On December 10, 2008, the Occupational Safety and Health Administration (“OSHA”) published a final rule regulating the use of vertical tandem lifts (“VTLs”). The rule, or VTL Standard, was challenged by a marine terminal trade association on the grounds that (1) OSHA failed to demonstrate that VTLs pose a significant risk to worker safety; (2) two of the Standard’s requirements were not technologically feasible; (3) the Standard is not reasonably necessary or appropriate with respect to the “safe work zone” requirement; (4) the Standard exceeds OSHA’s lawful authority; (5) and that the Occupational Safety and Health Act (“OSH Act”) made an unconstitutional delegation of legislative power to OSHA. The United States Court of Appeals for the District of Columbia Circuit granted the trade association’s petition for review in part and denied in part. As explained by the court: “Most maritime cargo today is shipped in standardized intermodal containers that canRead more
Justice Scalia Questions Validity of Deference to Agency Interpretations
Yesterday, the Supreme Court of the United States issued its opinion in Talk America, Inc. v. Michigan Bell Telephone Co. While the opinion, which dealt in part with the Federal Communications Commission’s interpretation of its regulations, is not particularly relevant for Longshore and Harbor Workers’ Compensation Act claims, Justice Scalia’s concurrence is nonetheless interesting. Justice Scalia discusses whether the present rule regarding deference to an agency’s interpretation of a statute is valid. In doing so, the concurring Justice questions the validity of Auer v. Robbins, 519 U.S. 452 (1997), an agency deference case, which is an unanimous decision that Judge Scalia authored. The following is taken directly from the concurrence: “It is comforting to know that I would reach the Court’s result even without Auer. For while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity. On the surface, it seems to be a natural corollary–indeed, an aRead more
LexisNexis: Update From the Benefits Review Board
An article about the state of the Benefits Review Board has been published at LexisNexis’ Workers’ Compensation Law Community page. Karen Koenig, Associate General Counsel of the Longshore Benefits Review Board, wrote the article, which is entitled Update from the Benefits Review Board. Among other things, it discusses the applicable law for DBA claims, as well as the Supreme Court’s grant of certiorari in Pacific Operators Offshore, LLP v. Valladolid. It is certainly an article worth reading. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Section 14(f) Waivers Allowed in Longshore Settlements
A Section 14(f) waiver may be included in a Section 8(i) settlement agreement. In a new unpublished decision, the Benefits Review Board (“BRB”) addressed the claimant’s request for a Section 14(f) assessment due to the late payment of settlement proceeds. After the underlying settlement agreement, which contained a Section 14(f) waiver, was approved by the District Director, the employer and carrier sent a wire transfer to the claimant’s Canadian bank account, but the transfer was rejected because the bank account did not exist. The claimant had provided incorrect wire transfer information that prevented delivery. Nonetheless, the claimant requested a 20% assessment against the employer and carrier for late payment of the settlement funds. After an informal conference, the District Director recommended payment of the assessment. The employer and carrier requested referral to the Office of Administrative Law Judges, but the claimant requested a default order against the employer and carrier. WhenRead more
Wages from Post-Injury Job Reflect Claimant’s Earning Capacity
On October 26, 2007, the claimant, a container repairman, suffered injuries to his arm, shoulder and back while in the scope of his employment. The employer paid the claimant temporary total disability benefits through January 26, 2009, and the claimant sought continued benefits. The administrative law judge found that the claimant had reached maximum medical improvement and could not return to his former employment. In doing so, the judge rejected the employer’s and carrier’s vocational rehabilitation evidence. In particular, the ALJ found that the vocational counselor based his search for alternate employment primarily on the claimant’s lifting restrictions, but the claimant had additional requirements, including the necessity of frequent breaks and limitations on the amount of sitting and standing he could do. The ALJ found that the claimant’s job at his family’s restaurant was within his restrictions and represented his true wage-earning capacity. In so holding, the judge decided that theRead more
BRB: Error to Adjust Comp Rate Based on Planned Departure from Afghanistan
