Section 1651(c) of the Defense Base Act (“DBA”) is the provision entitled, “Liability as exclusive.” It states: “The liability of an employer, contractor…under this Act shall be exclusive and in place of all other liability of such employer, contractor, subcontractor, or subordinate contractor to his employees (and their dependents) coming within the purview of this Act, under the workmen’s compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into.” 42 U.S.C. § 1651. Recently, the Southern District of Texas had the opportunity to address the DBA’s exclusivity provision. The decedent worked as a truck driver for Defendant contractor in Iraq. Camp Anaconda was under constant threat of the hijack of convoy trucks, which were then used as explosive devices; therefore no unaccompanied convoys were permitted to attempt to enter the Camp. MembersRead more
Second Circuit Holds that Disputed Psychological DBA Claim Was Timely Filed
After working for nine years as an officer for the Kansas Department of Corrections, Claimant went to work for Employer in Kosovo, where she would apprehend fugitive parolees. She started her new job on April 17, 2004. Her first day of work, however, was marred with tragedy when she and five others were shot by a Jordanian soldier. Three victims died. It was not until April 16, 2006, that Claimant filed a claim for benefits under the Longshore and Harbor Workers Compensation Act (“LHWCA”), as extended by the Defense Base Act, for her underlying psychological injuries. The question presented to the United States Court of Appeals for the Second Circuit was whether this claim was barred by the statute of limitations for failure to timely file a claim. Section 13 of the LHWCA contains a statute of limitations, offering different filing periods based upon whether or not the underlying injuryRead more
Louisiana’s Fourth Circuit Reverses Ruling on Seaman Status
Via a contract with a staffing company, Claimant became employed by a catering company, and was assigned to work as a part of the galley/cooking staff. Claimant alleged that he was injured aboard a vessel while working for the catering company, and he filed Jones Act negligence claims against both parties and their insurers. Subsequently, insurance and indemnification disputes developed between the defendants and their insurers, which were rooted in the issue of whether Claimant was a Jones Act seaman. The trial court, ruling on motions and cross-motions for summary judgment, found that Claimant was a Jones Act seaman, and concluded that the Longshore and Harbor Workers’ Compensation Act was inapplicable; therefore, the catering company was required to defend and indemnify the staffing company. The defendants later settled with Claimant, and a Joint Motion and Order of Dismissal was granted. Appellants now argued that the trial court erred in granting the motions forRead more
New FECA Regulations Go Into Effect Today
Pursuant to the Department of Labor’s website, new regulations for the Federal Employees’ Compensation Act (“FECA”) go into effect today. A copy of the regulations can be found here. These regulations also effect the War Hazards Compensation Act (“WHCA”), including the direct payment regulation, 20 C.F.R. § 61.105. When a case is accepted for direct payment, the Division of Federal Employees’ Compensation furnishes medical care in accordance with FECA. Although no changes were made to the WHCA’s regulations, any changes to FECA’s medical care regulations will have a ripple effect on the WHCA’s direct payment regulation. The good news is that the regulations were amended to bring them up to speed with organizational changes at the Office of Workers’ Compensation programs, and to account for advancing medical billing technologies. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
ALJ Did Not Have Power to Resolve Defense Base Act Insurance Dispute
Sandi Group, Inc., employed Iraqi nationals who were injured or killed during their employment. Pending before the Office of Administrative Law Judges (“OALJ”) are two claims against Sandi Group, one by an injured claimant, and another on behalf of a deceased claimant. In those proceedings, Sandi Group has taken the position that the claimants were employees working under a subcontract with Dyncorp. Further, Sandi Group alleged that it was entitled to coverage under Dyncorp’s insurance policy because Dyncorp is the employer who is statutorily responsible for providing Defense Base Act coverage for these incidents.” Dyncorp’s insurer, Continental Insurance Company (“Continental”), disagreed, noting that the Dyncorp policy did not cover foreign nationals. Continental then filed a declaratory judgment action in the United States District Court for the District of Columbia to resolve the insurance coverage dispute. Sandi Group asked the court to either dismiss or stay the action, but the court refused.Read more
W.D. Wash: Loss of Consortium Available in Unseaworthiness Claim
