In nearly every Defense Base Act claim that involves an “unscheduled” injury, the parties will debate the level of work the claimant can perform after his injury. Sometimes, the employer and carrier will argue that the claimant can perform overseas contracting work…just not in a “war zone.” But, is “war-zone” work versus “non-war zone” work really the distinction that should be drawn? Proving Suitable Alternative Employment: If an injured employee establishes that they cannot return to the job that they held at the time of injury, then they are presumed to be totally disabled. To rebut the presumption, employers and insurance carriers often hire vocational experts to prepare a labor market survey. According to the vocational expert, the labor market survey will provide a list of jobs which the injured worker can allegedly perform. These jobs are commonly referred to as suitable alternative employment. Not every job is suitable forRead more
SIGAR: Afghanistan is Getting More Dangerous
Want to know how dangerous Afghanistan is? Just ask SIGAR. The Special Inspector General for Afghanistan Reconstruction releases quarterly reports to the United States Congress. These reports provide independent and objective audits of the state of affairs in Afghanistan. Obviously, security is an important topic. According to the SIGAR report published on April 30, 2016, Afghanistan is becoming even more dangerous. It remains “under increasing threat from the Taliban and other insurgents.” Below, I’ve quoted portions of the report that demonstrate the nightmare presently going on in Afghanistan: Security: The Eroding Bedrock It is telling that the feature story in the most recent SIGAR report is entitled, “Security: The Eroding Bedrock.” Here are some numbers to consider: According to the United Nations, Afghanistan experienced record-high civilian casualties from the ongoing hostilities in 2015; more than 3,500 killed–a quarter of them children–and nearly 7,500 wounded. As of late November 2015, U.S.Read more
Compensation “Forfeiture” Needs a District Director Determination
Today’s public service announcement concerns the unilateral suspension of an injured worker’s compensation benefits on the grounds of “forfeiture.” Injured workers are sometimes told by their insurance adjuster that the worker “forfeited” the right to compensation by failing to report earnings. Typically, this occurs after the adjuster sent the worker a form called the LS-200, Report of Earnings. Then, without seeking a district director’s determination, the adjuster suspends benefits. This is wrong. There is a procedure for the “forfeiture” of benefits. When the carrier has not followed the procedure, they have violated the law. The carrier is then subject to penalties and interest. Statutory Basis for Forfeiture: Forfeiture is a real thing. The statutory basis for forfeiture can be found in Section 8(j) of the Longshore and Harbor Workers’ Compensation Act. Section 8(j) states: (j)(1) The employer may inform a disabled employee of his obligation to report to the employerRead more
Defense Orthopedic Expert Questions
Claimants often ask me about the scope of an orthopedic defense medical examination. What is the doctor looking at? What is the doctor looking for? Is the doctor just a hired gun? Typically, the same questions are asked to every orthopedic defense expense. These questions define the scope of the examination. As such, it is good for a Longshore or Defense Base Act claimant to know what the insurance adjuster or defense lawyer asked the doctor. Without further ado, here is a list of typical defense medical examination questions and directions. Please identify all orthopedic symptoms of which Claimant currently complains. Please provide your diagnosis of Claimant’s current orthopedic condition(s), if any. Please address whether Claimant’s orthopedic diagnosis or diagnoses are related to a work incident. Please address whether Claimant’s orthopedic conditions were caused by an overcompensation injury. Please address any non-work-related cause(s) of Claimant’s current orthopedic conditions. Please adviseRead more
Wage Earning Capacity When Claimant Owns a Business
In Longshore and Defense Base Act cases, how do courts address post injury wage earning capacity when the injured worker owns a business? It all depends on the efforts expended by claimant in his business. To quote the Benefits Review Board: An employee’s earnings from self-employment may establish his wage-earning capacity. Sledge v. Sealand Terminal, 16 BRBS 178, 181 (1984); Mitchell v. Bath Iron Works Corp., 11 BRBS 770, 779 (1980). However, profit from ownership is not included in determining earning capacity. Seidel v. General Dynamics Corp., 22 BRBS 403 (1989). Thus, an administrative law judge should determine whether income from self-employment is the result of an ownership interest or claimant’s personal services; where a claimant’s business income is the direct result of the claimant’s “personal management or endeavor,” or the claimant performs such extensive services for the business that the income represents salary rather than profits, the income shouldRead more
