Plaintiff injured his arm while working at the Employer’s “Docksider” facility. The Docksider was constructed as a deck barge in 1972. Twenty-seven years later it was converted to a stationary floating transfer facility. It receives electricity from a generator on shore. Further, the Docksider is held in place by two welded I-beam brackets. It can move vertically to account for the tide and waves, but it cannot transport people or materials. Following his injury, Plaintiff instituted an action against the Employerunder the Jones Act, 42 U.S.C. § 30104, and the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 905(b). The Eastern District of Louisiana dismissed Plaintiff’s claims with prejudice. It determined that the Docksider was not a “vessel” under the Jones Act or the LHWCA. The Docksider’s use for transportation on water was only theoretical. Since 1999, the Docksider has been permanently moored. Considering the fact that Employer doesRead more
Work Site Three Miles From Blount Island Terminal Was Not a Longshore Situs
Claimant, a mechanic charged with repairing and maintaining containers and chassis brought to his employer’s facility by shipping companies, injured his left wrist while closing a container door. Although Claimant received Florida workers’ compensation benefits, he asserted a claim for Longshore and Harbor Workers Compensation Act benefits. The employer controverted on the grounds that Claimant was not a maritime employee and he was not injured on a maritime situs. The Benefits Review Board (“Board”) determined that Claimant held sufficient status to be a maritime employee, but that he was not injured on a maritime situs. Claimant satisfied the maritime employee status question because his “regular work involved keeping the containers in good repair for use in maritime commerce….” The fatal flaw in Claimant’s case, however, was the location of his work place. It is located over three miles away from the employer’s Blount Island facility. The Board determined that Claimant’s work place doesRead more
Is a Fenced-Off Parking Lot a Covered Longshore Situs?
Section 3(a) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) states: “Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring 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).” With that statutory language in mind, consider whether the location described below is covered by the LHWCA? “The North Yard Parking Lot is situated on the premises of employer’s shipyard; however, it is separated from the working areas by a fence. It is owned and maintained by employer for use by its employees, Navy personnel, and contractors who have business with employer, and is used solely forRead more
Straight, No Chaser: Intoxication Was Sole Cause of Injury
Claimant, a longshoreman who spent all morning and early afternoon consuming beer and whiskey, was injured when he fell over a railing ont a concrete and steel ledge six feet below. An ambulance took Claimant to the hospital where he was diagnosed with a severe scalp laceration, acute alcohol intoxication with a blood level of 0.22 and cannabis ingestion. Following two earlier hearings with an administrative law judge (“ALJ”), as well as an earlier appeal to the Benefits Review Board (“Board”), the case returned to the Board following the ALJ’s decision that Claimant’s injury was caused solely by his intoxication. On appeal, Claimant argued that an “employer must ‘rule out’ all other possible causes of injury before the intoxication defense of Section 3(c) is proven…and that, under this ‘ruling out’ standard, employer did not present substantial evidence to support the [ALJ’s] conclusion that compensation is barred under Section 3(c).” Section 3(c) provides thatRead more
New OWCP Bulletin Addresses War Hazards Compensation Act Procedure – Part 2
This post continues the review of OWCP Bulletin No. 12-01, which was issued on October 6, 2011. The Bulletin focuses on the direct payment provisions of the War Hazards Compensation Act (WHCA) and how those provisions are administered for claims originating under the Defense Base Act (DBA). Compensation for Disability and Permanent Impairment: The Division of Federal Employees Compensation (DFEC) pays benefits in accordance with the Division of Longshore and Harbor Workers’ Compensation’s (DLHWC) compensation order, and the amount of benefits paid by DFEC cannot be changed absent a Section 22 modification. If a claimant requests a change in the benefit amount, he will be referred to the DLHWC for modification. If DFEC disagrees with the claimant’s request, it “will outline the rationale for its disagreement and attach any applicable documentation.” In the event that DFEC, itself, obtains evidence that demonstrates a modification may be required, it may notify the DLHWC which,Read more
New OWCP Bulletin Addresses War Hazards Compensation Act Procedure – Part 1
