This following notice is posted on the Benefits Review Board’s home page. Notice Regarding Availability of Electronic Filing and Electronic Service All parties to appeals before the Benefits Review Board (BRB) may now use the Board’s Electronic File and Service Request (EFSR) system. The EFSR portal allows parties to file new appeals electronically, receive electronic service of Board issuances, file briefs and motions electronically, and check the status of existing appeals via a web-based interface accessible 24 hours every day in lieu of paper documents. The EFSR system is open to any party to an appeal before the Board. An e-Filer must register as a use and must be validated by the Board before e-filing any document. An e-Filer will complete an online registration form. A valid e-mail address is required to register as an e-Filer. Once registered, an e-Filer will be able to use the EFSR for electronic filingRead more
DOL Issued 2014-15 National Average Weekly Wage Increase for Longshore Claims
On October 1, 2014, the National Average Weekly Wage applicable to Longshore claims (including Longshore extensions like the Defense Base Act) will increase pursuant to Section 10 of the Longshore and Harbor Workers’ Compensation Act. The new compensation rates are: National Average Weekly Wage: $688.51 Maximum Compensation: $1,377.02 Minimum Compensation: $344.26 Percentage Increase: 2.25% (Note: I first published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Punitive Damages Available to Seamen in Asbestos Litigation
Judge Eduardo Robreno recently ruled that punitive damages were available to seamen in the consolidated asbestos products liability multidistrict litigation pending in the Eastern District or Pennsylvania. After discussing the history of punitive damages and maritime law, Judge Robreno reasoned (with internal citations omitted, and emphasis added): Having concluded that maritime law does not impose a general bar on punitive damages in unseaworthiness claims, the Court turns to the question of whether punitive damages are appropriate when such claims arise in the context of asbestos cases. This issue underpins the availability of punitive damages and necessarily must be addressed in this context. Although various rationales have historically been used to justify punitive damage awards, the consensus today is that punitive damages are not intended to compensate the plaintiff for a loss suffered, but instead are “imposed for purposes of retribution and deterrence.” Courts also generally limit punitive damages to casesRead more
Do You Need a Medicare Set Aside for Your Longshore or Defense Base Act Settlement?
In every case where a Longshore worker or Defense Base Act contractor agrees to close or limit their right to future medical benefits, the parties must consider whether a Medicare Set Aside is needed. What is a Medicare Set Aside and why is it needed? Essentially, the Centers for Medicare and Medicaid Services (“CMS”) does not want to pay for workers’ compensation injuries. The Medicare Secondary Payer laws protect CMS from workers’ compensation litigants who may want to shift the liability for payment of future medical benefits to CMS. Consequently, in certain situations, the parties to a workers’ compensation settlement must prepare “a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury, illness or disease. These funds must be depleted before Medicare will pay for treatment related to the [injury].” Moreover, CMS will want proof (inRead more
Consolidation of Baltimore Longshore District Office Into the Norfolk Longshore District Office
From the Department of Labor’s e-mail service: The Baltimore Longshore District Office will physically close on September 30, 2014. It will be consolidated into the Norfolk District Office. Prior to the physical closure of the Baltimore District Office, the case work will transition to the Norfolk District Office for maximum efficiency. Therefore, effective September 1, 2014, the Norfolk District Office has jurisdiction over past and future cases under the LHWCA, and its extensions, arising in the states of Delaware, Maryland, Pennsylvania, Virginia, West Virginia and the District of Columbia. All forms submitted for the creation of a new case should still be submitted to the Longshore Central Case Create site in New York City. After a case has been created, all case-specific mail should still be sent to the Longshore Central Mail Receipt site in Jacksonville, FL. For more specifics about this consolidation, including the consolidation’s affect on the DOL’sRead more
Defense Base Act Claimant’s Temporary Job Was Not Suitable Alternative Employment
