In an unpublished opinion stemming from a Longshore and Harbor Workers’ Compensation Act claim, the Fifth Circuit affirmed a district court’s grant of summary judgment dismissing a “direct” negligence suit against a labor personnel contractor.  A horrific explosion occurred when an unskilled worker allegedly failed to properly ventilate the area or use “explosion proof” safety lighting.  The unskilled worker died, as did another worker.  Five were injured, including the plaintiff-worker.  The plaintiff-worker and his spouse then filed a suit against the labor personnel contractor that supplied the unskilled worker to a borrowing employer.  The argument was that the labor personnel contractor was negligent in its hiring, retention and training of the unskilled worker, and that led to the explosion. To establish their negligence claim, the plaintiffs had to show that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty; (3) the plaintiff suffered damages; and (4) theRead more

A surefire way to forfeit future benefits is to fail to follow Section 33(g).  In our practice, we come across Section 33(g) cases now and again, and it is worthwhile reviewing Section 33(g) here.  Section 33(g) of the Longshore and Harbor Workers’ Compensation Act, as amended in 1984, states: (g)(1) If the person entitled to compensation (or the person’s representative) enters into a settlement with a third person…for an amount less than the compensation to which the person (or the person’s representative) would be entitled under this Act, the employer shall be liable for compensation as determined under subsection (f) only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed, and by the person entitled to compensation (or the person’s representative).  The approval shall be made on a form provided by the Secretary and shall be filed in the office of the deputyRead more

The claimant was employed as a dual mechanic for the employer, at the employer’s Alta Drive facility.  That facility was located three miles away from a deep water port.  While performing his duties as a mechanic at the Alta Drive facility, the claimant was injured.  He filed a Longshore and Harbor Workers’ Compensation Act claim.  The administrative law judge determined that the claimant was maritime employee and that he was injured on a covered maritime status, but the Benefits Review Board (“BRB”) disagreed.  The BRB determined that the claimant was not injured on a covered situs. To satisfy the “situs” requirement, a claimant must demonstrate that their injury occurred “upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing dismantling or building a vessel.”   The claimant could not demonstrateRead more

Claimant was employed at a soybean and grain processing refinery located on the Ohio River in Kentucky.  Two docks sat next to the refinery, and barges delivered raw materials via the docks.  Barges also took away finished products from the refinery.  Claimant estimated that he spent sixty percent of his time “maintaining and monitoring the computerized machinery which makes the pellet feed,” but the other forty percent was spent performing deckhand duties, like maneuvering the barges at the docks.  Claimant was injured when he slipped and fell while climbing from a dock onto a platform. Claimant sought state workers’ compensation benefits but an administrative law judge determined that Claimant’s injury fell within the exclusivity provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).  Ultimately, Claimant appealed this decision to the Court of Appeals of Kentucky, which affirmed. Kentucky’s state workers’ compensation laws do not share concurrent jurisdiction with the LHWCA. Read more