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
Great New Article About Longshore/DBA Medical Benefits
There is a great article from Yelena Zaslavskaya on the Office of Administrative Law Judges’ website about medical benefits. The article, Medical Benefits Under Section 7 of the LHWCA: Select Issues, address some key topics which come up often in the Longshore and Defense Base Act arenas: Authority of Administrative Law Judges versus the District Director Types of medical expenses covered by the Longshore Act Employer-provided housing and related expenses The reasonable cost of medical expenses The reasonable distance to travel for medical treatment Coverage/reimbursement for past medical expenses Click here to go straight to the article. I highly recommend checking it out.
Hurricane Harvey’s Effect on the OALJ and DOL
Hello all: Our Longshore and Defense Base Act community has a large presence in Houston and surrounding areas. The devastation and flooding caused by Hurricane Harvey has taken its toll on both litigants and colleagues. In consideration of the unprecedented flooding, the Office of Administrative Law Judge has rightfully issued the following Administrative Order: POSTPONEMENT OF CERTAIN PROCEEDINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES, U.S. DEPARTMENTOF LABOR, SCHEDULED FOR THE MONTHS OF SEPTEMBERAND OCTOBER, 2017 Hurricane Harvey has forced the extended evacuation of the Houston, Texas area and surrounding environs. 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 in and within 150 miles of Houston, Texas during the months of September and October 2017 are POSTPONED until further notice. All associated hearing-related deadlines, such as pre-hearingRead more
Should U.S. Psychologists Use the DSM to Diagnose Psychological Injuries?
Recently, I encountered a couple of defense psychological experts which have openly testified that they do not use the DSM-5 when diagnosing and evaluating claimants. The question is whether these medical professionals, both of whom are based in the United States, should be given less weight because they do not use this basic diagnostic manual. Is it somehow wrong for a doctor to refuse to use the DSM-5? What is the DSM-5? The full name for the DSM-5 is the Diagnostic and Statistical Manual of Mental Disorders. The “5” refers to the Fifth Edition of the manual, which the American Psychiatric Association published a few years ago. Until recently, every single mental health professional I have deposed has confirmed their use of the DSM-5, even in defense examinations. It was a no-brainer. Mental health professionals use the DSM-5. Period. New Doctors Testifying That They Do Not Use the DSM-5: TheRead more
The Zone of Special Danger Applies to Local Nationals
On July 21, 2017, the Ninth Circuit published its decision in Chugach Management Services v. Jetnil. In short, the court determined that the zone of special danger does, in fact, apply to local nationals. Here’s the Ninth Circuit’s summary: The panel denied a petition for review of a decision of the United States Department of Labor’s Benefits Review Board (“BRB”) awarding disability benefits, pursuant to the Defense Base Act, to Edwin Jetnil, who was employed by petitioner U.S. government contractor Chugach Management Services when he was injured. The Defense Base Act is a workers’ compensation scheme for civilian employees working outside of the continental United States on military bases or for companies under contract with the U.S. government. Jetnil was a citizen of the Republic of the Marshall Islands, and was injured while on a work assignment for Chugach on the remote Kwaljalein Atoll, which houses the U.S. Army SpaceRead more
Section 10(i) and Average Weekly Wage in Psychological Disability Claims
It’s time to talk about the way insurance carriers are using Section 10(i) in psychological disability claims to reduce an injured worker’s average weekly wage (“AWW”). Essentially, carriers are misapplying Section 10(i), which is sometimes called Section 910(i), by taking it out of the context in which it was enacted. They are using the statute to artificially deflate–sometimes nullify–an injured worker’s AWW. The irony is that Section 10(i) was enacted to help a particular class of injured workers: retirees. Make no mistake, this is an important issue. Over the past year, I have seen an increasing number of Section 10(i) arguments. Before every mediation, before every formal hearing, the carriers I face off against throw Section 10(i) into the mix. Some do so knowing full well that their Section 10(i) argument is completely bogus. What is an Average Weekly Wage? An average weekly wage is pretty much exactly what itRead more
Oral Argument in Jetnil, a Zone of Special Danger Case
Today the Ninth Circuit Court of Appeals heard oral arguments in Chugach Management Services v. Jetnil. I have previously discussed the zone of special danger aspect of Jetnil, as well as the briefs submitted by the parties. Below is a video of today’s argument. It is worth watching if you are interested in this area of the law. The carrier’s attorney argues first, followed by the claimant’s attorney, and then the government’s attorney. I don’t think the importance of the case can be overstated. Do we want to exclude an entire class of workers (local nationals) from the applicability of the zone of special danger? What if a local national (typically just a person from the country in which they work) is employed on the other side of the country and not near their home? I’ll have more of an analysis after I get to digest the argument a littleRead more
Average Weekly Wages in DBA Claims and the 1981 Miranda Decision
Once again it is time to trudge through the murky waters of average weekly wage calculations. That’s how the Defense Base Act industry feels to me right now. Some of the average weekly wage (or “AWW”) arguments I am seeing lately from carriers are heavy-handed and perhaps disingenuous. So, a series of AWW posts is in order. I am going to start with AWWs for employees who were injured in their first year of overseas employment. That is the focus of this post. Below, I discuss the overall competing interests in an AWW calculation, the original K.S. decision, the effect of vacating the K.S. decision (as opposed to the AWW equation used in K.S.), and why this discussion is needed now. Finally, I end this post by quoting in full the Benefits Review Board’s Miranda decision from 1981. The decision–which is alive and well–is precedent; but it is not available onRead more
Clark: An Important New Average Weekly Wage Decision from the BRB
The Benefits Review Board updated its website to include the decisions it reached in January 2016. One of the decisions, Clark v. Dyncorp International, struck me as particularly relevant to an average weekly wage argument that I am hearing in many DBA cases. The argument pertains to Section 10(i) of the Longshore and Harbor Workers’ Compensation Act. Some carriers are using Section 10(i) to try and slash an injured contractor’s average weekly wage. I am presently working on a longer post addressing this argument. Still, the Clark decision is so new that I thought it prudent to post about it ASAP. Interestingly, the BRB’s Clark decision does not cite Section 10(i). But the ALJ’s decision does. See Clark v. Dyncorp Int’l, 2014-LDA-00783 (OALJ Dec. 11, 2015). Reading through the BRB’s opinion, it becomes readily apparent that the opinion easily fits into the Section 10(i) puzzle. Frankly, I hope that theRead more
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