A surefire way to forfeit future benefits is to fail to follow Section 33(g). In our practice, we come across Section 33(g) cases now and again, and it is worthwhile reviewing Section 33(g) here. Section 33(g) of the Longshore and Harbor Workers’ Compensation Act, as amended in 1984, states: (g)(1) If the person entitled to compensation (or the person’s representative) enters into a settlement with a third person…for an amount less than the compensation to which the person (or the person’s representative) would be entitled under this Act, the employer shall be liable for compensation as determined under subsection (f) only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed, and by the person entitled to compensation (or the person’s representative). The approval shall be made on a form provided by the Secretary and shall be filed in the office of the deputyRead more
A Facility 3.2 Miles Away From Port Was Not a Longshore Situs
The claimant was employed as a dual mechanic for the employer, at the employer’s Alta Drive facility. That facility was located three miles away from a deep water port. While performing his duties as a mechanic at the Alta Drive facility, the claimant was injured. He filed a Longshore and Harbor Workers’ Compensation Act claim. The administrative law judge determined that the claimant was maritime employee and that he was injured on a covered maritime status, but the Benefits Review Board (“BRB”) disagreed. The BRB determined that the claimant was not injured on a covered situs. To satisfy the “situs” requirement, a claimant must demonstrate that their injury occurred “upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing dismantling or building a vessel.” The claimant could not demonstrateRead more
Ninth Circuit: “Permanent” is Not Forever
Claimant suffered a neck and back injury while working for employer. This new injury overlaid pre-existing back and neck injuries. Once Claimant reached maximum medical improvement, the parties stipulated that she could not return to her previous position and that she was permanently partially disabled. Based on the preexisting disability, permanent partial disability payments were made by the Second Injury Fund pursuant to Section 8(f) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). Years later, Claimant’s medical condition deteriorated to the point that she needed surgery. She could not return to work after the surgery, and was rendered totally disabled. The issue that arose was whether Claimant was permanently or temporarily disabled in the “period of recuperation or healing” following Claimant’s surgery. If she was temporarily disabled, then Employer had to pay benefits during the recuperation period; but if Claimant was permanently disabled, then the Second Injury Fund hadRead more
Kentucky Does Not Have Concurrent Longshore Jurisdiction
Claimant was employed at a soybean and grain processing refinery located on the Ohio River in Kentucky. Two docks sat next to the refinery, and barges delivered raw materials via the docks. Barges also took away finished products from the refinery. Claimant estimated that he spent sixty percent of his time “maintaining and monitoring the computerized machinery which makes the pellet feed,” but the other forty percent was spent performing deckhand duties, like maneuvering the barges at the docks. Claimant was injured when he slipped and fell while climbing from a dock onto a platform. Claimant sought state workers’ compensation benefits but an administrative law judge determined that Claimant’s injury fell within the exclusivity provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). Ultimately, Claimant appealed this decision to the Court of Appeals of Kentucky, which affirmed. Kentucky’s state workers’ compensation laws do not share concurrent jurisdiction with the LHWCA. Read more
Another Tort Suit Dismissed Because of DBA Exclusivity
The United States District Court for the District of Maryland recently issued a Memorandum Opinion in Vance v. CHF International, wherein it held that the Defense Base Act (“DBA”) was the exclusive remedy for the plaintiffs’ tort claims. The plaintiffs in Vance were the personal representatives of an employee killed while driving to work in Peshawar, Pakistan. DBA benefits were paid following the employee’s death, but the plaintiffs sought tort damages in federal court. The DBA is a uniform, federal compensation scheme for civilian contractors. It is the exclusive remedy for injured workers. See Fisher v. Halliburton, 667 F.3d 602, 610 (5th Cir. 2012). The decedent’s contract fell under the public works provision of the DBA. See 42 U.S.C. § 1651(a)(4). As explained by the court: The work appears to constitute work performed under a service contract connected with a government-related construction project and work done in connection with the national defense. TheRead more
Proposed Amendment to the Defense Base Act
Representative Elijah Cummings recently proposed H.R. 5891, known as the “Defense Base Act Insurance Improvement Act of 2012.” The purpose of H.R. 5891 is to “amend the Defense Base Act to require the provision of insurance under that Act under a Government self-insurance program, and to require an implementation strategy for such self-insurance program.” The bill would require the government to create a self-insurance program that excludes private carriers, and it essentially relieves employers (i.e. contractors) of paying compensation. Instead, benefits would be funded by the government agency whose contract was “affected.” Beyond that, the bill requires the development and execution of an implementation strategy to for the self-insurance program, including the development of a strategy for transferring Defense Base Act (“DBA”) and War Hazards Compensation Act (“WHCA”) claims to the program. More likely than not, this bill is destined to fail. And for good reason. H.R. 5891 leaves too muchRead more
Should I Seek War Hazards Reimbursement or File an Appeal?
