Slipping in the bathroom is covered under the zone of special danger. So says the Benefits Review Board in a new, published Defense Base Act decision, Ritzheimer v. Triple Canopy, Inc. Claimant worked as a force protection officer in Israel. Although he could not provide his exact work locations and duties, Claimant testified that he lived in an apartment in Be’er Sheva as a condition of his employment. The Employer selected, paid for, and furnished the apartment. Those furnishings, however, did not include a bath mat. Bathing and good personal hygiene were part of his job because his overseas employer, as well as the U.S. Government, required professionalism, including good grooming. On March 3, 2012, Claimant was injured while exiting his shower. He slipped on the wet bathroom floor and struck his right side on the edge of the tub. Claimant sustained significant injuries: four broken ribs and a puncturedRead more
Defense Base Act, Average Weekly Wage, and “Retirement”
The method for calculating an injured worker’s average weekly wage is often a hotly contested issue in Defense Base Act claims. Insurance carriers want to reduce the claimant’s average weekly wage (or “AWW”) because the smaller the AWW, the cheaper the claim. Of course, injured workers want to establish a higher AWW for the opposite reason. Recently, I’ve fielded a few questions about the AWW for injured workers with delayed onset occupational diseases, including pulmonary and psychological injuries. How should the parties calculate the injured worker’s AWW when the disease arose after the claimant returned to the United States? Should the parties calculate the AWW using overseas wages prior to the last date of employment, stateside wages, or the national average weekly wage? And, perhaps most importantly, can carriers use the Longshore and Harbor Workers’ Compensation Act’s retirement provisions to reduce a contractor’s AWW? I prepared this blog post withRead more
Loyola’s Annual Longshore Conference 2016
Every year, the Loyola University New Orleans College of Law presents the Annual Longshore Conference. This is the “go-to” conference for all Longshore and Defense Base Act industry professionals. This year’s conference should delight. All district directors are attending and speaking, as are all of the Office of Administrative Law Judges’ district chiefs. This is a rare gathering of all the Longshore and DBA elite. For more information about the conference, visit Loyola’s Continuing Legal Education webpage. For ease of reference, I’ve reprinted the schedule below: Thursday, March 10, 2016 7:30 a.m. – 8:15 a.m. Registration 8:15 a.m. – 8:30 a.m. Introduction and Announcements 8:30 a.m. – 9:30 a.m. Significant Judicial Decisions Impacting Claims Arising Under the Acts and its Extensions 9:30 a.m. – 10:15 a.m. A National Overview of the Office of Workers’ Compensation Programs 10:15 a.m. – 10:30 a.m. Break 10:30 a.m. – 12:00 p.m. Practice Before theRead more
Another Reason Not to Use Global Labor Market Surveys
To limit the value of a Defense Base Act claim, insurance carriers sometimes suggest that the injured worker can return to work anywhere in the world. By measuring their exposure against the existence of high-paying contract work, carriers argue that the particular DBA claim is only worth a fraction of its actual value. But shouldn’t insurance carriers have to consider the existence of non-deployable medical conditions or non-deployable medications before suggesting that an injured worker can return to work anywhere in the world on a government contract? My solution: exclude overseas contracting jobs from labor market surveys unless the insurance carrier can demonstrate that the injured worker can secure a medical waiver. Suitable Alternative Employment: First, let’s discuss suitable alternative employment. Once an injured worker proves a prima facie case of total disability, the carrier must demonstrate the existence of “suitable alternative employment.” Usually, this is proven with the helpRead more
Non-Deployable Medications
Just like there are non-deployable medical conditions, there are also non-deployable medications. Contractors who take these medications may be excluded from working overseas. As such, when determining whether a contractor can return to work overseas after a Defense Base Act injury, the parties must consider the contractor’s medications. Here is the non-exclusive list of medications that disqualify a contractor for deployment, unless a waiver is granted: Blood modifiers. More specifically, therapeutic anticoagulants (like Coumadin and Xarelto); platelet aggregation inhibitors or reducing agents (like Plavix, Agrylin, Pradaxa, Aggrenx, Ticlopidine, Effient, Trental, Pletal); hematopoietics (like Neupogen, Leukine, Epogen and Progrit); and antihemophilics. Antineoplastics (oncologic or non-oncologic use). This includes antimetabolites, alkylators, antiestrogens, aromatose inhibitors, medroxyprogesterone, interferons, etoposide, bicalutamide, bexarotene, and oral tretinoin. Immunosuppressants, like chronic systemic steroids. Biologic response modifiers. This includes Orencia, Humira, Kineret, Enbrel, Remicade, Arava, etc. Benzodiazepaines, whether used chronically or newly prescribed. This includes Ativan, Xanax, Valium, Klonopin,Read more
