Today we’re going to run the numbers on a claim involving both DBA-only and DBA-WHCA injuries. By “DBA-only,” I mean that the claimant’s injury was not caused by a war event (like a rocket, mortar, or terrorist attack). And by “DBA-WHCA,” I mean that the claimant’s injury was caused by a war event. Knowing how to handle this type of case can result in massive savings for an insurance company and quicker benefits payment to an injured worker. The Defense Base Act Vs. The War Hazards Compensation Act: First, let’s discuss the Defense Base Act and its interplay with the War Hazards Compensation Act. The Defense Base Act is a system of federal workers’ compensation that applies to injured contractors working abroad. The DBA covers everything from slips-and-falls to the contraction of serious viruses to injuries caused by the actions of terrorists. The injured worker is compensated and receives medicalRead more
New VA Study Discusses Pain and Psych Comorbidities
Chronic pain and psychiatric injuries can go hand in hand. So says a new scientific article from a group of highly specialized VA doctors entitled, Pain and psychiatric comorbidities among two groups of Iraq- and Afghanistan-era Veterans. The study was designed “to more precisely identify the prevalence and severity of pain and mental health comorbidities among . . . Veterans and service members . . . .” Not surprisingly, the wars in Iraq and Afghanistan have resulted in exceptionally high rates of postdeployment chronic pain, traumatic brain injury, Post Traumatic Stress Disorder, and other mental health and behavioral disorders. Simply put, Iraq and Afghanistan servicemembers are at high risk for both pain and psychological problems. The article goes into detail, stating: Data from this study confirm and extend initial reports regarding high prevalence of pain and psychiatric disorders among OIF/OEF/OND servicemembers who have returned from deployment. Using two geographically diverseRead more
Retirement of a Longshore and Defense Base Act Legend
Richard V. Robilotti announced his retirement. Make no mistake, this is the retirement of a legend in the Longshore and Defense Base Act community. Mr. Robilotti is the district director for the Second Compensation District of the Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) in New York. For forty years, Mr. Robilotti has been in charge of Longshore claims arising in New York, New Jersey, Puerto Rico and the Virgin Islands. Further, the New York office–for the longest time–was the go-to Defense Base Act office. Every claim that arose in Iraq and Afghanistan went to Mr. Robilotti’s desk, including claims made by local and third country nationals. My contact with Mr. Robilotti began when I first started practicing law. I graduated law school just as the Defense Base Act was heating up. At that time, the Second Compensation District was the only DLHWC office that I dealt with. Mr.Read more
2016-2017 National Average Weekly Wage Increase
The Office of Workers’ Compensation published the new National Average Weekly Wage for the 2016-2017 fiscal year. National Average Weekly Wage: $718.24 Maximum Compensation Rate: $1,436.48 Minimum Compensation Rate: $359.12 Percent Increase: 2.17% Click on this hyperlink to access the NAWW chart spanning from 1973 to 2017.
