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
DOL Increases Fines and Penalties Owed By Employers and Carriers
The U.S. Department of Labor increased penalties and fines against employers/carriers. Specifically, employers/carriers who fail to report first injuries or final payments are now facing an increased fine. Further, employers now face an increased penalty for discrimination. To quote an e-mail I received this morning from the U.S. DOL: To implement the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act), the Department of Labor) has published a department-wide interim final rule (IFR) adjusting its penalties for inflation. The IFR affects the following penalties assessed by the Office of Workers’ Compensation Programs (OWCP) under the Longshore and Harbor Workers’ Compensation Act (LHWCA): 20 CFR 702.204 Failure to file first report of injury or filing a false statement or misrepresentation in first report. Increase from the current maximum of $11,000 to $22,587. 20 CFR 702.236 Failure to report termination of payments. Increase from the current $110 toRead more
Compensation “Forfeiture” Needs a District Director Determination
Today’s public service announcement concerns the unilateral suspension of an injured worker’s compensation benefits on the grounds of “forfeiture.” Injured workers are sometimes told by their insurance adjuster that the worker “forfeited” the right to compensation by failing to report earnings. Typically, this occurs after the adjuster sent the worker a form called the LS-200, Report of Earnings. Then, without seeking a district director’s determination, the adjuster suspends benefits. This is wrong. There is a procedure for the “forfeiture” of benefits. When the carrier has not followed the procedure, they have violated the law. The carrier is then subject to penalties and interest. Statutory Basis for Forfeiture: Forfeiture is a real thing. The statutory basis for forfeiture can be found in Section 8(j) of the Longshore and Harbor Workers’ Compensation Act. Section 8(j) states: (j)(1) The employer may inform a disabled employee of his obligation to report to the employerRead more
Pain Meds Still Owed Despite Marijuana Use, Says 11th Cir.
In a new unpublished Longshore case, the Eleventh Circuit upheld a decision that pain medicine was reasonable and necessary treatment. In 2006, the claimant was injured while working for Federal Marine Terminals. He subsequently underwent three back surgeries—two were unsuccessful. In 2009, the claimant began seeing a pain management physician who prescribed narcotics pain medication. The parties reached a partial settlement in 2010. By “partial,” I mean that the parties settled the indemnity portion of the claim but left the medical benefits open. By leaving medical benefits open, the employer and carrier remained liable for medical benefits—like the pain medicine. Subsequently, an issue arose regarding the payment of additional pain medicine. The employer and carrier didn’t want to pay for the narcotics. In part, the employer and carrier argued that the claimant’s use of marijuana rendered the continued narcotic therapy unreasonable. The case proceeded to a formal hearing, after whichRead more
Defense Orthopedic Expert Questions
Claimants often ask me about the scope of an orthopedic defense medical examination. What is the doctor looking at? What is the doctor looking for? Is the doctor just a hired gun? Typically, the same questions are asked to every orthopedic defense expense. These questions define the scope of the examination. As such, it is good for a Longshore or Defense Base Act claimant to know what the insurance adjuster or defense lawyer asked the doctor. Without further ado, here is a list of typical defense medical examination questions and directions. Please identify all orthopedic symptoms of which Claimant currently complains. Please provide your diagnosis of Claimant’s current orthopedic condition(s), if any. Please address whether Claimant’s orthopedic diagnosis or diagnoses are related to a work incident. Please address whether Claimant’s orthopedic conditions were caused by an overcompensation injury. Please address any non-work-related cause(s) of Claimant’s current orthopedic conditions. Please adviseRead more
Wage Earning Capacity When Claimant Owns a Business
In Longshore and Defense Base Act cases, how do courts address post injury wage earning capacity when the injured worker owns a business? It all depends on the efforts expended by claimant in his business. To quote the Benefits Review Board: An employee’s earnings from self-employment may establish his wage-earning capacity. Sledge v. Sealand Terminal, 16 BRBS 178, 181 (1984); Mitchell v. Bath Iron Works Corp., 11 BRBS 770, 779 (1980). However, profit from ownership is not included in determining earning capacity. Seidel v. General Dynamics Corp., 22 BRBS 403 (1989). Thus, an administrative law judge should determine whether income from self-employment is the result of an ownership interest or claimant’s personal services; where a claimant’s business income is the direct result of the claimant’s “personal management or endeavor,” or the claimant performs such extensive services for the business that the income represents salary rather than profits, the income shouldRead more
Ninth Circuit Addresses Section 13 and Medical Permanency
The Ninth Circuit just published a new Longshore decision addressing the statute of limitations and medical permanency. I suspect that this decision, SSA Terminals and Homeport Ins. Co. v. Carrion, No. 13-72929, -72948 (9th Cir. 2016), will be considered one of the most important Longshore decisions of 2016. The opinion’s Summary states: The panel denied an employer/insurer’s petition for review, and granted a claimant’s cross-petition for review for a decision by the Benefits Review Board, in an action brought by a claimant seeking disability benefits under the Longshore and Harbor Workers’ Compensation Act. The administrative law judge (“ALJ”) determined that the claimant’s claim was timely filed under the Longshore Act, and determined that the disability was temporary because the claimant was contemplating knee replacement surgery that would likely alleviate his symptoms. The Benefits Review Board affirmed. The panel held that the claimant timely filed his claim against his employer. InRead more
Bagram Plane Crash Caused By Error, Not Terrorists
Last year, on October 2, 2015, a cargo plane crashed in Afghanistan, killing 14 people. The dead included five military contractors. Recently, the United States Air Force determined that the crash was caused by the misuse of a night-vision goggles case. Essentially, the pilot used a night-vision goggles case to brace the plane’s yoke in a manner that made loading easier. As stated in the USAF Aircraft Accident Investigation report: The [mishap pilot] placed a hard-shell [night-vision goggles] NVG case forward of the yoke during the [Engine Running Onload/Offload (ERO) operations]. This placement of the case braced the yoke in a position that raised the elevator to facilitate off-loading high-profile (tall) cargo. The blocking of the flight controls during loading operations is a non-standard procedure; as such, there is no regulatory guidance to prohibit the act, or to address the proper placement and removal of the object blocking the controls.Read more
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