Injured employees are entitled to reimbursement for the miles driven to and from work-related medical visits. The Division of Longshore and Harbor Workers’ Compensation’s website provides additional detail about medical mileage reimbursement: 60. Can I get reimbursed for the cost of transportation to medical appointments and, if so, how much? Reasonable transportation expenses necessary for treatment of the work injury, including mileage, parking, and tolls, are reimbursable costs. Mileage is reimbursed at the rate in effect at the time travel costs were incurred according to the mileage for privately owned vehicles set by the US General Services Administration (GSA). The past and current rates are listed on the GSA website. 61. What form do I use to request medical mileage reimbursement? There is no special form required to request mileage reimbursement under the LHWCA. Some insurance companies have their own form which they may ask you to use. To claimRead more
Longshore Death Benefits Available for Same-Sex Spouses
Last Friday, the Supreme Court issued its historic decision in Obergefell v. Hodges, wherein the Court held that the Fourteenth Amendment requires States to issue marriage licenses to same-sex couples and to recognize marriages between two people of the same sex performed out-of-State. This post addresses the effect that Obergefell will have on Longshore and Harbor Workers’ Compensation Act and Defense Base Act death benefits claims. Death Benefits Under the Acts: First, the statutes. Section 9 of the Longshore Act–which also applies to Defense Base Act claims–provides that death benefits shall be paid following a covered employee’s work-related death. See 33 U.S.C. 909. Benefits are paid to particular classes of beneficiaries. Among those beneficiaries are “widows” and “widowers.” Section 2 of the Longshore Act–again, applicable to Defense Base Act claims–defines the terms “widow or widower.” The terms include “only the decedent’s wife or husband living with or dependent for support upon himRead more
New Rules and Industry Notices in Longshore/DBA Claims
There is a lot going on in the Longshore and Defense Base Act community. Here is a run-down of new happenings at the Division of Longshore and Harbor Workers’ Compensation and the Office of Administrative Law Judges. Congratulations: First, congratulations are in order for Kristina Hall, the newest District Director at the Division of Longshore and Harbor Workers’ Compensation (DLHWC) office in Jacksonville, FL. Director Hall is very knowledgeable about the Longshore and Defense Base Acts. The DLHWC most definitely made a great choice. New Industry Notices: On June 12, 2015, the DLHWC issued Industry Notice No. 152. Essentially, the Industry Notice provides that parties can fill out a form that waives service of compensation orders in favor of electronic service. The idea is that payments will be made faster if the parties receive the order via e-mail instead of regular mail. The procedure for waiving service by mail canRead more
Defense Base Act Double Recovery Allowed…Sometimes
A new decision from the Benefits Review Board should make a lot of foreign national military contractors happy. Essentially, the Board green-lit double recovery for Defense Base Act injuries…in certain situations and for certain types of contractors. The decision is Newton-Sealey v. Armorgroup Services (Jersey) Limited. This case is a big deal because of the Defense Base Act’s exclusivity provision. The DBA states that the liability of an employer is “exclusive and in place of all other liability” for injuries that fall within the purview of the DBA. See 42 U.S.C. § 1651(c). But that may not always be the case. In Newton-Sealey, the Board was confronted with a peculiar set of facts. A British citizen pursued both a Defense Base Act claim in U.S. courts and a negligence/breach of contract claim in U.K. courts. The injured worker settled the U.K. claim but continued pursuing the DBA claim. Among other things, theRead more
Longshore and Defense Base Act Penalties
A new Defense Base Act / Longshore decision from the U.S. Court of Appeals for the District of Columbia discusses penalties available to contractors injured overseas. Importantly, the decision also addresses the remedies that are not available to aggrieved contractors and longshore workers. The decision is Brink v. Continental Insurance Company. To start with, I am going to quote from the court’s syllabus, but keep reading: Appellant Daniel Brink, joined by thirty-one other individuals, brought a class action lawsuit stemming from the workers’ compensation benefits owed to class members under the Defense Base Act, 42 U.S.C. § 1651 et seq., for injuries suffered while working for United States government contractors in Iraq and Afghanistan. In connection with their Base Act claims, appellants alleged that several government contractors, insurance companies, and third parties (collectively “contractors”) committed torts and violated the Longshore and Harbor Workers’ Compensation Act, the Racketeer Influenced and CorruptRead more