Bagram Plane Crash Caused By Error, Not Terrorists
Last year, on October 2, 2015, a cargo plane crashed in Afghanistan, killing 14 people. The dead included five military contractors. Recently, the United States Air Force determined that the crash was caused by the misuse of a night-vision goggles case. Essentially, the pilot used a night-vision goggles case to brace the plane’s yoke in a manner that made loading easier. As stated in the USAF Aircraft Accident Investigation report: The [mishap pilot] placed a hard-shell [night-vision goggles] NVG case forward of the yoke during the [Engine Running Onload/Offload (ERO) operations]. This placement of the case braced the yoke in a position that raised the elevator to facilitate off-loading high-profile (tall) cargo. The blocking of the flight controls during loading operations is a non-standard procedure; as such, there is no regulatory guidance to prohibit the act, or to address the proper placement and removal of the object blocking the controls.Read more
Some Thoughts on Longshore and Defense Base Act Venue
One of the easiest ways to contribute to a law blog is to look at your e-mail outbox. What issues have been discussed or litigated lately? In this post, I am going to share a few thoughts about venue–the location of an injured worker’s formal hearing. Keep two distances in mind: 75 miles and 100 miles. The relevant statutes and regulations use both distances, but for different reasons. First, formal hearings typically take place within 75 miles of the claimant’s residence unless there is good cause for having the formal hearing elsewhere. See 20 C.F.R. § 702.337. The 75-mile rule is not an absolute edict; it is a guideline. The 100-mile rule applies to witnesses who are not parties to the litigation. Basically, courts cannot require non-party witness to travel more than 100 miles. Section 24 of the Longshore and Harbor Workers’ Compensation Act provides a 100-mile jurisdictional limit forRead more
BRB Addresses Return to Work Offer and SAE
To establish a claim of total disability, a claimant must demonstrate an inability to return to his usual work as a result of his injury. This can be established by comparing the claimant’s medical restrictions to their job duties. If the claimant establishes total disability, then the burden shifts to the employer to show that the claimant can perform his usual job or, alternatively, the claimant can return to suitable alternative employment (or “SAE”). “Suitable” means appropriate for the claimant considering his age, education, vocational history, and physical capabilities. Recently, in an unpublished decision, the Benefits Review Board addressed a sticky situation. What happens when an employer offers the claimant their old job (i.e., their usual and customary employment), purportedly in reliance of a functional capacity evaluation that established the claimant’s work restrictions? The claimant in Burton v. ManTech International injured his right knee and left shoulder while working inRead more
Are Longshore or DBA Benefits Taxable?
It’s tax season. Time to talk about a question I am asked in every single case: are Longshore or Defense Base Act workers’ compensation benefits taxable? Take a look at IRS Publication 525, which discusses taxable and nontaxable income. On page 19, you will see a section titled, “Workers’ Compensation.” It says: Workers’ Compensation Amounts you receive as workers’ compensation for an occupational sickness or injury are fully exempt from tax if they are paid under a workers’ compensation act or a statute in the nature of a workers’ compensation act. The exemption also applies to your survivors. The exemption, however, does not apply to retirement benefits you receive based on your age, length of service, or prior contributions to the plan, even if you retired because of an occupational illness or injury. If part of your workers’ compensation reduces your social security or equivalent railroad retirement benefits received, thatRead more
Disclosing Defense Attorney’s Time Sheets in Fee Disputes
Attorney fees are heavily disputed in Defense Base Act and Longshore and Harbor Workers’ Compensation Act claims. In most cases, the injured worker’s fees shift from the worker to the employer and carrier. When fees shift, then the employer and carrier must pay the worker’s attorney. See 33 U.S.C. § 928. That’s where the arguments start. One common argument focuses on the time that a claimant’s attorney spent working on the case. Employers and carriers may argue that the attorney spent too much time on the file (i.e., that attorney spent an unreasonable amount of time litigating their claimant’s case). It should come as no surprise that the claimant attorneys take umbrage with these arguments. Some have suggested that defense attorneys should disclose the hours that they billed while defending a claim before attacking the hours that an injured worker’s attorney spent working on the claim. In fact, there wasRead more
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