Claimant filed a claim for hearing loss against Ingalls Shipbuilding, whom he worked for as a pipefitter in 1944, and Clark Seafood, which employed Claimant for forty years as a commercial processor of fish. After a formal hearing, the administrative law judge determined that Claimant was not entitled to benefits. Claimant did not establish that his hearing loss related to his brief employment as a pipe fitter in 1944, and he was excluded from claiming Longshore benefits against Clark Seafood because he was an aquaculture worker. On appeal, the Benefits Review Board (“BRB”) affirmed. Section 2(3) of the Longshore and Harbor Workers’ Compensation Act specifically states that the term “employee” does not include “aquaculture workers.” See 33 U.S.C. § 902(3) (1984). The Code of Federal Regulations defines “aquaculture workers” to mean “those employed by commercial enterprises involved in the controlled cultivation and harvest of aquatic plants and animals, including the cleaning, processingRead more
Great Law Review Article: Professor LeCesne’s “Crude Decisions” Is Slick
Professor Blaine LeCesne of Loyola University New Orleans College of Law recently published an excellent article in the Michigan State Law Review that is well worth the read. In Crude Decisions: Re-examining Degrees of Negligence in the Context of the BP Oil Spill, 2012 Mich. St. L. Rev. 103 (2012), Professor LeCesne examines multiple potential causes of action arising out of the BP Oil Spill, and how the degree of negligence that led to the manmade disaster could cause the defendants’ liability to skyrocket. Clicking on the title identified above will take you to the SSRN page for the article, where it can be downloaded. The Introduction to the article reads: The Deepwater Horizon oil rig explosion was the worst man-made environmental disaster in United States history. This singular event caused the death of eleven rig workers, damaged, perhaps irreversibly, the coastlines and ecosystems of five Gulf States, and imposed financialRead more
Offshore Sandblaster/Painter was a Jones Act Seaman
Plaintiff worked for a company which performed both onshore and offshore sandblasting and painting. His employer contracted with a third party to undertake the sandblasting and painting of an offshore platform. Plaintiff and his crew worked on this project for two-and-a-half months. During that time, Plaintiff slept and ate on board the M/V Howard McCall, stored equipment on the vessel, and used the vessel as a work platform. Plaintiff was also injured on the vessel: he fell as he was exiting the wheelhouse. After a trial, the jury determined that Plaintiff was a Jones Act seaman, and he awarded maintenance and cure totaling $8,580.00 and $9,754.00 respectively. The first question presented to Louisiana’s Third Circuit was whether Plaintiff was a Jones Act seaman. As for the legal backdrop, the court simply quoted four (4) pages of the Supreme Court’s decision in Chandris, Inc. v. Latsis, 515 U.S. 347, 368-72 (1995). From there,Read more
First Circuit: Neither Suicide Nor Misadventure Fall Within the Scope of the Zone of Special Danger Doctrine
Decedent was employed on a secure military base in Saudi Arabia. One morning, his on-site girlfriend discovered Decedent’s body hanging from a noose. Decedent was wearing pink or red toenail polish, women’s makeup and a pair of blue sweatpants. Decedent’s widow filed a Defense Base Act (“DBA”) claim for death benefits on her behalf and on behalf of the Decedent’s three children. Eventually, both an administrative law judge and the Benefits Review Board (“BRB”) denied the claim. This appeal to the United States Court of Appeals for the First Circuit followed. The First Circuit focused on two issues, jurisdiction and the zone of special danger, and ultimately denied benefits. Proper Appellate Procedure in DBA Claims: In some federal Circuits, litigants may appeal BRB decisions in DBA cases directly to a federal Court of Appeals. In other Circuits, litigants must first appeal BRB decisions to the appropriate federal district court and then,Read more
Fifth Circuit: Per Diem Was More Akin to Wages In This Case
The Fifth Circuit recently issued an unpublished Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision. Decedent, an electrician from Warren, Texas, suffered a fatal heart attack while working on a drilling rig in Vicksburg, Mississippi. At the time of his death, he worked twelve-hour days seven days a week. Decedent was staying at a motel and he received $50 per diem for each day worked in Vicksburg. Following his death, Decedent’s widow made a claim for death benefits. The parties put two issues before the Administrative Law Judge: (1) whether the Section 20(a) presumption applied to the case, and (2) the correct amount of per diem to include in the Decedent’s average weekly wage (“AWW”) calculation. As for the Section 20(a) issue, the Fifth Circuit determined that the statutory presumption did, in fact, apply. The presumption applies after a claim establishes a prima facie showing of a work injury. To makeRead more
Court Upholds Dismissal of Lawsuit Because the DBA is an Exclusive Remedy
