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.)

The Benefits Review Board  (“BRB”) recently issued an unpublished Longshore decision about attorney’s fees.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   In Weimer v. Todd Pacific Shipyards, BRB No. 12-0297 (02/26/2013) (unpublished), the BRB confirmed that the last responsible employer/carrier is liable for all attorney’s fees, even fees earned before the liable employer/carrier was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

In a brief Memorandum Opinion, the Ninth Circuit determined that a Defense Base Act claimant’s average weekly wage must be determined at the time of injury, even if Claimant planned to return stateside after his overseas employment.  Here, Employer argued that the Benefits Review Board (“BRB”) should not have overturned the Administrative Law Judge’s factual determination that Claimant planned to cease his overseas employment.  The Ninth Circuit agreed with the BRB that the Claimant’s plan to cease his employment was irrelevant.  Section 2 of the Longshore and Harbor Workers’ Compensation Act provides that a disability is the “incapacity because of injury to earn the wages to which the employee was receiving at the time of injury in the same or any other employment.”  The “at the time of injury” language controlled and made the Claimant’s subsequent plans irrelevant. Blackwater Security Consulting, LLC v.  Dir., OWCP, No. 11-71587 slip op. (9thRead more

The Fifth Circuit recently issued an unpublished Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision.  Decedent, an electrician  from Warren, Texas, suffered a fatal heart attack while working on a drilling rig in Vicksburg, Mississippi.  At the time of his death, he worked twelve-hour days seven days a week.  Decedent was staying at a motel and he received $50 per diem for each day worked in Vicksburg.   Following his death, Decedent’s widow made a claim for death benefits.  The parties put two issues before the Administrative Law Judge: (1) whether the Section 20(a) presumption applied to the case, and (2) the correct amount of per diem to include in the Decedent’s average weekly wage (“AWW”) calculation. As for the Section 20(a) issue, the Fifth Circuit determined that the statutory presumption did, in fact, apply.  The presumption applies after a claim establishes a prima facie showing of a work injury.  To makeRead more