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
OALJ Requires New Subpoena Forms
Starting today, the Office of Administrative Law Judges (“OALJ”) requires the use of new subpoena forms. Until today, the OALJ used a single subpoena form regardless of the nature of the subpoena. Now, practitioners must use three new forms: (1) Subpoena to Appear and Testify at a Hearing; (2) Subpoena to Appear and Testify at a Deposition; and (3) Subpoena to Produce Documents, Information or Objects, or to Permit Inspection of Premises. The Acting Chief Administrative Law Judge’s implementation memorandum can be found here. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Ninth Circuit: “Award” Does Not Necessarily Refer to a Compensation Order
In a new published opinion, the Ninth Circuit addressed Section 6(c) of the Longshore and Harbor Workers’ Compensation Act. Section 6(c) states: “Determinations under subsection (b)(3) [which deal with the determination of the national average weekly wage] with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.” Although the court focused on the meaning of the words “award” and “awarded,” the holding essentially addressed when those words are synonymous with “entitlement.” In Roberts, the claimant injured his neck and shoulder when, in 2002, he slipped on a patch of ice. His employer voluntarily paid compensation, but those payments stopped in May 2005. Following a hearing before an administrative law judge (“ALJ”), the court awarded claimant temporary total disability (“TTD”) from March 11, 2002 through July 11, 2002;Read more
A Section 10(f) Increase Is “Greater Compensation”
In a new published opinion, the Benefits Review Board determined that claimant’s counsel was entitled to shifting attorneys fees because an award of Section 10(f) increases amounted to an award of “greater compensation” for purposes of the Longshore and Harbor Workers’ Compensation Act’s attorney fee provisions. In Wilson, the claimant worked as a truck driver for employer at the time he injured his neck, spine and right knee. The employer voluntarily paid claimant temporary total disability benefits at the maximum compensation rate, and claimant filed a claim for permanent total disability (“PTD”) benefits. Thereafter, an informal conference was held by correspondence, and the district director issued a recommendation that claimant was entitled to PTD benefits until suitable alternative employment was demonstrated. Further, the lower court determined that claimant was entitled to continuing PTD benefits and Section 10(f) increases, but it nonetheless refused to shift attorneys fees. The Board determined that while the district director did notRead more
New York: Concurrent Jurisdiction for State Comp and LHWCA Claims
A dock builder was injured when he fell while stepping from a pier onto a barge. He applied for benefits under New York’s state workers’ compensation laws, but the employer and carrier made payments to claimant pursuant to the Longshore and Harbor Workers’ Compensation Act. At a hearing, the employer argued that the New York Workers’ Compensation Board had no jurisdiction over the claim. The New York Supreme Court, Appellate Division, Third Judicial Department disagreed. It found that there was “concurrent jurisdiction among state workers’ compensation laws and the LHWCA over claims arising from land-based injuries compensable under the LHWCA.” The court distinguished those cases falling under other federal schemes, like the Jones Act or Federal Employers’ Liability Act, which provides the “exclusive remedy” for such injuries. Rodriquez v. Reicon Group, LLC, — N.Y.S.2d —-, 2010 WL 4117396 (App. Div. 2010). (Note: I originally published this post on Navigable Waters: ARead more
Injunction Ordering Payment of Maintenance and Cure Was Improper
In a slip opinion, the United States Court of Appeals for the Third Circuit vacated a District Court’s injunction ordering the payment of maintenance and cure. In Collick, the claimant alleged that he was injured while working in conjunction with a crane barge. The claimant slipped and fell, sustaining a severe leg fracture requiring multiple surgeries. Physicians opined that the claimant, who was in constant pain, would never again perform such physically demanding work. Initially, the claimant’s employer began paying benefits under the Longshore and Harbor Workers’ Compensation Act. Then, once the claimant filed the instant suit wherein he demanded maintenance and cure, the employer discontinued Longshore benefits. By filing his suit, the claimant raised a question as to whether he was entitled to Longshore benefits as he may not be a longshoreman. The claimant then sought a preliminary injunction forcing the employer to pay him maintenance and cure, which theRead more
What is Commutation and How is it Calculated?
Commutation is a procedural remedy whereby an insurance carrier may reduce specific Longshore and Harbor Workers Compensation Act (“LHWCA”) or Defense Base Act (“DBA”) benefits owed to a foreign national by one-half. Although death benefits owed a foreign national under the LHWCA may be commuted (see 33 U.S.C. § 909(g) and 20 C.F.R. § 702.142), commutations typically arise in situations involving Defense Base Act claimants who are “nonnationals of the United States not residents of the United States or Canada…” See 42 U.S.C. § 1652(b). For LHWCA purposes, commutations only apply to Section 9 death benefits, but for the DBA, commutations are available for both death benefits and Section 8(c)(21) indemnity benefits. Calculating a commutation value of a death benefits claim requires knowledge of the current National Average Weekly Wage (“NAWW”) percent increase, the current interest rate for a one-year constant maturity, the claimant’s life expectancy, and the claimant’s currentRead more
Under LHWCA, State Law Controls Allocation of Fault to Non-Maritime Third Party
In Jowers v. Lincoln Elec. Co., — F.3d —-, 2010 WL 3341651 (5th Cir. 2010), Plaintiff, a supervisor and foreman for Ingalls, a shipbuilding contractor, instituted in the United States District Court for the Southern District of Mississippi a products liability action under Mississippi law. Plaintiff alleged that the welding consumables he used during his career emited fumes containing manganese, which could cause serious neurological diseases. Prior to the lawsuit, two neurologists diagnosed Plaintiff with manganese-induced Parkinsonism. At the trial, the court awarded Jowers $1,200,000 in compensatory damages and $1,700,000 in punitive damages, but the compensatory portion of the award was reduced by 40% to take into account the Plaintiff’s own fault. Although the Fifth Circuit addressed multiple issues on appeal, such as the government contractor defense and evidentiary rules, the court’s statements regarding allocationof fault and the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) are most important for our purposes. The LHWCA provides workersRead more
Meaning of the Word “Dependency” For Parental Dependency Claims Under the LHWCA
In a published decision, Urso v. MVM, Inc., the Benefits Review Board tackled the meaning of the word “dependency” as used in the Longshore and Harbor Workers Compensation Act and the Internal Revenue Code. In Urso, the decedent’s parents claimed death benefits under Section 9(d) of the LHWCA. If there is no surviving spouse or child, then Section 9(d) provides “support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, and any other persons who satisfy the definition of the term ‘dependent’ in section 152 of title 26 of the United States Code, but are not otherwise eligible under this section, 20 per centum of such wages for the support of each such person during such dependency and for the support of each parent, or grandparent, of the deceased if dependent upon him at the time of the injury, 25 per centum ofRead more
