A Maritime, Longshore and Defense Base Act Blog

In a recent unpublished decision, the United States Fifth Circuit Court of Appeals explained the nature of its review of the denial of a motion for new trial.  The plaintiff in the underlying case was injured while working on a commercial fishing vessel.  He filed a Jones Act negligence and unseaworthiness claim against his employer.  After a three-day jury trial, a unanimous verdict was returned in favor the employer.  The district court subsequently denied the plaintiff’s motion for new trial, finding the verdict was not against the great weight of the evidence.  The plaintiff appealed the district court’s denial of his motion for new trial.

On appeal, the Fifth Circuit noted several pieces of evidence in the record to support the jury’s verdict.  For example, the vessel’s captain testified that the plaintiff had violated company policy by attempting to moor the vessel while it was still moving.  The captain also testified that immediately following the accident, the plaintiff had remarked that it was a result of his own “dumb, stupid mistake.”  Further, the plaintiff had given a statement that the accident was not caused by an unseaworthy condition of the vessel.

The court commented in a footnote that the plaintiff seemed to concede that there was evidence to support the verdict.  However, the plaintiff argued that the evidence was not credible and should be disregarded.  The court took this argument as an indication that the plaintiff misunderstood the nature of its review.  The court explained that it was bound to accept the evidence in support of the verdict as true and that its task was to decide whether there is an “absolute absence” of evidence, not second guess the credibility determinations of the jury.  The Fifth Circuit affirmed the district court’s denial of plaintiff’s motion for new trial.

Registration is open for the Annual Longshore Conference, which is hosted every year by Loyola University New Orleans College of Law.  The conference is scheduled for March 15-16, 2012, and it will take place at the Sheraton Hotel New Orleans.  Loyola’s Annual Longshore Conference is by far the cream of the crop for longshore conferences.  It boasts a healthy attendance and knowledgeable speakers.  Visit Loyola’s website to register online, or use this form to register by mail, fax or e-mail.  Hope to see you there!

The United States Court of Appeals, Fifth Circuit, issued an opinion discussing whether cure awarded in a Jones Act claim should include the amount medical providers charged or the amount they accepted as full payment from a plaintiff’s insurer.

In November 2006, Leon Manderson began working as a licensed engineer for Chet Morrison Contractors, Inc. (CMC) aboard a dive vessel operating in the Gulf of Mexico.  In January 2008, Manderson, aboard another CMC dive vessel, left abruptly and was hospitalized, receiving treatment for ulcerative colitis, diabetes, and a liver condition.  Manderson did not return to work. 

The United States District Court for the Western District of Louisiana awarded Manderson maintenance and cure and attorney’s fees incurred in obtaining that relief.  The court subsequently ruled CMC liable for $14,680.00 for maintenance and $169,691.06 for cure. 

On appeal, CMC challenged the district court’s application of the collateral-source rule for determining the amount of cure awarded Manderson.  In an issue of first impression, CMC contended that the cure award should not have included the difference between the amount of Manderson’s medical providers charged and the lesser amount they accepted from his insurer as full payment.  The Fifth Circuit applied a de novo review.   

Cure is the shipowner’s obligation to pay necessary medical services for seamen injured while in its service.  This obligation is an implied term of a maritime-employment contract and does not depend on any determination of fault. 

The collateral-source rule is a substantive rule of law that bars a tortfeasor from reducing the quantum of damages owed to a plaintiff by the amount of recovery the plaintiff receives from other sources of compensation that are independent of the tortfeasor.  Generally, in tort actions, the collateral-source rule prohibits a reduction of compensatory damages by the difference between the amount billed for medical services and the amount paid.  Yet, as previously mentioned, maintenance and cure is an implied term of contract for maritime employment and is not predicated on the fault or negligence of the shipowner.  Accordingly, because of the unique nature of maintenance and cure, normal rules of damages, such as the collateral-source rule in tort, are not strictly applied. 

Nevertheless, the Fifth Circuit has identified an exception to this general rule:  Where a seaman has alone purchased medical insurance, the shipowner is not entitled to a set-off from the maintenance and cure obligation moneys the seaman receives from his insurer.

