A new decision from the Benefits Review Board addresses the use of medical records releases in Longshore and Defense Base Act claims. This is an important issue if for no other reason than medical records releases are an every-day part of administering and litigating claims. The decision is Mugerwa v. Aegis Defense Services. What is a Medical Records Release? Essentially, a medical records release is a document that the claimant signs to give a specified individual or business entity access to medical records. Claimants may hear this referred to as a “medical authorization” or “HIPAA release.” Can a Court Compel a Claimant to Sign a Release? The first question answered by the Board was whether an administrative law judge has the authority to issue an order compelling a claimant to sign medical releases as a part of the discovery process. Yes, the judge can issue that order. But there are significant limits.Read more
New Procedure for Filing Longshore and DBA Claims
There is a new way to file Longshore and Defense Base Act claims. Beginning March 1, 2018, cases may be fax filed using the following number: (202) 513-6814. Case create forms include the: LS-201 (Notice of Employee’s Injury or Death); LS-202 (Employer’s First Report of Injury or Occupational Illness); LS-203 (Employee’s Claim for Compensation); and LS-262 (Claim for Death Benefits). New claims may also be filed by mail. But, there is a new address for filing a new claim. New claims should be sent to: United States Department of Labor, Office of Workers’ Compensation Programs, Division of Longshore and Harbor Workers Compensation, 400 West Bay Street, Suite 63A, Box 28, Jacksonville, FL 32202. Keep in mind that the preferred method for receiving “case create forms” is via facsimile. More information about the new filing procedures is available on the Division of Longshore and Harbor Workers’ Compensation’s website. Specifically, the information is available inRead more
Physical Diagnoses That May Preclude Redeployment in DBA Claims
In prior posts, I addressed the psychological diagnoses and medications which may preclude redeployment to CENTCOM following a Defense Base Act injury. This post addresses the physical injuries which may preclude deployment or redeployment. In short, the military wants contractors who have the physical capability of performing their work and completing their mission. The Code of Federal Regulations says as much. See 32 C.F.R. 158.7(k). While it is true that medical waivers may be granted, those waivers are few and far between. In fact, waivers “are unlikely for contractor personnel.” Id. If a contractor wants an waiver for a particular employee, then “an explanation should be given as to why other persons who meet the medical standards could not be identified to fulfill the deployed duties.” Id. So, what are the physical conditions which may preclude deployment? Actually, the Department of Defense has prepared non-exhaustive lists that identify those conditions. The newest version ofRead more
Psychological Diagnoses That May Preclude Re-Deployment
This is the second part of an ongoing series devoted to exploring the minimal standards of medical fitness required for deployment or re-deployment to CENTCOM, as those standards apply to the Defense Base Act. Here, I address the psychological conditions which may preclude deployment. What is important for DBA claims is that these conditions also prevent re-deployment after an injured worker suffers a psychological injury as a result of his employment in a war theater. Knowing the minimal standards of medical fitness is a necessity. When an injured DBA contractor cannot return to their usual work, then they are presumed to be totally disabled. An insurance carrier can rebut the presumption by showing that the claimant can either return to their overseas work or engage in suitable alternative employment. Therein lies the reason why knowledge of the minimal standards is so important. If an injured worker cannot satisfy the minimal standardsRead more
Medications That May Preclude Re-Deployment After a DBA Work Injury
An employee must meet minimum standards of physical and psychological fitness to work with a defense contractor in CENTCOM. Typically, when an employee is hired, there is a pre-employment physical. During that physical, medical professionals will examine the claimant and take blood and urine samples. After the physical is passed, the employee may begin working for the defense contractor. Importantly, these standards of fitness also apply to a defense contractor’s employee who was injured on the job. At some time during the disabled employee’s treatment, a question will arise as to whether an employee can return to the same job the employee performed at the time of injury. To re-deploy to CENTCOM for work with a defense contractor, the employee must again satisfy the physical fitness requirements. Consequently, when assessing an ongoing disability, a potentially-determining issue is whether the defense contractor can pass a re-deployment physical. To pass a physical meansRead more
New Executive Order Focuses on Veterans’ Mental Health
