On September 4, 2012, the Ninth Circuit issued a rare en banc Longshore decision. In Price v. Stevedoring Services of America, the court determined that it would no longer give Chevron deference to the Director of the Office of Workers’ Compensation Program’s litigating positions, and that employers and carriers must pay compound interest (instead of simple interest) if interest is owed pursuant to Section 14 of the Longshore and Harbor Workers’ Compensation Act. Agency deference is an important consideration in every case—but there are different levels of deference to consider. “Chevron deference” comes from Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984). There, the Supreme Court stated that when Congress has “explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation;” and “[s]uch legislative regulationsRead more
Child Support and Longshore/DBA Benefits
An oft-asked question is whether child support payments can be garnished from Longshore and Harbor Workers’ Compensation Act (“LHWCA”) or Defense Base Act (“DBA”) workers’ compensation benefits. More likely than not, the answer is, “No.” Section 16 of the LHWCA, which applies to the DBA, provides: No assignment, release or commutation of compensation or benefits due or payable under this Act, except as provided by the Act, shall be valid, and such compensation and benefit shall be exempt from all claims of creditors from levy, execution, and attachment or other remedy for recovery or collection of a debt, which exemption may not be waived. This provision, which is known as the anti-assignment or anti-alienation provision, prevents child support judgments from attaching to a disability award. It has been state courts and not federal courts which have commented on the child support issue. The Louisiana Supreme Court expressly stated that a wife could not garnishRead more
Ninth Circuit: “Permanent” is Not Forever
Claimant suffered a neck and back injury while working for employer. This new injury overlaid pre-existing back and neck injuries. Once Claimant reached maximum medical improvement, the parties stipulated that she could not return to her previous position and that she was permanently partially disabled. Based on the preexisting disability, permanent partial disability payments were made by the Second Injury Fund pursuant to Section 8(f) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). Years later, Claimant’s medical condition deteriorated to the point that she needed surgery. She could not return to work after the surgery, and was rendered totally disabled. The issue that arose was whether Claimant was permanently or temporarily disabled in the “period of recuperation or healing” following Claimant’s surgery. If she was temporarily disabled, then Employer had to pay benefits during the recuperation period; but if Claimant was permanently disabled, then the Second Injury Fund hadRead more
Another Tort Suit Dismissed Because of DBA Exclusivity
The United States District Court for the District of Maryland recently issued a Memorandum Opinion in Vance v. CHF International, wherein it held that the Defense Base Act (“DBA”) was the exclusive remedy for the plaintiffs’ tort claims. The plaintiffs in Vance were the personal representatives of an employee killed while driving to work in Peshawar, Pakistan. DBA benefits were paid following the employee’s death, but the plaintiffs sought tort damages in federal court. The DBA is a uniform, federal compensation scheme for civilian contractors. It is the exclusive remedy for injured workers. See Fisher v. Halliburton, 667 F.3d 602, 610 (5th Cir. 2012). The decedent’s contract fell under the public works provision of the DBA. See 42 U.S.C. § 1651(a)(4). As explained by the court: The work appears to constitute work performed under a service contract connected with a government-related construction project and work done in connection with the national defense. TheRead more
Proposed Amendment to the Defense Base Act
Representative Elijah Cummings recently proposed H.R. 5891, known as the “Defense Base Act Insurance Improvement Act of 2012.” The purpose of H.R. 5891 is to “amend the Defense Base Act to require the provision of insurance under that Act under a Government self-insurance program, and to require an implementation strategy for such self-insurance program.” The bill would require the government to create a self-insurance program that excludes private carriers, and it essentially relieves employers (i.e. contractors) of paying compensation. Instead, benefits would be funded by the government agency whose contract was “affected.” Beyond that, the bill requires the development and execution of an implementation strategy to for the self-insurance program, including the development of a strategy for transferring Defense Base Act (“DBA”) and War Hazards Compensation Act (“WHCA”) claims to the program. More likely than not, this bill is destined to fail. And for good reason. H.R. 5891 leaves too muchRead more
Should I Seek War Hazards Reimbursement or File an Appeal?
