Claimant, an airplane mechanic in Abeche, Chad, alleged work-related injuries to his hip, lower back and legs. Employer successfully argued to the administrative law judge (“ALJ”) that the Defense Base Act did not cover Claimant’s injuries because Claimant was not working under a contract with the United States. Instead, Employer’s “humanitarian air transport services in Chad [were] funded through a cooperative agreement with the United States Department of State (DOS) and a grant from the United States Agency for International Development (USAID) . . . .” Because the term “contract” was not defined by the Defense Base Act, the ALJ interpreted “contract” in accordance with the Federal Grant and Cooperative Agreement Act of 1977, 31 U.S.C. § 6301, et seq. The ALJ determined that Claimant was not working under a “contract” within the meaning of Section 1(a)(5) of the Defense Base Act. Consequently, the ALJ granted Employer’s Motion for Summary Decision. SectionRead more
Can DFEC Force Employers and Carriers to Re-Litigate a Defense Base Act Claim?
Generally speaking, when a defense contractor is injured by a “war-risk hazard,” the carrier that pays benefits is entitled to reimbursement under the War Hazards Compensation Act (“WHCA”). See 42 U.S.C. § 1704. When the injured worker resides in the United States or Canada, carriers often seek reimbursement and the direct payment of future benefits. See id.; see also 20 C.F.R. § 61.105. When the Division of Federal Employees’ Compensation (“DFEC”) agrees to directly pay future benefits, it will notify the carrier and the claimant that, on a particular date, DFEC will assume all future indemnity and medical payments. Even after DFEC takes over the administration of a claim, the modification provision of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) remains a viable option for reducing—or increasing—future benefits. See 33 U.S.C. § 922. Section 22 of the LHWCA allows modification of a compensation award on the ground of aRead more
Automatic Longshore Settlement Approvals and the Government Shutdown
Since last week, Longshore practitioners have debated whether Section 8(i) settlement agreements can be automatically approved during the government shutdown. Typically, all Longshore settlements are reviewed by the assigned district director. The district director has thirty days to review the settlement. If the settlement is reasonable, the district director issues a compensation order directing the parties to pay the amount identified in the order–most likely the same amount contemplated in the settlement agreement. But what if the district director does not issue a compensation order within thirty days? Or, as in this case, what if there are no district directors to issue compensation orders because of the government shutdown? Section 8(i) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) contains a provision that allows for automatic approval of settlements when all parties are represented by attorneys. Specifically, Section 8(i) states: “If the parties to a settlement are represented by counsel, then agreements shall beRead more
9th Circuit: “Seniority Raises” Do Not Increase Wage-Earning Capacity
Claimant was injured while working as a welder for Sause, where he earned $15 per hour. He unsuccessfully tried to return to work, so Sause paid disability benefits. Three years later, Claimant began working for another employer, K&K. Claimant’s starting pay was $7.80 per hour, and his pay was scheduled to increase periodically. A representative from K&K explained the pay increase as a quarterly “seniority raise:” If people work for us, we promise them a certain maximum wage that they can achieve in a certain time frame for us. And the cap wage for everybody in production and clerical is $13.50. And when out employees start, they start at minimum wage, and with adequate performance they will get automatic raises of 25 cents per quarter. When Sause began paying permanent partial disability benefits pursuant to Section 8(c)(21), it did so based on Claimant’s starting salary with K&K. However, as K&K periodically increasedRead more
Are Longshore Death Benefits Available to Same-Sex Spouses?
In United States v. Windsor, the Supreme Court of the United States ruled that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 of DOMA limited the definition of “spouse” to a person of the opposite sex who is a husband or wife. That restriction is no more. The Supreme Court found that “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal” both in responsibilities and rights under the law. Whereas the same-sex couple was married for state law, they were unmarried for federal law. Accordingly, DOMA’s definition of “spouse” was unconstitutional. How could the Windsor decision affect Longshore and Harbor Workers’ Compensation Act (“LHWCA”) claims? Most notably, Section 9 death benefits are likely available for the surviving same-sex spouse of a legally binding marriage. The LHWCA defines “widow or widower” to include “only the decedent’s wife or husband living with or dependent forRead more
The BRB Explains Section 14(e) Penalties for Hearing Loss Claims
In a new published opinion which consolidated two cases, the Benefits Review Board (“BRB”) discussed the proper application of Section 14(e) penalties to hearing loss claims resulting from in-house audiograms. Pursuant to Section 14(e), a penalty equal to 10% of any installment of unpaid compensation can become due unless a notice of controversion is filed, or unless the district director excuses the failure to pay (when the failure was due to circumstances outside of the employer’s control). In this case, the claimants wanted the 10% penalty for their hearing loss claims. Claimant Andrew McGarey worked for employer as a machinist/grinder since 1975. He regularly underwent audiological evaluations conducted at his employer’s facility. On May 18, 2011, Claimant McGarey filed a Notice of Injury identifying May 17, 2011 as the date of injury. He did not submit medical records to his employer. Nonetheless, there was a March 10, 2010 audiogram in theRead more
National Average Weekly Wage Percent Increase for 10/01/2013
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
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