A surefire way to forfeit future benefits is to fail to follow Section 33(g).  In our practice, we come across Section 33(g) cases now and again, and it is worthwhile reviewing Section 33(g) here.  Section 33(g) of the Longshore and Harbor Workers’ Compensation Act, as amended in 1984, states: (g)(1) If the person entitled to compensation (or the person’s representative) enters into a settlement with a third person…for an amount less than the compensation to which the person (or the person’s representative) would be entitled under this Act, the employer shall be liable for compensation as determined under subsection (f) only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed, and by the person entitled to compensation (or the person’s representative).  The approval shall be made on a form provided by the Secretary and shall be filed in the office of the deputyRead more

The claimant was employed as a dual mechanic for the employer, at the employer’s Alta Drive facility.  That facility was located three miles away from a deep water port.  While performing his duties as a mechanic at the Alta Drive facility, the claimant was injured.  He filed a Longshore and Harbor Workers’ Compensation Act claim.  The administrative law judge determined that the claimant was maritime employee and that he was injured on a covered maritime status, but the Benefits Review Board (“BRB”) disagreed.  The BRB determined that the claimant was not injured on a covered situs. To satisfy the “situs” requirement, a claimant must demonstrate that their injury occurred “upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing dismantling or building a vessel.”   The claimant could not demonstrateRead more

Claimant was employed at a soybean and grain processing refinery located on the Ohio River in Kentucky.  Two docks sat next to the refinery, and barges delivered raw materials via the docks.  Barges also took away finished products from the refinery.  Claimant estimated that he spent sixty percent of his time “maintaining and monitoring the computerized machinery which makes the pellet feed,” but the other forty percent was spent performing deckhand duties, like maneuvering the barges at the docks.  Claimant was injured when he slipped and fell while climbing from a dock onto a platform. Claimant sought state workers’ compensation benefits but an administrative law judge determined that Claimant’s injury fell within the exclusivity provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).  Ultimately, Claimant appealed this decision to the Court of Appeals of Kentucky, which affirmed. Kentucky’s state workers’ compensation laws do not share concurrent jurisdiction with the LHWCA. Read more

The Benefits Review Board (“BRB”) recently affirmed a denial of benefits to a claimant who injured his back.  It was an opportunity for the BRB to address exemptions to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) granted by the Department of Labor (“DOL”).  At issue was Section 3(d) of the LHWCA, and the proper focus of an exemption inquiry: (d)(1) No compensation shall be payable to an employee employed at a facility of an employer if, as certified by the Secretary, the facility is engaged in the business of building, repairing, or dismantling exclusively small vessels…unless the injury occurs while upon the navigable waters of the United States or while upon any adjoining pier, wharf, dock, facility over land for launching vessels, or facility over land for hauling, lifting, or drydocking vessels. (2) Notwithstanding paragraph (1), compensation shall be payable to an employee– (A) who is employed at a facility whichRead more

The United States District Court for the District of New Hampshire recently addressed an interesting Special Fund question: whether the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) preempts New Hampshire’s state law establishing the priority in which payments will be made from the assets of a liquidated insurer.  The court determined that the state law was not preempted by the LHWCA. The Home Insurance Company was declared insolvent in 2003 by the New Hampshire Superior Court.  Liquidation was ordered and the United States Department of Labor filed a proof of claim seeking $2,600,000.00 in Special Fund assessments.  The DOL was assigned as a Class III priority, and it was believed that Class III claims would not be paid because of insufficient funds.  The DOL then filed the instant suit seeking its preemption declaration.  The goal was to move up to a Class I or Class II level in order to haveRead more