Proposed Rules on Max. and Min. Comp Rates in Longshore Claims
The Office of Workers’ Compensation Programs has published a new proposed rule pertaining to an injured worker’s compensation rate. The rule addresses the Longshore and Harbor Workers’ Compensation Act’s maximum and minimum compensation rate, and how to apply a particular rate to a particular injury. The proposed rule applies to the Longshore Act’s extensions, like the Defense Base Act. Letter from the DLHWC: The Director of the Division of Longshore and Harbor Workers’ Compensation, Antonio Rios, issued an explanatory letter on August 26, 2016. The letter stated, in pertinent part: The National Average Weekly Wage has historically risen from year to year, and this determination affects the maximum and minimum compensation rates under Section 6. Questions regarding which fiscal year’s maximum wage applied in various situations led to litigation. These questions have now largely been resolved through decisions of the courts of appeals and the Supreme Court. To provide clarityRead more
Fifth Circuit Addresses Longshore Vessel Status and “Substantial Nexus”
The Fifth Circuit issued a new decision affirming the denial of benefits under both the Longshore and Harbor Workers’ Compensation Act and the Outer Continental Shelf Lands Act. The decision turned on two issues: whether a particular watercraft was a legal “vessel” and whether Claimant’s job activities had a substantial nexus to operations on the Outer Continental Shelf. Factual Background: Claimant worked as a marine carpenter building housing modules designed for use on a tension leg offshore platform named Big Foot. After an alleged injury, Claimant filed a claim for benefits under the Longshore and Harbor Workers’ Compensation Act as a shipbuilder. He also argued–in the alternative–that his claim was covered by the Outer Continental Shelf Lands Act. (“OCLSA”) Both the Administrative Law Judge and the Benefits Review Board disagreed with Claimant’s assertion. First, Longshore benefits were denied because the Big Foot was not a “vessel,” thus preventing Claimant fromRead more
Status of the Zone of Special Danger Appeal in Jetnil
One of the most interesting zone of special danger cases from 2015 has been briefed for the Ninth Circuit Court of Appeals. The case, Jetnil v. Chugach Management Services, asks whether the zone of special danger doctrine should apply to local nationals who are injured in their home country. So far, the administrative law judge, Benefits Review Board, and Director have all said that the zone of special danger should apply. Employer and Carrier disagree, and they have taken the claim all the way to the Ninth Circuit. The Benefits Review Board’s Jetnil Decision: Like I mentioned in last year’s post about Jetnil, the employee was injured while he was fishing on the reef at Gagan Island (part of the Republic of the Marshall Islands). The employee, who was a citizen of the Republic, slipped and cut his foot on coral. The injury resulted in a below-the-knee amputation and subsequentlyRead more
Labor Market Surveys and Overseas “Non-War Zone” Jobs After Injury
In nearly every Defense Base Act claim that involves an “unscheduled” injury, the parties will debate the level of work the claimant can perform after his injury. Sometimes, the employer and carrier will argue that the claimant can perform overseas contracting work…just not in a “war zone.” But, is “war-zone” work versus “non-war zone” work really the distinction that should be drawn? Proving Suitable Alternative Employment: If an injured employee establishes that they cannot return to the job that they held at the time of injury, then they are presumed to be totally disabled. To rebut the presumption, employers and insurance carriers often hire vocational experts to prepare a labor market survey. According to the vocational expert, the labor market survey will provide a list of jobs which the injured worker can allegedly perform. These jobs are commonly referred to as suitable alternative employment. Not every job is suitable forRead more
Seaman Status, the Discharge Rule, and Injuries to a Fired Employee
Seaman status can be tricky. Especially when the injury occurs after an employee is fired but before the employee reaches shore. The Court of Appeals of Texas, Houston, recently reversed a lower court’s grant of summary judgment to a defendant and against a ship captain who was injured while in transit from a dredge to shore. The facts are interesting, to say the least: In April 2012, Cepeda captained one of Orion Marine’s dredges. On April 4, when Cepeda’s dredge was operating in the Houston Ship Channel, Cepeda’s supervisor, Jorge Cordova, came aboard and fired Cepeda from his position as captain. Cepeda disputes that his termination was effective immediately, and maintains that Cordova told him he was eligible for another position on the vessel. But it is undisputed that Cepeda then gathered his personal belongings and on Cordova’s order boarded a skiff, which Cordova piloted to a Baytown landing. CepedaRead more
SIGAR: Afghanistan is Getting More Dangerous
Want to know how dangerous Afghanistan is? Just ask SIGAR. The Special Inspector General for Afghanistan Reconstruction releases quarterly reports to the United States Congress. These reports provide independent and objective audits of the state of affairs in Afghanistan. Obviously, security is an important topic. According to the SIGAR report published on April 30, 2016, Afghanistan is becoming even more dangerous. It remains “under increasing threat from the Taliban and other insurgents.” Below, I’ve quoted portions of the report that demonstrate the nightmare presently going on in Afghanistan: Security: The Eroding Bedrock It is telling that the feature story in the most recent SIGAR report is entitled, “Security: The Eroding Bedrock.” Here are some numbers to consider: According to the United Nations, Afghanistan experienced record-high civilian casualties from the ongoing hostilities in 2015; more than 3,500 killed–a quarter of them children–and nearly 7,500 wounded. As of late November 2015, U.S.Read more
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