On October 26, 2007, the claimant, a container repairman, suffered injuries to his arm, shoulder and back while in the scope of his employment. The employer paid the claimant temporary total disability benefits through January 26, 2009, and the claimant sought continued benefits. The administrative law judge found that the claimant had reached maximum medical improvement and could not return to his former employment. In doing so, the judge rejected the employer’s and carrier’s vocational rehabilitation evidence. In particular, the ALJ found that the vocational counselor based his search for alternate employment primarily on the claimant’s lifting restrictions, but the claimant had additional requirements, including the necessity of frequent breaks and limitations on the amount of sitting and standing he could do. The ALJ found that the claimant’s job at his family’s restaurant was within his restrictions and represented his true wage-earning capacity. In so holding, the judge decided that theRead more
BRB: Error to Adjust Comp Rate Based on Planned Departure from Afghanistan
Claimant, a Defense Base Act (“DBA”) employee working as a security guard in Afghanistan, injured his back in the course of his work-related training. Although Claimant was able to finish his contract, he filed a claim for benefits after he returned to the United States. After a formal hearing, the Administrative Law Judge (“ALJ”) determined that Claimant’s average weekly wage was $2,897.95, with a corresponding compensation rate of $1,114.44, which is the maximum applicable compensation rate. See 33 U.S.C. § 906. Further, pursuant to the parties stipulations, the ALJ found that Claimant began post-injury alternate employment at a rate consistent with rates he earned in the United States prior to his DBA employment. Finally, the ALJ determined that Claimant was only entitled to a nominal award as of September 1, 2011, because Claimant testified that it was his plan to end his DBA employment by August of 2011. On appeal, the BenefitsRead more
Workers’ Compensation, Social Security Disability Benefits, and Taxation
Generally speaking, workers’ compensation benefits are not taxable. 26 U.S.C. § 104(a)(1). This includes compensation benefits paid under the Longshore and Harbor Worker’s Compensation Act or Defense Base Act. See, e.g., Willis v. Comm’r, T.C. Memo 1997-290. In contrast, social security disability benefits “may be included in the taxpayer’s gross income pursuant to a statutory formula that takes into account a number of factors, including the amount of Social Security benefits received, the taxpayer’s other income, and the taxpayers filing status.” Sherar v. Comm’r, T.C. Summary Opinion 2011-44; 26 U.S.C. § 86. There is, however, a way for the United States government to tax workers compensation benefits. When the claimant is receiving both workers compensation benefits and social security disability benefits, the social security benefits are reduced because of the receipt of workers compensation benefits. This is known as an offset. For tax purposes, this offset amount is treated as thoughRead more
Highlights of Proposed Longshore Amendments – Part Two
The second entry addressing the proposed Longshore and Harbor Workers’ Compensation Act Amendments of 2011 (Senate Bill 669) highlights the changes proposed to Sections 12, 13, 14, 16, 20, 21, 22, 31, and 44 of the LHWCA. The proposed Amendments would: 1. Cap the late notice of an injury at one year after the event or knowledge that the trauma resulted in injury or disability. Notice of an occupational disease shall not be given more than one year after the diagnosis of an occupational injury or death resulting from the injury. 2. Shorten the time to file a claim from one year to ninety days after notice or ninety days after the date of last payment. 3. Replace the ten day time limit in section 14(f) (33 U.S.C. § 914) with a time limit based on either physical delivery or a postmark date. 4. Allow assignment for Section 206 of ERISA. 5. Amend Section 20 (33 U.S.C.Read more
Highlights of Proposed Longshore Amendments – Part One
Previously, this blog reported that Senator Johnny Isakson introduced the Longshore and Harbor Workers Compensation Act Amendments of 2011. The text of the Senate Bill 669 is available here. The following list provides highlights of the first half of the proposed amendments. The Amendments would: 1. Provide a statement of Congressional intent to demonstrate that there shall not be a broad liberal construction in favor of the employee or employer. 2. Incorporate new definitions which, among other things, expressly states that “[p]hysical or mental conditions caused in part or in whole by an employer’s personnel actions shall not be considered an injury or disease compensable under the Act.” 3. State that compensation shall not be payable for dentures, eyeglasses, hearing aids, prosthetic devices, or artificial limbs unless those items are part of the medical treatment for a disability, or those items were damaged in the accident that resulted in a traumatic injuryRead more
