First, there’s a new workers’ compensation blog in town. Louisiana Comp Blog (http://compblog.com/), which is published by LCI Workers’ Comp, looks great. I’m a fan of the design and the content, and I look forward to many insightful discussions in the future. I have already subscribed and I suggest you do the same. The following snippet explains Louisiana Comp Blog’s mission: Louisiana Comp Blog’s fresh and original content ranges from features and profiles of industry leaders to commentary/opinion articles and event coverage. We also publish a daily Comp News Bulletin every morning, which allows our readers to get a head start on their day with the top three to five stories affecting Louisiana’s workers’ comp industry on both the local and national scale. All of this makes us your one-stop source for the best workers’ comp reporting from across Louisiana. Second, we are one month away from the annual DOLRead more
Doctors Were Not Entitled to Intervene in Defense Base Act Case at the OALJ
Claimant was injured while working as a linguist in Iraq. His claim was referred to the Office of Administrative Law Judges (“OALJ”) for adjudication, in part because of a medical payment dispute. Employer paid some of the medical bills in question after it received itemized statements. Believing that the disputed medical payment issue was resolved, Claimant and Employer/Carrier submitted Stipulations which outlined Claimant’s injury, medical treatment, entitlement to benefits, and Claimant’s responsibility to provide itemized invoices and statements for medical expenses. The Administrative Law Judge (“ALJ”) then remanded the claim to the district director at the Division of Longshore and Harbor Workers’ Compensation. While the parties were resolving their issues, but before the ALJ remanded the claim, two doctors attempted to intervene in the Defense Base Act litigation. The doctors alleged that they had not been paid for their treatment of Claimant’s work injuries. After the ALJ remanded the claim,Read more
Benefits Review Board Accepts Electronic Filings
This following notice is posted on the Benefits Review Board’s home page. Notice Regarding Availability of Electronic Filing and Electronic Service All parties to appeals before the Benefits Review Board (BRB) may now use the Board’s Electronic File and Service Request (EFSR) system. The EFSR portal allows parties to file new appeals electronically, receive electronic service of Board issuances, file briefs and motions electronically, and check the status of existing appeals via a web-based interface accessible 24 hours every day in lieu of paper documents. The EFSR system is open to any party to an appeal before the Board. An e-Filer must register as a use and must be validated by the Board before e-filing any document. An e-Filer will complete an online registration form. A valid e-mail address is required to register as an e-Filer. Once registered, an e-Filer will be able to use the EFSR for electronic filingRead more
DOL Issued 2014-15 National Average Weekly Wage Increase for Longshore Claims
On October 1, 2014, the National Average Weekly Wage applicable to Longshore claims (including Longshore extensions like the Defense Base Act) will increase pursuant to Section 10 of the Longshore and Harbor Workers’ Compensation Act. The new compensation rates are: National Average Weekly Wage: $688.51 Maximum Compensation: $1,377.02 Minimum Compensation: $344.26 Percentage Increase: 2.25% (Note: I first published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Do You Need a Medicare Set Aside for Your Longshore or Defense Base Act Settlement?
