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The Benefits Review Board (“BRB”) recently issued an unpublished Longshore decision about attorney’s fees.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 In Weimer v. Todd Pacific Shipyards, BRB No. 12-0297 (02/26/2013) (unpublished), the BRB confirmed that the last responsible employer/carrier is liable for all attorney’s fees, even fees earned before the liable employer/carrier was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
FECA Bulletin No. 13-01…and the Pending Decline in Lump Sum Settlements for DBA/WHCA Claims
On January 29, 2013, the Division of Federal Employees’ Compensation (“DFEC”) published FECA Bulletin No. 13-01. This Bulletin will change how we all administer or adjudicate Defense Base Act (“DBA”) claims with a War Hazards Compensation Act (“WHCA”) component (which I refer to as DBA/WHCA claims). The Bulletin states: Subject: Reimbursement of Unallocated Claims Expenses for Defense Base Act (DBA) settlements under the War Hazards Compensation Act (WHCA), and Allocating Payments in a DBA Settlement of Multiple Injuries for Purposes of Reimbursing only WHCA-Covered Injuries Background: The DBA provides a workers’ compensation system for workers injured or killed while performing work for government contractors outside the United States. 42 U.S.C. 1651(a). Employers and carriers (E/Cs) are liable to pay periodic compensation and medical benefits to an injured employee or death benefits to his/her survivors. The DBA, by incorporating most provisions of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901-950 (LHWCA), also permitsRead more
Common Law Tort Claims Preempted by the DBA’s and LHWCA’s Exclusivity Provisions
Claimant was injured in a roadside bomb attack. The employer and carrier paid medical and indemnity benefits pursuant to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) as extended by the Defense Base Act (“DBA”). In addition, Claimant filed a federal civil lawsuit against the employer and carrier asserting common law claims for breach of contract, breach of fiduciary duty, fraud, and conspiracy to defraud. In his complaint: Nadheer alleged that, before his transfer to Erbil, he had requested transfer to a hospital in Jordan and that his insurance provider had denied this request. He claimed that this violated a provision in the LHWCA that allows patients to select their own physicians and that he was never informed of this and various other rights of his under the LHWCA. He further asserted that, as a result of deficient medical treatment he received in Erbil, he had suffered horrific pain andRead more
SCOTUS Issued Summary Disposition Reversing A Casino Boat Case
Yesterday the Supreme Court of the United States (“SCOTUS”) issued a summary disposition in Lemelle v. St. Charles Gaming Co., Inc. We previously discussed Lemelle here. Briefly, in Lemelle, an intoxicated patron fell down the stairs of the M/V CROWN CASINO, a riverboat casino. The plaintiff filed suit seeking damages under general maritime law, which he argued preempted a Louisiana statute limiting liability for loss connected with the service of alcoholic beverages. The dispute became one of vessel status. The Court of Appeal of Louisiana, Third Circuit, determined that the casino riverboat was not a vessel. Interestingly, Louisiana’s Third Circuit cited to a prior federal Fifth Circuit opinion that discussed how the casino was only “theoretically” capable of maritime transport. De La Rosa v. St. Charles Gaming Co., 474 F.3d 185, 187 (5th Cir. 2003). But Louisiana’s Third Circuit did not stop there. It also determined that the CROWN was “practically” incapableRead more
Virginia: Punitive Damages are Not Allowed in a Section 905(b) Action
During his eleven-year tenure as a ship repair staff supervisor, Mr. Minton was exposed to asbestos. Sixteen years after his employment ended, he was diagnosed with malignant mesothelioma, a form of cancer caused by exposure to asbestos. Minton filed a Section 905(b) claim and the jury awarded him $12,000,000 in compensatory damages, $430,963.70 in medical expenses, plus punitive damages in the amount of $12,500,000 (which was later reduced to $5,000,000). One of the issues on appeal was whether Section 905(b) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) allows the award of punitive damages. Although the Supreme Court of Virginia recognized that some courts have allowed punitive damages, it flatly rejected any interpretation of Section 905(b) in favor of punitive damages. The plain language of the statute limited the remedies available for a negligence action to those included within the terms of the statute. Because “punitive damages are not a remedyRead more
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