Earlier this week, the Benefits Review Board (“BRB”) issued its published decision in Richardson v. Huntington Ingalls, Inc. Regular readers of this blog will recognize Richardson as the interesting case about Section 8(i) settlement agreements. To recap, the claimant and the employer/carrier, both represented by attorneys, entered into a settlement that the District Director disapproved because of adequacy concerns. The parties referred the claim to the Office of Administrative Law Judges, added another $500 to the total settlement amount and asked the judge to issue an Order approving the settlement. A dispute arose between the two represented parties and the Solicitor of Labor’s office. The Solicitor (on behalf of the Director) argued that the settlement was not adequate. The judge disagreed and issued the settlement Order. The Solicitor appealed to the BRB. The BRB agreed with the administrative law judge, and in doing so, published a very significant opinion discussingRead more
How Does DLHWC Divide Longshore Death Benefits Between Spouse and Child When the Maximum Compensation Rate Applies?
Today’s post discusses different methods employed by the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) for the calculation of death benefits between a surviving spouse and a surviving child when the total weekly amount owed for compensation is capped at the applicable maximum compensation rate. This topic is best analyzed with a hypothetical, so here are our facts: (1) Decedent’s average weekly wage at the time of death was $2,500. (2) The maximum compensation rate in effect at the time of death was $1,325.18. (3) Decedent is survived by a spouse and a child. (4) Decedent’s spouse is not the mother of the child; and the child resides with his mother. When a Longshore or Defense Base Act employee is killed in a work-related injury, his beneficiaries are most likely entitled to death benefits. The calculation of death benefits is controlled by Section 9 of theRead more
Around the Longshore and Maritime Blogosphere
Happy Friday, everyone. Here are some great Longshore and maritime related posts that I recommend reading. The LexisNexis Workers’ Compensation Law Community published two interesting articles. First up is Karen Koenig’s Update from the Benefits Review Board (May 2014). In addition to important statistics about the Board’s caseload, the article addresses the Board’s recent interpretation of Section 2(3)(F) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). Congress amended Section 2(3)(F) in 2009. It now excludes from coverage “individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessels, or to dismantle any part of a recreational vessel in connection with the repair of such vessel . . . if [the individual is] subject to coverage under a state workers’ compensation law.” Next up is The Loyola Current, which is published by the Loyola New Orleans Maritime Law Journal. Recent postsRead more
The BRB Went on an Attorney Fee Tear in Early 2014
Did anyone else notice that the Benefits Review Board went on a tear in January and February 2014 with respect to Longshore attorney fee decisions? See below: Leffard v. Eagle Marine Servs., BRB No. 13-0199 (Jan. 17, 2014) (addressing hourly rate, fee petition evidence, and time spent preparing a response to employers’ objection to claimant’s counsel’s fee petition). Richey v. Premiere, Inc., BRB No. 13-0216 (Jan. 17, 2014) (affirming award of Section 28(a) fees for failing to pay compensation within 30 days). Modar v. Maritime Servs. Corp., BRB No. 13-0319 (Jan. 17, 2014) (affirming district director’s decision to “enhance counsel’s attorney’s fee for services performed in 2004 and 2005 by using 2008 hourly rates rather than 2012 hourly rates….”). Huggins v. Massman Traylor Joint Venture, BRB N. 13-0223 (Jan. 28, 2014) (affirming ALJ’s reduction of fees by 30% based on claimant’s limited success in obtaining benefits.). Keniston v. Crowley MarineRead more
Fourth Circuit Denies LHWCA Attorney’s Fees Because Compensation Was Paid Within 30 Days
In a new, important Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision, the Fourth Circuit addressed Section 928(a) attorney’s fees and the meaning of “compensation” for that statute. In Lincoln v. Dir., OWCP, the employee filed a hearing loss claim on May 24, 2011. Two days later, the employer filed a notice of controversion explaining that it accepted the fact that the employee’s hearing loss was noise-induced, but that it need additional information to determine the correct disability payment. The OWCP did not formally serve notice of the claim on the employer until June 14, 2011. Then, on July 7, 2011, the employer voluntarily paid the employee $1,256.84, amounting to compensation for “0.5% [binaural] hearing loss” and the equivalent of one week of PPD pay under the maximum compensation rate. Ultimately the claim settled for the value of a 10% binaural hearing loss. The issue in this case arose whenRead more
BRB: Adult Child On Social Security Was Not Entitled to Death Benefits