Claimant, a Defense Base Act (“DBA”) employee working as a security guard in Afghanistan, injured his back in the course of his work-related training. Although Claimant was able to finish his contract, he filed a claim for benefits after he returned to the United States. After a formal hearing, the Administrative Law Judge (“ALJ”) determined that Claimant’s average weekly wage was $2,897.95, with a corresponding compensation rate of $1,114.44, which is the maximum applicable compensation rate. See 33 U.S.C. § 906. Further, pursuant to the parties stipulations, the ALJ found that Claimant began post-injury alternate employment at a rate consistent with rates he earned in the United States prior to his DBA employment. Finally, the ALJ determined that Claimant was only entitled to a nominal award as of September 1, 2011, because Claimant testified that it was his plan to end his DBA employment by August of 2011. On appeal, the BenefitsRead more
LHWCA Applies But Washington State Can Provide Temporary Benefits
Decedent worked as a pipefitter for thirty-five years, and during that time he was exposed to asbestos while working for both maritime and non-maritime employers. While the maritime work was covered by the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), the non-maritime work was covered by the Washington Industrial Insurance Act (“IIA”). Decedent was last exposed to asbestos while working for an IIA-covered employer. Following his death in 2007, his widow filed a claim under both the LHWCA and the IIA for surviving spouse benefits. In 2008, the Washington State Department of Labor and Industries (“Department”) awarded temporary benefits under the IIA, which would stop when the LHWCA started paying benefits. The award of temporary benefits was based on the Department’s finding that decedent was exposed to asbestos in shipyards and considered a maritime employer. For the most part, the IIA provides workers with their exclusive remedy for work-related injuries. Read more
Workers’ Compensation, Social Security Disability Benefits, and Taxation
Generally speaking, workers’ compensation benefits are not taxable. 26 U.S.C. § 104(a)(1). This includes compensation benefits paid under the Longshore and Harbor Worker’s Compensation Act or Defense Base Act. See, e.g., Willis v. Comm’r, T.C. Memo 1997-290. In contrast, social security disability benefits “may be included in the taxpayer’s gross income pursuant to a statutory formula that takes into account a number of factors, including the amount of Social Security benefits received, the taxpayer’s other income, and the taxpayers filing status.” Sherar v. Comm’r, T.C. Summary Opinion 2011-44; 26 U.S.C. § 86. There is, however, a way for the United States government to tax workers compensation benefits. When the claimant is receiving both workers compensation benefits and social security disability benefits, the social security benefits are reduced because of the receipt of workers compensation benefits. This is known as an offset. For tax purposes, this offset amount is treated as thoughRead more
Highlights of Proposed Longshore Amendments – Part Two
The second entry addressing the proposed Longshore and Harbor Workers’ Compensation Act Amendments of 2011 (Senate Bill 669) highlights the changes proposed to Sections 12, 13, 14, 16, 20, 21, 22, 31, and 44 of the LHWCA. The proposed Amendments would: 1. Cap the late notice of an injury at one year after the event or knowledge that the trauma resulted in injury or disability. Notice of an occupational disease shall not be given more than one year after the diagnosis of an occupational injury or death resulting from the injury. 2. Shorten the time to file a claim from one year to ninety days after notice or ninety days after the date of last payment. 3. Replace the ten day time limit in section 14(f) (33 U.S.C. § 914) with a time limit based on either physical delivery or a postmark date. 4. Allow assignment for Section 206 of ERISA. 5. Amend Section 20 (33 U.S.C.Read more
Highlights of Proposed Longshore Amendments – Part One
Previously, this blog reported that Senator Johnny Isakson introduced the Longshore and Harbor Workers Compensation Act Amendments of 2011. The text of the Senate Bill 669 is available here. The following list provides highlights of the first half of the proposed amendments. The Amendments would: 1. Provide a statement of Congressional intent to demonstrate that there shall not be a broad liberal construction in favor of the employee or employer. 2. Incorporate new definitions which, among other things, expressly states that “[p]hysical or mental conditions caused in part or in whole by an employer’s personnel actions shall not be considered an injury or disease compensable under the Act.” 3. State that compensation shall not be payable for dentures, eyeglasses, hearing aids, prosthetic devices, or artificial limbs unless those items are part of the medical treatment for a disability, or those items were damaged in the accident that resulted in a traumatic injuryRead more
- « Previous Page
- 1
- …
- 32
- 33
- 34
- 35
- 36
- …
- 39
- Next Page »