Last year, I wrote a blog article about a Defense Base Act case from the Benefits Review Board involving a slip-and-fall in a shower. That case, Ritzheimer v. Triple Canopy, Inc., addressed the scope of the zone of special danger. Recently, the Middle District of Florida affirmed the Benefits Review Board decision. The zone of special danger does, in fact, apply to a slip-and-fall while exiting a shower. Factual Background and Procedural History: The facts of the case were laid out by the BRB. On March 3, 2012, the claimant exited his shower. He slipped on the wet bathroom floor and fell. The claimant’s injuries included four broken ribs and a punctured lung. Later, after returning to the United States and undergoing medical treatment, the claimant developed depression. Initially, the employer/carrier paid the claim. But then they stopped, arguing that the cause of the claimant’s injury was personal in natureRead more
Ethical Rules for Psychological Defense Base Act Assessments?
Recently, I was asked questions about the ethical obligations of psychologists who perform defense medical examinations. Are there ethical obligations? Yes, of course. There are ethical obligations for all licensed psychologists. For ease of reference, and to offer a quick example, here is the text for Texas Administrative Code’s “Evaluation, Assessment, Testing, and Reports” statute: (a) Scope and Purpose. (1) Licensees clearly describe the scope and purpose of evaluation, assessment, and testing to patients before they provide these psychological services. (2) Licensees produce reports that clearly state and accurately reflect the scope and purpose of evaluation, assessment, and testing. (b) Reliability and Validity. (1) Licensees verify, by signature and date, that every evaluation, assessment, test result, report, recommendation, or psychological diagnostic or evaluative statement produced is based on information and techniques sufficient to provide appropriate substantiation for its findings. (2) Licensees administer, score, interpret or use assessment techniques or testsRead more
The Statute of Limitations for DBA Psychological Injuries
It’s time for an important discussion about the statute of limitations for psychological injury claims. Quite simply, psychological injuries (including but not limited to PTSD) stemming from war zone work are classified as occupational diseases. They are given a two-year statute of limitations. Below, I present a survey of sorts. You will find the statutory language as well as language from multiple Office of Administrative Law Judges decisions which conclude that PTSD is an occupational disease. Section 13—The Statute of Limitations: The statute of limitations for Defense Base Act claims is the same as it is for Longshore claims. For nearly all injuries (with the exception being hearing loss), the statute of limitations is found at Section 13 of the Longshore Act. It states: (a) Time to file. Except as otherwise provided in this section, the right to compensation for disability or death under this Act shall be barred unlessRead more
Is there a “video game defense” in Defense Base Act claims?
In today’s post, I’m going to discuss video games. It probably seems a little odd to discuss games in connection with a Defense Base Act claim. In my opinion, it’s odd too. But, because I have recently fielded some inane arguments about the effect of video games on a claimant with a psychological injury, I thought it best to address the topic. And, believe it or not, this is not the first time I have heard this argument. Back when I used to be a defense attorney, the video game argument was batted around as a potential defense. Ultimately, the argument was dismissed—too laughable to pursue. The argument is fairly simple to grasp. An insurance carrier argues that its liability for benefits has been severed because video games are a stressor that aggravated the injured worker’s psychological injury or created a new psychological injury. Essentially, the carrier is using theRead more
Senator Isakson’s Prior Attempts to Amend the LHWCA and DBA
The 2016 election season is in the books. As I watched the returns, I noticed that Senator Johnny Isakson was reelected in Georgia. This is important for the Longshore and Defense Base Act community because Senator Isakson has been one of the leading voices proposing amendments to the Longshore and Harbor Workers’ Compensation Act. Nearly any amendment made to the Longshore Act will necessarily affect the Defense Base Act. Take a look at Senate Bill S. 669, which Senator Isakson introduced to the Senate on March 29, 2011. Some of the changes are good. For example, funeral benefits presently pay out at $3,000. That amount has not been increased since 1984. An increase to $7,500 (if not more) is warranted. Other proposed amendments are game-changers. The four that should stick out to claimants include: Incorporating a proportional payment system whereby disability payments can be reduced by prior disability ratings orRead more