On October 6, 2011, the Department of Labor issued OWCP Bulletin No. 12-01, which supplements information contained in the Federal Employees’ Compensation Act (FECA) Procedure Manual and OWCP Bulletin No. 05-01. The stated purpose for the new OWCP Bulletin, which addresses the Defense Base Act (DBA) and War Hazards Compensation Act (WHCA), is to “provide specific guidance on the interplay between” the Division of Federal Employees Compensation (DFEC) and the Division of Longshore and Harbor Workers’ Compensation (DLHWC), and to explain “the responsibilities of each program in the administration of DBA/WHCA reimbursement cases with ongoing entitlement.” This may be the most significant development in WHCA administration in years. First, some background. Some DBA claims–typically those involving injuries occasioned by “war-risk hazards”–are also WHCA cases. Benefits are paid to an injured claimant pursuant to the DBA, and the employer, fund, or insurance carrier that paid the benefits retains the right to request reimbursement for allRead more
Longshoreman Who Fell Through Ladder Opening Was 50% At Fault
Claimant, a crane mechanic, filed a Section 905(b) suit after being injured while working on an offshore drilling rig. His injury occurred when he fell through an open ladder cover. The injury prevented his return to work as a crane mechanic, but his employer paid him crane mechanic wages while he worked in a clerical capacity. After a magistrate trial, the owner of the drilling rig was found to have failed to exercise ordinary care and committed negligence per se by violating 33 C.F.R. § 142.87. Pursuant to that regulation, “[o]penings in decks accessible to personnel must be covered, guarded, or otherwise made inaccessible when not in use. The manner of blockage shall prevent a person’s foot or body from inadvertently passing through the opening.” The district court determined that Claimant was 50% at fault for his injuries, and that his employer and its carrier were entitled to reimbursement for benefits payments advancedRead more
Section 8(f) Relief Overturned Because of Deficient Record
On October 31, 2005, the claimant sustained a compensable rotator cuff injury and, after a hearing, the Administrative Law Judge (“ALJ”) awarded benefits. The ALJ also considered the employer’s Section 8(f) petition, which argued that the employer was entitled to limit its liability for permanent partial disability compensation payments to 104 weeks. The employer’s argument was that the claimant’s shoulder disability was greater because of a disabling heart attack that happened six months before the work injury. The ALJ agreed, determining that the Section 8(f) requirements had been satisfied. Specifically, the ALJ found that the claimant had a preexisting permanent partial disability (the heart condition); that the employer was aware of the preexisting condition; and that the preexisting heart disability made the claimant’s shoulder disability materially and substantially greater than it would have been without the preexisting condition. The Director appealed the ALJ’s decision to the Benefits Review Board (“BRB”), which reversedRead more
Failing to Determine Impairment Pursuant to the “Guides” Was Harmless Error
Claimant appealed the Benefits Review Board’s (“BRB”) decision affirming the Administrative Law Judge’s (“ALJ”) determination that Claimant had a 10% impairment to his lungs. Although awarded benefits, Claimant argued that the ALJ erred by not taking judicial notice of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”). Both the BRB and the United States Court of Appeals, Second Circuit, agreed that the ALJ “most likely erred” but that the error–which was the ALJ’s failure to determine Claimant’s permanent impairment in accordance with the Guides–was harmless. The Second Circuit also agreed with the ALJ’s determination of the date of permanency. “Permanency can be shown in one of two ways: (1) when the claimant reaches ‘maximum medical improvement’ as demonstrated by the medical evidence; or (2) when the claimant’s disability ‘has continued for a lengthy period, and it appears to be of lasting or indefinite duration, as distinguished from one inRead more
Negligence Lawsuit Barred By Defense Base Act’s Exclusivity Provision
After completing his shift, Decedent, a Defense Base Act (“DBA”) employee in Iraq, returned to his room, which was provided by the Employer. At the same time, other employees were drinking on the Employer’s premises. During an altercation in Decedent’s room, one of these intoxicated employees shot and killed Decedent. The intoxicated employee pled guilty to involuntary manslaughter and is currently serving a three year prison. Plaintiff, Decedent’s widow, filed a claim for death benefits under the DBA. Her claim was accepted and paid. In addition to the DBA claim, Plaintiff filed a “single negligence claim” against Employer and the intoxicated employee. Following discovery–and problems with delay–the Employer filed a Motion for Summary Judgment, arguing that the Plaintiff’s negligence lawsuit should be dismissed because the DBA was Plaintiff’s exclusive remedy. See 42 U.S.C. § 1651(c) (stating that the compensation scheme under the DBA is “exclusive and in place of allRead more
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