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
Nigerian Law, Not U.S. Law, Applied to Vessels Alliding in Nigeria
The Turkish-flagged vessel of Company #1 allided with the Greek-flagged vessel of Company #2 in the Port of Lagos, Nigeria. Company #1 is a Turkish company, and Company #2 is a Greek company. Following the allision, the Greek-flagged vessel required temporary repairs in Nigeria and then extensive repairs in Turkey. Because the repairs caused loss of use damages, Company #2 sued Company #1 in the Eastern District of Louisiana after Company #2 arrested Company #1’s vessel during an unrelated call to a U.S. port. An interlocutory appeal was granted by the Fifth Circuit to consider which country’s law–U.S. or Nigeria–applied to the controversy. Importantly, Nigerian law does not recognize loss of use claims. The Supreme Court previously articulated eight factors a court should consider when determining whether U.S. or foreign law applies: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance of domicile of the injured party;Read more
Which Federal Circuit’s Law Applies to a Defense Base Act Claim?
In the United States, there are twelve Courts of Appeals which are known as “circuit courts.” All fifty states, as well as the District of Columbia, are divided into various circuits. These courts are intermediate appellate courts; the last step before the Supreme Court of the United States. Over time, each circuit court has developed its own identity and reputation. The circuit courts can decide issues differently, sometimes because of geographical, political or ideological differences. When a circuit court decides an issue differently from a court in another circuit, a “split” is created. Lower courts in a circuit (i.e. district courts) are bound by their appellate court’s decisions. Those same courts are not bound by another circuit court’s decision. In the Defense Base Act (“DBA”) context, the applicable federal circuit law is determined by statute. Section 1653(b) of the DBA states: “Judicial proceedings provided under sections 18 and 21 of the Longshoremen’s and Harbor Workers’ Compensation ActRead more
Southern District of Texas Addresses Exclusivity of the Defense Base Act
Section 1651(c) of the Defense Base Act (“DBA”) is the provision entitled, “Liability as exclusive.” It states: “The liability of an employer, contractor…under this Act shall be exclusive and in place of all other liability of such employer, contractor, subcontractor, or subordinate contractor to his employees (and their dependents) coming within the purview of this Act, under the workmen’s compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into.” 42 U.S.C. § 1651. Recently, the Southern District of Texas had the opportunity to address the DBA’s exclusivity provision. The decedent worked as a truck driver for Defendant contractor in Iraq. Camp Anaconda was under constant threat of the hijack of convoy trucks, which were then used as explosive devices; therefore no unaccompanied convoys were permitted to attempt to enter the Camp. MembersRead more
Second Circuit Holds that Disputed Psychological DBA Claim Was Timely Filed
After working for nine years as an officer for the Kansas Department of Corrections, Claimant went to work for Employer in Kosovo, where she would apprehend fugitive parolees. She started her new job on April 17, 2004. Her first day of work, however, was marred with tragedy when she and five others were shot by a Jordanian soldier. Three victims died. It was not until April 16, 2006, that Claimant filed a claim for benefits under the Longshore and Harbor Workers Compensation Act (“LHWCA”), as extended by the Defense Base Act, for her underlying psychological injuries. The question presented to the United States Court of Appeals for the Second Circuit was whether this claim was barred by the statute of limitations for failure to timely file a claim. Section 13 of the LHWCA contains a statute of limitations, offering different filing periods based upon whether or not the underlying injuryRead more
Louisiana’s Fourth Circuit Reverses Ruling on Seaman Status
Via a contract with a staffing company, Claimant became employed by a catering company, and was assigned to work as a part of the galley/cooking staff. Claimant alleged that he was injured aboard a vessel while working for the catering company, and he filed Jones Act negligence claims against both parties and their insurers. Subsequently, insurance and indemnification disputes developed between the defendants and their insurers, which were rooted in the issue of whether Claimant was a Jones Act seaman. The trial court, ruling on motions and cross-motions for summary judgment, found that Claimant was a Jones Act seaman, and concluded that the Longshore and Harbor Workers’ Compensation Act was inapplicable; therefore, the catering company was required to defend and indemnify the staffing company. The defendants later settled with Claimant, and a Joint Motion and Order of Dismissal was granted. Appellants now argued that the trial court erred in granting the motions forRead more
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