A new decision from the Benefits Review Board addresses the use of medical records releases in Longshore and Defense Base Act claims. This is an important issue if for no other reason than medical records releases are an every-day part of administering and litigating claims. The decision is Mugerwa v. Aegis Defense Services. What is a Medical Records Release? Essentially, a medical records release is a document that the claimant signs to give a specified individual or business entity access to medical records. Claimants may hear this referred to as a “medical authorization” or “HIPAA release.” Can a Court Compel a Claimant to Sign a Release? The first question answered by the Board was whether an administrative law judge has the authority to issue an order compelling a claimant to sign medical releases as a part of the discovery process. Yes, the judge can issue that order. But there are significant limits.Read more
New Procedure for Filing Longshore and DBA Claims
There is a new way to file Longshore and Defense Base Act claims. Beginning March 1, 2018, cases may be fax filed using the following number: (202) 513-6814. Case create forms include the: LS-201 (Notice of Employee’s Injury or Death); LS-202 (Employer’s First Report of Injury or Occupational Illness); LS-203 (Employee’s Claim for Compensation); and LS-262 (Claim for Death Benefits). New claims may also be filed by mail. But, there is a new address for filing a new claim. New claims should be sent to: United States Department of Labor, Office of Workers’ Compensation Programs, Division of Longshore and Harbor Workers Compensation, 400 West Bay Street, Suite 63A, Box 28, Jacksonville, FL 32202. Keep in mind that the preferred method for receiving “case create forms” is via facsimile. More information about the new filing procedures is available on the Division of Longshore and Harbor Workers’ Compensation’s website. Specifically, the information is available inRead more
With Moody, Fourth Circuit Issues Important Longshore Retirement Opinion
We are only three days into 2018, and the Fourth Circuit may have just published the most important Longshore case of the year. The case is Moody v. Huntington Ingalls, and it addresses the concept of “retirement” as it relates to the Longshore’s definition of “disability.” Factual Background: Mr. Moody began working for Huntington Ingalls when he was 20 years old. He continued working for Huntington for 45 years. In June 2011, Huntington told Mr. Moody that he was assigned to a new shift. Unhappy with the shift, Mr. Moody gave Huntington the requisite 90-day notice of retirement, effective October 31, 2011. But then, on September 19, 2011, Mr. Moody injured his shoulder while working at the shipyard. He tore his rotator cuff. Still, Mr. Moody continued working at the shipyard until he retired on October 31st. Six weeks later, on December 13, 2011, Mr. Moody underwent shoulder surgery. Mr. Moody’sRead more
Jones Act Lawsuits After Longshore Settlements
An appellate court in the State of Washington just answered an interesting question about an intersection between the Longshore Act and the Jones Act. The issue was “whether an injured maritime worker who accepts voluntary benefits and settles his claim under the Longshore and Harbor Workers’ Compensation Act (LHWCA), when there is no adjudication of his status as a non-seaman under the LHWCA, is barred from pursuing claims against the vessel owner for personal injuries under the Jones Act.” Apparently not. The court held “that, because Jeremy Gibson’s maritime worker status as a non-seaman was never adjudicated under the LHWCA and the compensation order did not expressly resolve this issue under the LHWCA . . . Gibson’s Jones Act claims are not barred, and election of remedies, equitable estoppel, and collateral estoppel do not apply.” The facts of the case are fairly simple. The injured worker fell through a hatchRead more
Recovery of the Written Off Amount of Medical Bills?
