At the 2011 Annual Longshore Conference, District Director David Duhon mentioned the proactive steps that the Office of Workers Compensation Programs (“OWCP”) was taking in response to the earthquake and tsunami that ravaged Japan on March 11, 2011. In a news release dated March 24, 2011, the OWCP discussed DBA coverage, waivers and radiation exposure. The news release makes clear that the DBA covers workers employed to perform work on any contracts with any United States government agency, if the contract is performed outside the United States. Coverage extends to United States citizens and residents, host country nationals, and third country nationals. DBA insurance is required unless a waiver has been granted to a particular government agency. Only the Secretary of Labor can provide a DBA waiver, and it is within the Secretary’s discretion to determine whether application of the DBA will be waived for any contract, work location, or class of employees. EvenRead more
Maintenance and Cure Is Not Contingent on IME Attendance
Although it may be limited to the facts of the case, a Washington state court determined that an employer could not condition a seaman’s receipt of maintenance and cure upon her attendance at an independent medical examination (“IME”). In Mai v. American Seafoods Company, LLC, the seaman was injured when a 40-pound box struck her knee. After multiple arthroscopic surgeries, the seaman’s treatment consisted mainly of going to a gym and taking pain medications. The employer “abruptly ended” maintenance and cure payments. One month later, the seaman’s treating physician determined that she was a candidate for a total knee replacement (“TKR”). Five days before the scheduled surgery, the employer faxed notice that it would not pay for the surgery absent an IME. Further, maintenance and cure would not be paid because of the seaman’s refusal to participate in the IME. Maintenance (a daily subsistence allowance) and cure (medical treatment) isRead more
Are Non-Resident Alien Siblings Entitled to LHWCA Death Benefits?
The Longshore and Harbor Workers Compensation Act (“LHWCA”), as well as its extensions, the Defense Base Act (“DBA”) and War Hazards Compensation Act (“WHCA”), exclude non-resident alien siblings from the receipt of death benefits. Section 9 of the LHWCA specifically restricts non-resident alien beneficiaries to spouses, children, and dependent parents. See 33 U.S.C. § 909(g) (2011). The relevant language of this exclusion states: “Compensation under this chapter to aliens…shall be the same in amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for that period of one year prior to the date of the injury…” Id. (emphasis added). Additionally, the statutory provisions of the DBA mimic the LHWCA statutes. Section 2 of theRead more
BRB Affirms Fee Shifting After Successful Section 10(f) Litigation
The Benefits Review Board (“BRB”) recently affirmed its earlier decision in Wilson v. Service Employees Int’l, Inc. Following a timely motion for reconsideration, the BRB again examined whether Section 28(b) fees are owed following a refusal to pay Section 10(f) adjustments, which are included within the scope of a permanent total disability recommendation or award as a matter of law. Although the employer continued paying voluntary disability benefits before and after the district director’s written recommendation via correspondence, see 20 C.F.R. § 702.311, it nonetheless litigated the claimant’s entitlement to Section 10(f) adjustments. Because claimant was successful, the BRB held that he was entitled to payment of his attorney’s fee under Section 28(b). Wilson v. Service Employees Int’l, Inc., No. 10-0261 (BRB Feb. 16, 2011). (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Fourth Circuit Addresses the Meaning of “Compensation” in Section 22
The United States Court of Appeals for the Fourth Circuit determined that the term “compensation,” as used in the Longshore and Harbor Workers Compensation Act’s (“LHWCA”) modification provision, does not include voluntary payments to a claimant’s medical providers. See 33 U.S.C. § 922 (1984). Section 22 of the LHWCA provides in pertinent part: “Upon his own initiative, or upon the application of any party in interest [,] … on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case … [and] issue a new compensation order which may terminate, continue, reinstate, increase,Read more
SCOTUS Grants Certiorari in OCSLA Case
