresses, or points of contactRead more
MOD 15 and DBA Contractor Deployment Standards After COVID-19
Recently, the Department of Defense updated its deployment standards to address COVID-19. The old deployment standards, MOD FOURTEEN, have been replaced by MOD FIFTEEN (also known as MOD 15). The big difference between MOD FOURTEEN (which isn’t that old) and MOD FIFTEEN is an age exclusion. Individuals who are 65 or older, or who may turn 65 during their contract, may not deploy. This age exclusion is based on the affects of COVID-19 on an older population. Beyond that, the changes are minimal. Deployment is still prohibited for individuals with medical conditions identified in Tab A to MOD FIFTEEN. Tab A is also known as the “Amplification of the Minimal Standards of Fitness for Deployment to the CENTCOM AOR.” Non-Deployable Medical Conditions: Previously, I wrote about non-deployable medical conditions and medications. It is worthwhile to address that topic again. There are certain medical conditions and medications that will prevent deploymentRead more
Equitable Tolling of the Defense Base Act’s Statute of Limitations
The Longshore and Harbor Workers’ Compensation Act includes a statute of limitations–a time limit for filing a claim. The Defense Base Act (“DBA”) is an extension of the Longshore Act, and it applies the same statute of limitations. The statute provides a one-year window for filing traumatic injury claims and a two-year window for filing occupational disease claims. Recently, I have seen a glut of motions for partial summary decision arguing that the statute of limitations ran against injured Kosovar, Macedonians, Bosnians, and other foreign nationals, who filed a claim more than two years after they first received a mental health diagnosis. If the assigned administrative law judge grants the motion, then the claimant may only pursue medical benefits. Often, these motions are filed early in a claim, soon after a claimant’s deposition, when additional discovery is still needed. These injured third country nationals have been paying out of theirRead more
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