When an insurance carrier believes that it was improperly denied reimbursement for a War Hazards Compensation Act (“WHCA”) claim or expense, what can it do? It can appeal…but not to a court. The appeal is “in-house” at the Division of Federal Employees Compensation (“DFEC”). Essentially, the higher-ups in the same agency that denied the initial request for reimbursement will review the evidence and determine whether the denial was appropriate. The regulatory authority for a WHCA appeal is at 20 C.F.R. § 61.102(d), which states: The Office shall advise the carrier of the amount approved for reimbursement. If the reimbursement request has been denied in whole or in part, the Office shall provide the carrier an explanation of the action taken and the reasons for the action. A carrier within the United States may file objections with the Associate Director for Federal Employees’ Compensation to the disallowance or reduction of aRead more
Supreme Court Petition Filed in Dize v. Association of Maryland Pilots
On April 18, 2014, counsel for Jennifer Dize, the personal representative of the Estate of William Smith Dize, filed a interesting and very well-written petition for certiorari in the Supreme Court of the United States. The issue: To qualify as a “seaman” under the Jones Act, 46 U.S.C. § 30104, a maritime worker who “contribute[s] to the function of [a] vessel or to the accomplishment of its mission” must have “a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) (internal quotation marks and alteration omitted). In assessing “substantiality,” this Court has endorsed a “rule of thumb” that, ordinarily, a qualifying seaman must spend 30 percent or more of his time in service of a vessel in navigation, id. at 371, but this CourtRead more
Military Contractors Are a Way of Life, Now and in the Future
How important are contractors to the Department of Defense? Very. Contractors are indispensable. According to the Congressional Research Service (“CRS”), “the military is unable to effectively execute many operations, particularly those that are large-scale and long-term in nature, without extensive operational contract support.” The May 2013 CRS report entitled Department of Defense’s Use of Contractors to Support Military Operations: Background, Analysis, and Issues for Congress is an enlightening report. Although there are some portions of the report that I disagree with, the CRS did a good job explaining the importance of defense contractors: DOD has long relied on contractors to support overseas military operations. Post-Cold War defense budget reductions resulted in significant cuts to military logistics and other support capabilities, requiring DOD to hire contractors to “fill the gap.” Recent operations in Iraq and Afghanistan, and before that in the Balkans, have reflected this increased reliance on contractors supporting U.S. troops–bothRead more
BRB: ALJs are Not Required to Use K.S. to Calculate Average Weekly Wage
The Benefits Review Board (“BRB”) recently discussed average weekly wage calculations in an unpublished Defense Base Act decision. In Hamidzada v. Mission Essential Personnel, the Employer and Carrier appealed an administrative law judge’s (“ALJ”) average weekly wage decision. The ALJ calculated Claimant’s average weekly wage using only the wages Claimant earned overseas during his employment for Employer in Afghanistan. Employer appealed, arguing that the ALJ erred in relying on the BRB’s K.S. decision–which used to be the seminal average weekly wage decision for DBA claims–because a federal court vacated K.S. Why was K.S. so important? For years, K.S. was used in connection with Proffitt v. Serv. Employers Int’l to more or less bar ALJs from blending together overseas and stateside earnings to determine an injured worker’s average weekly wage. Instead, K.S. wanted average weekly wage calculations to be based on only overseas wages when the employee was paid “higher wagesRead more
Summary Judgment Was Not Appropriate in Jones Act Case Against Louisiana
Plaintiff worked on a ferry boat operated by the State of Louisiana, Department of Transportation and Development. On August 1, 2007, she slipped and sustained injuries while cleaning an oil leak the vessel’s engine room. After Plaintiff filed a Jones Act suit against the State, the State moved for summary judgment on the issue of causation, arguing that Plaintiff’s own negligence was the sole of her injury. In response, Plaintiff filed her own motion for summary judgment on the issue of liability, arguing that the State’s vessel was unseaworthy and that the State was negligent in failing to repair the vessel. The trial court agreed with Plaintiff and the State appealed. Louisiana’s Third Circuit first addressed causation. The State argued that Plaintiff could not prove causation because, “while cleaning the oil with soap and water, she herself created the condition which caused her injury.” The Third Circuit recognized that aRead more
BRB Questions Whether Work or Adultery and Drugs Led to Suicide
Decedent worked as a pest control specialist in Iraq for one and a half years. Upon returning to the United States in June 2006, he learned that his wife had committed adultery while he was away, and that his daughter developed a drug problem. A few weeks later, Decedent checked himself into a hotel room where he shot and killed himself. Claimant, Decedent’s widow, filed a claim for death benefits contending that Decedent’s suicide was related to his employment. An administrative law judge (“ALJ”) agreed, noting that “the zone of special danger could have been a cause of [Decedent’s] suicide.” The ALJ noted Decedent’s exposure to mortars, a hazardous waste spill, a colleague’s injury or death, and even the Decedent’s physical separation from his family as all falling under the zone of special danger. After the ALJ awarded benefits, the Employer and Carrier appealed to the Benefits Review Board (“BRB”)Read more
The BRB Went on an Attorney Fee Tear in Early 2014
Did anyone else notice that the Benefits Review Board went on a tear in January and February 2014 with respect to Longshore attorney fee decisions? See below: Leffard v. Eagle Marine Servs., BRB No. 13-0199 (Jan. 17, 2014) (addressing hourly rate, fee petition evidence, and time spent preparing a response to employers’ objection to claimant’s counsel’s fee petition). Richey v. Premiere, Inc., BRB No. 13-0216 (Jan. 17, 2014) (affirming award of Section 28(a) fees for failing to pay compensation within 30 days). Modar v. Maritime Servs. Corp., BRB No. 13-0319 (Jan. 17, 2014) (affirming district director’s decision to “enhance counsel’s attorney’s fee for services performed in 2004 and 2005 by using 2008 hourly rates rather than 2012 hourly rates….”). Huggins v. Massman Traylor Joint Venture, BRB N. 13-0223 (Jan. 28, 2014) (affirming ALJ’s reduction of fees by 30% based on claimant’s limited success in obtaining benefits.). Keniston v. Crowley MarineRead more
Fourth Circuit Denies LHWCA Attorney’s Fees Because Compensation Was Paid Within 30 Days
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
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