This has been a great year. Strongpoint Law Firm has thrived because of the help and support of family, friends (new and old), and colleagues. Thank you. Happy Thanksgiving! And for the history buffs out there, here is the proclamation issued by President Abraham Lincoln on October 3, 1863, which set the precedent for America’s national day of Thanksgiving: The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed toRead more
Proving the Prima Facie Case Per the 5th Cir.’s New Decision
A new decision from the Fifth Circuit is important for Longshore and Defense Base Act cases because it explains the Section 20(a) presumption that runs in favor of claimants. Below, I first address the opinion, Ramsay Scarlett v. Director, OWCP. After that, I give my take away from the case. Ramsay Scarlett v. Dir., OWCP: The case involved an injured employee of Ramsay Scarlett & Company. The employee, Ferdinand Fabre, had worked for Ramsay Scarlet for 30 years (from 1969 to 1991). After Ramsay Scarlett, Mr. Fabre worked for Westway at the Port of Baton Rouge. Both Ramsay Scarlett and Westway were covered by the Longshore and Harbor Workers’ Compensation Act. In 2011, Mr. Fabre received an asbestosis diagnosis. The parties did not dispute the fact that Mr. Fabre was exposed to asbestos while working with Ramsay Scarlett. Accordingly, Mr. Fabre filed a claim for Longshore benefits, which he won.Read more
Use Insurance Premiums as an AWW Calculation Factor?
The value of an injured worker’s weekly compensation rate rises and falls based on the amount of the injured worker’s average weekly wage (“AWW”) at the time of injury. Consequently, litigants often argue about the worker’s AWW—especially in Defense Base Act claims. Most of the time, the argument is—in my opinion—used as a way to artificially deflate the AWW and compensation rate. Today’s post addresses a specific AWW argument that popped up in one of my cases. The issue is whether an employer and carrier may “blend” together pre-employment stateside and overseas wages to calculate the AWW of an employee who worked overseas for more than 52 weeks. I don’t think so. And perhaps a relevant factor in this inquiry should be the premiums paid by the employer to the carrier–which is a factor that some State courts look at in State workers’ compensation claims. Definition of Wages: There isRead more
New Study: PTSD, Depression and Quality of Life
Depression often goes hand-in-hand with Post Traumatic Stress Disorder (“PTSD”). And that can ruin the sufferer’s quality of life. A recent scientific study focused on Veterans with comorbid Depression and PTSD. The report, entitled Impact of comorbid depression on quality of life in male combat Veterans with posttraumatic stress disorder, is based on a “large meta-analysis composed of 57 studies, across both military and civilian samples.” What did the researchers find? That there is a comorbitiy rate of 52% for Veterans with PTSD and depression. That’s pretty high. There isn’t a definitive explanation for the high prevalence of depression with PTSD. But, “[r]esearch has shown that PTSD has a deleterious impact on Veteran life quality, as Veterans with PTSD report increased rate of unemployment due to disability, decreased social and occupation-related functioning, and lower life satisfaction.” More information can be found through the embedded hyperlink (see above). But, here isRead more
Go Get Scannable
Go download the Scannable app. Or any smart phone scanning app. It will make your Longshore or Defense Base Act case a lot easier. For this post, I am going to talk about Scannable because that is the scanning app I use. Scannable (by Evernote) uses your phone’s camera to snap photos of documents, receipts, business cards…anything that is printed. The program converts the photo to a PDF (if you want). From there, you can save, send, or e-mail the document as you see fit. One of Scannable’s best features is that, once activated, the app will automatically take the scanning photo and crop the document. Done and done. How will this be helpful for your Longshore or Defense Base Act case? Think about your last doctor’s visit. Perhaps the doctor’s office handed you a medical report or script as you exited the building. You can use Scannable to instantlyRead more
Reminder: Support Burn Pit Legislation