How Carriers Can Make Money By Losing Defense Base Act Claims
Today we’re going to run the numbers on a claim involving both DBA-only and DBA-WHCA injuries. By “DBA-only,” I mean that the claimant’s injury was not caused by a war event (like a rocket, mortar, or terrorist attack). And by “DBA-WHCA,” I mean that the claimant’s injury was caused by a war event. Knowing how to handle this type of case can result in massive savings for an insurance company and quicker benefits payment to an injured worker. The Defense Base Act Vs. The War Hazards Compensation Act: First, let’s discuss the Defense Base Act and its interplay with the War Hazards Compensation Act. The Defense Base Act is a system of federal workers’ compensation that applies to injured contractors working abroad. The DBA covers everything from slips-and-falls to the contraction of serious viruses to injuries caused by the actions of terrorists. The injured worker is compensated and receives medicalRead more
Retirement of a Longshore and Defense Base Act Legend
Richard V. Robilotti announced his retirement. Make no mistake, this is the retirement of a legend in the Longshore and Defense Base Act community. Mr. Robilotti is the district director for the Second Compensation District of the Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) in New York. For forty years, Mr. Robilotti has been in charge of Longshore claims arising in New York, New Jersey, Puerto Rico and the Virgin Islands. Further, the New York office–for the longest time–was the go-to Defense Base Act office. Every claim that arose in Iraq and Afghanistan went to Mr. Robilotti’s desk, including claims made by local and third country nationals. My contact with Mr. Robilotti began when I first started practicing law. I graduated law school just as the Defense Base Act was heating up. At that time, the Second Compensation District was the only DLHWC office that I dealt with. Mr.Read more
2016-2017 National Average Weekly Wage Increase
The Office of Workers’ Compensation published the new National Average Weekly Wage for the 2016-2017 fiscal year. National Average Weekly Wage: $718.24 Maximum Compensation Rate: $1,436.48 Minimum Compensation Rate: $359.12 Percent Increase: 2.17% Click on this hyperlink to access the NAWW chart spanning from 1973 to 2017.
Proposed Rules on Max. and Min. Comp Rates in Longshore Claims
The Office of Workers’ Compensation Programs has published a new proposed rule pertaining to an injured worker’s compensation rate. The rule addresses the Longshore and Harbor Workers’ Compensation Act’s maximum and minimum compensation rate, and how to apply a particular rate to a particular injury. The proposed rule applies to the Longshore Act’s extensions, like the Defense Base Act. Letter from the DLHWC: The Director of the Division of Longshore and Harbor Workers’ Compensation, Antonio Rios, issued an explanatory letter on August 26, 2016. The letter stated, in pertinent part: The National Average Weekly Wage has historically risen from year to year, and this determination affects the maximum and minimum compensation rates under Section 6. Questions regarding which fiscal year’s maximum wage applied in various situations led to litigation. These questions have now largely been resolved through decisions of the courts of appeals and the Supreme Court. To provide clarityRead more
Status of the Zone of Special Danger Appeal in Jetnil
One of the most interesting zone of special danger cases from 2015 has been briefed for the Ninth Circuit Court of Appeals. The case, Jetnil v. Chugach Management Services, asks whether the zone of special danger doctrine should apply to local nationals who are injured in their home country. So far, the administrative law judge, Benefits Review Board, and Director have all said that the zone of special danger should apply. Employer and Carrier disagree, and they have taken the claim all the way to the Ninth Circuit. The Benefits Review Board’s Jetnil Decision: Like I mentioned in last year’s post about Jetnil, the employee was injured while he was fishing on the reef at Gagan Island (part of the Republic of the Marshall Islands). The employee, who was a citizen of the Republic, slipped and cut his foot on coral. The injury resulted in a below-the-knee amputation and subsequentlyRead more
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