The Fifth Circuit recently issued an unpublished Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision. Decedent, an electrician from Warren, Texas, suffered a fatal heart attack while working on a drilling rig in Vicksburg, Mississippi. At the time of his death, he worked twelve-hour days seven days a week. Decedent was staying at a motel and he received $50 per diem for each day worked in Vicksburg. Following his death, Decedent’s widow made a claim for death benefits. The parties put two issues before the Administrative Law Judge: (1) whether the Section 20(a) presumption applied to the case, and (2) the correct amount of per diem to include in the Decedent’s average weekly wage (“AWW”) calculation. As for the Section 20(a) issue, the Fifth Circuit determined that the statutory presumption did, in fact, apply. The presumption applies after a claim establishes a prima facie showing of a work injury. To makeRead more
Court Upholds Dismissal of Lawsuit Because the DBA is an Exclusive Remedy
Plaintiffs filed a wrongful death lawsuit in federal court following the death of Employee, who was murdered while performing aid work in Pakistan. The Employer provided Defense Base Act (“DBA”) insurance coverage to Employee, and Employee’s beneficiaries received DBA death benefits since January 26, 2009–over two-and-a-half years prior to filing suit. When this fact was brought to the judge’s attention, the action was dismissed on the grounds that the “DBA insurance is the exclusive civil remedy” for Employee’s death. Aggrieved by the result, Plaintiffs filed a litany of motions, one of which claimed that there was newly discovered evidence that the DBA did not apply. Specifically, Plaintiffs alleged that the DBA applies only to contracts, and not to cooperative agreements such as the one entered into between the Employer and the United States Agency for International Development (“USAID”). The new “evidence” included “USAID directives, regulations, and policies.” The Employer counteredRead more
Boroski II: “Currently Receiving” Means “Currently Entitled”
Before the Supreme Court decided Roberts v. Sea-Land Services, Inc., 132 S.Ct. 1350 (2012), two Circuits were at odds with one another about the meaning of “newly awarded compensation” per Section 6 of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). The Ninth Circuit felt that “newly awarded compensation” meant newly entitled to compensation. The Supreme Court agreed. Id. The Eleventh Circuit, on the other hand, thought that an injured worker was “newly awarded compensation” when a formal compensation order was filed. See Boroski v. Dyncorp Int’l, 662 F.3d 1197 (11th Cir. 2011) (hereinafter Boroski I). After the Supreme Court affirmed the Ninth Circuit’s determination that “newly awarded” means “newly entitled,” see Roberts, the Court also vacated Boroski I and remanded the case to the Eleventh Circuit for further consideration. On remand, the Eleventh Circuit determined that Roberts conclusively decided the “newly awarded compensation” issue on appeal. But it did not stopRead more
The K.S. [Simons] Decision is Limited to Dangerous Locales Like Iraq and Afghanistan
In an unpublished decision, Fields v. Fluor Corporation, the Benefits Review Board addressed the average weekly wage determination for a Defense Base Act employee in Tashkent, Uzbekistan. Although the decision does not focus entirely on average weekly wage calculations, the portion that does is interesting. Claimant argued that the administrative law judge erred “by not relying on claimant’s contract rate with employer, or alternatively, by not averaging the highest earnings claimant received while working overseas between 2000 and September 2004.” The Board disagreed. Section 10(c) of the Longshore and Harbor Workers’ Compensation Act is geared towards arriving “at a sum that reasonably represents the claimant’s annual earning capacity at the time of his injury.” Here, the ALJ rationally concluded that claimant’s earnings should include both the earnings at the time of injury and the earnings in similar work claimant performed within the preceding 52 weeks. My favorite part of the decision, however, is theRead more
Fifth Circuit Affirms Exclusion of Expert Affidavit in Section 905(b) Claim
Plaintiff, a longshoreman, was injured while unloading steel pipes from a vessel. A bundle of pipes shifted, rolled towards the longshoreman, and pinned his leg against a wall. The crush injury resulted in a below-the-knee amputation. Plaintiff filed a Section 905(b) claim against the vessel, its operator and its charterer. Under Section 905(b), a longshoreman may recover damages for injuries “caused by the negligence of a vessel.” The duties owed to longshoremen include the (1) turnover duty, (2) a duty to exercise reasonable care in the areas of the ship under active control of the vessel, and (3) a duty to intervene. Plaintiff designated Captain Joe Grace as his liability expert. Captain Grace’s report opined that Plaintiff’s injury was caused by the improper stowage of the pipes. Defendants then moved for summary judgment, arguing that Plaintiff failed to prove that they breached a duty owed to him. Plaintiff responded by filing aRead more
A Navy Ship is Not a “Product” for Strict Products Liability Law
The Eastern District of Pennsylvania recently addressed arguments testing the intersection between maritime and product liability law, all of which stemmed from a plaintiff’s exposure to asbestos on various Navy ships during the 1960s and 1970s. At that time, the plaintiff was employed as a welder by the Department of Defense. The issues of first impression before the court were (i) whether “maritime law recognize[s] a sophisticated user and/or sophisticated purchaser defense and, if so, to what causes of action does the defense(s) apply”; and (ii) whether a Navy ship is a “product” within strict products liability law. Section 388 of the Restatement (Second) of Torts provides guidelines for the “sophisticated user” defense: One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm causedRead more
What Date Controls AWW? What Date Controls Compensation Rate?