Having found Manderson purchased his own medical insurance, the court¾consistent with the Fifth Circuit precedent¾made no deduction from the cure award for payments by Manderson’s insurer.  In doing so, the court found the amount of cure was the greater amount charged by Manderson’s health-care providers.  CMC contended that the appropriate amount for cure was the lesser amount those providers accepted as full payment from Manderson’s insurer, and the Fifth Circuit agreed.   

An injured seaman may recover maintenance and cure only for those expenses actually incurred.  The relevant amount is that needed to satisfy the seaman’s medical charges.  The Fifth Circuit stated, “This applies whether the charges are incurred by a seaman’s insurer on his behalf and then paid at a written-down rate, or incurred and then paid by the seaman himself, including at a non-discounted rate.”  Regardless of what Manderson’s medical providers charged, those charges were satisfied by the much lower amount paid by his insurer.  Consequently, the district court erred by awarding the higher charged (but not totally paid) amount. 

Though Manderson’s payment of health-insurance premiums benefitted CMC, this benefit was not a problem here, where fault was not an issue and CMC was liable only for maintenance and cure.  By using the amount paid by Manderson’s health insurer, rather than the amount charged, the Fifth Circuit held Manderson entitled to recover $71,085.79 for cure, resulting in a difference of $98,605.27.

Manderson v. Chet Morrison Contractors, Inc., — F.3d —, 2012 WL 10541 (5th Cir. 01/03/12).

Last week, the Supreme Court heard oral argument in Roberts v. Sea-Land Services.  For those who may be interested in the hearing transcript or an audio recording of the hearing, look no further than the Supreme Court’s website.  You can find the audio recording at this link.  The transcript is here.  Finally, there is an interesting SCOTUSblog article by Jack Martone discussing the oral arguments and the Court’s trouble with defining the term “award” for purposes of Section 6 of the Longshore and Harbor Workers Compensation Act.

The United States Court of Appeals, Fifth Circuit, issued an important opinion addressing the exclusive nature of the Defense Base Act (“DBA”) and whether an employer can be held liable under an intentional tort theory for injuries sustained by contractors.

The plaintiffs in Fisher v. Halliburton filed suit against the employer that employed their deceased family members as truck drivers in Iraq.  On April 9, 2004, two convoys were savagely attacked by insurgents with improvised explosive devices, rocket-propelled grenades and machine gun fire.  Seven drivers were killed and ten were injured.  The plaintiffs filed suit alleging negligence and fraud, and after an earlier decision by the Fifth Circuit, the plaintiffs refined their complaint to also include civil conspiracy, intentional infliction of emotional distress and intent to injure/assault.

On the present appeal, the Fifth Circuit determined that it needed to resolve three issues: (1) whether the injuries were injuries “caused by the willful act of a third person directed against [the employees] because of their employment;” (2) whether the plaintiffs could proceed with their intentional tort claims against the employer under the theory that the employer “knew the insurgent attacks were substantially certain to occur and failed to protect [the employees] from attack;” and (3) whether “coverage of [the employee's] injuries under the DBA preclude[d] [the employee's] from pursuing their fraud claims….”

An “injury” under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) includes “an injury caused by the willful act of a third person directed against an employee because of his employment.”  The DBA, which is a general reference statute extending LHWCA coverage to qualifying employees of defense contractors, incorporates this definition of “injury.”  For the Fisher court, that required analyzing whether the third person’s willful action (i.e. the terrorist or insurgent attack) was levied against the employees because of their employment.  The Fifth Circuit had no trouble concluding that the insurgents attacked the employees because of their employment.  At the time of the attack, the employees were fulfilling their job duties.   In the court’s opinion, Fisher was the “quintessential case of a compensable injury arising from a third party’s assault.”  The employees were injured or killed because of their employment driving trucks in Iraq.

But could the plaintiffs proceed with their intentional tort claims?  The Fifth Circuit said, “No.”  It is well-known that intentional torts fall outside the scope of coverage of workers’ compensation laws.  Here, the plaintiffs asserted that the employer should be held liable under the intentional tort theory that “the employer knew that the third party’s assault was substantially certain to occur and failed to protect him from the assault.”  This theory failed on appeal, with the Fifth Circuit noting that there was no exception for the intentional tort exclusion even if the employer was somehow “substantially certain” that the employee would be assaulted by third persons.  There are just too many questions to permit this type of “probabilistic standard” to upset the purpose of the DBA.

