In the United States, there are twelve Courts of Appeals which are known as “circuit courts.” All fifty states, as well as the District of Columbia, are divided into various circuits. These courts are intermediate appellate courts; the last step before the Supreme Court of the United States. Over time, each circuit court has developed its own identity and reputation. The circuit courts can decide issues differently, sometimes because of geographical, political or ideological differences. When a circuit court decides an issue differently from a court in another circuit, a “split” is created. Lower courts in a circuit (i.e. district courts) are bound by their appellate court’s decisions. Those same courts are not bound by another circuit court’s decision. In the Defense Base Act (“DBA”) context, the applicable federal circuit law is determined by statute. Section 1653(b) of the DBA states: “Judicial proceedings provided under sections 18 and 21 of the Longshoremen’s and Harbor Workers’ Compensation ActRead more
Second Circuit Holds that Disputed Psychological DBA Claim Was Timely Filed
After working for nine years as an officer for the Kansas Department of Corrections, Claimant went to work for Employer in Kosovo, where she would apprehend fugitive parolees. She started her new job on April 17, 2004. Her first day of work, however, was marred with tragedy when she and five others were shot by a Jordanian soldier. Three victims died. It was not until April 16, 2006, that Claimant filed a claim for benefits under the Longshore and Harbor Workers Compensation Act (“LHWCA”), as extended by the Defense Base Act, for her underlying psychological injuries. The question presented to the United States Court of Appeals for the Second Circuit was whether this claim was barred by the statute of limitations for failure to timely file a claim. Section 13 of the LHWCA contains a statute of limitations, offering different filing periods based upon whether or not the underlying injuryRead more
ALJ Did Not Have Power to Resolve Defense Base Act Insurance Dispute
Sandi Group, Inc., employed Iraqi nationals who were injured or killed during their employment. Pending before the Office of Administrative Law Judges (“OALJ”) are two claims against Sandi Group, one by an injured claimant, and another on behalf of a deceased claimant. In those proceedings, Sandi Group has taken the position that the claimants were employees working under a subcontract with Dyncorp. Further, Sandi Group alleged that it was entitled to coverage under Dyncorp’s insurance policy because Dyncorp is the employer who is statutorily responsible for providing Defense Base Act coverage for these incidents.” Dyncorp’s insurer, Continental Insurance Company (“Continental”), disagreed, noting that the Dyncorp policy did not cover foreign nationals. Continental then filed a declaratory judgment action in the United States District Court for the District of Columbia to resolve the insurance coverage dispute. Sandi Group asked the court to either dismiss or stay the action, but the court refused.Read more
Lung Condition First Diagnosed 20 Years Later Was a Second Injury
Decedent was exposed to asbestos dust and fibers in the 1940s and 1950s. In 1977, he was diagnosed with severe chronic obstructive pulmonary disease (COPD). By 1979, Decedent was totally disabled due to extensive arthritis, chronic heart condition, and chronic pulmonary condition. Twenty years later, in 1999, Claimant was first diagnosed with lung cancer. Then, in 2001, Decedent passed away. The question raised in this case was whether or not the employer was entitled to Section 8(f) relief for continuing death benefits payments to Decedent’s widow. In the Fourth Circuit, “to establish entitlement to Section 8(f) relief in a case involving a post-retirement occupational disease, an employer need show only that an employee’s pre-existing permanent partial disability pre-dated the manifestation of the occupational disease that constitutes the ‘second injury,’ and that the employee’s death is not due solely to the subsequent work injury but was contributed to or hastened by the pre-existingRead more
Eleventh Circuit’s Borrowed-Employment Standard for Longshore Cases
Section 905(a) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provides that an employer’s liability for workers’ compensation benefits to an employee “shall be exclusive and in place of all other liability of such employer to the employee.” 33 U.S.C. § 905. This statute reflects the “industrial bargain” between employers and employees on which the LHWCA and all workers’ compensation laws are based. The bargain is simple: “The covered employee has surrendered the right to sue the employer for negligence, and thus has eschewed the possibility of a more significant damages award from the employer; the employer, similarly, has relinquished its common law defenses available in employee negligence actions. In consideration, the employee receives more certain compensation for injuries arising from the employment, regardless of fault; the employer, in turn, eludes litigation expenses and pays only scheduled LHWCA benefits.” In a new published decision, the United States Court of Appeals, EleventhRead more
ALJ Can Determine Audiogram Reliability For Special Fund Relief
