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.)

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

In a new published opinion, the Benefits Review Board (“BRB”) determined that a claimant’s attorney may recover fees for the time spent drafting a fee petition.  Here, the Claimant argued that general federal fee-shifting law applies to the determination of a reasonable fee under Section 28 of the Longshore and Harbor Workers Compensation Act (“LHWCA”).  Further, the United States Court of Appeals for the Third Circuit, has determined that attorneys can recover a fee for the reasonable amount of time it takes to prepare a fee petition. The BRB agreed.  Although a previous en banc BRB decision disallowed fees for the preparation of a petition on the grounds that the work was not reasonably necessary to protect a claimant’s interest, see Sproull v. Stevedoring Servs. of America, 28 Ben. Rev. Bd. Serv. (MB) 271, 277 (1994) (en banc), subsequent federal appellate decisions held differently.  For instance, the Ninth Circuit heldRead more

The Benefits Review Board (“BRB”) recently considered Section 8(c)(22) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), and whether that statute requires consecutive payments for multiple scheduled losses.  In Thornton v. Northrup Grumman Shipbuilding, Inc., the Claimant sustained a right knee injury that resulted in a 15% impairment to the right leg.  The Claimant then suffered a second injury which resulted in a 43% impairment to his left leg.  The Employer accepted both claims and it paid compensation in accordance with the ratings.   It first paid the right leg impairment and then it paid for the left leg impairment.  While payments for the left leg were ongoing, Claimant’s right leg impairment increased to 50%.  The conflict between the parties concerned the start date for the payments associated with the additional right leg impairment.  Claimant contended that payments should have started in 2007, when the doctor assigned the increased impairment, and that heRead more

The Ninth Circuit published a new last responsible employer decision based on a mesothelioma death benefits claim made pursuant to Section 9 of the Longshore and Harbor Workers Compensation Act (“LHWCA”).  The decision is significant for its treatment of the Section 20(a) presumption and the sequential (as opposed to simultaneous) evidence analysis approach that it will use in last responsible employer cases involving occupational diseases. Pursuant to Section 20(a) of the LHWCA, a claimant is given a presumption that their claim comes within the purview of the LHWCA.  To get the presumption, however, a claimant must still make out a prima facie claim alleging that he was injured and that the injury arose both “in the course of” and “out of employment.”  In this case, a question arose as to whether a claimant given the Section 20(a) presumption for one employer automatically receives that presumption for all other employers.  The Ninth Circuit stated: “ContraryRead more

Starting today, the Office of Administrative Law Judges (“OALJ”) requires the use of new subpoena forms.  Until today, the OALJ used a single subpoena form regardless of the nature of the subpoena.  Now, practitioners must use three new forms: (1) Subpoena to Appear and Testify at a Hearing; (2) Subpoena to Appear and Testify at a Deposition; and (3) Subpoena to Produce Documents, Information or Objects, or to Permit Inspection of Premises.  The Acting Chief Administrative Law Judge’s implementation memorandum can be found here. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)

In a new published opinion, the Ninth Circuit addressed Section 6(c) of the Longshore and Harbor Workers’ Compensation Act.  Section 6(c) states: “Determinations under subsection (b)(3) [which deal with the determination of the national average weekly wage] with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.”  Although the court focused on the meaning of the words “award” and “awarded,” the holding essentially addressed when those words are synonymous with “entitlement.” In Roberts, the claimant injured his neck and shoulder when, in 2002, he slipped on a patch of ice.  His employer voluntarily paid compensation, but those payments stopped in May 2005.  Following a hearing before an administrative law judge (“ALJ”), the court awarded claimant temporary total disability (“TTD”) from March 11, 2002 through July 11, 2002;Read more