On July 10, 2018, President Donald Trump signed an executive order that affects the criteria for hiring federal administrative law judges (“ALJs”). This is particularly important for Longshore and Defense Base Act claims because those claims are adjudicated by ALJs. The order, titled Executive Order Excepting Administrative Law Judges from the Competitive Service, states in full: By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows: Section 1. Policy. The Federal Government benefits from a professional cadre of administrative law judges (ALJs) appointed under section 3105 of title 5, United States Code, who are impartial and committed to the rule of law. As illustrated by the Supreme Court’s recent decision in Lucia v. Securities and Exchange Commission, No. 17-130 (June 21, 2018), ALJs are often called upon to discharge significant duties and exercise significant discretion in conductingRead more
FECA Bulletin No. 18-03 Offers Guidance on Psychological War Hazards Claims
A new FECA Bulletin answered a pressing question in the Defense Base Act and War Hazards Compensation Act community: what evidence is needed to prove emotional distress reimbursement claims? FECA Bulletin No. 18-03, which the Division of Federal Employees’ Compensation (“DFEC”) issued on June 6, 2018, is as useful in Defense Base Act claims as it is in War Hazards claims. There’s no denying that insurance carrier’s litigate DBA claims with an eye towards War Hazards reimbursement. The Defense Base Act and the War Hazards Compensation Act: Insurance carriers pay benefits to claimants pursuant to the DBA. Then, if the claimant’s injury was caused by a “war-risk hazard,” the carrier asks the U.S. government to reimburse the DBA benefits paid to the claimant. In other words, claimants are paid under the DBA. Carriers are paid under the War Hazards Compensation Act. To get reimbursement, the carrier must show that the claimant experienced aRead more
BRB Addresses Medical Records Authorizations in DBA Claims
A new decision from the Benefits Review Board addresses the use of medical records releases in Longshore and Defense Base Act claims. This is an important issue if for no other reason than medical records releases are an every-day part of administering and litigating claims. The decision is Mugerwa v. Aegis Defense Services. What is a Medical Records Release? Essentially, a medical records release is a document that the claimant signs to give a specified individual or business entity access to medical records. Claimants may hear this referred to as a “medical authorization” or “HIPAA release.” Can a Court Compel a Claimant to Sign a Release? The first question answered by the Board was whether an administrative law judge has the authority to issue an order compelling a claimant to sign medical releases as a part of the discovery process. Yes, the judge can issue that order. But there are significant limits.Read more
New Procedure for Filing Longshore and DBA Claims
There is a new way to file Longshore and Defense Base Act claims. Beginning March 1, 2018, cases may be fax filed using the following number: (202) 513-6814. Case create forms include the: LS-201 (Notice of Employee’s Injury or Death); LS-202 (Employer’s First Report of Injury or Occupational Illness); LS-203 (Employee’s Claim for Compensation); and LS-262 (Claim for Death Benefits). New claims may also be filed by mail. But, there is a new address for filing a new claim. New claims should be sent to: United States Department of Labor, Office of Workers’ Compensation Programs, Division of Longshore and Harbor Workers Compensation, 400 West Bay Street, Suite 63A, Box 28, Jacksonville, FL 32202. Keep in mind that the preferred method for receiving “case create forms” is via facsimile. More information about the new filing procedures is available on the Division of Longshore and Harbor Workers’ Compensation’s website. Specifically, the information is available inRead more
Physical Diagnoses That May Preclude Redeployment in DBA Claims
In prior posts, I addressed the psychological diagnoses and medications which may preclude redeployment to CENTCOM following a Defense Base Act injury. This post addresses the physical injuries which may preclude deployment or redeployment. In short, the military wants contractors who have the physical capability of performing their work and completing their mission. The Code of Federal Regulations says as much. See 32 C.F.R. 158.7(k). While it is true that medical waivers may be granted, those waivers are few and far between. In fact, waivers “are unlikely for contractor personnel.” Id. If a contractor wants an waiver for a particular employee, then “an explanation should be given as to why other persons who meet the medical standards could not be identified to fulfill the deployed duties.” Id. So, what are the physical conditions which may preclude deployment? Actually, the Department of Defense has prepared non-exhaustive lists that identify those conditions. The newest version ofRead more