A footnote in Roberts v. Sea-Land Services, the Supreme Court’s recent Longshore and Harbor Workers’ Compensation Act decision, is leading to a reevaluation of each claimant’s compensation rate. Footnote 7 states: Roberts accurately notes that in some cases, the time of injury and the time of onset of disability differ. We have observed that “the LHWCA does not compensate physical injury alone but the disability produced by that injury.” Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 297 (1995). From that principle, lower courts have rightly concluded that when dates of injury and onset of disability diverge, the latter is the relevant date for determining the applicable national average weekly wage. See, e.g., Service Employees International, Inc. v. Director, OWCP, 595 F.3d 447, 456 (CA2 2010); Kubin v. Pro-Football Inc., 29 BRBS 117 (1995) (per curiam). What does this mean? It means that the date of an injured worker’s injury controlsRead more
Ninth Circuit: No More Chevron Deference for the Director’s Litigating Position
On September 4, 2012, the Ninth Circuit issued a rare en banc Longshore decision. In Price v. Stevedoring Services of America, the court determined that it would no longer give Chevron deference to the Director of the Office of Workers’ Compensation Program’s litigating positions, and that employers and carriers must pay compound interest (instead of simple interest) if interest is owed pursuant to Section 14 of the Longshore and Harbor Workers’ Compensation Act. Agency deference is an important consideration in every case—but there are different levels of deference to consider. “Chevron deference” comes from Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984). There, the Supreme Court stated that when Congress has “explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation;” and “[s]uch legislative regulationsRead more
Lack of Evidence Prevented “Direct” Negligence Claim Against Labor Personnel Contractor
In an unpublished opinion stemming from a Longshore and Harbor Workers’ Compensation Act claim, the Fifth Circuit affirmed a district court’s grant of summary judgment dismissing a “direct” negligence suit against a labor personnel contractor. A horrific explosion occurred when an unskilled worker allegedly failed to properly ventilate the area or use “explosion proof” safety lighting. The unskilled worker died, as did another worker. Five were injured, including the plaintiff-worker. The plaintiff-worker and his spouse then filed a suit against the labor personnel contractor that supplied the unskilled worker to a borrowing employer. The argument was that the labor personnel contractor was negligent in its hiring, retention and training of the unskilled worker, and that led to the explosion. To establish their negligence claim, the plaintiffs had to show that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty; (3) the plaintiff suffered damages; and (4) theRead more
Child Support and Longshore/DBA Benefits
An oft-asked question is whether child support payments can be garnished from Longshore and Harbor Workers’ Compensation Act (“LHWCA”) or Defense Base Act (“DBA”) workers’ compensation benefits. More likely than not, the answer is, “No.” Section 16 of the LHWCA, which applies to the DBA, provides: No assignment, release or commutation of compensation or benefits due or payable under this Act, except as provided by the Act, shall be valid, and such compensation and benefit shall be exempt from all claims of creditors from levy, execution, and attachment or other remedy for recovery or collection of a debt, which exemption may not be waived. This provision, which is known as the anti-assignment or anti-alienation provision, prevents child support judgments from attaching to a disability award. It has been state courts and not federal courts which have commented on the child support issue. The Louisiana Supreme Court expressly stated that a wife could not garnishRead more
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