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.)
Tragic Aircraft Crash in Afghanistan and the Scope of the War Hazards Compensation Act
This morning the Washington Post, and countless other news agencies, printed a sad story about a National Air Cargo plane crash in Afghanistan that claimed the lives of seven Americans. The article is available here. Shortly after takeoff from the Bagram Air Base in Afghanistan, the plane lost altitude, falling to the ground. Although the Taliban claimed responsibility for the downed aircraft, there is no indication that insurgents were involved in the crash. Our hearts go out to the surviving family and friends of these Americans. We do not know the facts behind the crash, and we cannot comment on the applicability of the Defense Base Act or the War Hazards Compensation Act to this particular event. Nonetheless, assuming that the DBA does apply, this tragic event demonstrates the interesting interplay between the DBA and WHCA, and the scope of the WHCA’s “airplane” inclusion. For our hypothetical, assume the following: 1. EachRead more
Permanent Washington State Workers’ Compensation Benefits Denied Because Longshore Benefits Were Available
Decedent died from mesothelioma. His employment included Longshore-based jobs. Following Decedent’s death, his widow requested workers’ compensation benefits under the Washington Industrial Insurance Act (“WIAA”). Washington’s Board of Industrial Insurance Appeals denied her claim for benefits. On appeal, the Department of Labor and Industries opposed the widow’s claims. Specifically, the widow argued that “she is entitled to WIAA benefits because her husband’s last injurious exposure to asbestos occurred when he was employed by a non-maritime employer covered by the WIIA.” Further, the widow argued that the Department violated Washington law “when it denied her temporary and interim benefits and when it failed to pursue a [Longshore claim] on her behalf.” The Court of Appeals of Washington, Division 2, held that the widow’s arguments were only partially correct. State workers’ compensation benefits were not available to the widow “because (1) her husband had worked previously for an LHWCA-covered employer and, thus, [was] notRead more
Benefits Review Board Clarifies Its Cathey Decision
When the Benefits Review Board issued Cathey v. Service Employees International in December 2012, we published a blog post calling into question some of the Board’s language. As it turns out, the Director took issue with some of the language too. Specifically, the Director averred that the Board incorrectly included language indicating that an employer is permanently relieved of liability once a Defense Base Act claim is accepted for reimbursement. The Board reconsidered its language and issued an amended Cathey decision, which states in pertinent part: In her motion, the Director requests that the Board delete language in the decision that indicates that the federal government’s acceptance of employer’s claim for reimbursement under Section 104 of the War Hazards Compensation Act (WHCA), 42 U.S.C. § 1704, permanently relieves employer of its liability under the Defense Base Act, 42 U.S.C. § 1651 et seq. (DBA). The Director asks the Board to clarify itsRead more
BRB: All Attorney’s Fees Owed By Last Responsible Carrier
The Benefits Review Board (“BRB”) recently issued an unpublished Longshore decision about attorney’s fees. The issues, which pop up constantly in practice, were (1) which carrier owes attorneys fees in a multiple carrier case, and (2) to what extent are fees owed. In Weimer v. Todd Pacific Shipyards, BRB No. 12-0297 (02/26/2013) (unpublished), the BRB confirmed that the last responsible employer/carrier is liable for all attorney’s fees, even fees earned before the liable employer/carrier was joined to the workers’ compensation claim. The holding in Weimer is an offshoot of the last responsible employer/carrier doctrine. Pursuant to that doctrine, the employer/carrier “for which the claimant worked at the time of the last aggravating injury that resulted in disability is liable for the claimant’s entire disability irrespective of the degree of the last injury’s contribution.” In Lopez v. Stevedoring Servs. of America, 39 BRBS 85 (2005), aff’d mem., 377 F.App’x 640 (9th Cir. 2010), theRead more
Fifth Circuit: No Right to Restitution for Maintenance and Cure Payments
When Plaintiff was hired, he completed a pre-employment medical questionnaire. Plaintiff failed to disclose his serious preexisting back problems, affirmatively answering “no” to several inquiries about those problems. After working for Employer for a few months, Plaintiff allegedly injured his back. Employer paid maintenance and cure for five years. After Plaintiff filed suit for additional maintenance and cure, Employer learned through discovery about Plaintiff’s extensive back problems. Employer won a partial summary judgment on a McCorpen defense, which extinguished liability for maintenance and cure because Plaintiff’s failure to disclose the prior back problems. Then, Employer filed a counterclaim against Plaintiff to recover the maintenance and cure payments already made. The district court issued an opinion awarding Employer restitution for the sums previously paid. The Fifth Circuit, in a 2-1 opinion, determined that the district court erred by awarding restitution, no matter the egregious facts concerning Plaintiff’s maintenance and cure claim. In short, restitution is not availableRead more
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