Pursuant to the Department of Labor’s website, new regulations for the Federal Employees’ Compensation Act (“FECA”) go into effect today. A copy of the regulations can be found here. These regulations also effect the War Hazards Compensation Act (“WHCA”), including the direct payment regulation, 20 C.F.R. § 61.105. When a case is accepted for direct payment, the Division of Federal Employees’ Compensation furnishes medical care in accordance with FECA. Although no changes were made to the WHCA’s regulations, any changes to FECA’s medical care regulations will have a ripple effect on the WHCA’s direct payment regulation. The good news is that the regulations were amended to bring them up to speed with organizational changes at the Office of Workers’ Compensation programs, and to account for advancing medical billing technologies. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
ALJ Did Not Have Power to Resolve Defense Base Act Insurance Dispute
Sandi Group, Inc., employed Iraqi nationals who were injured or killed during their employment. Pending before the Office of Administrative Law Judges (“OALJ”) are two claims against Sandi Group, one by an injured claimant, and another on behalf of a deceased claimant. In those proceedings, Sandi Group has taken the position that the claimants were employees working under a subcontract with Dyncorp. Further, Sandi Group alleged that it was entitled to coverage under Dyncorp’s insurance policy because Dyncorp is the employer who is statutorily responsible for providing Defense Base Act coverage for these incidents.” Dyncorp’s insurer, Continental Insurance Company (“Continental”), disagreed, noting that the Dyncorp policy did not cover foreign nationals. Continental then filed a declaratory judgment action in the United States District Court for the District of Columbia to resolve the insurance coverage dispute. Sandi Group asked the court to either dismiss or stay the action, but the court refused.Read more
W.D. Wash: Loss of Consortium Available in Unseaworthiness Claim
In an opinion that is interpretive of the landmark decision in Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009), U.S. District Judge Pechman denied defendant’s 12(b)(6) motion to dismiss by holding that the spouse of an injured seaman may seek damages for loss of consortium under general maritime law. Loss of society damages were deemed to be unavailable to survivors of seamen who brought claims under the Jones Act or under general maritime law under Miles v. Apex Marine Corp., 498 U.S. 19 (1990). The Miles Court based its holding on the U.S. Supreme Court decision in Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59 (1913), which held that loss of society damages were not available under the Federal Employers Liability Act (“FELA”). The Miles Court reasoned that the Jones Act, which incorporated the FELA, required the application of the Vreeland decision as judicial “gloss.” Id. atRead more
Lung Condition First Diagnosed 20 Years Later Was a Second Injury
Decedent was exposed to asbestos dust and fibers in the 1940s and 1950s. In 1977, he was diagnosed with severe chronic obstructive pulmonary disease (COPD). By 1979, Decedent was totally disabled due to extensive arthritis, chronic heart condition, and chronic pulmonary condition. Twenty years later, in 1999, Claimant was first diagnosed with lung cancer. Then, in 2001, Decedent passed away. The question raised in this case was whether or not the employer was entitled to Section 8(f) relief for continuing death benefits payments to Decedent’s widow. In the Fourth Circuit, “to establish entitlement to Section 8(f) relief in a case involving a post-retirement occupational disease, an employer need show only that an employee’s pre-existing permanent partial disability pre-dated the manifestation of the occupational disease that constitutes the ‘second injury,’ and that the employee’s death is not due solely to the subsequent work injury but was contributed to or hastened by the pre-existingRead more
No Statute of Limitations for War Hazards Reimbursement Requests
Is there a statute of limitations for an insurance carrier’s claim for reimbursement under the War Hazards Compensation Act? Without any statutory or regulatory language to the contrary, the answer is, “No.” If a Defense Base Act (“DBA”) claimant was injured by a “war-risk hazard,” as that term is defined by 42 U.S.C. § 1711, then a carrier may seek reimbursement for the benefits it was required to pay on account of that injury. 42 U.S.C. § 1704. The carrier is “entitled to be reimbursed for all benefits so paid or payable, including funeral and burial expenses, medical, hospital, or other similar costs for treatment and care; and reasonable and necessary claims expense in connection therewith.” Id. There is no statement in Section 104 that would limit the time when an initial request for reimbursement can be filed. There is, however, a time limit for appealing a denial, so long as theRead more
Eleventh Circuit’s Borrowed-Employment Standard for Longshore Cases
