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

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.)

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

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

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 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