In claims filed under the Longshore Act, there is no requirement that psychological injuries be accompanied by actual or threatened physical harm. So says the Fourth Circuit in its new unpublished decision, Ceres Marine Terminals, Inc. v. Director, OWCP. In a prior post, I wrote about the oral arguments in this case, and how employers and carriers approach psychological injury claims under both the Longshore Act and the Defense Base Act. The facts of this case are tragic. The claimant was operating a forklift when he struck and killed a co-worker. The claimant testified that the co-worker was bleeding from her mouth. Her leg was wrapped around the the axle of the forklift. While waiting ten minutes for the ambulance to arrive, the claimant stood ten to fifteen feet away from the co-worker. Once the co-worker was transported to the hospital, the claimant spent the day explaining the accident toRead more
Disclosing Defense Attorney’s Time Sheets in Fee Disputes
Attorney fees are heavily disputed in Defense Base Act and Longshore and Harbor Workers’ Compensation Act claims. In most cases, the injured worker’s fees shift from the worker to the employer and carrier. When fees shift, then the employer and carrier must pay the worker’s attorney. See 33 U.S.C. § 928. That’s where the arguments start. One common argument focuses on the time that a claimant’s attorney spent working on the case. Employers and carriers may argue that the attorney spent too much time on the file (i.e., that attorney spent an unreasonable amount of time litigating their claimant’s case). It should come as no surprise that the claimant attorneys take umbrage with these arguments. Some have suggested that defense attorneys should disclose the hours that they billed while defending a claim before attacking the hours that an injured worker’s attorney spent working on the claim. In fact, there wasRead more
Loyola’s Annual Longshore Conference 2016
Every year, the Loyola University New Orleans College of Law presents the Annual Longshore Conference. This is the “go-to” conference for all Longshore and Defense Base Act industry professionals. This year’s conference should delight. All district directors are attending and speaking, as are all of the Office of Administrative Law Judges’ district chiefs. This is a rare gathering of all the Longshore and DBA elite. For more information about the conference, visit Loyola’s Continuing Legal Education webpage. For ease of reference, I’ve reprinted the schedule below: Thursday, March 10, 2016 7:30 a.m. – 8:15 a.m. Registration 8:15 a.m. – 8:30 a.m. Introduction and Announcements 8:30 a.m. – 9:30 a.m. Significant Judicial Decisions Impacting Claims Arising Under the Acts and its Extensions 9:30 a.m. – 10:15 a.m. A National Overview of the Office of Workers’ Compensation Programs 10:15 a.m. – 10:30 a.m. Break 10:30 a.m. – 12:00 p.m. Practice Before theRead more
Fourth Circuit Case Tests Coverage for Psych Injuries
There’s an important psychological benefits case pending in the Fourth Circuit. The scope of the case–called Ceres Marine Terminals, Inc. v. Director, OWCP–is amazingly broad. And although it is a Longshore and Harbor Workers’ Compensation Act case, the ripple effect could cause considerable waves for defense contractors with psychological injuries. There are multiple issues in Ceres Marine–too many to address in a single blog post. For now, I am focusing on each party’s statements about psychological injuries under the Longshore Act, and by extension the Defense Base Act. The Briefs: First, let’s look at the written submissions from the parties. I’ve highlighted in bold some of the more interesting statements and phrases. Here is the Summary of the Argument section from Ceres Marine’s Opening Brief: This appeal has two primary issues. First, does the reasoning of the United States Supreme Court decision in Consolidated Rail Corp. v. Gottshall, 512 U.S.Read more
Longshore and Defense Base Act Developments of 2015
It’s time to look back at some of the Longshore and Defense Base Act developments of 2015. Zone of Special Danger: My favorite case this year was the First Circuit’s Battelle Memorial Institute v. DiCecca. In DiCecca, retired Supreme Court Associate Justice David Souter explored the broad scope of the zone of special danger doctrine. Essentially, in Defense Base Act cases, the zone of special danger doctrine can be used by injured workers to secure coverage for injuries that occur outside of the course and scope of typical work duties. Like the Supreme Court said in O’Leary v. Brown-Pacific-Maxon, 430 U.S. 504, 507 (1951): Workmen’s compensation is not confined by common-law conceptions of scope of employment. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Nor is it necessary that the employee be engaged at the time ofRead more
Employer Denied Section 8(f) Relief Based on Sufficiency of Report
