This is the second part of an ongoing series devoted to exploring the minimal standards of medical fitness required for deployment or re-deployment to CENTCOM, as those standards apply to the Defense Base Act. Here, I address the psychological conditions which may preclude deployment. What is important for DBA claims is that these conditions also prevent re-deployment after an injured worker suffers a psychological injury as a result of his employment in a war theater. Knowing the minimal standards of medical fitness is a necessity. When an injured DBA contractor cannot return to their usual work, then they are presumed to be totally disabled. An insurance carrier can rebut the presumption by showing that the claimant can either return to their overseas work or engage in suitable alternative employment. Therein lies the reason why knowledge of the minimal standards is so important. If an injured worker cannot satisfy the minimal standardsRead more
Medications That May Preclude Re-Deployment After a DBA Work Injury
An employee must meet minimum standards of physical and psychological fitness to work with a defense contractor in CENTCOM. Typically, when an employee is hired, there is a pre-employment physical. During that physical, medical professionals will examine the claimant and take blood and urine samples. After the physical is passed, the employee may begin working for the defense contractor. Importantly, these standards of fitness also apply to a defense contractor’s employee who was injured on the job. At some time during the disabled employee’s treatment, a question will arise as to whether an employee can return to the same job the employee performed at the time of injury. To re-deploy to CENTCOM for work with a defense contractor, the employee must again satisfy the physical fitness requirements. Consequently, when assessing an ongoing disability, a potentially-determining issue is whether the defense contractor can pass a re-deployment physical. To pass a physical meansRead more
New Executive Order Focuses on Veterans’ Mental Health
On January 9, 2018, President Donald Trump signed Executive Order 13822. The order focuses on providing psychological treatment to veterans as they transition from uniformed service to civilian life. The reasoning behind the Executive Order is interesting, and the best statement about the Order’s genesis is the White House fact sheet. There is a heavy focus on delayed psychological problems, especially in the year following the transition from military service to civilian life. To combat the psychological problems faced after transition, the Order requires a joint action plan to expand inter alia tele-health treatment of psychological conditions. In my opinion, some of the same reasoning that the White House used to justify this Executive Order could apply to Defense Base Act contractors. Below, I’ve reproduced the White House Fact Sheets for Executive Order 13822, as well as the text of Executive Order 13822. White House Fact Sheets for Executive Order 13822: TheRead more
With Moody, Fourth Circuit Issues Important Longshore Retirement Opinion
We are only three days into 2018, and the Fourth Circuit may have just published the most important Longshore case of the year. The case is Moody v. Huntington Ingalls, and it addresses the concept of “retirement” as it relates to the Longshore’s definition of “disability.” Factual Background: Mr. Moody began working for Huntington Ingalls when he was 20 years old. He continued working for Huntington for 45 years. In June 2011, Huntington told Mr. Moody that he was assigned to a new shift. Unhappy with the shift, Mr. Moody gave Huntington the requisite 90-day notice of retirement, effective October 31, 2011. But then, on September 19, 2011, Mr. Moody injured his shoulder while working at the shipyard. He tore his rotator cuff. Still, Mr. Moody continued working at the shipyard until he retired on October 31st. Six weeks later, on December 13, 2011, Mr. Moody underwent shoulder surgery. Mr. Moody’sRead more
Ninth Circuit: Establishing Entitlement to Attorney Fees is Compensable
The Ninth Circuit issued a new attorney fee decision that is applicable to Longshore and Defense Base Act claims. In Vortex Marine Construction, the court was asked whether it was appropriate to award a claimant’s attorney fees, paid by the Employer/Carrier, for time spent engaging in fee litigation. The published opinion that followed was succinct: We agree with he Appellate Commissioner’s determination that [the Supreme Court’s Baker Botts decision] does not prevent an award of attorneys’ fees for the fee litigation here under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. 928(a). In Baker Botts, the court held that the text of § 330(a)(1) of the Bankruptcy Code does not shift the costs of adversarial litigation from one side to the other, and it does not displace the American Rule with respect to fee-defense litigation. See id. at 2165–67; see also Micha v. Sun Life Assurance of Canada, Inc., 874 F.3dRead more
