When Claimant worked as a longshoreman for eighteen years, he operated heavy equipment and was exposed to loud machinery noises. An otolaryngologist appointed by the Department of Labor (“DOL”) tested Claimant’s hearing twice. The first test demonstrated a 56% impairment while the second test demonstrated a 39.6% impairment. The DOL doctor testified that surgical exploration was necessary to determine if surgery would correct Claimant’s hearing. The best treatment was the use of hearing aids. Ultimately, the administrative law judge (“ALJ”) presiding over the case accepted the DOL doctor’s opinions and averaged out the impairment ratings to determine that Claimant suffered a 47.8% binaural loss. Employer appealed the ALJ’s decision, arguing that Claimant had not yet reached maximum medical improvement because the DOL doctor found a conductive component to Claimant’s hearing loss. Because there is a conductive loss, there is a possibility that surgery could correct some of the hearing loss. Based onRead more
Great Article About ALJ Orders Posted on LexisNexis’ Workers’ Compensation Law Community
Yelena Zaslavskaya, Senior Attorney for Longshore, OALJ, posted a great article on LexisNexis’ Workers’ Compensation Law Community entitled “Compensation Orders in Litigated LHWCA Claims: What the ALJs and the Parties Should Know.” The article thoughtfully explores when, how, and why administrative law judges shall issue compensation orders awarding or denying benefits. Really…this is an article to read, digest, and reread. And if that wasn’t enough, LexisNexis published the new update from the Benefits Review Board. The update addresses jurisdiction, average weekly wages after the Southern District of Texas vacated K.S. [Simons] v. Service Employees Int’l, Inc., and Service Employees Int’l, Inc. v. Director, OWCP, and the War Hazards Compensation Act. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Tragic Aircraft Crash in Afghanistan and the Scope of the War Hazards Compensation Act
This morning the Washington Post, and countless other news agencies, printed a sad story about a National Air Cargo plane crash in Afghanistan that claimed the lives of seven Americans. The article is available here. Shortly after takeoff from the Bagram Air Base in Afghanistan, the plane lost altitude, falling to the ground. Although the Taliban claimed responsibility for the downed aircraft, there is no indication that insurgents were involved in the crash. Our hearts go out to the surviving family and friends of these Americans. We do not know the facts behind the crash, and we cannot comment on the applicability of the Defense Base Act or the War Hazards Compensation Act to this particular event. Nonetheless, assuming that the DBA does apply, this tragic event demonstrates the interesting interplay between the DBA and WHCA, and the scope of the WHCA’s “airplane” inclusion. For our hypothetical, assume the following: 1. EachRead more
Permanent Washington State Workers’ Compensation Benefits Denied Because Longshore Benefits Were Available
Decedent died from mesothelioma. His employment included Longshore-based jobs. Following Decedent’s death, his widow requested workers’ compensation benefits under the Washington Industrial Insurance Act (“WIAA”). Washington’s Board of Industrial Insurance Appeals denied her claim for benefits. On appeal, the Department of Labor and Industries opposed the widow’s claims. Specifically, the widow argued that “she is entitled to WIAA benefits because her husband’s last injurious exposure to asbestos occurred when he was employed by a non-maritime employer covered by the WIIA.” Further, the widow argued that the Department violated Washington law “when it denied her temporary and interim benefits and when it failed to pursue a [Longshore claim] on her behalf.” The Court of Appeals of Washington, Division 2, held that the widow’s arguments were only partially correct. State workers’ compensation benefits were not available to the widow “because (1) her husband had worked previously for an LHWCA-covered employer and, thus, [was] notRead more
Benefits Review Board Clarifies Its Cathey Decision
When the Benefits Review Board issued Cathey v. Service Employees International in December 2012, we published a blog post calling into question some of the Board’s language. As it turns out, the Director took issue with some of the language too. Specifically, the Director averred that the Board incorrectly included language indicating that an employer is permanently relieved of liability once a Defense Base Act claim is accepted for reimbursement. The Board reconsidered its language and issued an amended Cathey decision, which states in pertinent part: In her motion, the Director requests that the Board delete language in the decision that indicates that the federal government’s acceptance of employer’s claim for reimbursement under Section 104 of the War Hazards Compensation Act (WHCA), 42 U.S.C. § 1704, permanently relieves employer of its liability under the Defense Base Act, 42 U.S.C. § 1651 et seq. (DBA). The Director asks the Board to clarify itsRead more
BRB: All Attorney’s Fees Owed By Last Responsible Carrier
