In a new, important Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision, the Fourth Circuit addressed Section 928(a) attorney’s fees and the meaning of “compensation” for that statute. In Lincoln v. Dir., OWCP, the employee filed a hearing loss claim on May 24, 2011. Two days later, the employer filed a notice of controversion explaining that it accepted the fact that the employee’s hearing loss was noise-induced, but that it need additional information to determine the correct disability payment. The OWCP did not formally serve notice of the claim on the employer until June 14, 2011. Then, on July 7, 2011, the employer voluntarily paid the employee $1,256.84, amounting to compensation for “0.5% [binaural] hearing loss” and the equivalent of one week of PPD pay under the maximum compensation rate. Ultimately the claim settled for the value of a 10% binaural hearing loss. The issue in this case arose whenRead more
Plaintiff-Seaman Can’t Recover Emotional Damages For Witnessing Injury To Someone Else
Plaintiff worked as a vessel repair supervisor at his employer’s shipyard facility. His primary responsibility was the maintenance and repair of Employer’s life boats. He spent roughly 70% of his time aboard those vessels. The other 30% of the time, Plaintiff worked in the shipyard’s fabrication shop or operating a land-based crane. It was during his land-based maintenance duties that Plaintiff was injured by a falling crane that crashed into a nearby building. Plaintiff sustained a broken left foot, a severely broken right foot, and an abdominal hernia. To make matters worse, Plaintiff’s cousin’s husband (another employee at the shipyard) was crushed by the crane and killed. After a three-day trial, a jury concluded that Claimant was a Jones Act seaman, that Employer was negligent, and that Claimant was entitled to $2,400,000 in damages, which included $1,000,000 for past and future mental pain and suffering. Employer appealed, challenging inter aliaRead more
BRB: Adult Child On Social Security Was Not Entitled to Death Benefits
The Benefits Review Board (“BRB”) published a new opinion addressing the definitions of “child” and “dependent,” as used in the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). During his employment for a number of employers, Claimant’s father (“Decedent”), was allegedly exposed to asbestos and welding fumes. After Decedent passed away, Claimant’s mother filed a claim for death benefits. Claimant also filed a claim for death benefits as a wholly dependent, disabled “child.” At the time of Decedent’s death, Claimant was an adult. At the outset, the administrative law judge (“ALJ”) determined that Claimant was not a “child” under Section 9(b) of the LHWCA. Section 9 provides for the payment of benefits to a surviving child, or surviving children, following the work-related death of their parent. But, the claimant must be a “child,” as defined by Section 2 of the LHWCA, 33 U.S.C. § 902(14): “Child” shall include a posthumous child,Read more
Eleventh Circuit: Seafarer’s Agreement Required Arbitration of Jones Act Claim
Plaintiff, a Honduran citizen, injured his back while working as a mason aboard a Carnival vessel. The injury required surgery and eventually led to “serious orthopedic and neurological problems, including numbness in both legs, difficulty urinating, need for a catheter, sexual dysfunction, and psychological problems.” Plaintiff worked for employer under a Seafarer Agreement. The Agreement included an arbitration clause requiring the arbitration of all disputes (except wage disputes). After his injury, Plaintiff asserted claims of Jones Act negligence, unseaworthiness, and failure to provide adequate maintenance and cure. Acting on a motion to compel arbitration filed by the Defendant, the district court “granted the motion, dismissed as moot all other pending motions, and closed the case for administrative purposes.” Plaintiff appealed to the Eleventh Circuit, which was called upon to answer a jurisdiction question and a substantive question. First, the court addressed the jurisdiction question, which addressed whether the Eleventh CircuitRead more
SCOTUS Refuses to Hear Appeal of Longshore Modification Decision
On February 24, 2014, the Supreme Court of the United States denied certiorari in Cox v. Director, OWCP, which was a Longshore decision from the Fifth Circuit. The holding in the unpublished Fifth Circuit case–a case dealing with Section 22 modification–was: Addressing the remaining issues, the ALJ did not err denying Cox’s Motion for Modification or granting Employer’s Motion for Summary Decision denying Cox’s Second Motion for Modification. Under the LHWCA, once the claimant has established that he is unable to return to his former employment due to a work-related injury, the burden shifts to the employe rto demonstrate that the claimant retains the capacity to earn wages in a regularo job by showing the availability of suitable alternative mployment which the claimant is capable of performing. When an employer offers of a suitable job within the partially disabled claimant’s current place of work, that is sufficient to discharge theRead more