One question I am often asked is whether an employer and carrier should seek reimbursement pursuant to the War Hazards Compensation Act (“WHCA”), see 42 U.S.C. § 1704, or file an appeal with the Benefits Review Board, see 33 U.S.C. § 921. This question arises after an Administrative Law Judge (“ALJ”) finds the employer and carrier liable for benefits in a contested claim that involved alleged “war-risk hazards.” My answer to this question is, “It depends.” In my opinion, when an ALJ issues a Decision and Order that concretely links a claimant’s injuries to “war-risk hazards,” reimbursement should be sought instead of an appeal. The Code of Federal Regulations (“CFR”) requires employers and carriers to litigate a Defense Base Act (“DBA”) claim as if the WHCA did not apply. See 20 C.F.R. § 61.102. They are required to (1) take advantage of any assignment or subrogation rights due to the liability of a third party;Read more
DBA Settlements Can Be Based on a Peer Review Medical Report
Claimant appealed the decision of an Administrative Law Judge (“ALJ”) who approved Claimant’s Section 8(i) settlement agreement. Claimant, a Defense Base Act employee, was injured when his weapon’s butt stock struck his breastbone, injuring his chest and ribs. He voluntarily signed a $15,000 settlement which stated that Dr. Boris Bacic examined him. Later, however, Claimant stated that he was not actually examined by Dr. Bacic. The Benefits Review Board (“BRB”) affirmed the ALJ’s decision. Interestingly, Claimant did not complain about the amount of the settlement, but instead, the fact that the settlement was not based on the opinion of an examining physician. The BRB noted that the regulations require only that the settlement contain “[a] current medical report,”and there is “no requirement that the report be from a physician who personally examined claimant.” See 20 C.F.R. § 702.242(b)(5). The statement in the settlement that Claimant was actually examined by Dr. Bacic was harmless.Read more
For Longshore Coverage Exemptions, Focus on the Site of the Injury
The Benefits Review Board (“BRB”) recently affirmed a denial of benefits to a claimant who injured his back. It was an opportunity for the BRB to address exemptions to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) granted by the Department of Labor (“DOL”). At issue was Section 3(d) of the LHWCA, and the proper focus of an exemption inquiry: (d)(1) No compensation shall be payable to an employee employed at a facility of an employer if, as certified by the Secretary, the facility is engaged in the business of building, repairing, or dismantling exclusively small vessels…unless the injury occurs while upon the navigable waters of the United States or while upon any adjoining pier, wharf, dock, facility over land for launching vessels, or facility over land for hauling, lifting, or drydocking vessels. (2) Notwithstanding paragraph (1), compensation shall be payable to an employee– (A) who is employed at a facility whichRead more
What is Reimbursable Under the War Hazards Compensation Act? And When is it Reimbursable?
The Defense Base Act (“DBA”) is a system of federal workers’ compensation applied to United States contractors working abroad on U.S. bases or pursuant to a U.S. contract. When these contractors sustain a work-related injury, they are entitled to benefits. In some instances, the event that caused the contractor’s injury qualifies as a “war-risk hazard.” See 42 U.S.C. 1711 and 20 C.F.R. 61.4. Generally, “war-risk hazards” include the discharge of weapons; any action by a hostile force or person, including insurrection or rebellion; the discharge of munitions intended for use in war; the collision of vessels and aircraft operating without customary navigation aids; and the operation of a vessel or aircraft in a zone of hostility or engaged in war activities. The benefits paid to a DBA claimant because of injuries caused by a “war-risk hazard” qualifies the employer, insurance carrier, or compensation fund that paid benefits to reimbursement under theRead more
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