Claimant appealed the Benefits Review Board’s (“BRB”) decision affirming the Administrative Law Judge’s (“ALJ”) determination that Claimant had a 10% impairment to his lungs. Although awarded benefits, Claimant argued that the ALJ erred by not taking judicial notice of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”). Both the BRB and the United States Court of Appeals, Second Circuit, agreed that the ALJ “most likely erred” but that the error–which was the ALJ’s failure to determine Claimant’s permanent impairment in accordance with the Guides–was harmless. The Second Circuit also agreed with the ALJ’s determination of the date of permanency. “Permanency can be shown in one of two ways: (1) when the claimant reaches ‘maximum medical improvement’ as demonstrated by the medical evidence; or (2) when the claimant’s disability ‘has continued for a lengthy period, and it appears to be of lasting or indefinite duration, as distinguished from one inRead more
Negligence Lawsuit Barred By Defense Base Act’s Exclusivity Provision
After completing his shift, Decedent, a Defense Base Act (“DBA”) employee in Iraq, returned to his room, which was provided by the Employer. At the same time, other employees were drinking on the Employer’s premises. During an altercation in Decedent’s room, one of these intoxicated employees shot and killed Decedent. The intoxicated employee pled guilty to involuntary manslaughter and is currently serving a three year prison. Plaintiff, Decedent’s widow, filed a claim for death benefits under the DBA. Her claim was accepted and paid. In addition to the DBA claim, Plaintiff filed a “single negligence claim” against Employer and the intoxicated employee. Following discovery–and problems with delay–the Employer filed a Motion for Summary Judgment, arguing that the Plaintiff’s negligence lawsuit should be dismissed because the DBA was Plaintiff’s exclusive remedy. See 42 U.S.C. § 1651(c) (stating that the compensation scheme under the DBA is “exclusive and in place of allRead more
Which Federal Circuit’s Law Applies to a Defense Base Act Claim?
In the United States, there are twelve Courts of Appeals which are known as “circuit courts.” All fifty states, as well as the District of Columbia, are divided into various circuits. These courts are intermediate appellate courts; the last step before the Supreme Court of the United States. Over time, each circuit court has developed its own identity and reputation. The circuit courts can decide issues differently, sometimes because of geographical, political or ideological differences. When a circuit court decides an issue differently from a court in another circuit, a “split” is created. Lower courts in a circuit (i.e. district courts) are bound by their appellate court’s decisions. Those same courts are not bound by another circuit court’s decision. In the Defense Base Act (“DBA”) context, the applicable federal circuit law is determined by statute. Section 1653(b) of the DBA states: “Judicial proceedings provided under sections 18 and 21 of the Longshoremen’s and Harbor Workers’ Compensation ActRead more
Southern District of Texas Addresses Exclusivity of the Defense Base Act
Section 1651(c) of the Defense Base Act (“DBA”) is the provision entitled, “Liability as exclusive.” It states: “The liability of an employer, contractor…under this Act shall be exclusive and in place of all other liability of such employer, contractor, subcontractor, or subordinate contractor to his employees (and their dependents) coming within the purview of this Act, under the workmen’s compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into.” 42 U.S.C. § 1651. Recently, the Southern District of Texas had the opportunity to address the DBA’s exclusivity provision. The decedent worked as a truck driver for Defendant contractor in Iraq. Camp Anaconda was under constant threat of the hijack of convoy trucks, which were then used as explosive devices; therefore no unaccompanied convoys were permitted to attempt to enter the Camp. MembersRead more
Second Circuit Holds that Disputed Psychological DBA Claim Was Timely Filed
After working for nine years as an officer for the Kansas Department of Corrections, Claimant went to work for Employer in Kosovo, where she would apprehend fugitive parolees. She started her new job on April 17, 2004. Her first day of work, however, was marred with tragedy when she and five others were shot by a Jordanian soldier. Three victims died. It was not until April 16, 2006, that Claimant filed a claim for benefits under the Longshore and Harbor Workers Compensation Act (“LHWCA”), as extended by the Defense Base Act, for her underlying psychological injuries. The question presented to the United States Court of Appeals for the Second Circuit was whether this claim was barred by the statute of limitations for failure to timely file a claim. Section 13 of the LHWCA contains a statute of limitations, offering different filing periods based upon whether or not the underlying injuryRead more
ALJ Did Not Have Power to Resolve Defense Base Act Insurance Dispute
