Plaintiff, a welder on a stationary platform on the outer continental shelf off the coast of Louisiana, filed suit in the Western District of Louisiana alleging that he was intentionally injured by a co-employee while working for Defendant. Plaintiff was carrying a lifeline rope from one location to another when the co-employee “intentionally stepped on the rope,” thus jerking him backward. Claimant slipped, fell, and allegedly injured his neck, left shoulder, low back, and left knee. The issue before the court on Defendant’s Motion for Summary Judgment was whether the Longshore and Harbor Workers’ Compensation Act’s (“LHWCA”) exclusivity provision barred Plaintiff’s federal court lawsuit. The LHWCA defines “injury” to mean “accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by theRead more
Claimant Willfully Omitted Illegal Earnings on Form LS-200
One of our favorite cases from 2011 was Young v. Newport News Shipbuilding & Dry Dock Co., BRB No. 10-0678 (BRB 6/22/11), wherein the Benefits Review Board (“BRB”) determined that illegal earnings still constitute “earnings” that must be reported to an employer. Our post discussing the original Young decision is here. On Halloween 2013, the BRB issued a new decision against Mr. Young, who continued his attempts to circumvent the reporting requirements of Section 8(j). Section 8(j) of the Longshore and Harbor Worker’s Compensation Act allows an employer to ask their injured worker to disclose any earnings over a specific period of time during which the worker received disability benefits. If the employee “knowingly and willfully omits or understates any part of such earnings . . . [the employee] forfeits his right to compensation with respect to any period during which the employee was required to file such report.” See 33Read more
Claimant Remained Totally Disabled Despite Labor Market Surveys
The Sixth Circuit published a new Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision discussing Claimant’s vocational ability–or lack of ability–and Employer’s deficient labor market survey. This was the second time the Sixth Circuit heard the claim, and the court reused its earlier recitation of the facts. Claimant worked for Employer as a senior barge mechanic. After twenty-five years of employment, Claimant alleged a shoulder injury. Over the course of three years, Claimant treated with a number of health professionals. One of those physician’s, Dr. Goodwin, determined that Claimant could not perform his usual work as a senior barge mechanic. Thereafter, Employer’s vocational expert prepared a labor market survey identifying nine alternate positions that Claimant could perform. A few months later, the vocational expert identified ten more jobs. Claimant did not contact any of these employers because he had a foot gout ailment. Following a 2008 trial, the assigned Administrative Law JudgeRead more
Can DFEC Force Employers and Carriers to Re-Litigate a Defense Base Act Claim?
Generally speaking, when a defense contractor is injured by a “war-risk hazard,” the carrier that pays benefits is entitled to reimbursement under the War Hazards Compensation Act (“WHCA”). See 42 U.S.C. § 1704. When the injured worker resides in the United States or Canada, carriers often seek reimbursement and the direct payment of future benefits. See id.; see also 20 C.F.R. § 61.105. When the Division of Federal Employees’ Compensation (“DFEC”) agrees to directly pay future benefits, it will notify the carrier and the claimant that, on a particular date, DFEC will assume all future indemnity and medical payments. Even after DFEC takes over the administration of a claim, the modification provision of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) remains a viable option for reducing—or increasing—future benefits. See 33 U.S.C. § 922. Section 22 of the LHWCA allows modification of a compensation award on the ground of aRead more
Old Recreational Vessel Exclusion Applies If Any Hearing Loss Occurred Before Amendment
The Benefits Review Board (“BRB”) recently addressed the interplay between a hearing loss claim and the 2009 revision to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provision dealing with the recreational vessel exclusion. In Czikowsky v. Ocean Performance, Inc., BRB No. 13-0108, 2013 WL 5437444 (2013), Claimant had worked as a marine mechanic for 19 years. Claimant acknowledged that he mostly worked on recreational vessels, but that some of those vessels should be considered charter fishing boats due to the number of hours logged on the vessel’s engines. He alleged a hearing loss due to his employment, and audiograms dated April 10 and August 14, 2009 confirmed the loss. In 2009, Congress amended Section 2(3)(F) of the LHWCA. Before the amendment, Section 2(3)(F) excluded “individuals employed to build, repair, or dismantle any recreational vessel under sixty-five feet in length” from the “employee” definition. In the 2009 amendment, Congress fleshed out theRead more
Automatic Longshore Settlement Approvals and the Government Shutdown
Since last week, Longshore practitioners have debated whether Section 8(i) settlement agreements can be automatically approved during the government shutdown. Typically, all Longshore settlements are reviewed by the assigned district director. The district director has thirty days to review the settlement. If the settlement is reasonable, the district director issues a compensation order directing the parties to pay the amount identified in the order–most likely the same amount contemplated in the settlement agreement. But what if the district director does not issue a compensation order within thirty days? Or, as in this case, what if there are no district directors to issue compensation orders because of the government shutdown? Section 8(i) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) contains a provision that allows for automatic approval of settlements when all parties are represented by attorneys. Specifically, Section 8(i) states: “If the parties to a settlement are represented by counsel, then agreements shall beRead more
9th Circuit: “Seniority Raises” Do Not Increase Wage-Earning Capacity
Claimant was injured while working as a welder for Sause, where he earned $15 per hour. He unsuccessfully tried to return to work, so Sause paid disability benefits. Three years later, Claimant began working for another employer, K&K. Claimant’s starting pay was $7.80 per hour, and his pay was scheduled to increase periodically. A representative from K&K explained the pay increase as a quarterly “seniority raise:” If people work for us, we promise them a certain maximum wage that they can achieve in a certain time frame for us. And the cap wage for everybody in production and clerical is $13.50. And when out employees start, they start at minimum wage, and with adequate performance they will get automatic raises of 25 cents per quarter. When Sause began paying permanent partial disability benefits pursuant to Section 8(c)(21), it did so based on Claimant’s starting salary with K&K. However, as K&K periodically increasedRead more
Are Longshore Death Benefits Available to Same-Sex Spouses?
In United States v. Windsor, the Supreme Court of the United States ruled that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 of DOMA limited the definition of “spouse” to a person of the opposite sex who is a husband or wife. That restriction is no more. The Supreme Court found that “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal” both in responsibilities and rights under the law. Whereas the same-sex couple was married for state law, they were unmarried for federal law. Accordingly, DOMA’s definition of “spouse” was unconstitutional. How could the Windsor decision affect Longshore and Harbor Workers’ Compensation Act (“LHWCA”) claims? Most notably, Section 9 death benefits are likely available for the surviving same-sex spouse of a legally binding marriage. The LHWCA defines “widow or widower” to include “only the decedent’s wife or husband living with or dependent forRead more
