In a new published opinion, the Benefits Review Board determined that claimant’s counsel was entitled to shifting attorneys fees because an award of Section 10(f) increases amounted to an award of “greater compensation” for purposes of the Longshore and Harbor Workers’ Compensation Act’s attorney fee provisions. In Wilson, the claimant worked as a truck driver for employer at the time he injured his neck, spine and right knee. The employer voluntarily paid claimant temporary total disability benefits at the maximum compensation rate, and claimant filed a claim for permanent total disability (“PTD”) benefits. Thereafter, an informal conference was held by correspondence, and the district director issued a recommendation that claimant was entitled to PTD benefits until suitable alternative employment was demonstrated. Further, the lower court determined that claimant was entitled to continuing PTD benefits and Section 10(f) increases, but it nonetheless refused to shift attorneys fees. The Board determined that while the district director did notRead more
New York: Concurrent Jurisdiction for State Comp and LHWCA Claims
A dock builder was injured when he fell while stepping from a pier onto a barge. He applied for benefits under New York’s state workers’ compensation laws, but the employer and carrier made payments to claimant pursuant to the Longshore and Harbor Workers’ Compensation Act. At a hearing, the employer argued that the New York Workers’ Compensation Board had no jurisdiction over the claim. The New York Supreme Court, Appellate Division, Third Judicial Department disagreed. It found that there was “concurrent jurisdiction among state workers’ compensation laws and the LHWCA over claims arising from land-based injuries compensable under the LHWCA.” The court distinguished those cases falling under other federal schemes, like the Jones Act or Federal Employers’ Liability Act, which provides the “exclusive remedy” for such injuries. Rodriquez v. Reicon Group, LLC, — N.Y.S.2d —-, 2010 WL 4117396 (App. Div. 2010). (Note: I originally published this post on Navigable Waters: ARead more
Louisiana Loss of Consortium Claim for OCSLA Injury
On February 27, 2009, while working on an offshore platform, the plaintiff-employee was injured when a crane allegedly fell on him. The parties did not dispute that the Outer Continental Shelf Lands Act (“OCSLA”) applied to the claim. Instead, the dispute concerned whether the plaintiff-wife could assert a loss of consortium claim under Louisiana law. The defendant filed a motion for summary judgment arguing that the plaintiff-wife’s claim must be dismissed. Ultimately, the Eastern District of Louisiana concluded that “workers injured on fixed man-made structures situated on the Outer Continental Shelf and their families may utilize the state tort law of the adjacent state,” and that Louisiana tort law provides a cause of action for loss of consortium claims. The defendant’s motion was denied. Henderson v. McMoran Oil, No. 09-5626, slip op. (E.D. La. Oct. 18, 2010). (Note: I originally published this post on Navigable Waters: A Maritime, Longshore andRead more
Injunction Ordering Payment of Maintenance and Cure Was Improper
In a slip opinion, the United States Court of Appeals for the Third Circuit vacated a District Court’s injunction ordering the payment of maintenance and cure. In Collick, the claimant alleged that he was injured while working in conjunction with a crane barge. The claimant slipped and fell, sustaining a severe leg fracture requiring multiple surgeries. Physicians opined that the claimant, who was in constant pain, would never again perform such physically demanding work. Initially, the claimant’s employer began paying benefits under the Longshore and Harbor Workers’ Compensation Act. Then, once the claimant filed the instant suit wherein he demanded maintenance and cure, the employer discontinued Longshore benefits. By filing his suit, the claimant raised a question as to whether he was entitled to Longshore benefits as he may not be a longshoreman. The claimant then sought a preliminary injunction forcing the employer to pay him maintenance and cure, which theRead more
Louisiana State Employee May Sue Under Jones Act and General Maritime Law
In a recent case issued by the Court of Appeals of Louisiana, Fourth Circuit, a plaintiff employed by the State of Louisiana, Department of Wildlife and Fisheries, sustained cervical spine injuries while he was a member of the crew of a state owned vessel. At the time of his injury, he was patrolling waters near the Head of Passes in Plaquemines Parish. The plaintiff filed a petition for damages seeking relief under the Jones Act and general maritime law. In response, the State filed a peremptory exception, asserting that the plaintiff’s sole exclusive remedy lied in Louisiana workers’ compensation law. The Fourth Circuit disagreed. The plaintiff relied on two earlier decisions to support his proposition that he could seek relief outside of the scope of the of the Louisiana Workers’ Compensation Act (“LWCA”). In Higgins v. State of Louisiana, 627 So.2d 217 (La. App. 4 Cir. 1993), the court determinedRead more
