The Longshore and Harbor Workers’ Compensation Act includes a statute of limitations–a time limit for filing a claim. The Defense Base Act (“DBA”) is an extension of the Longshore Act, and it applies the same statute of limitations. The statute provides a one-year window for filing traumatic injury claims and a two-year window for filing occupational disease claims. Recently, I have seen a glut of motions for partial summary decision arguing that the statute of limitations ran against injured Kosovar, Macedonians, Bosnians, and other foreign nationals, who filed a claim more than two years after they first received a mental health diagnosis. If the assigned administrative law judge grants the motion, then the claimant may only pursue medical benefits. Often, these motions are filed early in a claim, soon after a claimant’s deposition, when additional discovery is still needed. These injured third country nationals have been paying out of theirRead more
OALJ Extended Suspension on In-Person Hearings Because of COVID-19
The Office of Administrative Law Judges extended the suspension of in-person hearings through at least July 24, 2020. Safety required the extension. The Coronavirus Disease of 2019 (COVID-19) still requires minimal staffing at OALJ offices, and less travel by the Longshore and Defense Base Act community. Many of the guidelines in the earlier Administrative Order and Notice dated March 19, 2020, are still in place. The new Supplemental Administrative Order and Notice dated April 10, 2020, changed a few aspects of the earlier order. For example: In-person hearings will not take place before July 27, 2020, at the earliest. OALJ will start hearing cases telephonically, by video, or by other remote means after May 15. Procedural deadlines are further tolled until at least June 1, 2020. In-person mediation and settlement judge conferences will not resume until at least July 27, 2020. The parties may agree to participate via telephone, depending onRead more
Starr Is Cutting Defense Base Act Benefits During Coronavirus Pandemic
One particular Defense Base Act insurance carrier is cutting off claimants during the middle of the Coronavirus Disease of 2019 (COVID-19) pandemic. You read that right. Of all times to stop paying or drastically reduce weekly indemnity benefits, Starr Indemnity & Liability Company (through its Third Party Administrator, Gallagher Bassett Services) chose now. Worse yet, Starr lacks legitimate legal arguments for cutting benefits. And it is most definitely violating the humanitarian purposes of the Defense Base Act. Real-Life Examples: Here are a few real-life examples of cases where benefits were drastically reduced or outright suspended during the Coronavirus crisis. Case #1 involves a Kosovar with Post-Traumatic Stress Disorder. On October 2, 2019, a U.S. defense doctor evaluated Claimant in Kosovo. The defense doctor agreed that Claimant had PTSD, and recommended aggressive treatment. With aggressive treatment, said the defense doctor, Claimant could experience “rapid improvement” in the “next six months.” On AprilRead more
Mostly Coronavirus-Related Policy Updates from OALJ and the DLHWC
Here are a few updates from the Office of Administrative Law Judges and the Division of Longshore and Harbor Workers’ Compensation. Most, but not all, are related to COVID-19. Office of Administrative Law Judges–Subpoenas: First and foremost, keep in mind that the OALJ is running on a skeleton crew. Therefore, some requests might be overly burdensome at the present time. Case in point: routine subpoenas. The OALJ has twice posted to its website about requesting subpoenas. The most recent post states: Because OALJ offices are minimally staffed at present, parties should refrain from requesting subpoenas at least until April 24, 2020 unless they can explain the compelling circumstances. Even with compelling circumstances, OALJ cannot guarantee timely processing. This applies both to cases currently pending before OALJ and to longshore (and longshore extension) cases pending before OWCP. My read on this paragraph is that litigants should simply refrain from requesting subpoenasRead more
Fifth Circuit Addresses Longshore Situs and Status in New Opinion
Last week, the Fifth Circuit issued an important Longshore Act opinion. The court addressed “situs” and “status,” two very important factors in all Longshore or LHWCA claims. The opinion is MMR Constructors, Inc. v. Director, OWCP. Factual and Procedural Background: Henry Flores worked for MMR Constructors as a technician for electrical systems. He injury occurred while assisting with “electrical wiring for the construction of Chevron’s tension-leg platform named Big Foot.” At the time of Mr. Flores’ accident, the platform which would ultimately become the Big Foot was floating on pontoons in Corpus Christi Bay. Steel cables and utility lines connected the platform to land. Initially, the Office of Administrative Law Judges denied benefits. The Benefits Review Board overturned that order. MMR Constructors ultimately appealed to the Fifth Circuit, which affirmed. Injury on Navigable Waters – Situs: First, the Fifth Circuit addressed the “situs” test. The “extent to which a craft orRead more