Jones Act Lawsuits After Longshore Settlements
An appellate court in the State of Washington just answered an interesting question about an intersection between the Longshore Act and the Jones Act. The issue was “whether an injured maritime worker who accepts voluntary benefits and settles his claim under the Longshore and Harbor Workers’ Compensation Act (LHWCA), when there is no adjudication of his status as a non-seaman under the LHWCA, is barred from pursuing claims against the vessel owner for personal injuries under the Jones Act.” Apparently not. The court held “that, because Jeremy Gibson’s maritime worker status as a non-seaman was never adjudicated under the LHWCA and the compensation order did not expressly resolve this issue under the LHWCA . . . Gibson’s Jones Act claims are not barred, and election of remedies, equitable estoppel, and collateral estoppel do not apply.” The facts of the case are fairly simple. The injured worker fell through a hatchRead more
Hurricane Irma Stalls Longshore and DBA Deadlines
The Office of Administrative Law Judges issued a new Administrative Order on September 11, 2017. The Order states: Case No. 2017-MIS-00007 In the Matter of: POSTPONEMENT OF CERTAIN PROCEEDINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES, U.S. DEPARTMENT OF LABOR, SCHEDULED FOR THE MONTHS OF SEPTEMBER AND OCTOBER, 2017 ADMINISTRATIVE ORDER Hurricane Irma has forced the extended evacuation of much of the State of Florida. In consideration of the extraordinary circumstances occasioned by this natural disaster, IT IS ORDERED that: All OALJ proceedings, including formal hearings, oral arguments, mediations, and pre-hearing conferences, scheduled to take place within the State of Florida up to and including October 6, 2017 are POSTPONED until further notice. All associated hearing related deadlines, such as pre-hearing exchanges, discovery deadlines, post-hearing briefs and similar matters, are TOLLED until subsequent order. All OALJ proceedings, including formal hearings, oral arguments, mediations, and pre-hearing conferences, involving any attorney orRead more
Great New Article About Longshore/DBA Medical Benefits
There is a great article from Yelena Zaslavskaya on the Office of Administrative Law Judges’ website about medical benefits. The article, Medical Benefits Under Section 7 of the LHWCA: Select Issues, address some key topics which come up often in the Longshore and Defense Base Act arenas: Authority of Administrative Law Judges versus the District Director Types of medical expenses covered by the Longshore Act Employer-provided housing and related expenses The reasonable cost of medical expenses The reasonable distance to travel for medical treatment Coverage/reimbursement for past medical expenses Click here to go straight to the article. I highly recommend checking it out.
Hurricane Harvey’s Effect on the OALJ and DOL
Hello all: Our Longshore and Defense Base Act community has a large presence in Houston and surrounding areas. The devastation and flooding caused by Hurricane Harvey has taken its toll on both litigants and colleagues. In consideration of the unprecedented flooding, the Office of Administrative Law Judge has rightfully issued the following Administrative Order: POSTPONEMENT OF CERTAIN PROCEEDINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES, U.S. DEPARTMENTOF LABOR, SCHEDULED FOR THE MONTHS OF SEPTEMBERAND OCTOBER, 2017 Hurricane Harvey has forced the extended evacuation of the Houston, Texas area and surrounding environs. In consideration of the extraordinary circumstances occasioned by this natural disaster, IT IS ORDERED that: All OALJ proceedings, including formal hearings, oral arguments, mediations, and pre-hearing conferences, scheduled to take place in and within 150 miles of Houston, Texas during the months of September and October 2017 are POSTPONED until further notice. All associated hearing-related deadlines, such as pre-hearingRead more
Should U.S. Psychologists Use the DSM to Diagnose Psychological Injuries?
Recently, I encountered a couple of defense psychological experts which have openly testified that they do not use the DSM-5 when diagnosing and evaluating claimants. The question is whether these medical professionals, both of whom are based in the United States, should be given less weight because they do not use this basic diagnostic manual. Is it somehow wrong for a doctor to refuse to use the DSM-5? What is the DSM-5? The full name for the DSM-5 is the Diagnostic and Statistical Manual of Mental Disorders. The “5” refers to the Fifth Edition of the manual, which the American Psychiatric Association published a few years ago. Until recently, every single mental health professional I have deposed has confirmed their use of the DSM-5, even in defense examinations. It was a no-brainer. Mental health professionals use the DSM-5. Period. New Doctors Testifying That They Do Not Use the DSM-5: TheRead more
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