Consider this a call to action. There is a burn pit bill at the House of Representatives that needs your support. Contact your local representative and express your support for H.R. 2237, the “Helping Veterans Exposed to Burn Pits Act.” Also, sign the petition to the United States House of Representatives (available through the embedded hyperlink). Congresswoman Elizabeth Etsy introduced the bill for herself and for Congressman Jim McDermott. Additional congressional supporters are starting to emerge. As of now, the Library of Congress’s THOMAS website shows that “Helping Veterans Exposed to Burn Pits Act” is sponsored by Representatives Etsy and cosponsored by Representatives McDermott, Cheri Bustos, Mike Coffman, Henry Cuellar, Walter Jones, Jr., Peter King, and Aumua Amata Coleman Radewagen. What Does the Act Do? The Burn Pit Act (in short) promotes and finances research that will evaluate the negative long term health effects of burn pits in Afghanistan andRead more
Fed Ct: Must Prove Business Relationship to Enjoy Exclusivity
In a new case out of the United States District Court for the Northern District of Illinois, an airline has a big problem on its hands: it is likely going to have to defend itself in a State civil court negligence and wrongful death lawsuit. On April 29, 2013, a plane crashed immediately after taking off from Bagram Airfield in Afghanistan. Video of the dramatic crash was captured on a dashboard camera. All seven crewmembers aboard the aircraft were killed. The families of five of those crewmembers filed a lawsuit in Illinois state court against The Boeing Company, AAR Manufacturing d/b/a Telair International, Inc., Telair International, GMbH, and National Air Cargo, Inc. (“NAC”). In response, NAC removed the case to federal court asserting federal officer jurisdiction. For purposes of this post, I note that NAC argued that it had a potential defense to liability under the Defense Base Act. TheRead more
Board Addresses ALJ Review of Attorneys Fees in Settlements
The Benefits Review Board issued a pair of unpublished attorney fee decisions that are interesting when read in tandem. The decisions address attorneys fees paid pursuant to a settlement agreement after the employer/carrier negotiated a fee amount with the claimant’s attorney. The parties to Longshore and Defense Base Act claims may voluntarily settle their disputes, provided that the settlement is adequate and was not procured by duress. See 33 U.S.C. 908(i). The parties can include a fee for the claimant’s attorney in their settlement agreement. Once an agreement is reached, the parties submit their settlement to an adjudicator. For this post, assume that the adjudicator is an administrative law judge (“ALJ”). After receipt of the settlement application, the ALJ must take one of the following four actions within 30 days: Issue a deficiency notice if the application is incomplete; Approve the settlement if it is adequate and not procured byRead more
Defense Base Act Death Claims After a Plane Crash
Last week, a C-130 aircraft crashed in Afghanistan, killing 6 airmen and 5 civilian contractors. Multiple media outlets reported on the crash. For instance, the Los Angeles Times wrote that the crash occurred Friday at Jalalabad Airfield in Afghanistan. Although a spokesman for the Taliban claimed that militants shot the plane down, those claims remain uncorroborated. This post addresses how a Defense Base Act proceeds when an aircraft accident occurs. The Defense Base Act: The Defense Base Act is a federal workers’ compensation system. It provides protection to contractors and subcontractors working overseas on a United States military base or working under a United States government contract. If a contractor is injured or killed, then the contractor or his loved ones may be entitled to benefits. As for the recent plane crash, any eligible surviving beneficiaries would be entitled to death benefits. When something like this happens, the contractors’ employers file a Form LS-202. This form isRead more
Requirements for a Longshore or DBA Settlement
Want to know what goes into a Longshore or Defense Base Act settlement? Look no further than the Code of Federal Regulations. A Longshore or Defense Base Act settlement is technically a settlement application, not a settlement agreement. The parties negotiate an agreement between themselves, but a third party must approve the written application describing that agreement before the agreement takes effect. As such, the parties to a claim submit their settlement application to either an Office of Workers Compensation Programs’ district director or an administrative law judge. The adjudicator will determine whether the settlement is adequate. Typically, this determination is made within thirty days. See 20 C.F.R. § 702.243(b). What is “adequate”? It depends on the facts and circumstances of the individual case, which the adjudicator must consider. Specifically, the Code of Federal Regulations states: (f) When presented with a settlement, the adjudicator shall review the application and determine whether, considering all the circumstances, including, where appropriate,Read more
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