In an opinion that is interpretive of the landmark decision in Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009), U.S. District Judge Pechman denied defendant’s 12(b)(6) motion to dismiss by holding that the spouse of an injured seaman may seek damages for loss of consortium under general maritime law. Loss of society damages were deemed to be unavailable to survivors of seamen who brought claims under the Jones Act or under general maritime law under Miles v. Apex Marine Corp., 498 U.S. 19 (1990). The Miles Court based its holding on the U.S. Supreme Court decision in Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59 (1913), which held that loss of society damages were not available under the Federal Employers Liability Act (“FELA”). The Miles Court reasoned that the Jones Act, which incorporated the FELA, required the application of the Vreeland decision as judicial “gloss.” Id. atRead more
Lung Condition First Diagnosed 20 Years Later Was a Second Injury
Decedent was exposed to asbestos dust and fibers in the 1940s and 1950s. In 1977, he was diagnosed with severe chronic obstructive pulmonary disease (COPD). By 1979, Decedent was totally disabled due to extensive arthritis, chronic heart condition, and chronic pulmonary condition. Twenty years later, in 1999, Claimant was first diagnosed with lung cancer. Then, in 2001, Decedent passed away. The question raised in this case was whether or not the employer was entitled to Section 8(f) relief for continuing death benefits payments to Decedent’s widow. In the Fourth Circuit, “to establish entitlement to Section 8(f) relief in a case involving a post-retirement occupational disease, an employer need show only that an employee’s pre-existing permanent partial disability pre-dated the manifestation of the occupational disease that constitutes the ‘second injury,’ and that the employee’s death is not due solely to the subsequent work injury but was contributed to or hastened by the pre-existingRead more
No Statute of Limitations for War Hazards Reimbursement Requests
Is there a statute of limitations for an insurance carrier’s claim for reimbursement under the War Hazards Compensation Act? Without any statutory or regulatory language to the contrary, the answer is, “No.” If a Defense Base Act (“DBA”) claimant was injured by a “war-risk hazard,” as that term is defined by 42 U.S.C. § 1711, then a carrier may seek reimbursement for the benefits it was required to pay on account of that injury. 42 U.S.C. § 1704. The carrier is “entitled to be reimbursed for all benefits so paid or payable, including funeral and burial expenses, medical, hospital, or other similar costs for treatment and care; and reasonable and necessary claims expense in connection therewith.” Id. There is no statement in Section 104 that would limit the time when an initial request for reimbursement can be filed. There is, however, a time limit for appealing a denial, so long as theRead more
Eleventh Circuit’s Borrowed-Employment Standard for Longshore Cases
Section 905(a) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provides that an employer’s liability for workers’ compensation benefits to an employee “shall be exclusive and in place of all other liability of such employer to the employee.” 33 U.S.C. § 905. This statute reflects the “industrial bargain” between employers and employees on which the LHWCA and all workers’ compensation laws are based. The bargain is simple: “The covered employee has surrendered the right to sue the employer for negligence, and thus has eschewed the possibility of a more significant damages award from the employer; the employer, similarly, has relinquished its common law defenses available in employee negligence actions. In consideration, the employee receives more certain compensation for injuries arising from the employment, regardless of fault; the employer, in turn, eludes litigation expenses and pays only scheduled LHWCA benefits.” In a new published decision, the United States Court of Appeals, EleventhRead more
ALJ Can Determine Audiogram Reliability For Special Fund Relief
In an unpublished decision, the Ninth Circuit found that an audiogram not provided to the Claimant within thirty days of its administration could establish evidence of the amount of hearing loss sustained on a particular date for the purposes of Section 8(f) relief. 33 U.S.C. §908(f) (2011). Under 33 U.S.C. §908(c)(13)(C) and 20 C.F.R. § 702.321(a)(1), preexisting hearing loss must be documented as required by 20 C.F.R. § 702.441. Section702.441(b) states that an audiogram shall be presumptive evidence of the amount of hearing loss on the date it was administered if it meets certain requirements, including the requirement that the employee must be provided with the report within thirty days of the administration of the audiogram. The court held that while the plain language of the statute and regulations establish a safe harbor for employers seeking to use the audiogram as presumptive evidence of hearing loss for Section 8(f) relief, an administrativeRead more
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