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

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