The Benefits Review Board (“BRB”) recently issued an unpublished Longshore decision about attorney’s fees. The issues, which pop up constantly in practice, were (1) which carrier owes attorneys fees in a multiple carrier case, and (2) to what extent are fees owed. In Weimer v. Todd Pacific Shipyards, BRB No. 12-0297 (02/26/2013) (unpublished), the BRB confirmed that the last responsible employer/carrier is liable for all attorney’s fees, even fees earned before the liable employer/carrier was joined to the workers’ compensation claim. The holding in Weimer is an offshoot of the last responsible employer/carrier doctrine. Pursuant to that doctrine, the employer/carrier “for which the claimant worked at the time of the last aggravating injury that resulted in disability is liable for the claimant’s entire disability irrespective of the degree of the last injury’s contribution.” In Lopez v. Stevedoring Servs. of America, 39 BRBS 85 (2005), aff’d mem., 377 F.App’x 640 (9th Cir. 2010), theRead more
Fifth Circuit: No Right to Restitution for Maintenance and Cure Payments
When Plaintiff was hired, he completed a pre-employment medical questionnaire. Plaintiff failed to disclose his serious preexisting back problems, affirmatively answering “no” to several inquiries about those problems. After working for Employer for a few months, Plaintiff allegedly injured his back. Employer paid maintenance and cure for five years. After Plaintiff filed suit for additional maintenance and cure, Employer learned through discovery about Plaintiff’s extensive back problems. Employer won a partial summary judgment on a McCorpen defense, which extinguished liability for maintenance and cure because Plaintiff’s failure to disclose the prior back problems. Then, Employer filed a counterclaim against Plaintiff to recover the maintenance and cure payments already made. The district court issued an opinion awarding Employer restitution for the sums previously paid. The Fifth Circuit, in a 2-1 opinion, determined that the district court erred by awarding restitution, no matter the egregious facts concerning Plaintiff’s maintenance and cure claim. In short, restitution is not availableRead more
Fifth Circuit Addresses Dual Capacity Employers and the “Something More” Factors
Plaintiff was employed as a crane operator by Defendant, which was both the vessel owner and the contractor of a crane. The crane developed an open and obvious hydraulic fluid leak, and Plaintiff complained to supervisors about the leak, which covered areas of the vessel that were within the crane’s swing radius. Later, Plaintiff slipped on the crane’s tracks, injuring his back. He blamed the injury on a black spot of hydraulic fluid. Defendants paid Longshore and Harbor Workers’ Compensation Act (“LHWCA”) benefits, and Plaintiff then sued Defendant (in its capacity as the vessel owner) for negligence. The federal district court granted Defendant’s motion for summary judgment, finding that Defendant had not breached its duties under Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). Plaintiff appealed. A dual-capacity employer acts as both employer and vessel owner. This presents a problem because if the “employer” is negligent, then LHWCA compensation payments are the employee’s exclusive formRead more
Eleventh Circuit Defines “Navigable Waters”
The Eleventh Circuit answered a question “almost as old as the doctrine of admiralty jurisdiction itself.” The question: what are navigable waters? According to the Eleventh Circuit, “a waterway is navigable for admiralty-jurisdiction purposes if, in its present state, it is capable of supporting commercial activity.” The Eleventh Circuit begrudgingly stated that it was bound by prior precedent, Richardson v. Foremost Ins. Co., 641 F.2d 314 (5th Cir. 1981). In Richardson, the Fifth Circuit addressed whether a tort claim based on a collision between two pleasure boats on a waterway that was “seldom, if ever, used for commercial activity” fell within the federal courts’ admiralty jurisdiction. 641 F.2d at 315–16. The court noted that for admiralty jurisdiction to exist in a tort case, two requirements must be met: (1) there must be a significant relationship between the alleged wrong and traditional maritime activity (the nexus requirement) and (2) the tortRead more
The Fifth Circuit Explains the Application of Maritime Law to Jack-Up Rigs and Removal of OCSLA Claims
After watching his friend and co-worker die as a result of an accident on a jack-up rig attached to the Outer Continental Shelf (“OCS”), Plaintiff filed suit in a Texas state court. Plaintiff conceded that he did not sustain a physical injury, but he alleged to have suffered severe emotional distress from witnessing his friend’s death. Further, the emotional distress caused physical problems. In response to Plaintiff’s state court lawsuit, Defendants removed the action to the United States District Court for the Southern District of Texas under the federal question jurisdiction of the Outer Continental Shelf Lands Act (“OCSLA”). The federal district court then determined that Plaintiff could not recover under either Texas law or maritime law and granted Defendants’ motion for summary judgment. Plaintiff appealed the district court’s decision and the Fifth Circuit affirmed. The “difficult question” the court had to answer was “whether federal, state, or maritime law provides theRead more
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