The United States Court of Appeals for the Fifth Circuit issued a published Longshore and Harbor Workers’ Compensation Act (“LHWCA”) opinion wherein it dismissed a claimant’s appeal for lack of subject matter jurisdiction.  A longshore claim has three stages: “1) informal mediation before the district director; 2) formal hearings and fact-findings by an ALJ; and 3) appellate review by the [Benefits Review] Board (potentially followed by a circuit court).”  In Craven v. Director, OWCP, the claimant bypassed the ALJ stage and tried to appeal a district director’s informal recommendations directly to the Benefits Review Board.   This is “particularly problematic because the LHWCA grants the ALJ the exclusive authority to create an evidentiary record upon which an appeal must be based.”  If there is no evidentiary record, then there is nothing for the BRB to review.  And, if the BRB does not issue a final order, then the Court of Appeals lacks subjectRead more

The Benefits Review Board recently published a new decision addressing “compensation” under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”): Wheeler v. Newport News Shipbuilding & Dry Dock Co. In Wheeler, the BRB determined that, for purposes of modification under Section 22 of the LHWCA, the term “compensation” did not include the payment of medical benefits. The term “compensation” has been defined differently by different courts.  The Supreme Court of the United States previously stated that “compensation” did not include the payment of medical care for purposes of Section 13(a) of the LHWCA.  Marshall v. Pletz, 317 U.S. 383 (1943).  In the Court’s opinion, Sections 2(12), 6, 8, 10, and 14 of the LHWCA used the term “compensation” to refer to periodic money payments, but not an employer’s expense of medical care. Later courts and administrative bodies have interpreted “compensation” broadly.  See, e.g., Lazarus v. Chevron USA, Inc., 958 F.2dRead more