The Benefits Review Board (“BRB”) recently considered Section 8(c)(22) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), and whether that statute requires consecutive payments for multiple scheduled losses. In Thornton v. Northrup Grumman Shipbuilding, Inc., the Claimant sustained a right knee injury that resulted in a 15% impairment to the right leg. The Claimant then suffered a second injury which resulted in a 43% impairment to his left leg. The Employer accepted both claims and it paid compensation in accordance with the ratings. It first paid the right leg impairment and then it paid for the left leg impairment. While payments for the left leg were ongoing, Claimant’s right leg impairment increased to 50%. The conflict between the parties concerned the start date for the payments associated with the additional right leg impairment. Claimant contended that payments should have started in 2007, when the doctor assigned the increased impairment, and that heRead more
LA Circuit Split: Third Circuit Says State Employee Barred From Jones Act
The plaintiff, a Senior Wildlife Enforcement Agent employed by the State of Louisiana, alleged that he was injured in a vessel due to a number of deficiencies in the boat and its operation. He sought remedies under the Jones Act. The State responded to the plaintiff’s petition with a number of exceptions, and it sought a declaration that the plaintiff’s injuries fell within the exclusive province of Louisiana’s Workers’ Compensation Act. The Court of Appeal of Louisiana, Third Circuit, agreed. It concluded that the plaintiff was not entitled to pursue his claim under the Jones Act. Louisiana’s workers’ compensation laws prevent state employees from making federal claims for injuries sustained at work. Not only does this include Jones Act claims, it also includes “any other statutorily created remedy.” The Third Circuit’s opinion creates a state circuit split because it arrived at a contrary conclusion than a recent Fourth Circuit opinion. Read more
Commercial Diver Was A Longshoreman
In an unpublished decision, the Ninth Circuit determined that a commercial diver qualified for coverage under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). The Employer argued that the diver should be considered a “member of a crew of [a] vessel,” which would preclude him from LHWCA coverage. The Ninth Circuit disagreed, and it applied the coverage test established by the Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995). Under Chandris, a maritime worker who has a substantial connection to a vessel in navigation is excluded from LHWCA coverage. The “rule of thumb” is that a worker who spends less than thirty percent of his time in the service of a vessel in navigation should not be excluded from the benefits offered by the LHWCA. Here, substantial evidence supported the ALJ’s finding that the claimant was a longshoreman. American Marine Corp. v. Director, OWCP, No. 09-73328 (9th Cir. Dec. 20, 2010). (Note: IRead more
Ninth Circuit Publishes Significant Last Responsible Employer Decision
The Ninth Circuit published a new last responsible employer decision based on a mesothelioma death benefits claim made pursuant to Section 9 of the Longshore and Harbor Workers Compensation Act (“LHWCA”). The decision is significant for its treatment of the Section 20(a) presumption and the sequential (as opposed to simultaneous) evidence analysis approach that it will use in last responsible employer cases involving occupational diseases. Pursuant to Section 20(a) of the LHWCA, a claimant is given a presumption that their claim comes within the purview of the LHWCA. To get the presumption, however, a claimant must still make out a prima facie claim alleging that he was injured and that the injury arose both “in the course of” and “out of employment.” In this case, a question arose as to whether a claimant given the Section 20(a) presumption for one employer automatically receives that presumption for all other employers. The Ninth Circuit stated: “ContraryRead more
Federal Claims Court Discusses Differences Between FECA and LHWCA
The United States Court of Federal Claims recently addressed the difference between a Federal Employees Compensation Act (“FECA”) claim and a Longshore and Harbor Workers Compensation Act (“LHWCA”) claim. The matter came before the court following plaintiff’s allegation that the defendant failed to pay plaintiff, a former federal government employee, interest on retroactive compensation payments made pursuant to FECA. The plaintiff argued that because interest is available for LHWCA claimants, it should also be available for FECA claimants. In deciding that it lacked jurisdiction over the claim, the court addressed the differences between FECA and LHWCA: “FECA provides employment compensation for federal government employees. An employee under FECA is defined principally as ‘civil officers or employees in any branch of the Government of the United States.’ 5 U.S.C. § 8101(1)(A). The money to pay these claims comes from congressionally appropriated funds. Id. § 8147. In contrast, the LHWCA is aRead more
