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
Section 8(c)(22) And Consecutive Payments for Multiple Scheduled Awards
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.)
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