Fourth Circuit Case Tests Coverage for Psych Injuries
There’s an important psychological benefits case pending in the Fourth Circuit. The scope of the case–called Ceres Marine Terminals, Inc. v. Director, OWCP–is amazingly broad. And although it is a Longshore and Harbor Workers’ Compensation Act case, the ripple effect could cause considerable waves for defense contractors with psychological injuries. There are multiple issues in Ceres Marine–too many to address in a single blog post. For now, I am focusing on each party’s statements about psychological injuries under the Longshore Act, and by extension the Defense Base Act. The Briefs: First, let’s look at the written submissions from the parties. I’ve highlighted in bold some of the more interesting statements and phrases. Here is the Summary of the Argument section from Ceres Marine’s Opening Brief: This appeal has two primary issues. First, does the reasoning of the United States Supreme Court decision in Consolidated Rail Corp. v. Gottshall, 512 U.S.Read more
Longshore and Defense Base Act Developments of 2015
It’s time to look back at some of the Longshore and Defense Base Act developments of 2015. Zone of Special Danger: My favorite case this year was the First Circuit’s Battelle Memorial Institute v. DiCecca. In DiCecca, retired Supreme Court Associate Justice David Souter explored the broad scope of the zone of special danger doctrine. Essentially, in Defense Base Act cases, the zone of special danger doctrine can be used by injured workers to secure coverage for injuries that occur outside of the course and scope of typical work duties. Like the Supreme Court said in O’Leary v. Brown-Pacific-Maxon, 430 U.S. 504, 507 (1951): Workmen’s compensation is not confined by common-law conceptions of scope of employment. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Nor is it necessary that the employee be engaged at the time ofRead more
Defense Base Act Industry Report Cards – Part Three
This is the final installment of my Defense Base Act Industry Report Card series. So far, we have looked at the reporting and payment percentages for ACE, AIG, AWAC, and CNA. Today, I will focus on Zurich, the Division of Longshore and Harbor Workers’ (“DLHWC”) reporting and payment goals, and how the DBA insurance carrier measures up against the DLHWC goals. To recap, the DLHWC creates “report cards” for the large insurance carriers offering Defense Base Act insurance. The DLHWC focuses on timeliness of reporting the injury and timeliness of paying benefits. Each insurance carrier voluntarily provides its reporting and payment percentages to the DLHWC, which publishes the information on its website. My series of posts takes the same information and plugs it into carrier-specific line graphs. In my opinion, the line graphs make it easier to chart each carrier’s performance–and whether performance is declining. Zurich: Overall, Zurich’s self-reported dataRead more
Defense Base Act Industry Report Cards – Part Two
This post continues my Defense Base Act Industry Report Cards series. The first post, which I uploaded last week, can be found here. To recap, the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) creates “report cards” for the large insurance carriers offering Defense Base Act insurance. The DLHWC focuses on timeliness of reporting the injury and timeliness of paying benefits. Personally, I prefer looking at this information in line graph format. As such, I took the report card information on the DLHWC’s website and rendered insurer-specific line graphs. DLHWC shares the following information on its website: The First Report data, aggregated by insurance carrier, shows the percent of reports received in the DLHWC District Offices within 30, 60, and 90 days of the date of the injury or death, or the date of the employer’s knowledge of the injury and the onset of disability, whichever isRead more
Defense Base Act Industry Report Cards – Part One
Each year, the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) creates “report cards” for the insurance carriers offering Defense Base Act insurance. Essentially, the DLHWC looks at two things: Timeliness of DBA First Reports of Injury; and Timeliness of DBA First Payments of Benefits. According to the DLHWC’s website, it adopted particular performance goals under the Government Performance Results Act to improve program effectiveness “by facilitating prompt delivery of benefits to injured workers and their families.” Keep in mind that the goal is “prompt delivery of benefits.” DLHWC shares data reported by the insurance carriers. Specifically, the DLHWC shares: The First Report data, aggregated by insurance carrier, shows the percent of reports received in the DLHWC District Offices within 30, 60, and 90 days of the date of the injury or death, or the date of the employer’s knowledge of the injury and the onset ofRead more
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