On January 29, 2013, the Division of Federal Employees’ Compensation (“DFEC”) published FECA Bulletin No. 13-01. This Bulletin will change how we all administer or adjudicate Defense Base Act (“DBA”) claims with a War Hazards Compensation Act (“WHCA”) component (which I refer to as DBA/WHCA claims). The Bulletin states: Subject: Reimbursement of Unallocated Claims Expenses for Defense Base Act (DBA) settlements under the War Hazards Compensation Act (WHCA), and Allocating Payments in a DBA Settlement of Multiple Injuries for Purposes of Reimbursing only WHCA-Covered Injuries Background: The DBA provides a workers’ compensation system for workers injured or killed while performing work for government contractors outside the United States. 42 U.S.C. 1651(a). Employers and carriers (E/Cs) are liable to pay periodic compensation and medical benefits to an injured employee or death benefits to his/her survivors. The DBA, by incorporating most provisions of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901-950 (LHWCA), also permitsRead more
Common Law Tort Claims Preempted by the DBA’s and LHWCA’s Exclusivity Provisions
Claimant was injured in a roadside bomb attack. The employer and carrier paid medical and indemnity benefits pursuant to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) as extended by the Defense Base Act (“DBA”). In addition, Claimant filed a federal civil lawsuit against the employer and carrier asserting common law claims for breach of contract, breach of fiduciary duty, fraud, and conspiracy to defraud. In his complaint: Nadheer alleged that, before his transfer to Erbil, he had requested transfer to a hospital in Jordan and that his insurance provider had denied this request. He claimed that this violated a provision in the LHWCA that allows patients to select their own physicians and that he was never informed of this and various other rights of his under the LHWCA. He further asserted that, as a result of deficient medical treatment he received in Erbil, he had suffered horrific pain andRead more
Ninth Circuit Says AWW Must Be Determined At the Time of Injury and Without Reference to Post-Employment Plans
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
DOL Proposes Revisions to Rules of Practice Before the Office of Administrative Law Judges
The Department of Labor (“DOL”) has proposed to revise the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges. The Rules were enacted in 1983, but they have not been amended like the Federal Rules of Civil Procedure (“FRCP”). The DOL’s proposed changes are designed to reflect the changes in litigation and discovery over the past 28 years, provide clarity through the use of consistent terminology, and adequately address the expanded roles of Administrative Law Judges (“ALJ”). Congress has tasked ALJs with handling a wider variety of cases than anticipated when the Rules were promulgated in 1983 (including whistleblower and workplace retaliation cases), and the proposed revisions address the “more structured management and oversight” necessary to manage the complexities of these claims. Having thumbed through the changes, it is clear that the DOL wants the Rules to mimic the FRCP, both in form andRead more
First Circuit: Neither Suicide Nor Misadventure Fall Within the Scope of the Zone of Special Danger Doctrine
Decedent was employed on a secure military base in Saudi Arabia. One morning, his on-site girlfriend discovered Decedent’s body hanging from a noose. Decedent was wearing pink or red toenail polish, women’s makeup and a pair of blue sweatpants. Decedent’s widow filed a Defense Base Act (“DBA”) claim for death benefits on her behalf and on behalf of the Decedent’s three children. Eventually, both an administrative law judge and the Benefits Review Board (“BRB”) denied the claim. This appeal to the United States Court of Appeals for the First Circuit followed. The First Circuit focused on two issues, jurisdiction and the zone of special danger, and ultimately denied benefits. Proper Appellate Procedure in DBA Claims: In some federal Circuits, litigants may appeal BRB decisions in DBA cases directly to a federal Court of Appeals. In other Circuits, litigants must first appeal BRB decisions to the appropriate federal district court and then,Read more
Fifth Circuit: Per Diem Was More Akin to Wages In This Case
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
Court Upholds Dismissal of Lawsuit Because the DBA is an Exclusive Remedy
Plaintiffs filed a wrongful death lawsuit in federal court following the death of Employee, who was murdered while performing aid work in Pakistan. The Employer provided Defense Base Act (“DBA”) insurance coverage to Employee, and Employee’s beneficiaries received DBA death benefits since January 26, 2009–over two-and-a-half years prior to filing suit. When this fact was brought to the judge’s attention, the action was dismissed on the grounds that the “DBA insurance is the exclusive civil remedy” for Employee’s death. Aggrieved by the result, Plaintiffs filed a litany of motions, one of which claimed that there was newly discovered evidence that the DBA did not apply. Specifically, Plaintiffs alleged that the DBA applies only to contracts, and not to cooperative agreements such as the one entered into between the Employer and the United States Agency for International Development (“USAID”). The new “evidence” included “USAID directives, regulations, and policies.” The Employer counteredRead more
Boroski II: “Currently Receiving” Means “Currently Entitled”
Before the Supreme Court decided Roberts v. Sea-Land Services, Inc., 132 S.Ct. 1350 (2012), two Circuits were at odds with one another about the meaning of “newly awarded compensation” per Section 6 of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). The Ninth Circuit felt that “newly awarded compensation” meant newly entitled to compensation. The Supreme Court agreed. Id. The Eleventh Circuit, on the other hand, thought that an injured worker was “newly awarded compensation” when a formal compensation order was filed. See Boroski v. Dyncorp Int’l, 662 F.3d 1197 (11th Cir. 2011) (hereinafter Boroski I). After the Supreme Court affirmed the Ninth Circuit’s determination that “newly awarded” means “newly entitled,” see Roberts, the Court also vacated Boroski I and remanded the case to the Eleventh Circuit for further consideration. On remand, the Eleventh Circuit determined that Roberts conclusively decided the “newly awarded compensation” issue on appeal. But it did not stopRead more
The K.S. [Simons] Decision is Limited to Dangerous Locales Like Iraq and Afghanistan
In an unpublished decision, Fields v. Fluor Corporation, the Benefits Review Board addressed the average weekly wage determination for a Defense Base Act employee in Tashkent, Uzbekistan. Although the decision does not focus entirely on average weekly wage calculations, the portion that does is interesting. Claimant argued that the administrative law judge erred “by not relying on claimant’s contract rate with employer, or alternatively, by not averaging the highest earnings claimant received while working overseas between 2000 and September 2004.” The Board disagreed. Section 10(c) of the Longshore and Harbor Workers’ Compensation Act is geared towards arriving “at a sum that reasonably represents the claimant’s annual earning capacity at the time of his injury.” Here, the ALJ rationally concluded that claimant’s earnings should include both the earnings at the time of injury and the earnings in similar work claimant performed within the preceding 52 weeks. My favorite part of the decision, however, is theRead more
What Date Controls AWW? What Date Controls Compensation Rate?
A footnote in Roberts v. Sea-Land Services, the Supreme Court’s recent Longshore and Harbor Workers’ Compensation Act decision, is leading to a reevaluation of each claimant’s compensation rate. Footnote 7 states: Roberts accurately notes that in some cases, the time of injury and the time of onset of disability differ. We have observed that “the LHWCA does not compensate physical injury alone but the disability produced by that injury.” Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 297 (1995). From that principle, lower courts have rightly concluded that when dates of injury and onset of disability diverge, the latter is the relevant date for determining the applicable national average weekly wage. See, e.g., Service Employees International, Inc. v. Director, OWCP, 595 F.3d 447, 456 (CA2 2010); Kubin v. Pro-Football Inc., 29 BRBS 117 (1995) (per curiam). What does this mean? It means that the date of an injured worker’s injury controlsRead more
- « Previous Page
- 1
- …
- 14
- 15
- 16
- 17
- 18
- …
- 22
- Next Page »