Superior Shipyard asked Global Oilfield Contractors to provide additional labor. Global then utilized the Terrobonne Parish Work Release Program to secure the services of Brian Redmond. Global hired Redmond and assigned him to Superior Shipyard. Ten days later, Claimant was purportedly injured when the scaffolding underneath him broke and he fell. Redmond filed a tort suit against Superior, and Superior contended that Claimant was limited to workers’ compensation benefits. Superior ultimately moved for summary decision, which the trial court granted. On appeal, Louisiana’s First Circuit addressed the “borrowed employee” defense. If Redmond was a borrowed servant, then his remedy falls exclusively in workers’ compensation, under either the Longshore and Harbor Workers’ Compensation Act or Louisiana’s workers’ compensation law. The court noted the fact-intensive nature of the defense, as well as the factors considered in borrowed servant cases: While there is no fixed test, the factors to be considered in determining the existenceRead more
What is the International Terrorism Victim Expense Reimbursement Program?
The Defense Base Act and the War Hazards Compensation Act are not the only programs designed to address losses occasioned by acts of terrorism. Another compensation and reimbursement program is the International Terrorism Victim Expense Reimbursement Program (“ITVERP”), which is administered by the Department of Justice’s Office for Victims of Crime. If ITVERP applies, then the federal government may provide “financial reimbursement for qualifying expenses to qualified U.S. citizens and U.S. government employees who suffered direct physical or emotional injury from an act of international terrorism while outside the United States.” There are three main requirements for ITVERP: (1) a terrorist incident occurring outside the United States; (2) the victim or claimant must be a U.S. citizen of an employee of the U.S. government; and (3) the expenses must be directly related to the terrorist incident. If all three requirements are satisfied then the victim or claimant may be able toRead more
Longshore Articles Around the Blogosphere
Here are some recent gems: LexisNexis’ Workers’ Compensation Law Community published Vickers Decision: Inapplicability of Sec. 20(a) Presumption to Secondary Conditions Under the LHWCA. As the name suggests, the article addressees the applicability (or, rather, inapplicability) of the Section 20(a) presumption to “secondary conditions.” The AEU Longshore Blog published Issue: Exemption for Small Vessel Facilities, which identifies the procedure for obtaining an exemption certificate. Finally, John’s Longshore and Defense Base Act Blog published No Intentional Tort Exception Under the Outer Continental Shelf Lands Act, wherein John Chamberlain addresses the Western District of Louisiana’s recent Latimer decision. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Jumping from a Helicopter Can Be a War-Risk Hazard
A Defense Base Act claimant injured his ankle when he jumped a few inches from a helicopter to the ground below. The injury occurred at Abu Ghraib prison when, in accordance with custom, the helicopter in which he was traveling “landed” at the prison by hovering a few inches above the ground. As the helicopter hovered, the occupants exited the aircraft by jumping down to the gravel-covered ground below. Once all occupants were removed, the helicopter took off again. This “landing” procedure was commonplace at Abu Ghraib because of the threat of enemy fire. The issue is whether Claimant’s ankle injury was caused by a “war-risk hazard.” The answer is, “Yes,” because the injured worker suffered injuries as a direct result of the operation of an aircraft engaged in war activities operating in a zone of hostility. Under the War Hazards Compensation Act, a “war-risk hazard” includes “any hazard arising during a warRead more
DLHWC Issued Industry Notice 144
From Director Antonio Rios: Effective December 2, 2013, the DLHWC is consolidating its case create and mail receipt processing in centralized locations. The New York District Office will be the Central Case Create site and will create cases for all injuries/deaths under the LHWCA, and its extensions, regardless of where the injury occurred or where the injured worker resides. The Jacksonville District Office will be the Central Mail Receipt site and will receive all case specific mail after the creation of a case regardless of the owning district office. We believe that centralizing our case create and mail receipt functions will facilitate the speed and quality of claims intake, but I am seeking your assistance with this transition. Please disseminate this information to as wide an audience as possible so that every stakeholder is aware of the new addresses for case create and mail submission. The attached Industry Notice providesRead more
District Court Interpreted the LHWCA’s Exclusivity Provision and Granted Summary Judgment for Defendant
