The Sixth Circuit published a new Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision discussing Claimant’s vocational ability–or lack of ability–and Employer’s deficient labor market survey. This was the second time the Sixth Circuit heard the claim, and the court reused its earlier recitation of the facts. Claimant worked for Employer as a senior barge mechanic. After twenty-five years of employment, Claimant alleged a shoulder injury. Over the course of three years, Claimant treated with a number of health professionals. One of those physician’s, Dr. Goodwin, determined that Claimant could not perform his usual work as a senior barge mechanic. Thereafter, Employer’s vocational expert prepared a labor market survey identifying nine alternate positions that Claimant could perform. A few months later, the vocational expert identified ten more jobs. Claimant did not contact any of these employers because he had a foot gout ailment. Following a 2008 trial, the assigned Administrative Law JudgeRead more
Can DFEC Force Employers and Carriers to Re-Litigate a Defense Base Act Claim?
Generally speaking, when a defense contractor is injured by a “war-risk hazard,” the carrier that pays benefits is entitled to reimbursement under the War Hazards Compensation Act (“WHCA”). See 42 U.S.C. § 1704. When the injured worker resides in the United States or Canada, carriers often seek reimbursement and the direct payment of future benefits. See id.; see also 20 C.F.R. § 61.105. When the Division of Federal Employees’ Compensation (“DFEC”) agrees to directly pay future benefits, it will notify the carrier and the claimant that, on a particular date, DFEC will assume all future indemnity and medical payments. Even after DFEC takes over the administration of a claim, the modification provision of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) remains a viable option for reducing—or increasing—future benefits. See 33 U.S.C. § 922. Section 22 of the LHWCA allows modification of a compensation award on the ground of aRead more
Old Recreational Vessel Exclusion Applies If Any Hearing Loss Occurred Before Amendment
The Benefits Review Board (“BRB”) recently addressed the interplay between a hearing loss claim and the 2009 revision to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provision dealing with the recreational vessel exclusion. In Czikowsky v. Ocean Performance, Inc., BRB No. 13-0108, 2013 WL 5437444 (2013), Claimant had worked as a marine mechanic for 19 years. Claimant acknowledged that he mostly worked on recreational vessels, but that some of those vessels should be considered charter fishing boats due to the number of hours logged on the vessel’s engines. He alleged a hearing loss due to his employment, and audiograms dated April 10 and August 14, 2009 confirmed the loss. In 2009, Congress amended Section 2(3)(F) of the LHWCA. Before the amendment, Section 2(3)(F) excluded “individuals employed to build, repair, or dismantle any recreational vessel under sixty-five feet in length” from the “employee” definition. In the 2009 amendment, Congress fleshed out theRead more
Automatic Longshore Settlement Approvals and the Government Shutdown
Since last week, Longshore practitioners have debated whether Section 8(i) settlement agreements can be automatically approved during the government shutdown. Typically, all Longshore settlements are reviewed by the assigned district director. The district director has thirty days to review the settlement. If the settlement is reasonable, the district director issues a compensation order directing the parties to pay the amount identified in the order–most likely the same amount contemplated in the settlement agreement. But what if the district director does not issue a compensation order within thirty days? Or, as in this case, what if there are no district directors to issue compensation orders because of the government shutdown? Section 8(i) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) contains a provision that allows for automatic approval of settlements when all parties are represented by attorneys. Specifically, Section 8(i) states: “If the parties to a settlement are represented by counsel, then agreements shall beRead more
9th Circuit: “Seniority Raises” Do Not Increase Wage-Earning Capacity
Claimant was injured while working as a welder for Sause, where he earned $15 per hour. He unsuccessfully tried to return to work, so Sause paid disability benefits. Three years later, Claimant began working for another employer, K&K. Claimant’s starting pay was $7.80 per hour, and his pay was scheduled to increase periodically. A representative from K&K explained the pay increase as a quarterly “seniority raise:” If people work for us, we promise them a certain maximum wage that they can achieve in a certain time frame for us. And the cap wage for everybody in production and clerical is $13.50. And when out employees start, they start at minimum wage, and with adequate performance they will get automatic raises of 25 cents per quarter. When Sause began paying permanent partial disability benefits pursuant to Section 8(c)(21), it did so based on Claimant’s starting salary with K&K. However, as K&K periodically increasedRead more
Are Longshore Death Benefits Available to Same-Sex Spouses?