Psychological Diagnoses That May Preclude Re-Deployment
This is the second part of an ongoing series devoted to exploring the minimal standards of medical fitness required for deployment or re-deployment to CENTCOM, as those standards apply to the Defense Base Act. Here, I address the psychological conditions which may preclude deployment. What is important for DBA claims is that these conditions also prevent re-deployment after an injured worker suffers a psychological injury as a result of his employment in a war theater. Knowing the minimal standards of medical fitness is a necessity. When an injured DBA contractor cannot return to their usual work, then they are presumed to be totally disabled. An insurance carrier can rebut the presumption by showing that the claimant can either return to their overseas work or engage in suitable alternative employment. Therein lies the reason why knowledge of the minimal standards is so important. If an injured worker cannot satisfy the minimal standardsRead more
Medications That May Preclude Re-Deployment After a DBA Work Injury
An employee must meet minimum standards of physical and psychological fitness to work with a defense contractor in CENTCOM. Typically, when an employee is hired, there is a pre-employment physical. During that physical, medical professionals will examine the claimant and take blood and urine samples. After the physical is passed, the employee may begin working for the defense contractor. Importantly, these standards of fitness also apply to a defense contractor’s employee who was injured on the job. At some time during the disabled employee’s treatment, a question will arise as to whether an employee can return to the same job the employee performed at the time of injury. To re-deploy to CENTCOM for work with a defense contractor, the employee must again satisfy the physical fitness requirements. Consequently, when assessing an ongoing disability, a potentially-determining issue is whether the defense contractor can pass a re-deployment physical. To pass a physical meansRead more
Section 10(i) and Average Weekly Wage in Psychological Disability Claims
It’s time to talk about the way insurance carriers are using Section 10(i) in psychological disability claims to reduce an injured worker’s average weekly wage (“AWW”). Essentially, carriers are misapplying Section 10(i), which is sometimes called Section 910(i), by taking it out of the context in which it was enacted. They are using the statute to artificially deflate–sometimes nullify–an injured worker’s AWW. The irony is that Section 10(i) was enacted to help a particular class of injured workers: retirees. Make no mistake, this is an important issue. Over the past year, I have seen an increasing number of Section 10(i) arguments. Before every mediation, before every formal hearing, the carriers I face off against throw Section 10(i) into the mix. Some do so knowing full well that their Section 10(i) argument is completely bogus. What is an Average Weekly Wage? An average weekly wage is pretty much exactly what itRead more
Average Weekly Wages in DBA Claims and the 1981 Miranda Decision
Once again it is time to trudge through the murky waters of average weekly wage calculations. That’s how the Defense Base Act industry feels to me right now. Some of the average weekly wage (or “AWW”) arguments I am seeing lately from carriers are heavy-handed and perhaps disingenuous. So, a series of AWW posts is in order. I am going to start with AWWs for employees who were injured in their first year of overseas employment. That is the focus of this post. Below, I discuss the overall competing interests in an AWW calculation, the original K.S. decision, the effect of vacating the K.S. decision (as opposed to the AWW equation used in K.S.), and why this discussion is needed now. Finally, I end this post by quoting in full the Benefits Review Board’s Miranda decision from 1981. The decision–which is alive and well–is precedent; but it is not available onRead more
Clark: An Important New Average Weekly Wage Decision from the BRB
The Benefits Review Board updated its website to include the decisions it reached in January 2016. One of the decisions, Clark v. Dyncorp International, struck me as particularly relevant to an average weekly wage argument that I am hearing in many DBA cases. The argument pertains to Section 10(i) of the Longshore and Harbor Workers’ Compensation Act. Some carriers are using Section 10(i) to try and slash an injured contractor’s average weekly wage. I am presently working on a longer post addressing this argument. Still, the Clark decision is so new that I thought it prudent to post about it ASAP. Interestingly, the BRB’s Clark decision does not cite Section 10(i). But the ALJ’s decision does. See Clark v. Dyncorp Int’l, 2014-LDA-00783 (OALJ Dec. 11, 2015). Reading through the BRB’s opinion, it becomes readily apparent that the opinion easily fits into the Section 10(i) puzzle. Frankly, I hope that theRead more
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