The court also considered whether the DBA was the exclusive remedy for the employees’ injuries and death, or whether the plaintiffs could proceed with their fraud claims.  They could not.  The Fisher plaintiffs were seeking damages for work-related injuries, but the appropriate statutory scheme for recovery was the DBA, not tort law.

The Fisher court makes it plainly obvious that the DBA is the exclusive remedy for injured contractors falling within the scope of the DBA.  Statutory support for this proposition can be found at 42 U.S.C. Sec. 1651(c)(1), which states, “[t]he liability of an employer…under this chapter shall be exclusive and in place of all other liability of such employer….”  Considering the unambiguous statutory language and Fisher‘s strong reasoning, exclusivity should be regarded as a firmly entrenched reality of DBA coverage.

Fisher v. Halliburton, — F.3d —-, 2012 WL 90136 (5th Cir. 2012).

Today, the Supreme Court of the United States issued its opinion in Pacific Operators Offshore, LLP v. Valladolid.  The syllabus of the opinion, which was written by Justice Thomas, states:

Petitioner Pacific Operators Offshore, LLP (Pacific), operates two drill­ing platforms on the Outer Continental Shelf (OCS) off the California coast and an onshore oil and gas processing facility. Employee Juan Valladolid spent 98 percent of his time working on an offshore plat­form, but he was killed in an accident while working at the onshore facility. His widow, a respondent here, sought benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U. S. C. §901 et seq., pursuant to the Outer Continental Shelf Lands Act (OCSLA), which extends LHWCA coverage to injuries “occurring as the result of operations conducted on the [OCS]” for the purpose of extracting natural resources from the shelf, 43 U. S. C. §1333(b). The Administrative Law Judge dismissed her claim, reasoning that§1333(b) did not cover Valladolid’s fatal injury because his accident occurred on land, not on the OCS. The Labor Department’s Benefits Review Board affirmed, but the Ninth Circuit reversed. Rejecting tests used by the Third and the Fifth Circuits, the Ninth Circuit con­cluded that a claimant seeking benefits under the OCSLA “must es­tablish a substantial nexus between the injury and extractive opera­tions on the shelf.”

Held: The OCSLA extends coverage to an employee who can establish a substantial nexus between his injury and his employer’s extractive operations on the OCS.

(a) The Courts of Appeals have offered competing interpretations of §1333(b)’s scope. According to the Third Circuit, because Congress intended LHWCA coverage to be expansive, §1333(b) extends to all injuries that would not have occurred “but for” operations on the OCS. Thus, an employee who worked on a semisubmersible drill rig, but who died in a car accident on his way to board a helicopter to beflown to the rig, was eligible for benefits because he would not have been injured but for his traveling to the rig. In contrast, the Fifth Circuit has concluded that Congress intended to establish “a bright­line geographic boundary,” extending §1333(b) coverage only to em­ployees whose injuries or death occurred on an OCS platform or thewaters above the OCS. Under its “situs-of-injury” test, a welder in­jured on land while constructing an offshore oil platform was ineligi­ble for §1333(b) benefits. In the decision below, the Ninth Circuit held that §1333(b) extends coverage to injured workers who can es­tablish a “substantial nexus” between their injury and extractive op­erations on the OCS. The Solicitor General offers a fourth interpre­tation, which would provide coverage for off-OCS injuries only to those employees whose duties contribute to operations on the OCS and who perform work on the OCS itself that is substantial in bothduration and nature.  

(b) Contrary to Pacific’s position, the Fifth Circuit’s “situs-of-injury” test is not the best interpretation of §1333(b).  