Senate Bill 669: Proposed Longshore Amendments
On March 29, 2011, Senator Johnny Isakson (R-GA) introduced Senate Bill 669, known as “A bill to amend the Longshore and Harbor Workers’ Compensation Act to improve the compensation system, and for other purposes.” The bill has been referred to the Committee on Health, Education, Labor and Pensions for consideration. The text of the bill was posted online this morning. Additional blog entries regarding the content of the bill will be posted soon. At the outset, it is important to note that Senator Isakson has previously sponsored bills that would amend the Longshore and Harbor Workers’ Compensation Act. In 2006, Senator Isakson sponsored Senate Bill 3987; in 2007, he sponsored Senate Bill 846; and in 2009, he sponsored Senate Bill 236. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
DBA Coverage and the Japan Disasters
At the 2011 Annual Longshore Conference, District Director David Duhon mentioned the proactive steps that the Office of Workers Compensation Programs (“OWCP”) was taking in response to the earthquake and tsunami that ravaged Japan on March 11, 2011. In a news release dated March 24, 2011, the OWCP discussed DBA coverage, waivers and radiation exposure. The news release makes clear that the DBA covers workers employed to perform work on any contracts with any United States government agency, if the contract is performed outside the United States. Coverage extends to United States citizens and residents, host country nationals, and third country nationals. DBA insurance is required unless a waiver has been granted to a particular government agency. Only the Secretary of Labor can provide a DBA waiver, and it is within the Secretary’s discretion to determine whether application of the DBA will be waived for any contract, work location, or class of employees. EvenRead more
Are Non-Resident Alien Siblings Entitled to LHWCA Death Benefits?
The Longshore and Harbor Workers Compensation Act (“LHWCA”), as well as its extensions, the Defense Base Act (“DBA”) and War Hazards Compensation Act (“WHCA”), exclude non-resident alien siblings from the receipt of death benefits. Section 9 of the LHWCA specifically restricts non-resident alien beneficiaries to spouses, children, and dependent parents. See 33 U.S.C. § 909(g) (2011). The relevant language of this exclusion states: “Compensation under this chapter to aliens…shall be the same in amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for that period of one year prior to the date of the injury…” Id. (emphasis added). Additionally, the statutory provisions of the DBA mimic the LHWCA statutes. Section 2 of theRead more
BRB Affirms Fee Shifting After Successful Section 10(f) Litigation
The Benefits Review Board (“BRB”) recently affirmed its earlier decision in Wilson v. Service Employees Int’l, Inc. Following a timely motion for reconsideration, the BRB again examined whether Section 28(b) fees are owed following a refusal to pay Section 10(f) adjustments, which are included within the scope of a permanent total disability recommendation or award as a matter of law. Although the employer continued paying voluntary disability benefits before and after the district director’s written recommendation via correspondence, see 20 C.F.R. § 702.311, it nonetheless litigated the claimant’s entitlement to Section 10(f) adjustments. Because claimant was successful, the BRB held that he was entitled to payment of his attorney’s fee under Section 28(b). Wilson v. Service Employees Int’l, Inc., No. 10-0261 (BRB Feb. 16, 2011). (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Fourth Circuit Addresses the Meaning of “Compensation” in Section 22
The United States Court of Appeals for the Fourth Circuit determined that the term “compensation,” as used in the Longshore and Harbor Workers Compensation Act’s (“LHWCA”) modification provision, does not include voluntary payments to a claimant’s medical providers. See 33 U.S.C. § 922 (1984). Section 22 of the LHWCA provides in pertinent part: “Upon his own initiative, or upon the application of any party in interest [,] … on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case … [and] issue a new compensation order which may terminate, continue, reinstate, increase,Read more