Alabama: Prior Longshore Settlement Not Determinative of Seaman Status
Purdue and Williams worked as line handlers for a shipping company that provided line-handling services to vessels docking and undocking at various terminals in the Port of Mobile. Much of Purdue’s and Williams’s work was performed dockside, but they sometimes worked on line-handling boats maintained by their employer. On June 19, 2008, while performing their line handler duties aboard one of their employer’s boats, an accident occurred. Purdue and Williams were hooked to an ocean-going tanker when the tanker’s lines began to retract, pulling their 17-foot boat from the water. As a result, Purdue’s and Williams’s boat capsized. Purdue was able to climb to the top of the capsized boat but Williams, who could not swim, drowned. A few months later, Purdue and a representative of the Williams estate filed suit against their employer, as well as Groton Pacific and International Tanker Management (the ocean-going tanker’s managers). They alleged thatRead more
Plaintiff’s Assault Lawsuit Dismissed Because the DBA Was His Exclusive Remedy
Plaintiff filed a lawsuit in the Eastern District of Virginia alleging that his supervisor assaulted him while they were both working for a Defense Contractor at Camp Speicher in Iraq. Plaintiff attempted to hold his employer liable for intentional infliction of emotional distress and for failing to provide timely medical care after the assault. The district court dismissed Plaintiff’s claims for lack of subject matter jurisdiction, determining that Plaintiff’s remedy was found in the Defense Base Act “DBA,” and not in a tort suit. As stated by the court (with internal citations omitted): The assault at issue in this case occurred while Mason was working at Camp Speicher, a U.S. military base that was captured during the Iraq war. Thus, the DBA applies and provides Mason’s exclusive remedy against Sallyport as long as the assault at issue falls within the DBA’s definition of “injury.” Mason contends that it does not,Read more
Claimant Was Fired For Failing to Wear a Life Vest, Not Because He Filed a Longshore Claim
Claimant worked as a welder for Employer. On June 4, 2010, Claimant injured his low back and groin while lifting an empty gas cylinder. Claimant took one month off of work, during which time he received temporary total disability benefits. On July 1, 2010, Claimant returned to work. Employer’s safety agent told Claimant to wear an employer-provided fire-retardant life vest instead of a personal non-fire-retardant life vest. Claimant refused. The next day, Claimant was terminated for insubordination and disrespectful conduct. Afterwards, Claimant filed a Section 49 discrimination claim. The Longshore and Harbor Workers’ Compensation Act (“LHWCA”) prohibits employers from discharging or discriminating against an employee based on his claiming or attempting to claim compensation under the LHWCA. To establish a prima facie discrimination claim, the claimant must demonstrate that his employer committed a discriminatory act motivated by discriminatory animus or intent. Claimant could not do so in this case: ClaimantRead more
DLHWC: Further Clarification About Industry Notice No. 144 Procedures
From a mass e-mail submitted by the Division of Longshore and Harbor Workers’ Compensation: The DLHWC went live with consolidated case create (CCC) in New York and central mail receipt (CMR) processing in Jacksonville on December 2, 2013. We appreciate everyone’s cooperation to date in making this improvement in efficiency as smooth as possible. With over a month behind us, we would like to share with you some tips that will make the processing more efficient and better enable the DLHWC to serve its stakeholders. When submitting documents to us, please adhere to the following guidelines: 1. Do Not Send Case Specific Mail to the District Offices – Only send it to New York for case create, and thereafter to Jacksonville. 2. OWCP Case Number on Every Document – If a case number has been assigned by OWCP, the case number should be on every document submitted. For example if you areRead more
Fifth Circuit: Longshore Modification Statute Has a Broad Scope
Claimant injured his right knee while working for Employer on an oil production platform. Over the next month, Claimant’s left knee began hurting, too. Claimant performed light duty work for Employer until he was terminated. Not long thereafter, Claimant filed a Longshore and Harbor Workers’ Compensation Act (“LHWCA”) claim. Initially, the administrative law judge (“ALJ”) denied the claim, but the Benefits Review Board (“BRB”) reversed. On remand, the ALJ awarded closed periods of temporary partial and temporary total disability benefits. Prior to the passage of one year, Claimant filed a Section 22 modification application. The ALJ modified the previous judgment to provide for permanent partial disability benefits equal to a 25% impairment of each knee. The BRB affirmed and Employer appealed to the Fifth Circuit, which also affirmed. The Fifth Circuit addressed the two avenues by which a party to a LHWCA claim may move for a Section 22 modification: (1)Read more
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