When an injured employee worked for multiple employers, questions about liability can arise. If the employee’s multiple employers were all maritime or Defense Base Act employers, then the last responsible employer rule is applied. But, what happens when the employee worked for employers covered by the Longshore Act or DBA as well as non-covered employers? Last Responsible Employer or Last Responsible Covered Employer? In a Longshore and Harbor Workers’ Compensation Act claim, the last responsible employer rule assigns liability to the employer who last exposed the injured worker to injurious stimuli. The last employer in time is the first employer in liability. If the last employer can exculpate itself from liability, then the second most recent employer will be liable unless it can exculpate itself too. And so on. Most of the time, courts address the last responsible employer rule vis a vis multiple maritime employers. That is, a longshore workerRead more
No Defense Base Act Comp? Then No Report of Earnings.
Recently, I received a request that one of my clients complete the Report of Earnings, Form LS-200. This is a form developed by the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation. The form itself is completely legit. But, in my case there was a problem. The employer and carrier were not paying compensation to my client. Consequently, the issue was whether my client may refuse to complete the requested form because the employer and carrier were not paying Defense Base Act benefits. Statutory Basis for the Report of Earnings: The Defense Base Act is an extension of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). Section 8(j) of the LHWCA contains the provision for reporting earnings. See 33 U.S.C. § 908(j). It states: (j)(1) The employer may inform a disabled employee of his obligation to report to the employer not less than semiannually any earnings from employment or self-employment,Read more
Increase Local National Comp Rates After Immigration?
Should the minimum compensation rate apply to foreign national Defense Base Act benefits recipients who become U.S. citizens or residents? In other words, should insurance carriers still pay Defense Base Act compensation rates tied to a foreign economy even though the injured worker is now living in a much more expensive country? The Defense Base Act is an extension of the Longshore and Harbor Workers’ Compensation Act. But there are some important differences. Whereas the Longshore Act uses a minimum compensation rate, the Defense Base Act does not. In fact, the Defense Base Act does not have a minimum compensation rate for disability or death benefits. Minimum Compensation Under the Longshore Act: First, let’s look at the Longshore Act. Injured longshore workers who are totally disabled are paid wages equal to two-thirds of their average weekly wage. But, there is a floor. The statutory basis for the minimum compensation rateRead more
The Zone of Special Danger Applies to Local Nationals
A new Benefits Review Board case addresses an interesting zone of special danger issue. Specifically, the case addresses the applicability of the zone of special danger doctrine to a local national employee who was injured in his home country. Factual Background: In Jetnil v. Chugach Management Services, the employee was injured while he was fishing on the reef at Gagan Island (part of the Republic of the Marshall Islands). The employee slipped and cut his foot on the coral. His cut developed into a serious medical condition, ultimately requiring a below-the-knee amputation. As with all zone of special danger cases, the obligations and conditions of the injured worker’s employment are incredibly important. Here, the employee was a citizen of the Republic of the Marshall Islands. He resided on Kwajalein Atoll, which is also home to the U.S. Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Test Site. The employeeRead more
How Do Longshore or Defense Base Act Trials Work?
