Section 905(a) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provides that an employer’s liability for workers’ compensation benefits to an employee “shall be exclusive and in place of all other liability of such employer to the employee.”  33 U.S.C. § 905.  This statute reflects the “industrial bargain” between employers and employees on which the LHWCA and all workers’ compensation laws are based.  The bargain is simple: “The covered employee has surrendered the right to sue the employer for negligence, and thus has eschewed the possibility of a more significant damages award from the employer; the employer, similarly, has relinquished its common law defenses available in employee negligence actions.  In consideration, the employee receives more certain compensation for injuries arising from the employment, regardless of fault; the employer, in turn, eludes litigation expenses and pays only scheduled LHWCA benefits.” In a new published decision, the United States Court of Appeals, EleventhRead more

Claimant was hired as a chipper in 1983.  He hurt each of his knees on separate dates in 1983 while working for Employer.  In 1992, the Benefits Review Board affirmed an Administrative Law Judge’s award of permanent total disability benefits because Employer failed to establish suitable alternative employment.  Employer sought modification of benefits in 1997.  A hearing was scheduled; however, because Claimant became incarcerated, an ALJ judge issued a stay of compensation until Claimant’s 2004 release.  A formal hearing on the reinstatement of benefits was held on October 14, 2009.  At the hearing, Employer asserted that Claimant’s illegal activity prior to his incarceration, as well as maintenance work he performed while in prison and the singing he performed at funerals constituted suitable alternative employment.  The ALJ judge rejected these positions as suitable alternative employment, but found that ten other jobs identified by Employer were sufficient.  Therefore, the ALJ judge awarded theRead more

Claimant sustained a work-related back injury on October 10, 1990, which rendered him temporarily totally disabled for a period of nearly one year, and permanently totally disabled thereafter.  Over seventeen years later, Claimant underwent an audiogram demonstrating a 24.4 percent binaural hearing loss which was attributed to employment-related noise exposure that last occurred on October 10, 1990, when Claimant stopped working for Employer.  Claimant argued that he was entitled to receive a scheduled award for his hearing loss concurrently with the temporary total disability award for his back injury.  The Administrative Law Judge determined, however, that the scheduled hearing loss claim for PPD benefits was subsumed in Claimant’s total disability award.  Claimant appealed, but the Benefits Review Board (“BRB”) affirmed the ALJ’s decision. A claimant may not receive concurrently a scheduled permanent partial disability award for one injury and a total disability award for another injury, as a claimant cannotRead more

An article about the state of the Benefits Review Board has been published at LexisNexis’ Workers’ Compensation Law Community page.  Karen Koenig, Associate General Counsel of the Longshore Benefits Review Board, wrote the article, which is entitled Update from the Benefits Review Board.  Among other things, it discusses the applicable law for DBA claims, as well as the Supreme Court’s grant of certiorari in Pacific Operators Offshore, LLP v. Valladolid.  It is certainly an article worth reading. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)