The LexisNexis Workers’ Compensation Community recently posted a great article entitled, “Resolving Longshore Claims Through Settlements and Stipulations.” The post was authored by Yelena Zaslavskaya, the Senior Attorney for Longshore, Office of Administrative Law Judges. I don’t want to steal any thunder from the post by reprinting portions here. Instead, use this link to access the article. You will find a great discussion about the two most important methods used to resolve Longshore and Defense Base Act claims: stipulations and settlements.
DOL-Joint Bar Association Commented On the Longshore Pre-Hearing Statement, Form LS-18
The DOL-Joint Bar Association recently submitted comments to the Office of Information and Regulatory Affairs to slightly modify the Pre-Hearing Statement, Form LS-18. The Longshore and Harbor Workers’ Compensation Act’s Pre-Hearing Statement, Form LS-18, is an integral part of the administration and adjudication process. Typically, a party submits a Form LS-18 to the Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) after an informal conference, when the parties cannot reach an agreement and the district director must make recommendations. See 20 C.F.R. § 702.316. When a party submits a completed Form LS-18 to the DLHWC, the agency then transfers the case to the Office of Administrative Law Judges (“OALJ”) pursuant to 20 C.F.R. § 702.317. Section 702.317 prohibits the DLHWC from transferring to the OALJ “any recommendations expressed or memoranda prepared by the district director” following the parties participation in an informal conference. Because these recommendations cannot be submitted toRead more
Beach Cleaner Was Not Injured On a Longshore Situs
In an unpublished decision, the Fifth Circuit addressed Longshore and Harbor Workers’ Compensation Act coverage for an employee cleaning beaches after the Deepwater Horizon oil spill. The facts were not disputed: On August 21, 2010, Global [Management Enterprise] employee Librado De La Cruz was allegedly injured while lifting a bag of oil-laden sand that would later be loaded onto a truck and transferred to a vessel for removal. It is undisputed that De La Cruz spent up to two hours actively loading and unloading the vessel at the pier, and six or seven hours cleaning the beaches. At the time of the incident, De La Cruz was working on a beach located a few feet from Gulf waters and around a half-mile from the pier at which the vessel docked. After his injury, Global’s insurer began paying state workers’ compensation benefits. De La Cruz then filed a Longshore Act claimRead more
BRB Upholds Longshore Settlement, Rejects Director’s Adequacy Arguments
Earlier this week, the Benefits Review Board (“BRB”) issued its published decision in Richardson v. Huntington Ingalls, Inc. Regular readers of this blog will recognize Richardson as the interesting case about Section 8(i) settlement agreements. To recap, the claimant and the employer/carrier, both represented by attorneys, entered into a settlement that the District Director disapproved because of adequacy concerns. The parties referred the claim to the Office of Administrative Law Judges, added another $500 to the total settlement amount and asked the judge to issue an Order approving the settlement. A dispute arose between the two represented parties and the Solicitor of Labor’s office. The Solicitor (on behalf of the Director) argued that the settlement was not adequate. The judge disagreed and issued the settlement Order. The Solicitor appealed to the BRB. The BRB agreed with the administrative law judge, and in doing so, published a very significant opinion discussingRead more
BRB Questions Whether Work or Adultery and Drugs Led to Suicide
Decedent worked as a pest control specialist in Iraq for one and a half years. Upon returning to the United States in June 2006, he learned that his wife had committed adultery while he was away, and that his daughter developed a drug problem. A few weeks later, Decedent checked himself into a hotel room where he shot and killed himself. Claimant, Decedent’s widow, filed a claim for death benefits contending that Decedent’s suicide was related to his employment. An administrative law judge (“ALJ”) agreed, noting that “the zone of special danger could have been a cause of [Decedent’s] suicide.” The ALJ noted Decedent’s exposure to mortars, a hazardous waste spill, a colleague’s injury or death, and even the Decedent’s physical separation from his family as all falling under the zone of special danger. After the ALJ awarded benefits, the Employer and Carrier appealed to the Benefits Review Board (“BRB”)Read more
Fourth Circuit Denies LHWCA Attorney’s Fees Because Compensation Was Paid Within 30 Days