OALJ Suspended Hearings/Deadlines in DBA and Longshore Claims
The Office of Administrative Law Judges suspended hearings and procedural deadlines due to the COVID-19 national emergency. The suspension takes effect on March 23, 2020. This suspension applies to both Longshore and Defense Base Act claims. What does this mean? The OALJ suspended until May 15, 2020. The OALJ will reassess this suspension on May 4, 2020, to determine whether the suspension will continue beyond May 15th. The moratorium on hearings does not include cases that will be decided on the record. Procedural deadlines currently pending are suspended until May 15, 2020. The assigned judge will address deadlines for cases scheduled for hearing between May 18 and June 12, 2020. Telephonic mediations and settlement judge conferences may proceed with the consent of all parties. File documents via e-mail. OALJ offices will be minimally staffed so, again, file documents by e-mail. Decisions in DBA and Longshore Act and claims will not beRead more
Coronavirus, Global Labor Market Surveys, Hiring Freezes, and the DBA
The Department of Defense announced a general freeze on travel and hiring that applies to both uniformed and civilian personnel. The announcement, which was made on March 11, 2020, is the D0D’s response to coronavirus. This announcement will no doubt have an affect on Defense Base Act contractors. This post focuses on the affect that the DoD’s hiring freeze will have on the use of global labor market surveys in Defense Base Act claims. “Disability” Under the Defense Base Act: The Defense Base Act pays for disabilities. A “disability” is the “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment.” 33 U.S.C. 902(10). Read that definition again. It is the inability to earn the same wages. For purposes of this post, there are two types of disability to consider: total and partial. Total disability meansRead more
Coronavirus Made Defense Base Act Commutations Much More Expensive
Defense Base Act claims for foreign nationals are often resolved by settlement. The settlement is calculated by reference to the claim’s “commutation value.” Coronavirus has caused market changes and prompted interest rate cuts. As of March 4, 2020, the one year constant maturity rate was 0.59%, down from 1.98% just nine months earlier. Because “commutation value” is dependent on the interest rate, the recent market change has a huge effect on the Defense Base Act industry. The lower the one year constant maturity interest rate, the more expensive the “commutation value.” As such, it might be necessary to reconsider outstanding settlement demands because the DBA claim’s value has likely changed. What is Commutation? In the Defense Base Act context, “commutation” is a remedy whereby insurance carriers can reduced their liability for indemnity benefits by one-half. The relevant statute, 42 U.S.C. 1652(b), states: Compensation for permanent total or permanent partial disability underRead more
Defense Base Act Death Benefits For Survivors of Murdered Contractors
The Defense Base Act provides death benefits to the survivors of contractors killed overseas. Recently, a rocket strike in Iraq killed Mr. Nawres Waleed Hamid, a contractor-linguist for Valiant Integrated Services. News outlets report that a widow and two minor children survived Mr. Hamid. More likely than not, Mr. Hamid’s widow and minor children are entitled to Defense Base Act death benefits. What Are Defense Base Act Death Benefits? The Defense Base Act is an extension of the Longshore and Harbor Workers’ Compensation Act. Therefore, the Longshore’s Act’s statute for the payment of death benefits controls. The relevant statute is 33 U.S.C. 909, often referred to as Section 9. When a decedent is survived by a widow and minor children, then those children are the preferred class of beneficiaries. In this situation, the pertinent language from Section 9 states: If the injury causes death, the compensation therefrom shall beRead more
What is the Defense Base Act? How Do You File a DBA Claim?
The Defense Base Act is the best kept secret in the contracting world. But, if a claimant is injured at work, they might hear about the Defense Base Act through their employer, co-workers, or Internet searches. This post discusses some basics about the DBA, and it ends with an invitation to contact Strongpoint Law Firm if you would like additional information. What is the Defense Base Act? The Defense Base Act is workers’ compensation. Injured workers may file claims for weekly compensation and medical benefits. Congress enacted the DBA during World War 2, using the Longshore and Harbor Workers’ Compensation Act as the framework. Longshore Act law applies unless the DBA says otherwise. But, there is also a unique doctrine that applies to DBA claims called the zone of special danger doctrine. Basically, the zone of special danger expands an insurance carrier’s liability to cover work injuries that happen overseas.Read more
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