On March 29, 2011, Senator Johnny Isakson (R-GA) introduced Senate Bill 669, known as “A bill to amend the Longshore and Harbor Workers’ Compensation Act to improve the compensation system, and for other purposes.” The bill has been referred to the Committee on Health, Education, Labor and Pensions for consideration. The text of the bill was posted online this morning. Additional blog entries regarding the content of the bill will be posted soon. At the outset, it is important to note that Senator Isakson has previously sponsored bills that would amend the Longshore and Harbor Workers’ Compensation Act. In 2006, Senator Isakson sponsored Senate Bill 3987; in 2007, he sponsored Senate Bill 846; and in 2009, he sponsored Senate Bill 236. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Are Non-Resident Alien Siblings Entitled to LHWCA Death Benefits?
The Longshore and Harbor Workers Compensation Act (“LHWCA”), as well as its extensions, the Defense Base Act (“DBA”) and War Hazards Compensation Act (“WHCA”), exclude non-resident alien siblings from the receipt of death benefits. Section 9 of the LHWCA specifically restricts non-resident alien beneficiaries to spouses, children, and dependent parents. See 33 U.S.C. § 909(g) (2011). The relevant language of this exclusion states: “Compensation under this chapter to aliens…shall be the same in amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for that period of one year prior to the date of the injury…” Id. (emphasis added). Additionally, the statutory provisions of the DBA mimic the LHWCA statutes. Section 2 of theRead more
BRB Affirms Fee Shifting After Successful Section 10(f) Litigation
The Benefits Review Board (“BRB”) recently affirmed its earlier decision in Wilson v. Service Employees Int’l, Inc. Following a timely motion for reconsideration, the BRB again examined whether Section 28(b) fees are owed following a refusal to pay Section 10(f) adjustments, which are included within the scope of a permanent total disability recommendation or award as a matter of law. Although the employer continued paying voluntary disability benefits before and after the district director’s written recommendation via correspondence, see 20 C.F.R. § 702.311, it nonetheless litigated the claimant’s entitlement to Section 10(f) adjustments. Because claimant was successful, the BRB held that he was entitled to payment of his attorney’s fee under Section 28(b). Wilson v. Service Employees Int’l, Inc., No. 10-0261 (BRB Feb. 16, 2011). (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Fourth Circuit Addresses the Meaning of “Compensation” in Section 22
The United States Court of Appeals for the Fourth Circuit determined that the term “compensation,” as used in the Longshore and Harbor Workers Compensation Act’s (“LHWCA”) modification provision, does not include voluntary payments to a claimant’s medical providers. See 33 U.S.C. § 922 (1984). Section 22 of the LHWCA provides in pertinent part: “Upon his own initiative, or upon the application of any party in interest [,] … on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case … [and] issue a new compensation order which may terminate, continue, reinstate, increase,Read more
Reasonable Fees for Preparation of a Fee Petition
In a new published opinion, the Benefits Review Board (“BRB”) determined that a claimant’s attorney may recover fees for the time spent drafting a fee petition. Here, the Claimant argued that general federal fee-shifting law applies to the determination of a reasonable fee under Section 28 of the Longshore and Harbor Workers Compensation Act (“LHWCA”). Further, the United States Court of Appeals for the Third Circuit, has determined that attorneys can recover a fee for the reasonable amount of time it takes to prepare a fee petition. The BRB agreed. Although a previous en banc BRB decision disallowed fees for the preparation of a petition on the grounds that the work was not reasonably necessary to protect a claimant’s interest, see Sproull v. Stevedoring Servs. of America, 28 Ben. Rev. Bd. Serv. (MB) 271, 277 (1994) (en banc), subsequent federal appellate decisions held differently. For instance, the Ninth Circuit heldRead more
SCOTUS Addresses Agency Deference for Regulation Interpretation