In a new, important Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision, the Fourth Circuit addressed Section 928(a) attorney’s fees and the meaning of “compensation” for that statute. In Lincoln v. Dir., OWCP, the employee filed a hearing loss claim on May 24, 2011. Two days later, the employer filed a notice of controversion explaining that it accepted the fact that the employee’s hearing loss was noise-induced, but that it need additional information to determine the correct disability payment. The OWCP did not formally serve notice of the claim on the employer until June 14, 2011. Then, on July 7, 2011, the employer voluntarily paid the employee $1,256.84, amounting to compensation for “0.5% [binaural] hearing loss” and the equivalent of one week of PPD pay under the maximum compensation rate. Ultimately the claim settled for the value of a 10% binaural hearing loss. The issue in this case arose whenRead more
BRB: Adult Child On Social Security Was Not Entitled to Death Benefits
The Benefits Review Board (“BRB”) published a new opinion addressing the definitions of “child” and “dependent,” as used in the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). During his employment for a number of employers, Claimant’s father (“Decedent”), was allegedly exposed to asbestos and welding fumes. After Decedent passed away, Claimant’s mother filed a claim for death benefits. Claimant also filed a claim for death benefits as a wholly dependent, disabled “child.” At the time of Decedent’s death, Claimant was an adult. At the outset, the administrative law judge (“ALJ”) determined that Claimant was not a “child” under Section 9(b) of the LHWCA. Section 9 provides for the payment of benefits to a surviving child, or surviving children, following the work-related death of their parent. But, the claimant must be a “child,” as defined by Section 2 of the LHWCA, 33 U.S.C. § 902(14): “Child” shall include a posthumous child,Read more
SCOTUS Refuses to Hear Appeal of Longshore Modification Decision
On February 24, 2014, the Supreme Court of the United States denied certiorari in Cox v. Director, OWCP, which was a Longshore decision from the Fifth Circuit. The holding in the unpublished Fifth Circuit case–a case dealing with Section 22 modification–was: Addressing the remaining issues, the ALJ did not err denying Cox’s Motion for Modification or granting Employer’s Motion for Summary Decision denying Cox’s Second Motion for Modification. Under the LHWCA, once the claimant has established that he is unable to return to his former employment due to a work-related injury, the burden shifts to the employe rto demonstrate that the claimant retains the capacity to earn wages in a regularo job by showing the availability of suitable alternative mployment which the claimant is capable of performing. When an employer offers of a suitable job within the partially disabled claimant’s current place of work, that is sufficient to discharge theRead more
Claimant Was Fired For Failing to Wear a Life Vest, Not Because He Filed a Longshore Claim
Claimant worked as a welder for Employer. On June 4, 2010, Claimant injured his low back and groin while lifting an empty gas cylinder. Claimant took one month off of work, during which time he received temporary total disability benefits. On July 1, 2010, Claimant returned to work. Employer’s safety agent told Claimant to wear an employer-provided fire-retardant life vest instead of a personal non-fire-retardant life vest. Claimant refused. The next day, Claimant was terminated for insubordination and disrespectful conduct. Afterwards, Claimant filed a Section 49 discrimination claim. The Longshore and Harbor Workers’ Compensation Act (“LHWCA”) prohibits employers from discharging or discriminating against an employee based on his claiming or attempting to claim compensation under the LHWCA. To establish a prima facie discrimination claim, the claimant must demonstrate that his employer committed a discriminatory act motivated by discriminatory animus or intent. Claimant could not do so in this case: ClaimantRead more
Longshore Articles Around the Blogosphere
Here are some recent gems: LexisNexis’ Workers’ Compensation Law Community published Vickers Decision: Inapplicability of Sec. 20(a) Presumption to Secondary Conditions Under the LHWCA. As the name suggests, the article addressees the applicability (or, rather, inapplicability) of the Section 20(a) presumption to “secondary conditions.” The AEU Longshore Blog published Issue: Exemption for Small Vessel Facilities, which identifies the procedure for obtaining an exemption certificate. Finally, John’s Longshore and Defense Base Act Blog published No Intentional Tort Exception Under the Outer Continental Shelf Lands Act, wherein John Chamberlain addresses the Western District of Louisiana’s recent Latimer decision. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