Plaintiff, a welder on a stationary platform on the outer continental shelf off the coast of Louisiana, filed suit in the Western District of Louisiana alleging that he was intentionally injured by a co-employee while working for Defendant. Plaintiff was carrying a lifeline rope from one location to another when the co-employee “intentionally stepped on the rope,” thus jerking him backward. Claimant slipped, fell, and allegedly injured his neck, left shoulder, low back, and left knee. The issue before the court on Defendant’s Motion for Summary Judgment was whether the Longshore and Harbor Workers’ Compensation Act’s (“LHWCA”) exclusivity provision barred Plaintiff’s federal court lawsuit. The LHWCA defines “injury” to mean “accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by theRead more
Claimant Willfully Omitted Illegal Earnings on Form LS-200
One of our favorite cases from 2011 was Young v. Newport News Shipbuilding & Dry Dock Co., BRB No. 10-0678 (BRB 6/22/11), wherein the Benefits Review Board (“BRB”) determined that illegal earnings still constitute “earnings” that must be reported to an employer. Our post discussing the original Young decision is here. On Halloween 2013, the BRB issued a new decision against Mr. Young, who continued his attempts to circumvent the reporting requirements of Section 8(j). Section 8(j) of the Longshore and Harbor Worker’s Compensation Act allows an employer to ask their injured worker to disclose any earnings over a specific period of time during which the worker received disability benefits. If the employee “knowingly and willfully omits or understates any part of such earnings . . . [the employee] forfeits his right to compensation with respect to any period during which the employee was required to file such report.” See 33Read more
New Maritime and Longshore Articles Online
Here are some highlights of new Maritime and Longshore articles on the internet: Check out Siobhan Morrissey’s article, For vacationers encountering trouble on cruise ships, U.S. laws may provide little help, which the American Bar Association published on the ABA Journal website. Using the Costa Concordia accident as a backdrop, the article discusses the legal rights of cruise ship vacationers. Also, the article discusses other potential problems haunting the cruise ship industry, such as serious crimes and illnesses. Next, head over to the LexisNexis Workers Compensation Law community for Paul Howell’s article, Meddlin’ With Settlin’. This article addresses the requirements for a Longshore settlement…and the players who could stop a settlement dead in its tracks. Those players include the claimant, the employer and carrier, and the Director. Finally, the New York Post’s website has a great article entitled, Britney Spears’ songs used to fight Somali pirates. No, really. My favorite quote comes from Second Officer Rachel Owens: “It’s soRead more
Claimant Remained Totally Disabled Despite Labor Market Surveys
The Sixth Circuit published a new Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision discussing Claimant’s vocational ability–or lack of ability–and Employer’s deficient labor market survey. This was the second time the Sixth Circuit heard the claim, and the court reused its earlier recitation of the facts. Claimant worked for Employer as a senior barge mechanic. After twenty-five years of employment, Claimant alleged a shoulder injury. Over the course of three years, Claimant treated with a number of health professionals. One of those physician’s, Dr. Goodwin, determined that Claimant could not perform his usual work as a senior barge mechanic. Thereafter, Employer’s vocational expert prepared a labor market survey identifying nine alternate positions that Claimant could perform. A few months later, the vocational expert identified ten more jobs. Claimant did not contact any of these employers because he had a foot gout ailment. Following a 2008 trial, the assigned Administrative Law JudgeRead more
DFEC Requiring Claimant Statements in War Hazards Claims
In the past few weeks, I received two information requests from the Division of Federal Employees’ Compensation (“DFEC”) in connection with two Applications for Reimbursement submitted pursuant to the War Hazards Compensation Act [“WHCA”]. Specifically, DFEC asked for written statements or a deposition from an injured worker. DFEC sends these types of requests often, and mostly in connection with cumulative exposure psychological disability claims. Two regulations serve as the backdrop for this post: 20 C.F.R. § 61.101 and 20 C.F.R. § 61.102. The first regulation, 20 C.F.R. § 61.101, describes the documents that shall be submitted (if available) with a reimbursement request. The specific language at issue here is: “When filing an initial request for reimbursement under the Act, the carrier shall submit copies of all available documents related to the workers’ compensation case, including– . . . (2) Statements of the employee or employer . . . .” See 20 C.F.R. § 61.101(c). TheRead more
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