In United States v. Windsor, the Supreme Court of the United States ruled that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 of DOMA limited the definition of “spouse” to a person of the opposite sex who is a husband or wife. That restriction is no more. The Supreme Court found that “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal” both in responsibilities and rights under the law. Whereas the same-sex couple was married for state law, they were unmarried for federal law. Accordingly, DOMA’s definition of “spouse” was unconstitutional. How could the Windsor decision affect Longshore and Harbor Workers’ Compensation Act (“LHWCA”) claims? Most notably, Section 9 death benefits are likely available for the surviving same-sex spouse of a legally binding marriage. The LHWCA defines “widow or widower” to include “only the decedent’s wife or husband living with or dependent forRead more
The BRB Explains Section 14(e) Penalties for Hearing Loss Claims
In a new published opinion which consolidated two cases, the Benefits Review Board (“BRB”) discussed the proper application of Section 14(e) penalties to hearing loss claims resulting from in-house audiograms. Pursuant to Section 14(e), a penalty equal to 10% of any installment of unpaid compensation can become due unless a notice of controversion is filed, or unless the district director excuses the failure to pay (when the failure was due to circumstances outside of the employer’s control). In this case, the claimants wanted the 10% penalty for their hearing loss claims. Claimant Andrew McGarey worked for employer as a machinist/grinder since 1975. He regularly underwent audiological evaluations conducted at his employer’s facility. On May 18, 2011, Claimant McGarey filed a Notice of Injury identifying May 17, 2011 as the date of injury. He did not submit medical records to his employer. Nonetheless, there was a March 10, 2010 audiogram in theRead more
National Average Weekly Wage Percent Increase for 10/01/2013
The Department of Labor (“DOL”) published the percent increase for the National Average Weekly Wage (“NAWW”), which will go into effect on 10/01/2013. As of 10/01/2013, the following changes will take effect. NAWW: $673.34 Maximum Compensation Rate: $1,346.68 Minimum Compensation Rate: $336.67 Percent Increase: 1.62% For more information about the percent increase, or to review prior increases, visit the NAWW page on the DOL’s website. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Supreme Court of Kentucky Addresses Concurrent Jurisdiction
Claimant was injured at work in 2008 while performing deckhand duties. His injury was reported under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) and Claimant received LHWCA benefits. Oddly, Claimant testified that he did not know he was receiving LHWCA benefits. So, in 2010, Claimant filed a claim for Kentucky workers’ compensation benefits. A state administrative law judge determined that Claimant’s injury fell under the LHWCA and not the Kentucky Workers’ Compensation Act (“KWCA”). The ALJ’s decision was affirmed all the way up to the Supreme Court of Kentucky. Kentucky’s workers’ compensation scheme covers all employees except those classes of employees exempted from coverage. Specifically, Kentucky Revised Statute 342.650(4) precludes coverage for “[a]ny person for whom a rule of liability for injury or death is provided by the laws of the United States . . . .” The ALJ had determined that the LHWCA was a “rule of liability,”Read more
The Board Discusses Summary Decision and the Last Responsible Carrier Rule
Claimant worked as a wastewater treatment plant operator for Employer. He filed a claim alleging respiratory and skin exposure. When he filed his claim, Employer was covered by Carrier One. But before Claimant stopped working for Employer, Carrier Two came on the risk. Carrier One propounded interrogatories to Claimant. In response, Claimant stated that his exposure to the injurious elements “has been uninterrupted, since I started working at the Base.” Upon receipt, Carrier One filed a Motion for Summary Judgment on the grounds that Claimant’s continued (alleged) exposure after Carrier Two came on the risk absolved it from liability as the responsible carrier. The administrative law judge agreed, but the Benefits Review Board did not. In its interlocutory order, the Board stated (with internal citations omitted): We hold that the administrative law judge erred in granting summary decision to [Carrier One] as he applied an incorrect standard in assessing whetherRead more
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