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
The Zone of Special Danger Applies to Local Nationals
On July 21, 2017, the Ninth Circuit published its decision in Chugach Management Services v. Jetnil. In short, the court determined that the zone of special danger does, in fact, apply to local nationals. Here’s the Ninth Circuit’s summary: The panel denied a petition for review of a decision of the United States Department of Labor’s Benefits Review Board (“BRB”) awarding disability benefits, pursuant to the Defense Base Act, to Edwin Jetnil, who was employed by petitioner U.S. government contractor Chugach Management Services when he was injured. The Defense Base Act is a workers’ compensation scheme for civilian employees working outside of the continental United States on military bases or for companies under contract with the U.S. government. Jetnil was a citizen of the Republic of the Marshall Islands, and was injured while on a work assignment for Chugach on the remote Kwaljalein Atoll, which houses the U.S. Army SpaceRead more
Section 10(i) and Average Weekly Wage in Psychological Disability Claims
It’s time to talk about the way insurance carriers are using Section 10(i) in psychological disability claims to reduce an injured worker’s average weekly wage (“AWW”). Essentially, carriers are misapplying Section 10(i), which is sometimes called Section 910(i), by taking it out of the context in which it was enacted. They are using the statute to artificially deflate–sometimes nullify–an injured worker’s AWW. The irony is that Section 10(i) was enacted to help a particular class of injured workers: retirees. Make no mistake, this is an important issue. Over the past year, I have seen an increasing number of Section 10(i) arguments. Before every mediation, before every formal hearing, the carriers I face off against throw Section 10(i) into the mix. Some do so knowing full well that their Section 10(i) argument is completely bogus. What is an Average Weekly Wage? An average weekly wage is pretty much exactly what itRead more
Oral Argument in Jetnil, a Zone of Special Danger Case
Today the Ninth Circuit Court of Appeals heard oral arguments in Chugach Management Services v. Jetnil. I have previously discussed the zone of special danger aspect of Jetnil, as well as the briefs submitted by the parties. Below is a video of today’s argument. It is worth watching if you are interested in this area of the law. The carrier’s attorney argues first, followed by the claimant’s attorney, and then the government’s attorney. I don’t think the importance of the case can be overstated. Do we want to exclude an entire class of workers (local nationals) from the applicability of the zone of special danger? What if a local national (typically just a person from the country in which they work) is employed on the other side of the country and not near their home? I’ll have more of an analysis after I get to digest the argument a littleRead more
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