The Longshore and Harbor Workers’ Compensation Act contains a provision whereby employers and carriers can secure economic relief for the future benefits owed to an injured worker. But there are specific requirements to obtain the relief. Pursuant to Section 8(f) of the Longshore Act, an employer must show that the employee in question had a preexisting permanent partial disability, which made the employee’s ultimate permanent partial disability “materially and substantially greater than that which would have resulted from the subsequent injury alone.” See 33 U.S.C. § 908(f) (1984). In a new unpublished Second Circuit case, the employer sought Section 8(f) relief for an injured worker who had preexisting asthma. Relief had been denied because the administrative law judge (“ALJ”) found that the employer failed to show how the asthma “materially and substantially” contributed to the injured worker’s subsequent work-related lung injury. Both the Benefits Review Board and the Second CircuitRead more
Proving the Prima Facie Case Per the 5th Cir.’s New Decision
A new decision from the Fifth Circuit is important for Longshore and Defense Base Act cases because it explains the Section 20(a) presumption that runs in favor of claimants. Below, I first address the opinion, Ramsay Scarlett v. Director, OWCP. After that, I give my take away from the case. Ramsay Scarlett v. Dir., OWCP: The case involved an injured employee of Ramsay Scarlett & Company. The employee, Ferdinand Fabre, had worked for Ramsay Scarlet for 30 years (from 1969 to 1991). After Ramsay Scarlett, Mr. Fabre worked for Westway at the Port of Baton Rouge. Both Ramsay Scarlett and Westway were covered by the Longshore and Harbor Workers’ Compensation Act. In 2011, Mr. Fabre received an asbestosis diagnosis. The parties did not dispute the fact that Mr. Fabre was exposed to asbestos while working with Ramsay Scarlett. Accordingly, Mr. Fabre filed a claim for Longshore benefits, which he won.Read more
Board Addresses ALJ Review of Attorneys Fees in Settlements
The Benefits Review Board issued a pair of unpublished attorney fee decisions that are interesting when read in tandem. The decisions address attorneys fees paid pursuant to a settlement agreement after the employer/carrier negotiated a fee amount with the claimant’s attorney. The parties to Longshore and Defense Base Act claims may voluntarily settle their disputes, provided that the settlement is adequate and was not procured by duress. See 33 U.S.C. 908(i). The parties can include a fee for the claimant’s attorney in their settlement agreement. Once an agreement is reached, the parties submit their settlement to an adjudicator. For this post, assume that the adjudicator is an administrative law judge (“ALJ”). After receipt of the settlement application, the ALJ must take one of the following four actions within 30 days: Issue a deficiency notice if the application is incomplete; Approve the settlement if it is adequate and not procured byRead more
Requirements for a Longshore or DBA Settlement
Want to know what goes into a Longshore or Defense Base Act settlement? Look no further than the Code of Federal Regulations. A Longshore or Defense Base Act settlement is technically a settlement application, not a settlement agreement. The parties negotiate an agreement between themselves, but a third party must approve the written application describing that agreement before the agreement takes effect. As such, the parties to a claim submit their settlement application to either an Office of Workers Compensation Programs’ district director or an administrative law judge. The adjudicator will determine whether the settlement is adequate. Typically, this determination is made within thirty days. See 20 C.F.R. § 702.243(b). What is “adequate”? It depends on the facts and circumstances of the individual case, which the adjudicator must consider. Specifically, the Code of Federal Regulations states: (f) When presented with a settlement, the adjudicator shall review the application and determine whether, considering all the circumstances, including, where appropriate,Read more
Louisiana 4th Circuit Vacates State Work Comp Dismissal
Louisiana does not have concurrent jurisdiction between the state workers’ compensation scheme and federal workers’ compensation schemes. Louisiana Revised Statute 23:1035.2 provides that “[n]o compensation shall be payable in respect to the disability or death of an employee covered by the Federal Employer’s Liability Act, the Longshoremen’s (sic) and Harbor Worker’s Compensation Act, or any of its extensions, or the Jones Act.” If one of those acts apply, then the Louisiana Workers’ Compensation Act does not. In a new case, Johnson v. ACE American Insurance Company, Louisiana’s Fourth Circuit explored–albeit briefly–the lack of concurrent jurisdiction in Louisiana. The plaintiff sustained a work-related injury while aboard a boat that was involved in a collision on the Grand Pass. The injured worker filed claims under both the Louisiana Workers’ Compensation Act and the Longshore and Harbor Workers’ Compensation Act. At a hearing on exceptions filed by the defendants, the workers’ compensation judge (“WCJ”) determined that theRead more
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