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
Fifth Circuit: Longshore Modification Statute Has a Broad Scope
Claimant injured his right knee while working for Employer on an oil production platform. Over the next month, Claimant’s left knee began hurting, too. Claimant performed light duty work for Employer until he was terminated. Not long thereafter, Claimant filed a Longshore and Harbor Workers’ Compensation Act (“LHWCA”) claim. Initially, the administrative law judge (“ALJ”) denied the claim, but the Benefits Review Board (“BRB”) reversed. On remand, the ALJ awarded closed periods of temporary partial and temporary total disability benefits. Prior to the passage of one year, Claimant filed a Section 22 modification application. The ALJ modified the previous judgment to provide for permanent partial disability benefits equal to a 25% impairment of each knee. The BRB affirmed and Employer appealed to the Fifth Circuit, which also affirmed. The Fifth Circuit addressed the two avenues by which a party to a LHWCA claim may move for a Section 22 modification: (1)Read more
Plaintiffs’ DBA Claims Dismissed By Federal Court For Failure to Exhaust Administrative Remedies
Plaintiffs, both former military subcontractors, sued Employer in federal court, alleging that Employer fired Plaintiffs in retaliation for one of the Plaintiffs filing a workers’ compensation claim. Employer argued that Plaintiffs failed to exhaust their administrative remedies by failing to adjudicate their Defense Base Act (“DBA”) claim before the Division of Longshore and Harbor Workers’ Compensation or the Office of Administrative Law Judges (“OALJ”). The United States District Court for the District of Columbia agreed and dismissed the Plaintiffs complaints. The Defense Base Act (“DBA”) is an extension of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). As such, the provisions of the LHWCA apply to DBA claims unless the DBA contains specific provisions to the contrary. For this case, the court addressed the LHWCA’s discrimination provision, 33 U.S.C. § 948a, which applies to DBA claims. Section 948a states: It shall be unlawful for any employer or his duly authorizedRead more
Beach Cleanup Work Was Not Covered By the Longshore Act
Claimant alleged multiple health issues stemming from her work as an “oil recovery technician” in Prince William Sound in 1989. At that time, Claimant worked for Employer, which was contracted to conduct clean-up operations after the Exxon Valdez oil spill. Claimant’s employment required that she live aboard a cruise vessel located on the Prince William Sound. Each day, a small landing craft would take her to shore where she would use special equipment to clear the beach of oil. At the end of her day, Claimant would return to the cruise vessel which constituted her living quarters. Before a formal hearing took place, the administrative law judge asked for briefs on Longshore situs and status. Thereafter the judge granted summary decision in Employer’s favor, determining that Claimant did not meet the Longshore status requirements. Cleaning oil from beaches did not involve loading, unloading, constructing and/or repairing vessels. Ultimately the Benefits Review Board reversedRead more
Longshore Articles Around the Blogosphere
Here are some recent gems: LexisNexis’ Workers’ Compensation Law Community published Vickers Decision: Inapplicability of Sec. 20(a) Presumption to Secondary Conditions Under the LHWCA. As the name suggests, the article addressees the applicability (or, rather, inapplicability) of the Section 20(a) presumption to “secondary conditions.” The AEU Longshore Blog published Issue: Exemption for Small Vessel Facilities, which identifies the procedure for obtaining an exemption certificate. Finally, John’s Longshore and Defense Base Act Blog published No Intentional Tort Exception Under the Outer Continental Shelf Lands Act, wherein John Chamberlain addresses the Western District of Louisiana’s recent Latimer decision. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
DLHWC Issued Industry Notice 144
From Director Antonio Rios: Effective December 2, 2013, the DLHWC is consolidating its case create and mail receipt processing in centralized locations. The New York District Office will be the Central Case Create site and will create cases for all injuries/deaths under the LHWCA, and its extensions, regardless of where the injury occurred or where the injured worker resides. The Jacksonville District Office will be the Central Mail Receipt site and will receive all case specific mail after the creation of a case regardless of the owning district office. We believe that centralizing our case create and mail receipt functions will facilitate the speed and quality of claims intake, but I am seeking your assistance with this transition. Please disseminate this information to as wide an audience as possible so that every stakeholder is aware of the new addresses for case create and mail submission. The attached Industry Notice providesRead more
District Court Interpreted the LHWCA’s Exclusivity Provision and Granted Summary Judgment for Defendant
Plaintiff, a welder on a stationary platform on the outer continental shelf off the coast of Louisiana, filed suit in the Western District of Louisiana alleging that he was intentionally injured by a co-employee while working for Defendant. Plaintiff was carrying a lifeline rope from one location to another when the co-employee “intentionally stepped on the rope,” thus jerking him backward. Claimant slipped, fell, and allegedly injured his neck, left shoulder, low back, and left knee. The issue before the court on Defendant’s Motion for Summary Judgment was whether the Longshore and Harbor Workers’ Compensation Act’s (“LHWCA”) exclusivity provision barred Plaintiff’s federal court lawsuit. The LHWCA defines “injury” to mean “accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by theRead more
Claimant Willfully Omitted Illegal Earnings on Form LS-200
One of our favorite cases from 2011 was Young v. Newport News Shipbuilding & Dry Dock Co., BRB No. 10-0678 (BRB 6/22/11), wherein the Benefits Review Board (“BRB”) determined that illegal earnings still constitute “earnings” that must be reported to an employer. Our post discussing the original Young decision is here. On Halloween 2013, the BRB issued a new decision against Mr. Young, who continued his attempts to circumvent the reporting requirements of Section 8(j). Section 8(j) of the Longshore and Harbor Worker’s Compensation Act allows an employer to ask their injured worker to disclose any earnings over a specific period of time during which the worker received disability benefits. If the employee “knowingly and willfully omits or understates any part of such earnings . . . [the employee] forfeits his right to compensation with respect to any period during which the employee was required to file such report.” See 33Read more
New Maritime and Longshore Articles Online
Here are some highlights of new Maritime and Longshore articles on the internet: Check out Siobhan Morrissey’s article, For vacationers encountering trouble on cruise ships, U.S. laws may provide little help, which the American Bar Association published on the ABA Journal website. Using the Costa Concordia accident as a backdrop, the article discusses the legal rights of cruise ship vacationers. Also, the article discusses other potential problems haunting the cruise ship industry, such as serious crimes and illnesses. Next, head over to the LexisNexis Workers Compensation Law community for Paul Howell’s article, Meddlin’ With Settlin’. This article addresses the requirements for a Longshore settlement…and the players who could stop a settlement dead in its tracks. Those players include the claimant, the employer and carrier, and the Director. Finally, the New York Post’s website has a great article entitled, Britney Spears’ songs used to fight Somali pirates. No, really. My favorite quote comes from Second Officer Rachel Owens: “It’s soRead more
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