Recently, the Supreme Court of the United States addressed the deference due to an agency when it is interpreting its own regulations. In Chase Bank USA, N.A. v. McCoy, the unanimous Court concluded inter alia that the Federal Reserve Board’s interpretation of a regulation dealing with the increase of interest rates for a delinquent or defaulting cardholder was reasonable. This decision could be cited for purposes of the Longshore and Harbor Workers’ Compensation Act because it addresses the deference owed to agencies like the Department of Labor. The Court based its holding on Auer v. Robbins, 519 U.S. 452 (1997) (involving the Secretary of Labor). The Court will defer to an agency’s interpretation of its own regulation, even when that interpretation is advanced in a legal brief. In Chase Bank, the Federal Reserve Board’s interpretation was contained in an amicus brief, but that was of no import because the interpretation wasRead more
Section 8(c)(22) And Consecutive Payments for Multiple Scheduled Awards
The Benefits Review Board (“BRB”) recently considered Section 8(c)(22) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), and whether that statute requires consecutive payments for multiple scheduled losses. In Thornton v. Northrup Grumman Shipbuilding, Inc., the Claimant sustained a right knee injury that resulted in a 15% impairment to the right leg. The Claimant then suffered a second injury which resulted in a 43% impairment to his left leg. The Employer accepted both claims and it paid compensation in accordance with the ratings. It first paid the right leg impairment and then it paid for the left leg impairment. While payments for the left leg were ongoing, Claimant’s right leg impairment increased to 50%. The conflict between the parties concerned the start date for the payments associated with the additional right leg impairment. Claimant contended that payments should have started in 2007, when the doctor assigned the increased impairment, and that heRead more
Commercial Diver Was A Longshoreman
In an unpublished decision, the Ninth Circuit determined that a commercial diver qualified for coverage under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). The Employer argued that the diver should be considered a “member of a crew of [a] vessel,” which would preclude him from LHWCA coverage. The Ninth Circuit disagreed, and it applied the coverage test established by the Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995). Under Chandris, a maritime worker who has a substantial connection to a vessel in navigation is excluded from LHWCA coverage. The “rule of thumb” is that a worker who spends less than thirty percent of his time in the service of a vessel in navigation should not be excluded from the benefits offered by the LHWCA. Here, substantial evidence supported the ALJ’s finding that the claimant was a longshoreman. American Marine Corp. v. Director, OWCP, No. 09-73328 (9th Cir. Dec. 20, 2010). (Note: IRead more
Ninth Circuit Publishes Significant Last Responsible Employer Decision
The Ninth Circuit published a new last responsible employer decision based on a mesothelioma death benefits claim made pursuant to Section 9 of the Longshore and Harbor Workers Compensation Act (“LHWCA”). The decision is significant for its treatment of the Section 20(a) presumption and the sequential (as opposed to simultaneous) evidence analysis approach that it will use in last responsible employer cases involving occupational diseases. Pursuant to Section 20(a) of the LHWCA, a claimant is given a presumption that their claim comes within the purview of the LHWCA. To get the presumption, however, a claimant must still make out a prima facie claim alleging that he was injured and that the injury arose both “in the course of” and “out of employment.” In this case, a question arose as to whether a claimant given the Section 20(a) presumption for one employer automatically receives that presumption for all other employers. The Ninth Circuit stated: “ContraryRead more
Federal Claims Court Discusses Differences Between FECA and LHWCA
The United States Court of Federal Claims recently addressed the difference between a Federal Employees Compensation Act (“FECA”) claim and a Longshore and Harbor Workers Compensation Act (“LHWCA”) claim. The matter came before the court following plaintiff’s allegation that the defendant failed to pay plaintiff, a former federal government employee, interest on retroactive compensation payments made pursuant to FECA. The plaintiff argued that because interest is available for LHWCA claimants, it should also be available for FECA claimants. In deciding that it lacked jurisdiction over the claim, the court addressed the differences between FECA and LHWCA: “FECA provides employment compensation for federal government employees. An employee under FECA is defined principally as ‘civil officers or employees in any branch of the Government of the United States.’ 5 U.S.C. § 8101(1)(A). The money to pay these claims comes from congressionally appropriated funds. Id. § 8147. In contrast, the LHWCA is aRead more
