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

In a published decision, Urso v. MVM, Inc., the Benefits Review Board tackled the meaning of the word “dependency” as used in the Longshore and Harbor Workers Compensation Act and the Internal Revenue Code.  In Urso, the decedent’s parents claimed death benefits under Section 9(d) of the LHWCA. If there is no surviving spouse or child, then Section 9(d) provides “support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, and any other persons who satisfy the definition of the term ‘dependent’ in section 152 of title 26 of the United States Code, but are not otherwise eligible under this section, 20 per centum of such wages for the support of each such person during such dependency and for the support of each parent, or grandparent, of the deceased if dependent upon him at the time of the injury, 25 per centum ofRead more

In a short unpublished decision, the United States Court of Appeals, Sixth Circuit, vacated the decision of the Benefits Review Board and remanded the case to the Administrative Law Judge.  As quoted by the Sixth Circuit, the Administrative Procedure Act requires the factfinder to render a decision that includes a discussion of “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.”  5 U.S.C. § 557(c)(3)(A).  Here, the ALJ determined without sufficient explanation that the claimant reached MMI upon his failed attempt to return to work.  The Sixth Circuit casted doubt on this unexplained finding: “[w]hile Williams’ inability to perform his prior job duties may indicate that he was permanently disabled as of May 31, 2005, it does not necessarily indicate that this was the date he reached MMI.” Marathon Ashland Petroleum v. Williams, 2010 WL 2711316 (6thRead more

The Benefits Review Board recently addressed the payment of a scheduled hearing loss impairment rating when a Claimant is simultaneously receiving disability benefits for a different, unscheduled injury.  In Bogden, the Claimant sustained a back injury.  For this injury, he received temporary total disability benefits for roughly ten months, then permanent total disability benefits for nineteen months, and finally, he received continuing permanent partial disability benefits. In addition to the back injury, Claimant also sustained a work-related hearing loss injury resulting in a 30.938% binaural impairment.  In the court below, the Administrative Law Judge determined that Claimant was entitled to 61.876 weeks of compensation for his hearing loss, but that the “hearing loss [was] subsumed in the total disability award for claimant’s back injury and, thus, [was] not payable.” The BRB disagreed, holding that a claimant is entitled to a resumption of his scheduled permanent partial disability award on the date that his disability statusRead more

The Ninth Circuit Court of Appeals recently confirmed that the harmless error analysis applies to petitions for review filed under the Longshore and Harbor Workers’ Compensation Act, explicitly bringing it in line with the majority of other Circuit Courts.  As noted by the court, “[t]hat a path is a beaten one…is a persuasive reason to follow it.” With the harmless error analysis in mind, the Ninth Circuit went on to discuss the Claimant’s injuries.  Here, Claimant, who was employed as a supply clerk, alleged that his slow-developing left parietal stroke was caused by job stress, and he admitted medical evidence in support of his allegations.  The Ninth Circuit upheld the administrative law judge’s determination that Claimant’s stroke was a compensable injury.  Although challenges were made that the ALJ’s decision was based on an improper analysis of the parties’ burden of proof under Longshore claims, the Ninth Circuit determined that the ALJ’s error–whichRead more