Plaintiffs filed a wrongful death lawsuit in federal court following the death of Employee, who was murdered while performing aid work in Pakistan. The Employer provided Defense Base Act (“DBA”) insurance coverage to Employee, and Employee’s beneficiaries received DBA death benefits since January 26, 2009–over two-and-a-half years prior to filing suit. When this fact was brought to the judge’s attention, the action was dismissed on the grounds that the “DBA insurance is the exclusive civil remedy” for Employee’s death. Aggrieved by the result, Plaintiffs filed a litany of motions, one of which claimed that there was newly discovered evidence that the DBA did not apply. Specifically, Plaintiffs alleged that the DBA applies only to contracts, and not to cooperative agreements such as the one entered into between the Employer and the United States Agency for International Development (“USAID”). The new “evidence” included “USAID directives, regulations, and policies.” The Employer counteredRead more
Boroski II: “Currently Receiving” Means “Currently Entitled”
Before the Supreme Court decided Roberts v. Sea-Land Services, Inc., 132 S.Ct. 1350 (2012), two Circuits were at odds with one another about the meaning of “newly awarded compensation” per Section 6 of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). The Ninth Circuit felt that “newly awarded compensation” meant newly entitled to compensation. The Supreme Court agreed. Id. The Eleventh Circuit, on the other hand, thought that an injured worker was “newly awarded compensation” when a formal compensation order was filed. See Boroski v. Dyncorp Int’l, 662 F.3d 1197 (11th Cir. 2011) (hereinafter Boroski I). After the Supreme Court affirmed the Ninth Circuit’s determination that “newly awarded” means “newly entitled,” see Roberts, the Court also vacated Boroski I and remanded the case to the Eleventh Circuit for further consideration. On remand, the Eleventh Circuit determined that Roberts conclusively decided the “newly awarded compensation” issue on appeal. But it did not stopRead more
The K.S. [Simons] Decision is Limited to Dangerous Locales Like Iraq and Afghanistan
In an unpublished decision, Fields v. Fluor Corporation, the Benefits Review Board addressed the average weekly wage determination for a Defense Base Act employee in Tashkent, Uzbekistan. Although the decision does not focus entirely on average weekly wage calculations, the portion that does is interesting. Claimant argued that the administrative law judge erred “by not relying on claimant’s contract rate with employer, or alternatively, by not averaging the highest earnings claimant received while working overseas between 2000 and September 2004.” The Board disagreed. Section 10(c) of the Longshore and Harbor Workers’ Compensation Act is geared towards arriving “at a sum that reasonably represents the claimant’s annual earning capacity at the time of his injury.” Here, the ALJ rationally concluded that claimant’s earnings should include both the earnings at the time of injury and the earnings in similar work claimant performed within the preceding 52 weeks. My favorite part of the decision, however, is theRead more
Fifth Circuit Affirms Exclusion of Expert Affidavit in Section 905(b) Claim
Plaintiff, a longshoreman, was injured while unloading steel pipes from a vessel. A bundle of pipes shifted, rolled towards the longshoreman, and pinned his leg against a wall. The crush injury resulted in a below-the-knee amputation. Plaintiff filed a Section 905(b) claim against the vessel, its operator and its charterer. Under Section 905(b), a longshoreman may recover damages for injuries “caused by the negligence of a vessel.” The duties owed to longshoremen include the (1) turnover duty, (2) a duty to exercise reasonable care in the areas of the ship under active control of the vessel, and (3) a duty to intervene. Plaintiff designated Captain Joe Grace as his liability expert. Captain Grace’s report opined that Plaintiff’s injury was caused by the improper stowage of the pipes. Defendants then moved for summary judgment, arguing that Plaintiff failed to prove that they breached a duty owed to him. Plaintiff responded by filing aRead more
A Navy Ship is Not a “Product” for Strict Products Liability Law
The Eastern District of Pennsylvania recently addressed arguments testing the intersection between maritime and product liability law, all of which stemmed from a plaintiff’s exposure to asbestos on various Navy ships during the 1960s and 1970s. At that time, the plaintiff was employed as a welder by the Department of Defense. The issues of first impression before the court were (i) whether “maritime law recognize[s] a sophisticated user and/or sophisticated purchaser defense and, if so, to what causes of action does the defense(s) apply”; and (ii) whether a Navy ship is a “product” within strict products liability law. Section 388 of the Restatement (Second) of Torts provides guidelines for the “sophisticated user” defense: One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm causedRead more
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