When a claimant prevails in a Longshore or Defense Base Act claim, then the claimant may be entitled to shift the payment of attorney’s fees to the employer and its insurance carrier. See 33 U.S.C. § 928; see also Dyer v. Cenex Harvest States Co-op., 563 F.3d 1044, 1047 (9th Cir. 2009). Congress enacted the attorney fee statute in 1972 to incentivize employers to pay valid claims rather than contest them. Hunt v. Director, OWCP, 999 F.2d 419, 424 (9th Cir. 1993). Requiring shifting fees when a claimant must protect their rights makes sure that the money for the litigation does not come out of the claimant’s compensation payments. Sometimes, however, fee disputes arise between the successful claimant’s attorney and the insurance carrier’s attorney. In a fee dispute, the insurance carrier’s attorney objects to the successful attorney’s fee petition. But, what if the insurance carrier’s attorney’s objections are bogus when comparedRead more
Contractor and Troop Levels in Afghanistan and Iraq: 2007-2018
The Congressional Research Service recently published an updated report identifying the number of contractors employed in Afghanistan, Iraq, and Syria. The report, entitled Department of Defense Contractor and Troop Levels in Afghanistan and Iraq: 2007-2018, is available online through the following hyperlink: https://crsreports.congress.gov/product/pdf/R/R44116. What is a Contractor? The Code of Federal Regulations defines a defense contractor as “any individual, firm, corporation, partnership, or other legal non-federal entity that enters into a contract directly with the DOD to furnish services, supplies, or construction.” The report’s definition goes a step further: Within the defense policy community, the term contractor is commonly used in two different contexts. The word can describe the private companies with which DOD contracts to obtain goods and services. It can also describe individuals hired by DOD – usually through private companies, which are also considered contractors in the previous context – to perform specific tests. The term contractor does not refer toRead more
How Is Patterson v. Omniplex Analyzed in Defense Base Act Claims?
This post addresses Patterson and how administrative law judges analyze global labor market surveys in Defense Base Act claims. Suitable Alternative Employment–Generally: In Defense Base Act claims, the parties must eventually discuss the employment opportunities available to an injured worker. It is the availability of suitable alternative employment (“SAE”) that changes the classification of an injury from total to partial. Louisiana Ins. Guar. Ass’n v. Abbott, 40 F.3d 122, 126 (5th Cir. 1994). Discussing SAE is inevitable. It is an employer’s burden to prove the availability of SAE. Norfolk Shipbuilding & Drydock Corp. v. Hord, 193 F.3d 797, 800-01 (4th Cir. 1999). Usually, the employer’s insurance carrier will hire a vocational expert to prepare a labor market survey. The survey must “demonstrate the reasonable availability of suitable alternative employment in the open labor market.” Id. at 800. The carrier myst consider the injured worker’s age background, physical and mental capabilities, and whether jobsRead more
The Zone of Special Danger Is Older Than You Think
The Zone of Special Danger is an integral feature of the Defense Base Act, a system of federal workers’ compensation that provides benefits to certain defense contractors. What is often misunderstood, however, is the history of the Zone of Special Danger (or “ZOSD”). Considering the ZOSD’s age, there is still a lot of litigation about the doctrine’s applicability. Below, I provide some explanation about the origins of the ZOSD and how recent courts have honored the origins of the ZOSD in thoughtful opinions. The Zone of Special Danger is an Import from England: First, it is important to understand that the ZOSD is an import from English caselaw. In Thom v. Sinclair, a case published in 1917, the House of Lords analyzed whether an injury “arose out of” employment when a brick wall fell on the shed in which the employee was working. Lord Shaw wrote: There may be causes ofRead more
BRB Addresses Disability and the Deprivation of Economic Choice in a PTSD Claim
On September 27, 2018, the Benefits Review Board (“BRB”) issued a published Robinson decision in Robinson v. AC First, LLC. Robinson addressed the concept of disability for an injured worker with delayed-expression post traumatic stress disorder (“PTSD”). Robinson will likely become the benchmark for the determination of the existence of a disability following a voluntary resignation from overseas employment, the deprivation of economic choice, and for the consideration of wage earning capacity for workers with PTSD. Brief Factual and Procedural Background: In Robinson, Claimant worked overseas for four years, from 2009 to March 31, 2014, at which time Claimant resigned. He returned to the United States on April 15, 2014. Then, Claimant began working stateside for Union Pacific on May 5, 2014, where he continues to work. On August 26, 2015, sixteen months after Claimant returned home, he sought medical treatment for PTSD. Claimant filed a Defense Base Act claim with April 15, 2014Read more
DOL Published the National Average Weekly Wage Numbers for 2018
Every year, the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation publishes an updated National Average Weekly Wage. This annual update is required by statute. See 33 U.S.C. 906(b)(3). The 2018 numbers are in. For the 2018 fiscal year, which spans from 10/01/2017 to 09/30/2018, the National Average Weekly Wage is $735.89. The maximum compensation rate that can be paid (depending on the injured worker’s average weekly wage) is $1,471.78. The minimum compensation rate is $367.94. The 2018 National Average Weekly Wage is 2.46% higher than the same number in 2017.
