Defendant, Oldendorff Carriers GmbH & Co. KG, appealed a judgment entered on a jury verdict in a longshoreman’s Section 905(b) claim. See 33 U.S.C. § 905(b). The longshoreman was injured on a vessel when he slipped and fell on ice. Although the fact was disputed, the trial court and the jury came to the conclusion that the vessel’s chief officer told the longshoreman’s shift supervisor that the ship’s crew would take care of the ice. They would salt and sand between the vessel holds. When the longshoremen slipped and fell, his shift supervisor notified the officer that “the ship was icy forward,” to which the officer replied that “he only had a limited supply of ice.” The jury found Defendant negligent and awarded a large sum. Defendant appealed to the Fourth Circuit, which affirmed. At trial and on appeal, Defendant argued that it could not be held liable because ofRead more
Solicitor’s Arguments Rejected in Settlement Approval Order
This post addresses a really interesting settlement order. Two represented parties attempted to enter into a settlement. The District Director disapproved the settlement on the grounds that the amount was not reasonable. The parties then referred the case to the Office of Administrative Law Judges. Through their attorneys, they agreed to increase the settlement amount by $500. A dispute arose between the parties and the Solicitor as to whether this increase was appropriate. To help resolve the dispute, the administrative law judge scheduled a conference call where each party could explain their positions. The claimant and the employer wanted the settlement approved. The Solicitor took a different position, arguing that “neither the District Director nor the ALJ was allowed to consider litigation risk or the claimant’s personal circumstances in assessing adequacy.” The Solicitor also “insisted that the District Director or ALJ must . . . simply apply the acturarial tables andRead more
Supreme Court of Alabama Addressed Longshore Exclusivity and Preemption
The Supreme Court of Alabama issued an interesting decision recently. An injured worker filed a state lawsuit against his employer. The injured worker alleged, among other things, fraud and retaliatory discharge pursuant to Alabama Code § 25-5-11.1. The court ended up splitting the baby. It concluded that the worker’s fraud complaint was barred by the exclusivity provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) and the Alabama Workers’ Compensation Act. His state-based retaliatory discharge complaint, however, was not preempted by the LHWCA. On fraud, the court reasoned: Rodriguez-Flores alleged that U.S. Coatings, through its employee, fraudulently represented to him that “he would be fired if he continued to seek treatment for his injury,” “that he was not entitled to be paid for time missed from work due to his injury,” and “that he was not entitled to be paid for time missed from work because of the injury and that [he] was onlyRead more
Second Circuit Gives Seamen Overtime Pay as a Component of Unearned Wages
A class of seafarers who were discharged from service on Maersk ships due to illness or injury sought overtime pay that they would have earned from the time of their discharge until the end of their respective voyages. After an adverse judgment from the Southern District of New York, the defendant appealed to the Second Circuit. The issue on appeal was “whether unearned wages recoverable by ill or disabled seafarers under general maritime law include overtime pay that they would have earned had they completed their voyages.” The Second Circuit concluded that these seamen were entitled to overtime pay as a component of unearned wages. It reasoned: “Under general maritime law, seamen who have become ill or injured while in a ship’s service have the right to receive maintenance and cure from the owner of the vessel. Ammar v. United States, 342 F.3d 133, 142 (2d Cir.2003). In addition, aRead more
In a Longshore or DBA Case, What Should Be the Geographic Boundaries for the Relevant Labor Market in Alaska?
