The Fifth Circuit recently issued an unpublished Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision.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

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

In an unpublished decision, Fields v. Fluor Corporation, the Benefits Review Board addressed the average weekly wage determination for a Defense Base Act employee in Tashkent,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

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

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

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

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