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
The Scope of Repair Included the Defective Hatch Cover
Employees (Plaintiff and Intervenor) of Loredo Construction, Inc. (“LCI”), one of the named defendant in Plaintiff’s and Intervenor’s claims under Section 905(b) of the Longshore and Harbor Workers Compensation Act, filed suit against LCI and The Grand, Ltd., because of an accident that occurred while The Grand’s vessel was placed in drydock for repairs. The Grand owned the subject vessel, a derrick barge, and turned it over to LCI for repairs. Plaintiff and Intervenor were assigned the responsibility of repairing and refurbshing the vessel, including the pressure testing of tank P1. Testing P1 required Plaintiff and Intervenor to seal the tank with a hatch cover. While doing so, “the hatch came off while still under pressure, causing the accident that is the subject of this suit.” LCI and The Grand filed motions for summary judgment. LCI contended that it did not own or operate the vessel, and it did not breach any duty a vesselRead more
Sufficient Explanation of MMI Onset Necessary
In a short unpublished decision, the United States Court of Appeals, Sixth Circuit, vacated the decision of the Benefits Review Board and remanded the case to the Administrative Law Judge. As quoted by the Sixth Circuit, the Administrative Procedure Act requires the factfinder to render a decision that includes a discussion of “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.” 5 U.S.C. § 557(c)(3)(A). Here, the ALJ determined without sufficient explanation that the claimant reached MMI upon his failed attempt to return to work. The Sixth Circuit casted doubt on this unexplained finding: “[w]hile Williams’ inability to perform his prior job duties may indicate that he was permanently disabled as of May 31, 2005, it does not necessarily indicate that this was the date he reached MMI.” Marathon Ashland Petroleum v. Williams, 2010 WL 2711316 (6thRead more