In an unpublished decision, the Ninth Circuit found that an audiogram not provided to the Claimant within thirty days of its administration could establish evidence of the amount of hearing loss sustained on a particular date for the purposes of Section 8(f) relief. 33 U.S.C. §908(f) (2011). Under 33 U.S.C. §908(c)(13)(C) and 20 C.F.R. § 702.321(a)(1), preexisting hearing loss must be documented as required by 20 C.F.R. § 702.441. Section702.441(b) states that an audiogram shall be presumptive evidence of the amount of hearing loss on the date it was administered if it meets certain requirements, including the requirement that the employee must be provided with the report within thirty days of the administration of the audiogram. The court held that while the plain language of the statute and regulations establish a safe harbor for employers seeking to use the audiogram as presumptive evidence of hearing loss for Section 8(f) relief, an administrativeRead more
“Earnings” under Section 8(j) Includes Income Obtained from Illegal Activities
Claimant was hired as a chipper in 1983. He hurt each of his knees on separate dates in 1983 while working for Employer. In 1992, the Benefits Review Board affirmed an Administrative Law Judge’s award of permanent total disability benefits because Employer failed to establish suitable alternative employment. Employer sought modification of benefits in 1997. A hearing was scheduled; however, because Claimant became incarcerated, an ALJ judge issued a stay of compensation until Claimant’s 2004 release. A formal hearing on the reinstatement of benefits was held on October 14, 2009. At the hearing, Employer asserted that Claimant’s illegal activity prior to his incarceration, as well as maintenance work he performed while in prison and the singing he performed at funerals constituted suitable alternative employment. The ALJ judge rejected these positions as suitable alternative employment, but found that ten other jobs identified by Employer were sufficient. Therefore, the ALJ judge awarded theRead more
BRB: A Claimant Cannot Be More than Totally Disabled
Claimant sustained a work-related back injury on October 10, 1990, which rendered him temporarily totally disabled for a period of nearly one year, and permanently totally disabled thereafter. Over seventeen years later, Claimant underwent an audiogram demonstrating a 24.4 percent binaural hearing loss which was attributed to employment-related noise exposure that last occurred on October 10, 1990, when Claimant stopped working for Employer. Claimant argued that he was entitled to receive a scheduled award for his hearing loss concurrently with the temporary total disability award for his back injury. The Administrative Law Judge determined, however, that the scheduled hearing loss claim for PPD benefits was subsumed in Claimant’s total disability award. Claimant appealed, but the Benefits Review Board (“BRB”) affirmed the ALJ’s decision. A claimant may not receive concurrently a scheduled permanent partial disability award for one injury and a total disability award for another injury, as a claimant cannotRead more
BRB: Ninth Circuit Does Not Require New Hourly Rate Determination in Each Case
Following a settlement between the parties, Claimant’s attorney filed fee petitions for work performed before the District Director and the Office of Administrative Law Judges. In each petition, the attorney requested an hourly rate of $412, an amount which was consistent with the rate received by the same attorney in recent attorney fee cases. Both the District Director and the Administrative Law Judge (“ALJ”) refused to analyze the requested hourly rates anew, citing instead the Benefits Review Board’s recent analysis in the other cases that addressed the same attorney’s hourly rates. On appeal, the Employer argued that the Director and the ALJ had to make their own analysis of the market data, and that Supreme Court precedent requires “that a case-specific hourly rate must be calculated at each adjudicatory level of proceedings.” The BRB disagreed, stating that the “Ninth Circuit does not require that a new determination of the relevant community and market hourly rate be madeRead more
BRB Addresses Section 14(f) and the Automatic Approval of Settlements
Claimant sustained a series of injuries to his neck, back and right knee which resulted in his filing ten claims against seven employers. Ultimately, the parties entered into a settlement agreement, which was submitted to an Administrative Law Judge (“ALJ”) on March 22, 2010. Nearly one month later, on April 20, 2010, the ALJ received an amendment to the settlement agreement which resolved the issue as to the apportionment of Claimant’s attorney’s fees. The ALJ’s decision approving the settlement was filed with the District Director on April 29, 2010. Payment was issued to Claimant on May 3, 2010, which he received on May 5, 2010. The issue before the Benefits Review Board (“BRB”) was whether or not Claimant was entitled to a Section 14(f) assessment for the late payment of compensation. Claimant’s argument rested on a technicality. The Longshore and Harbor Workers’ Compensation Act provides that, if the parties are representedRead more
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