In a new published Defense Base Act (“DBA”) claim, the Benefits Review Board further clarified the zone of special danger doctrine. A widow filed a claim for death benefits after her husband was killed in Tbilisi, Georgia, while working for the employer. The decedent’s job required that he work five days per week, and that he remain on-call for emergencies. In addition to wages, the decedent received a monthly allotment for housing and utilities, as well as vouchers for a taxi service. While riding in a taxi going to the grocery store, the decedent’s vehicle was struck head-on by another car, causing his death. Death benefits are owed under the Longshore and Harbor Workers’ Compensation Act, as extended by the DBA, when the decedent died in the “course of employment.” For Defense Base Act claims, the Supreme Court has held the “an employee may be within the course of employment,Read more
Defense Base Act Contractor Denied Vaccine Act Compensation
Petitioner worked for Fluor as a military contractor. On February 1, 2012, while employed by Fluor in Afghanistan, he received a flu vaccine and subsequently developed Guillain-Barre Syndrome. The flu vaccine was a Department of Defense requirement, and was distributed at a Fluor clinic at Bagram Airfield. A few weeks after receiving the shot, Petitioner began to feel weakness and numbness in his extremities. On March 5, 2012, he filed a claim for Defense Base Act (“DBA”) benefits. A month and a half later, Petitioner filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”). The United States Court of Federal Claims was tasked with determine whether Petitioner qualified for Vaccine Act compensation. Petitioner argued that as a government contract worker stationed in Afghanistan, he was either a member of the Armed Forces or a federal employee. Even though he filed a DBA claim,Read more
BRB Upholds Longshore Settlement, Rejects Director’s Adequacy Arguments
Earlier this week, the Benefits Review Board (“BRB”) issued its published decision in Richardson v. Huntington Ingalls, Inc. Regular readers of this blog will recognize Richardson as the interesting case about Section 8(i) settlement agreements. To recap, the claimant and the employer/carrier, both represented by attorneys, entered into a settlement that the District Director disapproved because of adequacy concerns. The parties referred the claim to the Office of Administrative Law Judges, added another $500 to the total settlement amount and asked the judge to issue an Order approving the settlement. A dispute arose between the two represented parties and the Solicitor of Labor’s office. The Solicitor (on behalf of the Director) argued that the settlement was not adequate. The judge disagreed and issued the settlement Order. The Solicitor appealed to the BRB. The BRB agreed with the administrative law judge, and in doing so, published a very significant opinion discussingRead more
How Does DLHWC Divide Longshore Death Benefits Between Spouse and Child When the Maximum Compensation Rate Applies?
Today’s post discusses different methods employed by the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) for the calculation of death benefits between a surviving spouse and a surviving child when the total weekly amount owed for compensation is capped at the applicable maximum compensation rate. This topic is best analyzed with a hypothetical, so here are our facts: (1) Decedent’s average weekly wage at the time of death was $2,500. (2) The maximum compensation rate in effect at the time of death was $1,325.18. (3) Decedent is survived by a spouse and a child. (4) Decedent’s spouse is not the mother of the child; and the child resides with his mother. When a Longshore or Defense Base Act employee is killed in a work-related injury, his beneficiaries are most likely entitled to death benefits. The calculation of death benefits is controlled by Section 9 of theRead more
No Work-Related Stress Claims Under the Jones Act, Says 11th Circuit
William Skye worked a lot. A whole lot. Skye worked between 90 and 105 hours per week for 70 to 84 days at a time. Over the course of eight years, Skye’s cardiac condition (initially a benign arrhythmia) worsened. Skye’s cardiologist concluded that Skye’s “continued physical stress related to his job, with long hours and lack of sleep” caused the worsening. By 2008, Skye was diagnosed with left ventricular hypertrophy–a thickening of the heart wall of the left ventricle. According to the cardiologist, Skye’s stress led to hypertension which, in turn, caused the left ventricular hypertrophy. In 2011, Skye sued Maersk Line for negligence under the Jones Act. He alleged that Maersk failed to provide reasonable working hours, an adequate crew, and adequate rest. Maersk overworked him to the point of fatigue, thus causing physical damage to his heart. A jury agreed and awarded damages of $2,362,299. But because SkyeRead more
Around the Longshore and Maritime Blogosphere
Happy Friday, everyone. Here are some great Longshore and maritime related posts that I recommend reading. The LexisNexis Workers’ Compensation Law Community published two interesting articles. First up is Karen Koenig’s Update from the Benefits Review Board (May 2014). In addition to important statistics about the Board’s caseload, the article addresses the Board’s recent interpretation of Section 2(3)(F) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). Congress amended Section 2(3)(F) in 2009. It now excludes from coverage “individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessels, or to dismantle any part of a recreational vessel in connection with the repair of such vessel . . . if [the individual is] subject to coverage under a state workers’ compensation law.” Next up is The Loyola Current, which is published by the Loyola New Orleans Maritime Law Journal. Recent postsRead more
What is the Scope of a War Hazards Compensation Act Appeal?
