Commutation is a procedural remedy whereby an insurance carrier may reduce specific Longshore and Harbor Workers Compensation Act (“LHWCA”) or Defense Base Act (“DBA”) benefits owed to a foreign national by one-half.  Although death benefits owed a foreign national under the LHWCA may be commuted (see 33 U.S.C. § 909(g) and 20 C.F.R. § 702.142), commutations typically arise in situations involving Defense Base Act claimants who are “nonnationals of the United States not residents of the United States or Canada…”  See 42 U.S.C. § 1652(b).  For LHWCA purposes, commutations only apply to Section 9 death benefits, but for the DBA, commutations are available for both death benefits and Section 8(c)(21) indemnity benefits. Calculating a commutation value of a death benefits claim requires knowledge of the current National Average Weekly Wage (“NAWW”) percent increase, the current interest rate for a one-year constant maturity, the claimant’s life expectancy, and the claimant’s currentRead more

In a published decision, Urso v. MVM, Inc., the Benefits Review Board tackled the meaning of the word “dependency” as used in the Longshore and Harbor Workers Compensation Act and the Internal Revenue Code.  In Urso, the decedent’s parents claimed death benefits under Section 9(d) of the LHWCA. If there is no surviving spouse or child, then Section 9(d) provides “support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, and any other persons who satisfy the definition of the term ‘dependent’ in section 152 of title 26 of the United States Code, but are not otherwise eligible under this section, 20 per centum of such wages for the support of each such person during such dependency and for the support of each parent, or grandparent, of the deceased if dependent upon him at the time of the injury, 25 per centum ofRead more

In a short unpublished decision, the United States Court of Appeals, Sixth Circuit, vacated the decision of the Benefits Review Board and remanded the case to the Administrative Law Judge.  As quoted by the Sixth Circuit, the Administrative Procedure Act requires the factfinder to render a decision that includes a discussion of “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.”  5 U.S.C. § 557(c)(3)(A).  Here, the ALJ determined without sufficient explanation that the claimant reached MMI upon his failed attempt to return to work.  The Sixth Circuit casted doubt on this unexplained finding: “[w]hile Williams’ inability to perform his prior job duties may indicate that he was permanently disabled as of May 31, 2005, it does not necessarily indicate that this was the date he reached MMI.” Marathon Ashland Petroleum v. Williams, 2010 WL 2711316 (6thRead more

The Benefits Review Board recently addressed the payment of a scheduled hearing loss impairment rating when a Claimant is simultaneously receiving disability benefits for a different, unscheduled injury.  In Bogden, the Claimant sustained a back injury.  For this injury, he received temporary total disability benefits for roughly ten months, then permanent total disability benefits for nineteen months, and finally, he received continuing permanent partial disability benefits. In addition to the back injury, Claimant also sustained a work-related hearing loss injury resulting in a 30.938% binaural impairment.  In the court below, the Administrative Law Judge determined that Claimant was entitled to 61.876 weeks of compensation for his hearing loss, but that the “hearing loss [was] subsumed in the total disability award for claimant’s back injury and, thus, [was] not payable.” The BRB disagreed, holding that a claimant is entitled to a resumption of his scheduled permanent partial disability award on the date that his disability statusRead more

The Ninth Circuit Court of Appeals recently confirmed that the harmless error analysis applies to petitions for review filed under the Longshore and Harbor Workers’ Compensation Act, explicitly bringing it in line with the majority of other Circuit Courts.  As noted by the court, “[t]hat a path is a beaten one…is a persuasive reason to follow it.” With the harmless error analysis in mind, the Ninth Circuit went on to discuss the Claimant’s injuries.  Here, Claimant, who was employed as a supply clerk, alleged that his slow-developing left parietal stroke was caused by job stress, and he admitted medical evidence in support of his allegations.  The Ninth Circuit upheld the administrative law judge’s determination that Claimant’s stroke was a compensable injury.  Although challenges were made that the ALJ’s decision was based on an improper analysis of the parties’ burden of proof under Longshore claims, the Ninth Circuit determined that the ALJ’s error–whichRead more

In May, 2010, the Benefits Review Board issued yet another attorney fee decision for practitioners in the Ninth Circuit.  In the newest Christensen v. Stevedoring Services of America (BRB No. 03-0302R) decision, the BRB determined that (1) Oregon state workers’ compensation attorney rates could not establish a Longshore rate where Oregon rates were capped by statute “absent extraordinary circumstances;” and (2) workers compensation rates for defense attorneys do not establish the market rate for claimants’ attorneys.  Additionally, but without citing the Supreme Court’s recent decision in Perdue v. Kenny A., the BRB determined that Claimant’s counsel was not entitled to an enhancement of fees (in the form of a fee calculation based upon counsel’s present market rate instead of his market rate when the services were performed) due to delay.  The Ninth Circuit previously determined the “delay in the payment of a fee award distinguishable  from a delay in payment of feesRead more