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

In a new published opinion, the Benefits Review Board determined that claimant’s counsel was entitled to shifting attorneys fees because an award of Section 10(f) increases amounted to an award of “greater compensation” for purposes of the Longshore and Harbor Workers’ Compensation Act’s attorney fee provisions.  In Wilson, the claimant worked as a truck driver for employer at the time he injured his neck, spine and right knee.  The employer voluntarily paid claimant temporary total disability benefits at the maximum compensation rate, and claimant filed a claim for permanent total disability (“PTD”) benefits.  Thereafter, an informal conference was held by correspondence, and the district director issued a recommendation that claimant was entitled to PTD benefits until suitable alternative employment was demonstrated.  Further, the lower court determined that claimant was entitled to continuing PTD benefits and Section 10(f) increases, but it nonetheless refused to shift attorneys fees. The Board determined that while the district director did notRead more

Commutation is a procedural remedy whereby an insurance carrier may reduce specific Longshore and Harbor Workers Compensation Act (“LHWCA”) or Defense Base Act (“DBA”) benefits owed to a foreign national by one-half.  Although death benefits owed a foreign national under the LHWCA may be commuted (see 33 U.S.C. § 909(g) and 20 C.F.R. § 702.142), commutations typically arise in situations involving Defense Base Act claimants who are “nonnationals of the United States not residents of the United States or Canada…”  See 42 U.S.C. § 1652(b).  For LHWCA purposes, commutations only apply to Section 9 death benefits, but for the DBA, commutations are available for both death benefits and Section 8(c)(21) indemnity benefits. Calculating a commutation value of a death benefits claim requires knowledge of the current National Average Weekly Wage (“NAWW”) percent increase, the current interest rate for a one-year constant maturity, the claimant’s life expectancy, and the claimant’s currentRead more