When an insurance carrier believes that it was improperly denied reimbursement for a War Hazards Compensation Act (“WHCA”) claim or expense, what can it do? It can appeal…but not to a court. The appeal is “in-house” at the Division of Federal Employees Compensation (“DFEC”). Essentially, the higher-ups in the same agency that denied the initial request for reimbursement will review the evidence and determine whether the denial was appropriate. The regulatory authority for a WHCA appeal is at 20 C.F.R. § 61.102(d), which states: The Office shall advise the carrier of the amount approved for reimbursement. If the reimbursement request has been denied in whole or in part, the Office shall provide the carrier an explanation of the action taken and the reasons for the action. A carrier within the United States may file objections with the Associate Director for Federal Employees’ Compensation to the disallowance or reduction of aRead more
Supreme Court Petition Filed in Dize v. Association of Maryland Pilots
On April 18, 2014, counsel for Jennifer Dize, the personal representative of the Estate of William Smith Dize, filed a interesting and very well-written petition for certiorari in the Supreme Court of the United States. The issue: To qualify as a “seaman” under the Jones Act, 46 U.S.C. § 30104, a maritime worker who “contribute[s] to the function of [a] vessel or to the accomplishment of its mission” must have “a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) (internal quotation marks and alteration omitted). In assessing “substantiality,” this Court has endorsed a “rule of thumb” that, ordinarily, a qualifying seaman must spend 30 percent or more of his time in service of a vessel in navigation, id. at 371, but this CourtRead more
Military Contractors Are a Way of Life, Now and in the Future
How important are contractors to the Department of Defense? Very. Contractors are indispensable. According to the Congressional Research Service (“CRS”), “the military is unable to effectively execute many operations, particularly those that are large-scale and long-term in nature, without extensive operational contract support.” The May 2013 CRS report entitled Department of Defense’s Use of Contractors to Support Military Operations: Background, Analysis, and Issues for Congress is an enlightening report. Although there are some portions of the report that I disagree with, the CRS did a good job explaining the importance of defense contractors: DOD has long relied on contractors to support overseas military operations. Post-Cold War defense budget reductions resulted in significant cuts to military logistics and other support capabilities, requiring DOD to hire contractors to “fill the gap.” Recent operations in Iraq and Afghanistan, and before that in the Balkans, have reflected this increased reliance on contractors supporting U.S. troops–bothRead more
BRB: ALJs are Not Required to Use K.S. to Calculate Average Weekly Wage
The Benefits Review Board (“BRB”) recently discussed average weekly wage calculations in an unpublished Defense Base Act decision. In Hamidzada v. Mission Essential Personnel, the Employer and Carrier appealed an administrative law judge’s (“ALJ”) average weekly wage decision. The ALJ calculated Claimant’s average weekly wage using only the wages Claimant earned overseas during his employment for Employer in Afghanistan. Employer appealed, arguing that the ALJ erred in relying on the BRB’s K.S. decision–which used to be the seminal average weekly wage decision for DBA claims–because a federal court vacated K.S. Why was K.S. so important? For years, K.S. was used in connection with Proffitt v. Serv. Employers Int’l to more or less bar ALJs from blending together overseas and stateside earnings to determine an injured worker’s average weekly wage. Instead, K.S. wanted average weekly wage calculations to be based on only overseas wages when the employee was paid “higher wagesRead more
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