On January 9, 2018, President Donald Trump signed Executive Order 13822. The order focuses on providing psychological treatment to veterans as they transition from uniformed service to civilian life. The reasoning behind the Executive Order is interesting, and the best statement about the Order’s genesis is the White House fact sheet. There is a heavy focus on delayed psychological problems, especially in the year following the transition from military service to civilian life. To combat the psychological problems faced after transition, the Order requires a joint action plan to expand inter alia tele-health treatment of psychological conditions. In my opinion, some of the same reasoning that the White House used to justify this Executive Order could apply to Defense Base Act contractors. Below, I’ve reproduced the White House Fact Sheets for Executive Order 13822, as well as the text of Executive Order 13822. White House Fact Sheets for Executive Order 13822: TheRead more
With Moody, Fourth Circuit Issues Important Longshore Retirement Opinion
We are only three days into 2018, and the Fourth Circuit may have just published the most important Longshore case of the year. The case is Moody v. Huntington Ingalls, and it addresses the concept of “retirement” as it relates to the Longshore’s definition of “disability.” Factual Background: Mr. Moody began working for Huntington Ingalls when he was 20 years old. He continued working for Huntington for 45 years. In June 2011, Huntington told Mr. Moody that he was assigned to a new shift. Unhappy with the shift, Mr. Moody gave Huntington the requisite 90-day notice of retirement, effective October 31, 2011. But then, on September 19, 2011, Mr. Moody injured his shoulder while working at the shipyard. He tore his rotator cuff. Still, Mr. Moody continued working at the shipyard until he retired on October 31st. Six weeks later, on December 13, 2011, Mr. Moody underwent shoulder surgery. Mr. Moody’sRead more
Ninth Circuit: Establishing Entitlement to Attorney Fees is Compensable
The Ninth Circuit issued a new attorney fee decision that is applicable to Longshore and Defense Base Act claims. In Vortex Marine Construction, the court was asked whether it was appropriate to award a claimant’s attorney fees, paid by the Employer/Carrier, for time spent engaging in fee litigation. The published opinion that followed was succinct: We agree with he Appellate Commissioner’s determination that [the Supreme Court’s Baker Botts decision] does not prevent an award of attorneys’ fees for the fee litigation here under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. 928(a). In Baker Botts, the court held that the text of § 330(a)(1) of the Bankruptcy Code does not shift the costs of adversarial litigation from one side to the other, and it does not displace the American Rule with respect to fee-defense litigation. See id. at 2165–67; see also Micha v. Sun Life Assurance of Canada, Inc., 874 F.3dRead more
Jones Act Lawsuits After Longshore Settlements
An appellate court in the State of Washington just answered an interesting question about an intersection between the Longshore Act and the Jones Act. The issue was “whether an injured maritime worker who accepts voluntary benefits and settles his claim under the Longshore and Harbor Workers’ Compensation Act (LHWCA), when there is no adjudication of his status as a non-seaman under the LHWCA, is barred from pursuing claims against the vessel owner for personal injuries under the Jones Act.” Apparently not. The court held “that, because Jeremy Gibson’s maritime worker status as a non-seaman was never adjudicated under the LHWCA and the compensation order did not expressly resolve this issue under the LHWCA . . . Gibson’s Jones Act claims are not barred, and election of remedies, equitable estoppel, and collateral estoppel do not apply.” The facts of the case are fairly simple. The injured worker fell through a hatchRead more
Hurricane Irma Stalls Longshore and DBA Deadlines
The Office of Administrative Law Judges issued a new Administrative Order on September 11, 2017. The Order states: Case No. 2017-MIS-00007 In the Matter of: POSTPONEMENT OF CERTAIN PROCEEDINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES, U.S. DEPARTMENT OF LABOR, SCHEDULED FOR THE MONTHS OF SEPTEMBER AND OCTOBER, 2017 ADMINISTRATIVE ORDER Hurricane Irma has forced the extended evacuation of much of the State of Florida. In consideration of the extraordinary circumstances occasioned by this natural disaster, IT IS ORDERED that: All OALJ proceedings, including formal hearings, oral arguments, mediations, and pre-hearing conferences, scheduled to take place within the State of Florida up to and including October 6, 2017 are POSTPONED until further notice. All associated hearing related deadlines, such as pre-hearing exchanges, discovery deadlines, post-hearing briefs and similar matters, are TOLLED until subsequent order. All OALJ proceedings, including formal hearings, oral arguments, mediations, and pre-hearing conferences, involving any attorney orRead more
- 1
- 2
- 3
- …
- 35
- Next Page »