The administrative hearing process is foreign to most Longshore or Defense Base Act claimants. They have never been to an administrative hearing. They do not know how long it will take to get a hearing or a decision. They do not know what actually happens at the hearing. The good news is that there are online resources that can demystify the process. To get started, let’s have a quick rundown of the process that takes a case from the Division of Longshore and Harbor Workers’ Compensation (DLHWC) to the Office of Administrative Law Judges (OALJ). All Longshore and Defense Base Act cases start at the DLHWC. As the case develops, a dispute may arise. The dispute could be anything from a denied medical benefit to a complete and total claim denial. If the parties cannot resolve the dispute at the administrative level, then a party may request referral to the OALJRead more
Consider the WHCA in Every Defense Base Act Claim
I have mentioned before that, when I first analyze the facts of a Defense Base Act case, I consider whether the War Hazards Compensation Act applies. This post addresses a tangential question: what happens when a lawyer does not consider the War Hazards Compensation Act? The Defense Base Act: The Defense Base Act (or DBA for short) is a system of federal workers’ compensation that applies to many overseas contractors. When a contractor working on an overseas base or under a U.S.-funded contract is injured, that injury and the resulting disability may be covered by the DBA. If it is, then the injured worker is entitled to indemnity benefits, as well as reasonable and necessary medical benefits. The War Hazards Compensation Act: The War Hazards Compensation Act (or WHCA for short) is sort of a companion to the DBA. The only part of the WHCA that is important for thisRead more
Publications For the Longshore and DBA Community
It is time to take a look at what is happening around the Longshore and Defense Base Act world: The LexisNexis Workers’ Compensation Law Community has published quite a few articles about Longshore and DBA matters. Check out: Employee’s Death in Tax Accident While He Shopped for Groceries Found Compensable Under Defense Base Act by Thomas Robinson. D.C. Circuit Court Dismisses RICO Action for Alleged Tortious Conduct Related to Defense Base Act Claims, also by Thomas Robinson. 2015 Update from the Benefits Review Board by Karen Koenig, Associate General Counsel, Longshore Division, U.S. Department of Labor. In addition to discussing the new Benefits Review Board judicial appointees, the article touches on Section 49 discrimination. The Office of Administrative Law Judges’s website has been a hubbub of activity over the last two months because of the new Rules. If you haven’t done so yet, take the time to read: Final Rule, Rules ofRead more
Coverage and Problems for Secondary Psychological Injuries
Prior posts at the Longshore & DBA Review have addressed common psychiatric diagnoses that are litigated in Defense Base Act claims. Today I am going to talk about “secondary” psychological injuries that are also covered under the Longshore and Defense Base Acts. A “secondary” injury is one that arises naturally or unavoidably from an initial “primary” injury. Typically, “secondary” injuries arise in altered gait cases. For example, an employee injures their ankle. While treating for the ankle injury, they walk with an altered gait. The altered gait could lead to problems with the other ankle, or the hips, back, or knees. So long as the “secondary” injury (to the other ankle, hips, back, or knees) is the natural or unavoidable consequence of the first ankle injury, then the “secondary” injury is covered too. The same is true about psychological injuries. “Secondary” injuries are not restricted to physical problems. As such, ifRead more
Death Benefits Upheld in Zone of Special Danger Case
The First Circuit just affirmed an award of death benefits to the widow of an employee killed in a traffic accident in Tbilisi, Georgia. In Battelle Memorial Institute v. DiCecca, the decedent was killed when his taxi was hit head-on by a drunk driver. At the time of the crash, he was traveling in a company-provided taxi to a clean and sanitary grocery store. He did not want flies on his meat. The widow filed a claim for Defense Base Act benefits, which the employer denied. Both the administrative law judge and the Benefits Review Board ruled in the widow’s favor and awarded benefits. In response, the employer petitioned the First Circuit to review and overturn the award. The First Circuit declined to do so, instead affirming the award in a published decision authored by retired Supreme Court Associate Justice David Souter (pictured above). The Zone of Special Danger in the Supreme Court: DiCecca is a DefenseRead more
Fireworks Aren’t Fun For Everyone
This weekend, while you are enjoying the Independence Day pageantry and intricate fireworks displays, keep in mind that there are wounded warriors here in the United States who really hate fireworks. Post Traumatic Stress Disorder is often a debilitating psychological injury that can be exacerbated by events or experiences similar to those that caused the PTSD in the first place. Fireworks involve loud and sudden noises, along with brilliant flashes of light. They can trigger memories that–frankly–are not welcome in the mind of a PTSD sufferer. So, why do we celebrate Independence Day with fireworks? My favorite explanation comes from Forrest Wickman’s Slate article, The Rockets’ Red, White, and Blue Glare: Because John Adams wanted us to. Before the Declaration of Independence was even signed, he envisioned fireworks as a part of the festivities. In a letter to Abigail Adams on July 3, 1776, he wrote that the occasion shouldRead more
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