Sandi Group, Inc., employed Iraqi nationals who were injured or killed during their employment. Pending before the Office of Administrative Law Judges (“OALJ”) are two claims against Sandi Group, one by an injured claimant, and another on behalf of a deceased claimant. In those proceedings, Sandi Group has taken the position that the claimants were employees working under a subcontract with Dyncorp. Further, Sandi Group alleged that it was entitled to coverage under Dyncorp’s insurance policy because Dyncorp is the employer who is statutorily responsible for providing Defense Base Act coverage for these incidents.” Dyncorp’s insurer, Continental Insurance Company (“Continental”), disagreed, noting that the Dyncorp policy did not cover foreign nationals. Continental then filed a declaratory judgment action in the United States District Court for the District of Columbia to resolve the insurance coverage dispute. Sandi Group asked the court to either dismiss or stay the action, but the court refused.Read more
Lung Condition First Diagnosed 20 Years Later Was a Second Injury
Decedent was exposed to asbestos dust and fibers in the 1940s and 1950s. In 1977, he was diagnosed with severe chronic obstructive pulmonary disease (COPD). By 1979, Decedent was totally disabled due to extensive arthritis, chronic heart condition, and chronic pulmonary condition. Twenty years later, in 1999, Claimant was first diagnosed with lung cancer. Then, in 2001, Decedent passed away. The question raised in this case was whether or not the employer was entitled to Section 8(f) relief for continuing death benefits payments to Decedent’s widow. In the Fourth Circuit, “to establish entitlement to Section 8(f) relief in a case involving a post-retirement occupational disease, an employer need show only that an employee’s pre-existing permanent partial disability pre-dated the manifestation of the occupational disease that constitutes the ‘second injury,’ and that the employee’s death is not due solely to the subsequent work injury but was contributed to or hastened by the pre-existingRead more
No Statute of Limitations for War Hazards Reimbursement Requests
Is there a statute of limitations for an insurance carrier’s claim for reimbursement under the War Hazards Compensation Act? Without any statutory or regulatory language to the contrary, the answer is, “No.” If a Defense Base Act (“DBA”) claimant was injured by a “war-risk hazard,” as that term is defined by 42 U.S.C. § 1711, then a carrier may seek reimbursement for the benefits it was required to pay on account of that injury. 42 U.S.C. § 1704. The carrier is “entitled to be reimbursed for all benefits so paid or payable, including funeral and burial expenses, medical, hospital, or other similar costs for treatment and care; and reasonable and necessary claims expense in connection therewith.” Id. There is no statement in Section 104 that would limit the time when an initial request for reimbursement can be filed. There is, however, a time limit for appealing a denial, so long as theRead more
Eleventh Circuit’s Borrowed-Employment Standard for Longshore Cases
Section 905(a) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provides that an employer’s liability for workers’ compensation benefits to an employee “shall be exclusive and in place of all other liability of such employer to the employee.” 33 U.S.C. § 905. This statute reflects the “industrial bargain” between employers and employees on which the LHWCA and all workers’ compensation laws are based. The bargain is simple: “The covered employee has surrendered the right to sue the employer for negligence, and thus has eschewed the possibility of a more significant damages award from the employer; the employer, similarly, has relinquished its common law defenses available in employee negligence actions. In consideration, the employee receives more certain compensation for injuries arising from the employment, regardless of fault; the employer, in turn, eludes litigation expenses and pays only scheduled LHWCA benefits.” In a new published decision, the United States Court of Appeals, EleventhRead more
“Earnings” under Section 8(j) Includes Income Obtained from Illegal Activities
Claimant was hired as a chipper in 1983. He hurt each of his knees on separate dates in 1983 while working for Employer. In 1992, the Benefits Review Board affirmed an Administrative Law Judge’s award of permanent total disability benefits because Employer failed to establish suitable alternative employment. Employer sought modification of benefits in 1997. A hearing was scheduled; however, because Claimant became incarcerated, an ALJ judge issued a stay of compensation until Claimant’s 2004 release. A formal hearing on the reinstatement of benefits was held on October 14, 2009. At the hearing, Employer asserted that Claimant’s illegal activity prior to his incarceration, as well as maintenance work he performed while in prison and the singing he performed at funerals constituted suitable alternative employment. The ALJ judge rejected these positions as suitable alternative employment, but found that ten other jobs identified by Employer were sufficient. Therefore, the ALJ judge awarded theRead more
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