In every case where a Longshore worker or Defense Base Act contractor agrees to close or limit their right to future medical benefits, the parties must consider whether a Medicare Set Aside is needed. What is a Medicare Set Aside and why is it needed? Essentially, the Centers for Medicare and Medicaid Services (“CMS”) does not want to pay for workers’ compensation injuries. The Medicare Secondary Payer laws protect CMS from workers’ compensation litigants who may want to shift the liability for payment of future medical benefits to CMS. Consequently, in certain situations, the parties to a workers’ compensation settlement must prepare “a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury, illness or disease. These funds must be depleted before Medicare will pay for treatment related to the [injury].” Moreover, CMS will want proof (inRead more
Consolidation of Baltimore Longshore District Office Into the Norfolk Longshore District Office
From the Department of Labor’s e-mail service: The Baltimore Longshore District Office will physically close on September 30, 2014. It will be consolidated into the Norfolk District Office. Prior to the physical closure of the Baltimore District Office, the case work will transition to the Norfolk District Office for maximum efficiency. Therefore, effective September 1, 2014, the Norfolk District Office has jurisdiction over past and future cases under the LHWCA, and its extensions, arising in the states of Delaware, Maryland, Pennsylvania, Virginia, West Virginia and the District of Columbia. All forms submitted for the creation of a new case should still be submitted to the Longshore Central Case Create site in New York City. After a case has been created, all case-specific mail should still be sent to the Longshore Central Mail Receipt site in Jacksonville, FL. For more specifics about this consolidation, including the consolidation’s affect on the DOL’sRead more
Defense Base Act Claimant’s Temporary Job Was Not Suitable Alternative Employment
When an injured Longshore or Defense Base Act claimant cannot return to their usual work, an employer must demonstrate the availability of suitable alternative employment (“SAE”). In many cases, the employer must establish that there are realistically available jobs within the geographic area where claimant resides, which the claimant is capable of performing, considering their age, education, work experience, and physical restrictions. If the employer successfully demonstrates SAE, then the claimant must demonstrate that they diligently tried to secure employment. A potential problem can arise when the claimant actually has obtained work following their injury, but the employment is temporary in nature. That is what happened in McMiller v. Serv. Employees Int’l, a recent unpublished decision from the Benefits Review Board. There, the Board noted that: [W]here an injured employee obtains various temporary jobs following her injury, such fact does not necessarily defeat a claim for total disability. Carter, 14Read more
Great Post at Lexis Discussing Differences Between Longshore Stipulations and Settlements
The LexisNexis Workers’ Compensation Community recently posted a great article entitled, “Resolving Longshore Claims Through Settlements and Stipulations.” The post was authored by Yelena Zaslavskaya, the Senior Attorney for Longshore, Office of Administrative Law Judges. I don’t want to steal any thunder from the post by reprinting portions here. Instead, use this link to access the article. You will find a great discussion about the two most important methods used to resolve Longshore and Defense Base Act claims: stipulations and settlements.
DOL-Joint Bar Association Commented On the Longshore Pre-Hearing Statement, Form LS-18
The DOL-Joint Bar Association recently submitted comments to the Office of Information and Regulatory Affairs to slightly modify the Pre-Hearing Statement, Form LS-18. The Longshore and Harbor Workers’ Compensation Act’s Pre-Hearing Statement, Form LS-18, is an integral part of the administration and adjudication process. Typically, a party submits a Form LS-18 to the Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) after an informal conference, when the parties cannot reach an agreement and the district director must make recommendations. See 20 C.F.R. § 702.316. When a party submits a completed Form LS-18 to the DLHWC, the agency then transfers the case to the Office of Administrative Law Judges (“OALJ”) pursuant to 20 C.F.R. § 702.317. Section 702.317 prohibits the DLHWC from transferring to the OALJ “any recommendations expressed or memoranda prepared by the district director” following the parties participation in an informal conference. Because these recommendations cannot be submitted toRead more
Beach Cleaner Was Not Injured On a Longshore Situs
In an unpublished decision, the Fifth Circuit addressed Longshore and Harbor Workers’ Compensation Act coverage for an employee cleaning beaches after the Deepwater Horizon oil spill. The facts were not disputed: On August 21, 2010, Global [Management Enterprise] employee Librado De La Cruz was allegedly injured while lifting a bag of oil-laden sand that would later be loaded onto a truck and transferred to a vessel for removal. It is undisputed that De La Cruz spent up to two hours actively loading and unloading the vessel at the pier, and six or seven hours cleaning the beaches. At the time of the incident, De La Cruz was working on a beach located a few feet from Gulf waters and around a half-mile from the pier at which the vessel docked. After his injury, Global’s insurer began paying state workers’ compensation benefits. De La Cruz then filed a Longshore Act claimRead more
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