The Benefits Review Board (“BRB”) published a new opinion addressing the definitions of “child” and “dependent,” as used in the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). During his employment for a number of employers, Claimant’s father (“Decedent”), was allegedly exposed to asbestos and welding fumes. After Decedent passed away, Claimant’s mother filed a claim for death benefits. Claimant also filed a claim for death benefits as a wholly dependent, disabled “child.” At the time of Decedent’s death, Claimant was an adult. At the outset, the administrative law judge (“ALJ”) determined that Claimant was not a “child” under Section 9(b) of the LHWCA. Section 9 provides for the payment of benefits to a surviving child, or surviving children, following the work-related death of their parent. But, the claimant must be a “child,” as defined by Section 2 of the LHWCA, 33 U.S.C. § 902(14): “Child” shall include a posthumous child,Read more
SCOTUS Refuses to Hear Appeal of Longshore Modification Decision
On February 24, 2014, the Supreme Court of the United States denied certiorari in Cox v. Director, OWCP, which was a Longshore decision from the Fifth Circuit. The holding in the unpublished Fifth Circuit case–a case dealing with Section 22 modification–was: Addressing the remaining issues, the ALJ did not err denying Cox’s Motion for Modification or granting Employer’s Motion for Summary Decision denying Cox’s Second Motion for Modification. Under the LHWCA, once the claimant has established that he is unable to return to his former employment due to a work-related injury, the burden shifts to the employe rto demonstrate that the claimant retains the capacity to earn wages in a regularo job by showing the availability of suitable alternative mployment which the claimant is capable of performing. When an employer offers of a suitable job within the partially disabled claimant’s current place of work, that is sufficient to discharge theRead more
Alabama: Prior Longshore Settlement Not Determinative of Seaman Status
Purdue and Williams worked as line handlers for a shipping company that provided line-handling services to vessels docking and undocking at various terminals in the Port of Mobile. Much of Purdue’s and Williams’s work was performed dockside, but they sometimes worked on line-handling boats maintained by their employer. On June 19, 2008, while performing their line handler duties aboard one of their employer’s boats, an accident occurred. Purdue and Williams were hooked to an ocean-going tanker when the tanker’s lines began to retract, pulling their 17-foot boat from the water. As a result, Purdue’s and Williams’s boat capsized. Purdue was able to climb to the top of the capsized boat but Williams, who could not swim, drowned. A few months later, Purdue and a representative of the Williams estate filed suit against their employer, as well as Groton Pacific and International Tanker Management (the ocean-going tanker’s managers). They alleged thatRead more
Claimant Was Fired For Failing to Wear a Life Vest, Not Because He Filed a Longshore Claim
Claimant worked as a welder for Employer. On June 4, 2010, Claimant injured his low back and groin while lifting an empty gas cylinder. Claimant took one month off of work, during which time he received temporary total disability benefits. On July 1, 2010, Claimant returned to work. Employer’s safety agent told Claimant to wear an employer-provided fire-retardant life vest instead of a personal non-fire-retardant life vest. Claimant refused. The next day, Claimant was terminated for insubordination and disrespectful conduct. Afterwards, Claimant filed a Section 49 discrimination claim. The Longshore and Harbor Workers’ Compensation Act (“LHWCA”) prohibits employers from discharging or discriminating against an employee based on his claiming or attempting to claim compensation under the LHWCA. To establish a prima facie discrimination claim, the claimant must demonstrate that his employer committed a discriminatory act motivated by discriminatory animus or intent. Claimant could not do so in this case: ClaimantRead more
DLHWC: Further Clarification About Industry Notice No. 144 Procedures
From a mass e-mail submitted by the Division of Longshore and Harbor Workers’ Compensation: The DLHWC went live with consolidated case create (CCC) in New York and central mail receipt (CMR) processing in Jacksonville on December 2, 2013. We appreciate everyone’s cooperation to date in making this improvement in efficiency as smooth as possible. With over a month behind us, we would like to share with you some tips that will make the processing more efficient and better enable the DLHWC to serve its stakeholders. When submitting documents to us, please adhere to the following guidelines: 1. Do Not Send Case Specific Mail to the District Offices – Only send it to New York for case create, and thereafter to Jacksonville. 2. OWCP Case Number on Every Document – If a case number has been assigned by OWCP, the case number should be on every document submitted. For example if you areRead more
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