One question I am often asked is whether an employer and carrier should seek reimbursement pursuant to the War Hazards Compensation Act (“WHCA”), see 42 U.S.C. § 1704, or file an appeal with the Benefits Review Board, see 33 U.S.C. § 921. This question arises after an Administrative Law Judge (“ALJ”) finds the employer and carrier liable for benefits in a contested claim that involved alleged “war-risk hazards.” My answer to this question is, “It depends.” In my opinion, when an ALJ issues a Decision and Order that concretely links a claimant’s injuries to “war-risk hazards,” reimbursement should be sought instead of an appeal. The Code of Federal Regulations (“CFR”) requires employers and carriers to litigate a Defense Base Act (“DBA”) claim as if the WHCA did not apply. See 20 C.F.R. § 61.102. They are required to (1) take advantage of any assignment or subrogation rights due to the liability of a third party;Read more
DBA Settlements Can Be Based on a Peer Review Medical Report
Claimant appealed the decision of an Administrative Law Judge (“ALJ”) who approved Claimant’s Section 8(i) settlement agreement. Claimant, a Defense Base Act employee, was injured when his weapon’s butt stock struck his breastbone, injuring his chest and ribs. He voluntarily signed a $15,000 settlement which stated that Dr. Boris Bacic examined him. Later, however, Claimant stated that he was not actually examined by Dr. Bacic. The Benefits Review Board (“BRB”) affirmed the ALJ’s decision. Interestingly, Claimant did not complain about the amount of the settlement, but instead, the fact that the settlement was not based on the opinion of an examining physician. The BRB noted that the regulations require only that the settlement contain “[a] current medical report,”and there is “no requirement that the report be from a physician who personally examined claimant.” See 20 C.F.R. § 702.242(b)(5). The statement in the settlement that Claimant was actually examined by Dr. Bacic was harmless.Read more
What is Reimbursable Under the War Hazards Compensation Act? And When is it Reimbursable?
The Defense Base Act (“DBA”) is a system of federal workers’ compensation applied to United States contractors working abroad on U.S. bases or pursuant to a U.S. contract. When these contractors sustain a work-related injury, they are entitled to benefits. In some instances, the event that caused the contractor’s injury qualifies as a “war-risk hazard.” See 42 U.S.C. 1711 and 20 C.F.R. 61.4. Generally, “war-risk hazards” include the discharge of weapons; any action by a hostile force or person, including insurrection or rebellion; the discharge of munitions intended for use in war; the collision of vessels and aircraft operating without customary navigation aids; and the operation of a vessel or aircraft in a zone of hostility or engaged in war activities. The benefits paid to a DBA claimant because of injuries caused by a “war-risk hazard” qualifies the employer, insurance carrier, or compensation fund that paid benefits to reimbursement under theRead more
SCOTUS Decided Roberts v. Sea-Land Services, Inc.
This morning the Supreme Court decided Roberts v. Sea-Land Services, Inc. In this employer-friendly decision, the Court held that “an employee is ‘newly awarded compensation’ when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.” The Court’s syllabus is reprinted below. The Longshore and Harbor Workers’ Compensation Act (LHWCA) creates a comprehensive scheme to pay compensation for an eligible employee’s disability or death resulting from injury occurring upon the navigable waters of the United States. Benefits for most types of disabilities are capped at twice the national average weekly wage for the fiscal year in which an injured employee is “newly awarded compensation.” 33 U. S. C. §906(c). The LHWCA requires employers to pay benefits voluntarily, without formal administrative proceedings. Typically, employers pay benefits without contesting liability, so no compensation orders are issued. However, if an employer controvertsRead more
Roberts v. Sea-Land Services Write-Up at LexisNexis’ Workers’ Compensation Community
Recently, I had the privilege of preparing an article about the oral arguments before the Supreme Court in the Roberts v. Sea-Land Services case. The article was posted on LexisNexis’ Workers Compensation Community page, and it can be found at this link. There is a healthy Longshore community over at LexisNexis, and for good reason. Here are some of the Longshore-related posts I enjoyed: LHWCA: Responsible Employer Determination in Cases Involving Multiple Traumatic Injuries: Seeking Analytical Clarity by Yelena Zaslavskaya. For those who may not have been there, Ms. Zaslavskaya’s article about attorney’s fee rates, Longshore Act: Reasonable Hourly Rate Determination — Overview of Recent Decisions, received a lot of well-deserved kudos at the 2011 Annual Longshore Conference. I expect her Responsible Employer article will receive the same. As Iraq War Winds Down, Some DBA Issues Are Resolved While Others Remain in Dispute by Mark A. Reinhalter. This article presents a helpful overview of theRead more
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