Alaska is the largest state in the United States, over twice the size of Texas. It is larger than the combined area of the twenty-two smallest states. At the same time, the total estimated population is a little over 730,000, which is the 47th smallest population in the U.S., trailed only by North Dakota, Vermont and Wyoming. Considering these variables, what should be the geographic boundaries for the relevant labor market in Alaska? I contend that the relevant labor market in Alaska should be defined by Alaska statute instead of Longshore or Defense Base Act caselaw. After a claimant establishes a prima facie case of total disability, the burden shifts to the employer to establish suitable alternative employment. The employer must then demonstrate the existence of realistically available job opportunities within the geographic area where the employee resides which he is capable of performing, considering his age, education, work experience, andRead more
The DSM-5’s New PTSD Diagnostic Criteria
The American Psychiatric Association finally published the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders, commonly known as the DSM-5. Changes have been made to some of the important diagnoses commonly used in Longshore and Defense Base Act claims. And while there is no requirement in the Longshore and Harbor Workers’ Compensation Act that administrative law judges (“ALJ”) strictly adhere to the DSM-5’s diagnostic criteria, the failure of a diagnosing psychiatrist or psychologist to adhere to the criteria could affect the weight that an ALJ gives that evidence. Many are noticing that the DSM-5 makes it easier to get a PTSD diagnosis. For instance, check out TIME magazine’s article, “An Easier PTSD Diagnosis.” Whether this will have an effect on LHWCA/DBA claims remains to be seen. Without further ado, here are the DSM-5’s new PTSD Diagnostic Criteria: A. Exposure to actual or threatened death, serious injury, or sexualRead more
Supreme Court Refuses to Review Minton. Punitive Damages Are Not Available Under the LHWCA.
Yesterday the Supreme Court of the United States denied certiorari in Minton v. Exxon Mobil Corp. That means that the Court will not review the Virginia Supreme Court’s determination that punitive damages are unavailable in Section 905(b) actions. Specifically, the Virginia Supreme Court stated that because “punitive damages are not a remedy made available within the terms of the LHWCA, and the language plainly restricts the damages to those remedies explicitly made available, they are extinguished as a category of recovery in LHWCA claims.” Click here for the Supreme Court’s Order List where it denied certiorari. Click here for Virginia’s Exxon Mobil Corp. v. Minton, — S.E.2s —-, 2013 WL 119661 (Va. 2013). (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
BRB: Claimant’s Security Guard Job Was Not Maritime Employment
Claimant worked for Employer as a security guard. During the regular work week, Claimant manned the entry gates. On weekends, his security rounds happened though Employer’s submarine production areas. The issue presented was whether Claimant’s security guard/emergency medical technician job constituted marine employment. Both the administrative law judge (“ALJ”) and the Benefits Review Board (“BRB”) held that it did not. Section 2(3) of the Longshore and Harbor Workers’ Compensation Act provides that “the term ’employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker . . . .” See 33 U.S.C. § 902 (1984). Here, the ALJ determined that Claimant “was not engaged in maritime employment as he was not employed on navigable waters, did not protect cargo, and the non-performance of claimant’s duties would not have impeded employer’s shipbuilding activities.” The BRB agreed,Read more
Fifth Circuit: ALJs Can Average Audiograms to Determine the Extent of Disability
When Claimant worked as a longshoreman for eighteen years, he operated heavy equipment and was exposed to loud machinery noises. An otolaryngologist appointed by the Department of Labor (“DOL”) tested Claimant’s hearing twice. The first test demonstrated a 56% impairment while the second test demonstrated a 39.6% impairment. The DOL doctor testified that surgical exploration was necessary to determine if surgery would correct Claimant’s hearing. The best treatment was the use of hearing aids. Ultimately, the administrative law judge (“ALJ”) presiding over the case accepted the DOL doctor’s opinions and averaged out the impairment ratings to determine that Claimant suffered a 47.8% binaural loss. Employer appealed the ALJ’s decision, arguing that Claimant had not yet reached maximum medical improvement because the DOL doctor found a conductive component to Claimant’s hearing loss. Because there is a conductive loss, there is a possibility that surgery could correct some of the hearing loss. Based onRead more
Great Article About ALJ Orders Posted on LexisNexis’ Workers’ Compensation Law Community
Yelena Zaslavskaya, Senior Attorney for Longshore, OALJ, posted a great article on LexisNexis’ Workers’ Compensation Law Community entitled “Compensation Orders in Litigated LHWCA Claims: What the ALJs and the Parties Should Know.” The article thoughtfully explores when, how, and why administrative law judges shall issue compensation orders awarding or denying benefits. Really…this is an article to read, digest, and reread. And if that wasn’t enough, LexisNexis published the new update from the Benefits Review Board. The update addresses jurisdiction, average weekly wages after the Southern District of Texas vacated K.S. [Simons] v. Service Employees Int’l, Inc., and Service Employees Int’l, Inc. v. Director, OWCP, and the War Hazards Compensation Act. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
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