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
Average Weekly Wages in DBA Claims and the 1981 Miranda Decision
Once again it is time to trudge through the murky waters of average weekly wage calculations. That’s how the Defense Base Act industry feels to me right now. Some of the average weekly wage (or “AWW”) arguments I am seeing lately from carriers are heavy-handed and perhaps disingenuous. So, a series of AWW posts is in order. I am going to start with AWWs for employees who were injured in their first year of overseas employment. That is the focus of this post. Below, I discuss the overall competing interests in an AWW calculation, the original K.S. decision, the effect of vacating the K.S. decision (as opposed to the AWW equation used in K.S.), and why this discussion is needed now. Finally, I end this post by quoting in full the Benefits Review Board’s Miranda decision from 1981. The decision–which is alive and well–is precedent; but it is not available onRead more
Clark: An Important New Average Weekly Wage Decision from the BRB
The Benefits Review Board updated its website to include the decisions it reached in January 2016. One of the decisions, Clark v. Dyncorp International, struck me as particularly relevant to an average weekly wage argument that I am hearing in many DBA cases. The argument pertains to Section 10(i) of the Longshore and Harbor Workers’ Compensation Act. Some carriers are using Section 10(i) to try and slash an injured contractor’s average weekly wage. I am presently working on a longer post addressing this argument. Still, the Clark decision is so new that I thought it prudent to post about it ASAP. Interestingly, the BRB’s Clark decision does not cite Section 10(i). But the ALJ’s decision does. See Clark v. Dyncorp Int’l, 2014-LDA-00783 (OALJ Dec. 11, 2015). Reading through the BRB’s opinion, it becomes readily apparent that the opinion easily fits into the Section 10(i) puzzle. Frankly, I hope that theRead more
Slipping in the Shower Still Covered By the DBA’s Zone of Special Danger
Last year, I wrote a blog article about a Defense Base Act case from the Benefits Review Board involving a slip-and-fall in a shower. That case, Ritzheimer v. Triple Canopy, Inc., addressed the scope of the zone of special danger. Recently, the Middle District of Florida affirmed the Benefits Review Board decision. The zone of special danger does, in fact, apply to a slip-and-fall while exiting a shower. Factual Background and Procedural History: The facts of the case were laid out by the BRB. On March 3, 2012, the claimant exited his shower. He slipped on the wet bathroom floor and fell. The claimant’s injuries included four broken ribs and a punctured lung. Later, after returning to the United States and undergoing medical treatment, the claimant developed depression. Initially, the employer/carrier paid the claim. But then they stopped, arguing that the cause of the claimant’s injury was personal in natureRead more
Ethical Rules for Psychological Defense Base Act Assessments?
Recently, I was asked questions about the ethical obligations of psychologists who perform defense medical examinations. Are there ethical obligations? Yes, of course. There are ethical obligations for all licensed psychologists. For ease of reference, and to offer a quick example, here is the text for Texas Administrative Code’s “Evaluation, Assessment, Testing, and Reports” statute: (a) Scope and Purpose. (1) Licensees clearly describe the scope and purpose of evaluation, assessment, and testing to patients before they provide these psychological services. (2) Licensees produce reports that clearly state and accurately reflect the scope and purpose of evaluation, assessment, and testing. (b) Reliability and Validity. (1) Licensees verify, by signature and date, that every evaluation, assessment, test result, report, recommendation, or psychological diagnostic or evaluative statement produced is based on information and techniques sufficient to provide appropriate substantiation for its findings. (2) Licensees administer, score, interpret or use assessment techniques or testsRead more
The Statute of Limitations for DBA Psychological Injuries
It’s time for an important discussion about the statute of limitations for psychological injury claims. Quite simply, psychological injuries (including but not limited to PTSD) stemming from war zone work are classified as occupational diseases. They are given a two-year statute of limitations. Below, I present a survey of sorts. You will find the statutory language as well as language from multiple Office of Administrative Law Judges decisions which conclude that PTSD is an occupational disease. Section 13—The Statute of Limitations: The statute of limitations for Defense Base Act claims is the same as it is for Longshore claims. For nearly all injuries (with the exception being hearing loss), the statute of limitations is found at Section 13 of the Longshore Act. It states: (a) Time to file. Except as otherwise provided in this section, the right to compensation for disability or death under this Act shall be barred unlessRead more
Is there a “video game defense” in Defense Base Act claims?
In today’s post, I’m going to discuss video games. It probably seems a little odd to discuss games in connection with a Defense Base Act claim. In my opinion, it’s odd too. But, because I have recently fielded some inane arguments about the effect of video games on a claimant with a psychological injury, I thought it best to address the topic. And, believe it or not, this is not the first time I have heard this argument. Back when I used to be a defense attorney, the video game argument was batted around as a potential defense. Ultimately, the argument was dismissed—too laughable to pursue. The argument is fairly simple to grasp. An insurance carrier argues that its liability for benefits has been severed because video games are a stressor that aggravated the injured worker’s psychological injury or created a new psychological injury. Essentially, the carrier is using theRead more
Recovery of the Written Off Amount of Medical Bills?
The Fifth Circuit recently published a maritime decision that may have an effect on Longshore and Defense Base Act claims. The issue was whether the collateral-source rule allows a plaintiff to recover the unpaid, written-off portion of his billed medical expenses, when the remaining, paid portion of the billed expenses was through Longshore work comp insurance. Insurance companies do not pay the full price of any medical bills. Instead, a negotiated amount is paid. This issue addresses the difference between the face value of the medical bill and the amount paid. What is the collateral-source rule? Basically, the person who commits the tort cannot reduce his liability by the amount a plaintiff recovers from another, independent source. In its simplest form, the rule asks whether the tortfeasor contributed to, or was otherwise responsible for, a particular income source. See Bourque v. Diamond M. Drilling Co., 623 F.2d 351, 354 (5th Cir.Read more
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