When an injured Longshore or Defense Base Act claimant cannot return to their usual work, an employer must demonstrate the availability of suitable alternative employment (“SAE”). In many cases, the employer must establish that there are realistically available jobs within the geographic area where claimant resides, which the claimant is capable of performing, considering their age, education, work experience, and physical restrictions. If the employer successfully demonstrates SAE, then the claimant must demonstrate that they diligently tried to secure employment. A potential problem can arise when the claimant actually has obtained work following their injury, but the employment is temporary in nature. That is what happened in McMiller v. Serv. Employees Int’l, a recent unpublished decision from the Benefits Review Board. There, the Board noted that: [W]here an injured employee obtains various temporary jobs following her injury, such fact does not necessarily defeat a claim for total disability. Carter, 14Read more
Jones Act Employees Could Not Sue a Dual-Listed Company
On August 12, 2014, the Eleventh Circuit published a decision discussing jurisdiction and business entity structure in the context of a Jones Act lawsuit. The plaintiffs were three injured sea workers, each of whom collected maintenance and cure. Those were the benefits that the injured sea workers and other employees agreed to in their contracts with Cunard Celtic Hotel Services, Ltd. The plaintiffs became unsatisfied with the extent of their maintenance and cure, believing that the contracts impermissibly limited their compensation. So, they filed a class action against Carnival Corporation and Carnival PLC. The Defendants’ corporate structure was particularly important here. Cunard operated “under the corporate umbrella of Carnival Corporation & PLC–the dual-listed company (“DLC”) comprised of Carnival Corporation (a Panamanian corporation headquartered in Miami, FL) and Carnival PLC (a British corporation headquartered in Southampton, England).” The district court dismissed the plaintiffs’ lawsuit, determining that the court did “not haveRead more
Great Post at Lexis Discussing Differences Between Longshore Stipulations and Settlements
The LexisNexis Workers’ Compensation Community recently posted a great article entitled, “Resolving Longshore Claims Through Settlements and Stipulations.” The post was authored by Yelena Zaslavskaya, the Senior Attorney for Longshore, Office of Administrative Law Judges. I don’t want to steal any thunder from the post by reprinting portions here. Instead, use this link to access the article. You will find a great discussion about the two most important methods used to resolve Longshore and Defense Base Act claims: stipulations and settlements.
DOL-Joint Bar Association Commented On the Longshore Pre-Hearing Statement, Form LS-18
The DOL-Joint Bar Association recently submitted comments to the Office of Information and Regulatory Affairs to slightly modify the Pre-Hearing Statement, Form LS-18. The Longshore and Harbor Workers’ Compensation Act’s Pre-Hearing Statement, Form LS-18, is an integral part of the administration and adjudication process. Typically, a party submits a Form LS-18 to the Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) after an informal conference, when the parties cannot reach an agreement and the district director must make recommendations. See 20 C.F.R. § 702.316. When a party submits a completed Form LS-18 to the DLHWC, the agency then transfers the case to the Office of Administrative Law Judges (“OALJ”) pursuant to 20 C.F.R. § 702.317. Section 702.317 prohibits the DLHWC from transferring to the OALJ “any recommendations expressed or memoranda prepared by the district director” following the parties participation in an informal conference. Because these recommendations cannot be submitted toRead more
Brief in Opposition Filed in Dize, a Jones Act “Seaman Status” Case
The Brief in Opposition has been filed in Dize v. Association of Maryland Pilots, the case concerning seaman status for maritime workers who spend time in the service of a moored vessel. The Brief in Opposition is a good read that questions the existence of the circuit split advanced by Ms. Dize in her petition. Here is the Introduction to the Brief in Opposition (with internal citations omitted where possible): In Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), this Court held that, to qualify as a “seaman” under the Jones Act, an employee “must have a connection to a vessel in navigation (or an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” With respect to the “duration” element of that requirement, the Court endorsed “an appropriate rule of thumb”: “A worker who spends less than about 30 percent of hisRead more
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