FL Third District: Evidentiary Finding is a Prerequisite to a Punitive Damages Claim
In 2004, an intoxicated employee for the Defendant cruise line knocked on multiple passenger doors, apparently attempting to find a place to sleep. The Plaintiff, Jane Doe, was one of the accosted passengers, and she filed a lawsuit asserting negligence, assualt, battery, intentional infliction of emotional distress, and negligent infliction of emotional distress. One month before trial, Plaintiff requested leave to amend her complaint to include punitive damages. Without making a determination as to whether a reasonable evidentiary basis existed for the punitive damages claim, the trial court allowed the amendment. The Defendant appealed the decision and the District Court of Appeal of Florida, Third District, reversed. In Florida, a state statute provides that “[i]n any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis of suchRead more
Eleventh Circuit: Scope of the Public Vessels Act versus the Suits in Admiralty Act
The Eleventh Circuit recently addressed the interplay between the Public Vessels Act (“PVA”) and the Suits in Admiralty Act (“SAA”) as it related to negligence claims against the Coast Guard. In Uralde, the Coast Guard dispatched a boat to intercept a private vessel trying to illegally enter the United States with several Cuban citizens. A chase ensued, and it did not end until a Coast Guard officer fired two rounds into the private vessel’s engine. The sudden stop caused one of the passengers to strike her head, an injury which eventually led to her death. The plaintiff-widower launched a negligence suit against the Coast Guard, and his negligence theories were “based in the Coast Guard’s decisions regarding whether and how to provide proper medical care and timely access to medical treatment of a passenger on a private vessel interdicted at sea.” Analyzing both Acts together, the Eleventh Circuit determined thatRead more
What is Commutation and How is it Calculated?
Commutation is a procedural remedy whereby an insurance carrier may reduce specific Longshore and Harbor Workers Compensation Act (“LHWCA”) or Defense Base Act (“DBA”) benefits owed to a foreign national by one-half. Although death benefits owed a foreign national under the LHWCA may be commuted (see 33 U.S.C. § 909(g) and 20 C.F.R. § 702.142), commutations typically arise in situations involving Defense Base Act claimants who are “nonnationals of the United States not residents of the United States or Canada…” See 42 U.S.C. § 1652(b). For LHWCA purposes, commutations only apply to Section 9 death benefits, but for the DBA, commutations are available for both death benefits and Section 8(c)(21) indemnity benefits. Calculating a commutation value of a death benefits claim requires knowledge of the current National Average Weekly Wage (“NAWW”) percent increase, the current interest rate for a one-year constant maturity, the claimant’s life expectancy, and the claimant’s currentRead more
Under LHWCA, State Law Controls Allocation of Fault to Non-Maritime Third Party
In Jowers v. Lincoln Elec. Co., — F.3d —-, 2010 WL 3341651 (5th Cir. 2010), Plaintiff, a supervisor and foreman for Ingalls, a shipbuilding contractor, instituted in the United States District Court for the Southern District of Mississippi a products liability action under Mississippi law. Plaintiff alleged that the welding consumables he used during his career emited fumes containing manganese, which could cause serious neurological diseases. Prior to the lawsuit, two neurologists diagnosed Plaintiff with manganese-induced Parkinsonism. At the trial, the court awarded Jowers $1,200,000 in compensatory damages and $1,700,000 in punitive damages, but the compensatory portion of the award was reduced by 40% to take into account the Plaintiff’s own fault. Although the Fifth Circuit addressed multiple issues on appeal, such as the government contractor defense and evidentiary rules, the court’s statements regarding allocationof fault and the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) are most important for our purposes. The LHWCA provides workersRead more
Meaning of the Word “Dependency” For Parental Dependency Claims Under the LHWCA
In a published decision, Urso v. MVM, Inc., the Benefits Review Board tackled the meaning of the word “dependency” as used in the Longshore and Harbor Workers Compensation Act and the Internal Revenue Code. In Urso, the decedent’s parents claimed death benefits under Section 9(d) of the LHWCA. If there is no surviving spouse or child, then Section 9(d) provides “support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, and any other persons who satisfy the definition of the term ‘dependent’ in section 152 of title 26 of the United States Code, but are not otherwise eligible under this section, 20 per centum of such wages for the support of each such person during such dependency and for the support of each parent, or grandparent, of the deceased if dependent upon him at the time of the injury, 25 per centum ofRead more