Section 905(a) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provides that an employer’s liability for workers’ compensation benefits to an employee “shall be exclusive and in place of all other liability of such employer to the employee.” 33 U.S.C. § 905. This statute reflects the “industrial bargain” between employers and employees on which the LHWCA and all workers’ compensation laws are based. The bargain is simple: “The covered employee has surrendered the right to sue the employer for negligence, and thus has eschewed the possibility of a more significant damages award from the employer; the employer, similarly, has relinquished its common law defenses available in employee negligence actions. In consideration, the employee receives more certain compensation for injuries arising from the employment, regardless of fault; the employer, in turn, eludes litigation expenses and pays only scheduled LHWCA benefits.” In a new published decision, the United States Court of Appeals, EleventhRead more
ALJ Can Determine Audiogram Reliability For Special Fund Relief
In an unpublished decision, the Ninth Circuit found that an audiogram not provided to the Claimant within thirty days of its administration could establish evidence of the amount of hearing loss sustained on a particular date for the purposes of Section 8(f) relief. 33 U.S.C. §908(f) (2011). Under 33 U.S.C. §908(c)(13)(C) and 20 C.F.R. § 702.321(a)(1), preexisting hearing loss must be documented as required by 20 C.F.R. § 702.441. Section702.441(b) states that an audiogram shall be presumptive evidence of the amount of hearing loss on the date it was administered if it meets certain requirements, including the requirement that the employee must be provided with the report within thirty days of the administration of the audiogram. The court held that while the plain language of the statute and regulations establish a safe harbor for employers seeking to use the audiogram as presumptive evidence of hearing loss for Section 8(f) relief, an administrativeRead more
Jones Act Plaintiff’s 10-Year Old PTSD Claim Was Time-Barred
A pro se plaintiff filed a Jones Act suit against Defendants, Dyncorp International and DynMarine Services of Virginia, complaining of post-traumatic stress disorder (“PTSD”) stemming from a sexual assault that allegedly occurred over 10 years before she filed her complaint. Plaintiff’s hand-written complaint contained no factual or legal allegations other than two phrases: “Post Traumatic Stress Disorder (sexual assault)” and a demand of “Amount Undecided” for “lost wages, pain & suffering.” In response to Plaintiff’s suit, Defendants filed motions for summary judgment arguing inter alia that her Jones Act claim was time-barred. A claim under the Jones Act must be brought within three years after the cause of action arises. A cause of action under the Jones Act and general maritime law accrues when a plaintiff has had a reasonable opportunity to discover the injury, its cause, and the link between the two. The discovery rule applies such that the statuteRead more
“Earnings” under Section 8(j) Includes Income Obtained from Illegal Activities
Claimant was hired as a chipper in 1983. He hurt each of his knees on separate dates in 1983 while working for Employer. In 1992, the Benefits Review Board affirmed an Administrative Law Judge’s award of permanent total disability benefits because Employer failed to establish suitable alternative employment. Employer sought modification of benefits in 1997. A hearing was scheduled; however, because Claimant became incarcerated, an ALJ judge issued a stay of compensation until Claimant’s 2004 release. A formal hearing on the reinstatement of benefits was held on October 14, 2009. At the hearing, Employer asserted that Claimant’s illegal activity prior to his incarceration, as well as maintenance work he performed while in prison and the singing he performed at funerals constituted suitable alternative employment. The ALJ judge rejected these positions as suitable alternative employment, but found that ten other jobs identified by Employer were sufficient. Therefore, the ALJ judge awarded theRead more
BRB: A Claimant Cannot Be More than Totally Disabled
Claimant sustained a work-related back injury on October 10, 1990, which rendered him temporarily totally disabled for a period of nearly one year, and permanently totally disabled thereafter. Over seventeen years later, Claimant underwent an audiogram demonstrating a 24.4 percent binaural hearing loss which was attributed to employment-related noise exposure that last occurred on October 10, 1990, when Claimant stopped working for Employer. Claimant argued that he was entitled to receive a scheduled award for his hearing loss concurrently with the temporary total disability award for his back injury. The Administrative Law Judge determined, however, that the scheduled hearing loss claim for PPD benefits was subsumed in Claimant’s total disability award. Claimant appealed, but the Benefits Review Board (“BRB”) affirmed the ALJ’s decision. A claimant may not receive concurrently a scheduled permanent partial disability award for one injury and a total disability award for another injury, as a claimant cannotRead more
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