Ninth Circuit Issues Longshore Decision Protecting Injured and Disabled Retirees
The Ninth Circuit issued an important opinion abut the availability of Longshore disability benefits for a retiree. This published opinion, issued in Christie v. Georgia-Pacific Co., follows a Fourth Circuit opinion on January 3, 2018, which also addressed retiree benefits. From coast to coast, the federal appellate courts have issued decisions which protect retirees. Brief Summary of Christie: The Summary of the Christie decision succinctly explains the Ninth Circuit’s reasoning: The panel interpreted the language of 33 U.S.C. § 902(10) defining “disability,” and held that claimant’s decision to retire early did not prevent him from receiving permanent total disability benefits. The panel further held that substantial evidence in the record supported the administrative law judge’s findings that claimant was disabled with the meaning of the Act: he achieved maximum medical improvement, he could no longer return to his previous employment, and the employer failed to establish that suitable alternative employment existed. The panel noted thatRead more
Additional Thoughts on FECA Bulletin No. 18-03 and Psychological DBA Injuries
Last month, the Division of Federal Employees Compensation (“DFEC”) published FECA Bulletin No. 18-03. The bulletin addresses how the government agency will process an insurance carrier’s claims for reimbursement under the War Hazards Compensation Act (“WHCA”). Carriers apply for WHCA reimbursement after they pay a disabled contractor’s benefits pursuant to the Defense Base Act (“DBA”). FECA Bulletin No. 18-03 addresses psychological injuries, and the evidence that a carrier needs to submit to the government to receive reimbursement of the benefits it paid to the contractor. For some time now, insurance carriers have been concerned about the reception their evidence would receive at DFEC when applying for reimbursement. The concern was that the evidence they submitted would be too general or vague to warrant reimbursement. This concern trickled down into the underlying DBA claim, causing additional litigation for injured workers. With any luck, FECA Bulletin No. 18-03 will also trickle downRead more
New Executive Order Affects Hiring of Federal ALJs (including DOL ALJs)
On July 10, 2018, President Donald Trump signed an executive order that affects the criteria for hiring federal administrative law judges (“ALJs”). This is particularly important for Longshore and Defense Base Act claims because those claims are adjudicated by ALJs. The order, titled Executive Order Excepting Administrative Law Judges from the Competitive Service, states in full: By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows: Section 1. Policy. The Federal Government benefits from a professional cadre of administrative law judges (ALJs) appointed under section 3105 of title 5, United States Code, who are impartial and committed to the rule of law. As illustrated by the Supreme Court’s recent decision in Lucia v. Securities and Exchange Commission, No. 17-130 (June 21, 2018), ALJs are often called upon to discharge significant duties and exercise significant discretion in conductingRead more
FECA Bulletin No. 18-03 Offers Guidance on Psychological War Hazards Claims
A new FECA Bulletin answered a pressing question in the Defense Base Act and War Hazards Compensation Act community: what evidence is needed to prove emotional distress reimbursement claims? FECA Bulletin No. 18-03, which the Division of Federal Employees’ Compensation (“DFEC”) issued on June 6, 2018, is as useful in Defense Base Act claims as it is in War Hazards claims. There’s no denying that insurance carrier’s litigate DBA claims with an eye towards War Hazards reimbursement. The Defense Base Act and the War Hazards Compensation Act: Insurance carriers pay benefits to claimants pursuant to the DBA. Then, if the claimant’s injury was caused by a “war-risk hazard,” the carrier asks the U.S. government to reimburse the DBA benefits paid to the claimant. In other words, claimants are paid under the DBA. Carriers are paid under the War Hazards Compensation Act. To get reimbursement, the carrier must show that the claimant experienced aRead more
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