The Department of Labor (“DOL”) published the percent increase for the National Average Weekly Wage (“NAWW”), which will go into effect on 10/01/2013. As of 10/01/2013, the following changes will take effect. NAWW: $673.34 Maximum Compensation Rate: $1,346.68 Minimum Compensation Rate: $336.67 Percent Increase: 1.62% For more information about the percent increase, or to review prior increases, visit the NAWW page on the DOL’s website. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
The Industry-Wide Discourse on the Richardson Settlement Order
A few weeks ago, I submitted a post about the settlement approval Order in Richardson v. Huntington Ingalls Inc., 2013-LHC-01317 (OALJ 2013). Apparently I wasn’t the only person who thought this Order was interesting. There has been considerable industry-wide discourse about the propriety of the Order and the Director’s arguments concerning the adequacy of settlements under Section 8(i) of the Longshore and Harbor Workers’ Compensation Act. The Director has appealed the Order to the Benefits Review Board. My opinion is that the administrative law judge (“ALJ”) was 100% correct in approving the settlement. But what do others think? I’m not going to steal any thunder from the thoughtful articles posted by some industry experts. Instead, I’m going to refer you to those postings. Check out “The Fog of Adequacy,” by Stephen C. Embry on the LexisNexis Workers’ Compensation Law Community. “The Fog of Adequacy” argues in favor of the ALJ’s decision.Read more
Airborne Hazards and Open Burn Pit Registry Questionnaire
The Department of Veterans Affairs extended the deadline for public comments about its burn pit questionnaire. Although the VA’s focus is on veterans, I found the questionnaire interesting because the same questions asked of service members could be asked of Defense Base Act claimants. The comments focus on the Airborne Hazards and Open Burn Pit Registry Questionnaire. Before finalizing the document, the VA wants comments about the questions. Here are some of the questions asked: On a typical day, how often were you outside or in an open tent or open shelter during this deployment? Were you near a burn pit (on the base or close enough to the base for you to see the smoke)? Who ran the burn pit (circle all that apply)? U.S. forces, Coalition forces, Host nation, Don’t know. Did smoke or fumes from the burn pit enter your work site or housing? Were you everRead more
Solicitor’s Arguments Rejected in Settlement Approval Order
This post addresses a really interesting settlement order. Two represented parties attempted to enter into a settlement. The District Director disapproved the settlement on the grounds that the amount was not reasonable. The parties then referred the case to the Office of Administrative Law Judges. Through their attorneys, they agreed to increase the settlement amount by $500. A dispute arose between the parties and the Solicitor as to whether this increase was appropriate. To help resolve the dispute, the administrative law judge scheduled a conference call where each party could explain their positions. The claimant and the employer wanted the settlement approved. The Solicitor took a different position, arguing that “neither the District Director nor the ALJ was allowed to consider litigation risk or the claimant’s personal circumstances in assessing adequacy.” The Solicitor also “insisted that the District Director or ALJ must . . . simply apply the acturarial tables andRead more
In a Longshore or DBA Case, What Should Be the Geographic Boundaries for the Relevant Labor Market in Alaska?
