This posts addresses the frequently misapplied Marino-Sewell doctrine. This doctrine is often used as a basis for denying Defense Base Act workers compensation benefits to injured workers. The problem is that the Marino-Sewell doctrine does not support the denial of benefits when a legitimate adverse personnel decision co-exists with injurious working conditions or events. A Typical Real Life Example: In his Form LS-203, an Afghanistan-based employee alleged that he was exposed to war-risk hazards that led to the development of a psychological injury and disability. A “war-risk hazard” is a term that is often used to describe attacks, explosions, indirect fire, and more. In response to the injured worker’s claim, the carrier filed a Form LS-207. The carrier controverted—i.e., denied—the claim. The claim was controverted for the following reason: “Claimants inability to work is due to RIF in May 2019 from employment.” In this context, “RIF” means “reduction in force.” The carrier’s controversionRead more
Let’s Talk About Attack Logs in Defense Base Act Claims…
Let’s talk about the use of attack logs in Defense Base Act claims. These incredibly helpful logs, which many contracting companies maintain in the regular course and scope of business, are directly relevant to the existence of working conditions which could have caused or contributed to a DBA claimant’s injury. Yet, some insurance carriers often try to hide this discoverable information. Some have even claimed that they “have no records of attacks relating to Claimant or Employer’s property” even though they have attack logs (and more) in their possession. That’s a lie. So, I am going take the mystery out of attack logs. I am going to explain what they are, why they are relevant, what insurance carriers use them for, how the Office of Administrative Law Judges have responded to motions to compel, and how it prejudices a claimant when an insurance carrier hides relevant information. Finally, I willRead more
Viewing Pain on a Spectrum for Longshore (and DBA) “Disability”
The Ninth Circuit just issued a primer on pain as a disabling Longshore and Defense Base Act consideration. The case is Jordan v. SSA Terminals, LLC. I anticipate that this published decision will be cited in many legal briefs for a long time to come. Factual Background: In Jordan, the claimant significantly injured his back in 2014. He received conservative treatment and then, in 2018, a spinal fusion surgery. In the time between the injury and the surgery, the Longshore and Harbor Workers’ Compensation Act’s insurance company conducted surveillance. The videos from the surveillance, which were recorded in 2015 and 2016, showed the claimant engaging in various physical activities. A formal hearing was held to determine whether the claimant was “disabled” between 2016 and 2018. The Ninth Circuit focused on a few statements the claimant made at the hearing about his pain level. The claimant testified that he could perform tasks. But whenRead more
Major Change at OWCP: DFEC and DLHWC Merged!
Breaking news affecting all Defense Base Act claimants, employers, and carriers! The Office of Workers Compensation Programs merged the divisions that administer the Federal Employees Compensation Act, the Longshore and Harbor Workers’ Compensation Act, and the Defense Base Act. The news came in an e-mail from Director Rios. Notice from Antonio Rios: Here is Director Rios’ e-mail in full: Longshore Stakeholders, I am pleased to announce that the Office of Workers’ Compensation Programs (OWCP) is merging the Division of Longshore and Harbor Workers’ Compensation (DLHWC) with the Division of Federal Employees’ Compensation (DFEC). The two divisions will be consolidated into the Division of Federal Employees’, Longshore and Harbor Workers’ Compensation (DFELHWC), which I am excited and honored to lead as Director. The new organizational structure will allow OWCP to carry out its mission more efficiently and effectively. This merger will not change any processes, addresses, or points of contactRead more
MOD 15 and DBA Contractor Deployment Standards After COVID-19
Recently, the Department of Defense updated its deployment standards to address COVID-19. The old deployment standards, MOD FOURTEEN, have been replaced by MOD FIFTEEN (also known as MOD 15). The big difference between MOD FOURTEEN (which isn’t that old) and MOD FIFTEEN is an age exclusion. Individuals who are 65 or older, or who may turn 65 during their contract, may not deploy. This age exclusion is based on the affects of COVID-19 on an older population. Beyond that, the changes are minimal. Deployment is still prohibited for individuals with medical conditions identified in Tab A to MOD FIFTEEN. Tab A is also known as the “Amplification of the Minimal Standards of Fitness for Deployment to the CENTCOM AOR.” Non-Deployable Medical Conditions: Previously, I wrote about non-deployable medical conditions and medications. It is worthwhile to address that topic again. There are certain medical conditions and medications that will prevent deploymentRead more
Equitable Tolling of the Defense Base Act’s Statute of Limitations
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
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