OALJ Requires New Subpoena Forms
Starting today, the Office of Administrative Law Judges (“OALJ”) requires the use of new subpoena forms. Until today, the OALJ used a single subpoena form regardless of the nature of the subpoena. Now, practitioners must use three new forms: (1) Subpoena to Appear and Testify at a Hearing; (2) Subpoena to Appear and Testify at a Deposition; and (3) Subpoena to Produce Documents, Information or Objects, or to Permit Inspection of Premises. The Acting Chief Administrative Law Judge’s implementation memorandum can be found here. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
A McCorpen Defense Has Only Three Elements
In an unpublished decision, the Fifth Circuit affirmed a district court’s denial of maintenance and cure benefits, and punitive damages, against a claimant’s former employer. The facts demonstrated that the claimant underwent a hip replacement surgery prior to his employment, and that he was on prescription pain medicines when he under went a pre-employment physical. The claimant never disclosed this injury to his employer. Maintenance and cure requires a vessel owner to provide compensation and medical care to an injured seaman, “even if the seaman’s injury stems from a pre-existing illness or condition, unless, the seaman knowingly concealed this condition from his employer when he was hired.” If there was concealment, an employer may lodge a McCorpen defense. McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547, 548 (5th Cir. 1968). Such a defense applies “when an employer subjects a seaman to a medical examination as part of the hiring processRead more
Ninth Circuit: “Award” Does Not Necessarily Refer to a Compensation Order
In a new published opinion, the Ninth Circuit addressed Section 6(c) of the Longshore and Harbor Workers’ Compensation Act. Section 6(c) states: “Determinations under subsection (b)(3) [which deal with the determination of the national average weekly wage] with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.” Although the court focused on the meaning of the words “award” and “awarded,” the holding essentially addressed when those words are synonymous with “entitlement.” In Roberts, the claimant injured his neck and shoulder when, in 2002, he slipped on a patch of ice. His employer voluntarily paid compensation, but those payments stopped in May 2005. Following a hearing before an administrative law judge (“ALJ”), the court awarded claimant temporary total disability (“TTD”) from March 11, 2002 through July 11, 2002;Read more
Vessel Has Tort Immunity for Fishing Observer’s Injury
Pursuant to the Marine Mammal Protection Act, the Secretary of Commerce may require a vessel to allow onboard a government observer to monitor the vessel’s compliance with fishing regulations. 16 U.S.C. § 1361 et seq. These observers are federal employees, and not the employees of the vessel. Generally, vessels enjoy tort immunity for injuries that may happen to these observers. This immunity does not apply, however, if the observer is injured while “engaged by the owner, master, or individual in charge of a vessel to perform any duties in service to the vessel.” See 16 U.S.C. § 1383a(e)(7)(B). Here, the plaintiff was working as a fisheries observer aboard the F/V Lady Karen when she was injured by a snapped cable. At the time of her injury, the plaintiff left her post momentarily, to take a bathroom break. She argued that because her injury occurred during her bathroom break, she wasRead more
A Section 10(f) Increase Is “Greater Compensation”
In a new published opinion, the Benefits Review Board determined that claimant’s counsel was entitled to shifting attorneys fees because an award of Section 10(f) increases amounted to an award of “greater compensation” for purposes of the Longshore and Harbor Workers’ Compensation Act’s attorney fee provisions. In Wilson, the claimant worked as a truck driver for employer at the time he injured his neck, spine and right knee. The employer voluntarily paid claimant temporary total disability benefits at the maximum compensation rate, and claimant filed a claim for permanent total disability (“PTD”) benefits. Thereafter, an informal conference was held by correspondence, and the district director issued a recommendation that claimant was entitled to PTD benefits until suitable alternative employment was demonstrated. Further, the lower court determined that claimant was entitled to continuing PTD benefits and Section 10(f) increases, but it nonetheless refused to shift attorneys fees. The Board determined that while the district director did notRead more
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