Alaska is the largest state in the United States, over twice the size of Texas. It is larger than the combined area of the twenty-two smallest states. At the same time, the total estimated population is a little over 730,000, which is the 47th smallest population in the U.S., trailed only by North Dakota, Vermont and Wyoming. Considering these variables, what should be the geographic boundaries for the relevant labor market in Alaska? I contend that the relevant labor market in Alaska should be defined by Alaska statute instead of Longshore or Defense Base Act caselaw. After a claimant establishes a prima facie case of total disability, the burden shifts to the employer to establish suitable alternative employment. The employer must then demonstrate the existence of realistically available job opportunities within the geographic area where the employee resides which he is capable of performing, considering his age, education, work experience, andRead more
The DSM-5’s New PTSD Diagnostic Criteria
The American Psychiatric Association finally published the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders, commonly known as the DSM-5. Changes have been made to some of the important diagnoses commonly used in Longshore and Defense Base Act claims. And while there is no requirement in the Longshore and Harbor Workers’ Compensation Act that administrative law judges (“ALJ”) strictly adhere to the DSM-5’s diagnostic criteria, the failure of a diagnosing psychiatrist or psychologist to adhere to the criteria could affect the weight that an ALJ gives that evidence. Many are noticing that the DSM-5 makes it easier to get a PTSD diagnosis. For instance, check out TIME magazine’s article, “An Easier PTSD Diagnosis.” Whether this will have an effect on LHWCA/DBA claims remains to be seen. Without further ado, here are the DSM-5’s new PTSD Diagnostic Criteria: A. Exposure to actual or threatened death, serious injury, or sexualRead more
Great Article About ALJ Orders Posted on LexisNexis’ Workers’ Compensation Law Community
Yelena Zaslavskaya, Senior Attorney for Longshore, OALJ, posted a great article on LexisNexis’ Workers’ Compensation Law Community entitled “Compensation Orders in Litigated LHWCA Claims: What the ALJs and the Parties Should Know.” The article thoughtfully explores when, how, and why administrative law judges shall issue compensation orders awarding or denying benefits. Really…this is an article to read, digest, and reread. And if that wasn’t enough, LexisNexis published the new update from the Benefits Review Board. The update addresses jurisdiction, average weekly wages after the Southern District of Texas vacated K.S. [Simons] v. Service Employees Int’l, Inc., and Service Employees Int’l, Inc. v. Director, OWCP, and the War Hazards Compensation Act. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Tragic Aircraft Crash in Afghanistan and the Scope of the War Hazards Compensation Act
This morning the Washington Post, and countless other news agencies, printed a sad story about a National Air Cargo plane crash in Afghanistan that claimed the lives of seven Americans. The article is available here. Shortly after takeoff from the Bagram Air Base in Afghanistan, the plane lost altitude, falling to the ground. Although the Taliban claimed responsibility for the downed aircraft, there is no indication that insurgents were involved in the crash. Our hearts go out to the surviving family and friends of these Americans. We do not know the facts behind the crash, and we cannot comment on the applicability of the Defense Base Act or the War Hazards Compensation Act to this particular event. Nonetheless, assuming that the DBA does apply, this tragic event demonstrates the interesting interplay between the DBA and WHCA, and the scope of the WHCA’s “airplane” inclusion. For our hypothetical, assume the following: 1. EachRead more
Benefits Review Board Clarifies Its Cathey Decision
When the Benefits Review Board issued Cathey v. Service Employees International in December 2012, we published a blog post calling into question some of the Board’s language. As it turns out, the Director took issue with some of the language too. Specifically, the Director averred that the Board incorrectly included language indicating that an employer is permanently relieved of liability once a Defense Base Act claim is accepted for reimbursement. The Board reconsidered its language and issued an amended Cathey decision, which states in pertinent part: In her motion, the Director requests that the Board delete language in the decision that indicates that the federal government’s acceptance of employer’s claim for reimbursement under Section 104 of the War Hazards Compensation Act (WHCA), 42 U.S.C. § 1704, permanently relieves employer of its liability under the Defense Base Act, 42 U.S.C. § 1651 et seq. (DBA). The Director asks the Board to clarify itsRead more
BRB: All Attorney’s Fees Owed By Last Responsible Carrier
The Benefits Review Board (“BRB”) recently issued an unpublished Longshore decision about attorney’s fees. The issues, which pop up constantly in practice, were (1) which carrier owes attorneys fees in a multiple carrier case, and (2) to what extent are fees owed. In Weimer v. Todd Pacific Shipyards, BRB No. 12-0297 (02/26/2013) (unpublished), the BRB confirmed that the last responsible employer/carrier is liable for all attorney’s fees, even fees earned before the liable employer/carrier was joined to the workers’ compensation claim. The holding in Weimer is an offshoot of the last responsible employer/carrier doctrine. Pursuant to that doctrine, the employer/carrier “for which the claimant worked at the time of the last aggravating injury that resulted in disability is liable for the claimant’s entire disability irrespective of the degree of the last injury’s contribution.” In Lopez v. Stevedoring Servs. of America, 39 BRBS 85 (2005), aff’d mem., 377 F.App’x 640 (9th Cir. 2010), theRead more
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