The Fifth Circuit recently published a maritime decision that may have an effect on Longshore and Defense Base Act claims. The issue was whether the collateral-source rule allows a plaintiff to recover the unpaid, written-off portion of his billed medical expenses, when the remaining, paid portion of the billed expenses was through Longshore work comp insurance. Insurance companies do not pay the full price of any medical bills. Instead, a negotiated amount is paid. This issue addresses the difference between the face value of the medical bill and the amount paid. What is the collateral-source rule? Basically, the person who commits the tort cannot reduce his liability by the amount a plaintiff recovers from another, independent source. In its simplest form, the rule asks whether the tortfeasor contributed to, or was otherwise responsible for, a particular income source. See Bourque v. Diamond M. Drilling Co., 623 F.2d 351, 354 (5th Cir.Read more
Senator Isakson’s Prior Attempts to Amend the LHWCA and DBA
The 2016 election season is in the books. As I watched the returns, I noticed that Senator Johnny Isakson was reelected in Georgia. This is important for the Longshore and Defense Base Act community because Senator Isakson has been one of the leading voices proposing amendments to the Longshore and Harbor Workers’ Compensation Act. Nearly any amendment made to the Longshore Act will necessarily affect the Defense Base Act. Take a look at Senate Bill S. 669, which Senator Isakson introduced to the Senate on March 29, 2011. Some of the changes are good. For example, funeral benefits presently pay out at $3,000. That amount has not been increased since 1984. An increase to $7,500 (if not more) is warranted. Other proposed amendments are game-changers. The four that should stick out to claimants include: Incorporating a proportional payment system whereby disability payments can be reduced by prior disability ratings orRead more
Retirement of a Longshore and Defense Base Act Legend
Richard V. Robilotti announced his retirement. Make no mistake, this is the retirement of a legend in the Longshore and Defense Base Act community. Mr. Robilotti is the district director for the Second Compensation District of the Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) in New York. For forty years, Mr. Robilotti has been in charge of Longshore claims arising in New York, New Jersey, Puerto Rico and the Virgin Islands. Further, the New York office–for the longest time–was the go-to Defense Base Act office. Every claim that arose in Iraq and Afghanistan went to Mr. Robilotti’s desk, including claims made by local and third country nationals. My contact with Mr. Robilotti began when I first started practicing law. I graduated law school just as the Defense Base Act was heating up. At that time, the Second Compensation District was the only DLHWC office that I dealt with. Mr.Read more
2016-2017 National Average Weekly Wage Increase
The Office of Workers’ Compensation published the new National Average Weekly Wage for the 2016-2017 fiscal year. National Average Weekly Wage: $718.24 Maximum Compensation Rate: $1,436.48 Minimum Compensation Rate: $359.12 Percent Increase: 2.17% Click on this hyperlink to access the NAWW chart spanning from 1973 to 2017.
Proposed Rules on Max. and Min. Comp Rates in Longshore Claims
The Office of Workers’ Compensation Programs has published a new proposed rule pertaining to an injured worker’s compensation rate. The rule addresses the Longshore and Harbor Workers’ Compensation Act’s maximum and minimum compensation rate, and how to apply a particular rate to a particular injury. The proposed rule applies to the Longshore Act’s extensions, like the Defense Base Act. Letter from the DLHWC: The Director of the Division of Longshore and Harbor Workers’ Compensation, Antonio Rios, issued an explanatory letter on August 26, 2016. The letter stated, in pertinent part: The National Average Weekly Wage has historically risen from year to year, and this determination affects the maximum and minimum compensation rates under Section 6. Questions regarding which fiscal year’s maximum wage applied in various situations led to litigation. These questions have now largely been resolved through decisions of the courts of appeals and the Supreme Court. To provide clarityRead more
Fifth Circuit Addresses Longshore Vessel Status and “Substantial Nexus”
The Fifth Circuit issued a new decision affirming the denial of benefits under both the Longshore and Harbor Workers’ Compensation Act and the Outer Continental Shelf Lands Act. The decision turned on two issues: whether a particular watercraft was a legal “vessel” and whether Claimant’s job activities had a substantial nexus to operations on the Outer Continental Shelf. Factual Background: Claimant worked as a marine carpenter building housing modules designed for use on a tension leg offshore platform named Big Foot. After an alleged injury, Claimant filed a claim for benefits under the Longshore and Harbor Workers’ Compensation Act as a shipbuilder. He also argued–in the alternative–that his claim was covered by the Outer Continental Shelf Lands Act. (“OCLSA”) Both the Administrative Law Judge and the Benefits Review Board disagreed with Claimant’s assertion. First, Longshore benefits were denied because the Big Foot was not a “vessel,” thus preventing Claimant fromRead more
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