How to Classify Longshore Disability Benefits
The Fourth Circuit issued a new Longshore and Harbor Workers Compensation Act decision discussing the various types of disability benefits paid under the Act. The new case is Huntington Ingalls Industries, Inc. v. Eason, and it is sure to garner a lot of attention for a fairly routine knee injury claim. Explaining the Longshore Act and Disability: Disability is an economic concept. An injured worker’s disability is not measured solely by the severity or duration of their medical condition. Instead, the effect on an injured worker’s wage-earning capacity must be considered, too. There are four types of Longshore indemnity benefits: temporary total, temporary partial, permanent total, and permanent partial benefits. The difference between temporary and permanent disability is whether the injured worker has reached maximum medical improvement (i.e., medical permanency). And, the difference between total and partial disability is whether the injured worker can return to their pre-injury job, orRead more
New Burn Pit Legislation Proposed
There is a new burn pit bill at the House of Representatives called the “Helping Veterans Exposed to Burn Pits Act.” Congresswoman Elizabeth Esty introduced the bill for herself and for Congressman Jim McDermott. Congresswoman Esty’s press release details some of the concerns that led to her introduction of the bill: Military personnel serving in Iraq and Afghanistan are exposed to a variety of potentially harmful substances including the smoke produced from the burning of waste on military bases. Items such as plastics, aerosol cans, electronic equipment, human waste, metal containers, tires, and batteries are thrown into open pits, sometimes doused with jet fuel, and set ablaze. Smoke from these open-air burn pits can waft throughout the entire base and even into living areas. Health effects from exposure to chemicals found in burn pits can include cancer, neurological and reproductive effects, respiratory toxicity, and cardiovascular toxicity. Compelling concerns, right? Near-termRead more
New Rules for Longshore and Defense Base Act Hearings
Get ready for some significant changes to the litigation of Longshore and Defense Base Act claims. The new Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges will become effective in the immediate future. As such, practitioners, parties, and even experts who testify in Longshore and DBA claims should review the new rules. This link will take you to the Final Rule published in the Federal Register. There are a lot of changes. It is clear that the Department of Labor had one thing in mind when instituting the changes: protection of the integrity of the adjudication process. The rub is that some of the rules may very well result in increased litigation costs and hardships for Longshore and DBA litigants. Perhaps the easiest way to talk about the changes instituted in the new Rules is to talk about categories of changes as opposedRead more
“Delayed Expression” PTSD: Statute of Limitations Kryptonite?
The Longshore and Defense Base Act statute of limitations has a lot of power–like the power to nullify an injured worker’s indemnity benefits claim. But the statute of limitations is not invulnerable. In this post, I am going to talk about a qualifier attached to some Post Traumatic Stress Disorder diagnoses–“delayed expression”–and how that qualifier could affect the Longshore and Defense Base Act statute of limitations. “Delayed Expression” Post Traumatic Stress Disorder: Mental health professionals use the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders to diagnose mental disorders. The most recent version, called the DSM-5, is a one-stop shop for the criteria needed for a Post Traumatic Stress Disorder diagnosis. In addition to a basic list of diagnostic criteria, the DSM-5 has a section entitled, “Development and Course,” which discusses the length of time that it may take for PTSD to develop. Specifically, the DSM-5 says: PTSDRead more
How Long Will a Contractor’s PTSD Last?
Contractors experiencing PTSD likely have problems with anger, anxiety, depression, forgetfulness, frustration, sleeplessness, stress, and withdrawal. They are likely asking themselves how long these symptoms are going to last. To answer this question and consider the legal effect of long lasting disability, contractors must consider the Diagnostic and Statistical Manual of Mental Disorders and the Defense Base Act. The Diagnostic and Statistical Manual of Mental Disorders: The “go-to” manual for the diagnosis of mental disorders is the American Psychiatric Association’s DSM-5. Essentially, think of the DSM-5 as a one-stop shop for the basic criteria necessary for a PTSD diagnosis. But the DSM-5 contains more than a basic list of diagnostic criteria. It also contains a section entitled, “Development and Course,” which discusses the length of time that it may take for PTSD to develop, as well as the length of time that PTSD may last. As for the time itRead more
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