Today, the Supreme Court of the United States granted certiorari in Pacific Operators Offshore v. Valladolid, which is an Outer Continental Shelf Lands Act (“OCSLA”) decision from the Ninth Circuit. The Valladolid decision has garnered criticism (including from this blog) for its expansion of the OCSLA’s jurisdiction, as well as its creation of a third test for determining OSCLA jurisdiction. It will be interesting to see how the Supreme Court resolves this three-way Circuit split, and whether it reverses the Ninth Circuit. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Reasonable Fees for Preparation of a Fee Petition
In a new published opinion, the Benefits Review Board (“BRB”) determined that a claimant’s attorney may recover fees for the time spent drafting a fee petition. Here, the Claimant argued that general federal fee-shifting law applies to the determination of a reasonable fee under Section 28 of the Longshore and Harbor Workers Compensation Act (“LHWCA”). Further, the United States Court of Appeals for the Third Circuit, has determined that attorneys can recover a fee for the reasonable amount of time it takes to prepare a fee petition. The BRB agreed. Although a previous en banc BRB decision disallowed fees for the preparation of a petition on the grounds that the work was not reasonably necessary to protect a claimant’s interest, see Sproull v. Stevedoring Servs. of America, 28 Ben. Rev. Bd. Serv. (MB) 271, 277 (1994) (en banc), subsequent federal appellate decisions held differently. For instance, the Ninth Circuit heldRead more
Direct Payment Under the War Hazards Compensation Act
A typical War Hazards Compensation Act (“WHCA”) case arises when a Defense Base Act (“DBA”) employee is injured by a “war-risk hazard,” as that term is defined by 42 U.S.C. § 1711. “War-risk hazards” can include the violent actions of a hostile force or person, or an aircraft or vessel mishap in a zone of hostilities. Id. Most WHCA claims involve insurance company reimbursement. Once a DBA claim has resolved, a carrier applies for reimbursement for the amounts paid. In certain circumstances, a request can be made for both the reimbursement of benefits previously paid and the “direct payment” of future benefits. If accepted, the Division of Federal Employees’ Compensation (“DFEC”) will assume payments in the place and stead of the insurance carrier. DFEC may pay future indemnity or death benefits and, where applicable, future medical benefits. 42 U.S.C. § 1704. The regulations promulgated for the direct payment of benefits provide a generalRead more
SCOTUS Addresses Agency Deference for Regulation Interpretation
Recently, the Supreme Court of the United States addressed the deference due to an agency when it is interpreting its own regulations. In Chase Bank USA, N.A. v. McCoy, the unanimous Court concluded inter alia that the Federal Reserve Board’s interpretation of a regulation dealing with the increase of interest rates for a delinquent or defaulting cardholder was reasonable. This decision could be cited for purposes of the Longshore and Harbor Workers’ Compensation Act because it addresses the deference owed to agencies like the Department of Labor. The Court based its holding on Auer v. Robbins, 519 U.S. 452 (1997) (involving the Secretary of Labor). The Court will defer to an agency’s interpretation of its own regulation, even when that interpretation is advanced in a legal brief. In Chase Bank, the Federal Reserve Board’s interpretation was contained in an amicus brief, but that was of no import because the interpretation wasRead more
What Are “War-Risk Hazards”?
One of the mandatory prerequisites for coverage or reimbursement under the War Hazards Compensation Act is the requirement that the contractor’s injury must have been caused by a “war-risk hazard.” Both the United States Code (42 U.S.C. § 1711(b)) and the Code of Federal Regulations (20 C.F.R. § 61.4(e)) defines a “war-risk hazard” to mean “any hazard arising during a war in which the Unites States is engaged; during an armed conflict in which the United States is engaged, whether or not war has been declared; or during a war or armed conflict between military forces of any origin, occurring within any country in which a person covered by this Act is serving; from– (1) the discharge of any missile (including liquids and gas) or the use of any weapon, explosive, or other noxious thing by a hostile force or person or in combating an attack or an imagined attachRead more
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