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 The holding in the unpublished Fifth Circuit case–a case dealing with Section 22 modification–was: Addressing the remaining issues, the ALJ did not err denying Cox’s Motion for Modification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
Plaintiffs’ DBA Claims Dismissed By Federal Court For Failure to Exhaust Administrative Remedies
Plaintiffs, both former military subcontractors, sued Employer in federal court, alleging that Employer fired Plaintiffs in retaliation for one of the Plaintiffs filing a workers’ compensation claim. Employer argued that Plaintiffs failed to exhaust their administrative remedies by failing to adjudicate their Defense Base Act (“DBA”) claim before the Division of Longshore and Harbor Workers’ Compensation or the Office of Administrative Law Judges (“OALJ”). The United States District Court for the District of Columbia agreed and dismissed the Plaintiffs complaints. The Defense Base Act (“DBA”) is an extension of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). As such, the provisions of the LHWCA apply to DBA claims unless the DBA contains specific provisions to the contrary. For this case, the court addressed the LHWCA’s discrimination provision, 33 U.S.C. § 948a, which applies to DBA claims. Section 948a states: It shall be unlawful for any employer or his duly authorizedRead more
Defense Base Act Contractor On the Daily Show with Jon Stewart
Two nights ago, Jon Stewart aired an interview with Blackwater founder Erik Prince, who was promoting his book Civilian Warriors. Take a moment to watch the interview. It’s pretty interesting–and entertaining. Why is this applicable to Navigable Waters? Because many of Blackwater’s employees qualify as Defense Base Act (“DBA”) contractors. Jon Stewart’s interview touches on a number of topics that are often debated in the DBA community. First, in Part 1 he asks whether Blackwater contractors were mercenaries. Mr. Prince disputed the label, but there is no disputing that Mr. Stewart’s question is legitimate. DBA personal security contractors are paid sums that far exceed the pay earned by soldiers to work in the same environment and face the same threats. But is a contractor’s service the same as a soldier’s service? Should contractors who earn $150,000 to $200,000 be likened to soldiers, who perform the same tasks in the sameRead more
Second Circuit Addresses the Economic Loss Rule
In Atlantic Petroleum, the Second Circuit determined that economic losses are not recoverable for an unintentional maritime tort in the absence of a physical injury. The court also refused to create a fact-specific exception for foreseeable losses caused by a government entity. As summed up by the court: The issue on this appeal is whether, under maritime law, an owner of a vessel may be awarded damages for economic loss due to negligence in the absence of physical damage to its property. For many years a number of courts have derived from the Supreme Court’s opinion in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), a “rule” prohibiting such damages. Plaintiff–Appellant American Petroleum and Transport, Inc. (“American”) appeals from the October 11, 2012, judgment of the United States District Court for the Southern District of New York (Paul A. Engelmayer,Read more
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