Doctors Were Not Entitled to Intervene in Defense Base Act Case at the OALJ

Claimant was injured while working as a linguist in Iraq.  His claim was referred to the Office of Administrative Law Judges (“OALJ”) for adjudication, in part because of a medical payment dispute.  Employer paid some of the medical bills in question after it received itemized statements.  Believing that the disputed medical payment issue was resolved, Claimant and Employer/Carrier submitted Stipulations which outlined Claimant’s injury, medical treatment, entitlement to benefits, and Claimant’s responsibility to provide itemized invoices and statements for medical expenses.  The Administrative Law Judge (“ALJ”) then remanded the claim to the district director at the Division of Longshore and Harbor Workers’ Compensation.

While the parties were resolving their issues, but before the ALJ remanded the claim, two doctors attempted to intervene in the Defense Base Act litigation.  The doctors alleged that they had not been paid for their treatment of Claimant’s work injuries.  After the ALJ remanded the claim, the doctors filed a motion for reconsideration which the ALJ ultimately denied.  Remand was appropriate where only a “billing” dispute existed and the doctors could present their complaints to the district director.  See, e.g., 20 C.F.R. §§ 702.413-414(c).  Thus, the ALJ denied the doctors’ request for reconsideration and attorney’s fees.  The doctors appealed, arguing that they were entitled to intervene at the OALJ level to secure payment of their bills.

The Benefits Review Board disagreed.  There are two types of intervention contemplated by Rule 24 of the Federal Rules of Civil Procedure: an intervention of right and a permissive intervention.  An intervention of right is permitted if the intervenor has an interest in the property or transaction of the litigation which may be impaired and the putative intervenor’s interest is not adequately  represented.  Here, the doctors were not entitled to an intervention as a matter of right.  The parties to the case stipulated that Employer was liable for benefits, thus there was no further factual dispute on that issue.  The doctors did not demonstrate the existence of any additional issues for the ALJ to resolve.  Plus, the ALJ correctly decided that the district director was the appropriate individual to consider payment of the doctors’ fees.

A court may grant the second type of intervention–a permissive intervention–if there is a timely motion, a common question of law or fact with the main litigation, and there will not be any undue delays or prejudice.  Here, the doctors were not entitled to a permissive intervention.  Again, after the parties stipulated that Employer was liable for medical benefits, no remaining factual disputes existed regarding the payment of medical treatment.  Any recourse for the doctors would have to come from the district director.

Younan v. Global Linguist Solutions, BRB No. 13-0594 (Aug. 19, 2014).

Benefits Review Board Accepts Electronic Filings

This following notice is posted on the Benefits Review Board’s home page.

Notice Regarding Availability of Electronic Filing and Electronic Service

All parties to appeals before the Benefits Review Board (BRB) may now use the Board’s Electronic File and Service Request (EFSR) system.  The EFSR portal allows parties to file new appeals electronically, receive electronic service of Board issuances, file briefs and motions electronically, and check the status of existing appeals via a web-based interface accessible 24 hours every day in lieu of paper documents.

The EFSR system is open to any party to an appeal before the Board.  An e-Filer must register as a use and must be validated by the Board before e-filing any document.  An e-Filer will complete an online registration form.  A valid e-mail address is required to register as an e-Filer.  Once registered, an e-Filer will be able to use the EFSR for electronic filing (eFile), which is the submission of forms and documents to the Board through the Internet instead of using postal mail and fax.  After the Board has accepted an e-Filing, it is handled just as it would be had it been filed in a more traditional manner.  e-Filers will also have access to electronic service (eService), which is simply a way to receive documents issued by the Board through the Internet in lieu of mailing paper notices/documents.

Information regarding registration for access to the EFSR system, as well as a step by step user guide and FAQs can be found at: https://dol-appeals.entellitrak.com

If you have any questions or comments, please contact us at: Boards-EFSR-Help@dol.gov

This is great news for Longshore and Defense Base Act cases.  Electronic filing saves costs and time.  The Federal Judiciary has used electronic filing for years via the PACER system.  Immediate docket updating and printing is very helpful for litigation.

The BRB’s e-filing registration process is quick and painless.  You provide contact information, establish a security question, and the confirm receipt of an e-mail from the e-Filing system.  Done and done.

Seaman Denied Recovery for Stress-Related Health Claim

Anyone who has ever worked in the marine industry knows that the physical requirements are demanding and the pressure to perform can be intense.  Regrettably, the nature of the business means that accidents, injuries and property damage are inevitable, no matter how well workers do their jobs.  Usually, the remedies available under the maritime law when such casualties occur are fairly well defined.  However, a recent case out of the U. S. 11th Circuit Court of Appeals confirmed that such remedies are not without limits.

The case of Skye v. Maersk Line involved a claim for money damages by the chief mate of the SEALAND PRIDE for heart disease and deteriorated health which he attributed to the excessive duties and prolonged work hours required of him by his employer.  Skye served on the SEALAND PRIDE for approximately eight years, during which he sometimes worked between 90 and 105 hours a week for 70 to 84 days at a time.  These demands of his job purportedly caused him fatigue, stress and lack of sleep, which resulted in hypertension and eventually disabling heart disease.

Skye sued Maersk Line for negligently imposing unreasonable working conditions that caused his failing health.  While a jury concluded that Skye could recover damages from Maersk Line under these circumstances, the Court of Appeals reversed the judgment and found that Skye was not entitled to any award at all.

In reaching this conclusion, the appeals court noted that not all work related injuries are compensable under the Jones Act, the federal statute that provides a seaman legal recourse against a negligent employer.  It explained that in order to prevail on such a claim, seamen’s injuries must be caused by the “negligent conduct of their employers that threatens them imminently with physical impact.”  The appeals court further determined that a seaman cannot recover for injuries caused only by work related stress because such stress is not a “physical peril.”  It acknowledged that Skye did, in fact, suffer physical harm; but the cause of that harm was not a recognized physical peril for which the employer could be held liable.  Consequently, the court found that Skye had no right of recovery against Maersk.

This important decision was rendered by a divided panel of judges on the 11th Circuit, which may signal further appeals of this claim or lead to more legal challenges in other cases where a maritime worker is injured on the job notwithstanding the absence of some perilous physical cause.

This article first appeared in Work Boat magazine.  It was also posted on September 1, 2014, at Work Boat’s website.

DOL Issued 2014-15 National Average Weekly Wage Increase for Longshore Claims

On October 1, 2014, the National Average Weekly Wage applicable to Longshore claims (including Longshore extensions like the Defense Base Act) will increase pursuant to Section 10 of the Longshore and Harbor Workers’ Compensation Act.  The new compensation rates are:

National Average Weekly Wage: $688.51
Maximum Compensation: $1,377.02
Minimum Compensation: $344.26
Percentage Increase: 2.25%