(1) Nothing in the text of §1333(b) suggests that an injury must occur on the OCS. The provision has only two requirements: The ex­tractive operations must be “conducted on the [OCS],” and the em­ployee’s injury must occur “as the result of” those operations. If, as Pacific suggests, the purpose of §1333(b) was to geographically limitthe scope of OCSLA coverage to injuries that occur on the OCS, Con­gress could easily have achieved that goal by omitting from §1333(b)the words “as the result of operations conducted.” Moreover, Con­gress’ decision to specify situs limitations in other subsections, butnot in §1333(b), indicates that it did not intend to so limit §1333(b). This conclusion is not foreclosed by Herb’s Welding, Inc. v. Gray, 470 U. S. 414, or Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, nei­ther of which held that §1333(b) coverage was limited to on-OCS in­juries. Section 1333(b)’s text also gives no indication that Congressintended to exclude OCS workers who are eligible for state benefitsfrom LHWCA coverage. To the contrary, the LHWCA scheme incor­porated by the OCSLA explicitly anticipates that injured employees might be eligible for both state and federal benefits.

(2) Also unpersuasive is Pacific’s alternative argument that §1333(b) imports the LHWCA’s strict situs-of-injury requirement,which provides benefits only for injuries occurring “upon the naviga­ble waters” of the United States, 33 U. S. C. §903(a). It is unlikelythat Congress intended to restrict the scope of the OCSLA workers’ compensation scheme through a nonintuitive and convoluted combi­nation of two separate legislative Acts. In addition, under Pacific’s alternative theory, LHWCA coverage would not be extended to the navigable waters above the shelf. Thus, even employees on a crewship immediately adjacent to an OCS platform who are injured in a platform explosion would be excluded from §1333(b) coverage. That view cannot be squared with §1333(b)’s language.

(3) Pacific’s policy concerns also cannot justify an interpretation of §1333(b) that is inconsistent with the OCSLA’s text.  

(c) Neither the Solicitor General’s status-based inquiry nor the Third Circuit’s “but for” test are compatible with §1333(b). The Solic­itor General’s inquiry has no basis in the OCSLA’s text, because §1333(b)’s “occurring as the result of operations” language plainlysuggests causation. And when taken to its logical conclusion, theThird Circuit’s test, though nominally based on causation, is essen­tially a status-based inquiry because it would extend coverage to allemployees of a business engaged in extracting natural resources fromthe OCS, no matter where those employees work or what they are do­ing at the time of injury. Because LHWCA coverage was extended only to injuries “occurring as the result of operations conducted onthe [OCS],” §1333(b)’s focus should be on injuries resulting from those “operations.”  

(d) The Ninth Circuit’s “substantial-nexus” test is more faithful to§1333(b)’s text. This Court understands that test to require the in­jured employee to establish a significant causal link between his in­jury and his employer’s on-OCS extractive operations. The test maynot be the easiest to administer, but Administrative Law Judges and courts should be able to determine if an injured employee has estab­lished the required significant causal link. Whether an employee in­jured while performing an off-OCS task qualifies will depend on thecircumstances of each case. It was thus proper for the Ninth Circuit to remand this case for the Benefits Review Board to apply the “sub­stantial-nexus” test.

 

 

The United States Department of Labor issued a final rule implementing the Longshore and Harbor Workers’ Act’s exclusion for recreational vessel workers.  The final rule, which becomes effective on January 30, 2012, excludes from the definition of “employee” those “[i]ndividuals employed to build any recreational vehicle under sixty-five feet in length, or individuals employed to repair any recreational vehicle, or to dismantle any part of a recreational vehicle in connection with the repair of such vessel….”  Further, the final rule defines the term “recreational vessel” by incorporating the United States Coast Guard’s standards for defining a recreational vehicle.  The definition focuses on the purpose of the vessel (i.e. is it used for pleasure or recreation?), but even a public vessel can be deemed recreational “at the time of repair, dismantling for repair, or dismantling, provided that such vessel shares elements of design and construction with traditional recreational vessels and is not normally engaged in a military, commercial or traditionally commercial undertaking.”

More information concerning this final rule can be found at the Federal Register.  The Division of Longshore and Harbor Workers’ Compensation’s web page discussing the rule is here, and Industry Notice No. 137 is here.

Finally, for an in-depth critique of the final rule, check out John Chamberlain’s posts at John’s Longshore and Defense Base Act Blog.

In June 2007, Rodney Hamm was injured during his employment with Rodan Marine Services II, LLC (“Rodan”).  At the time of his injury, Hamm was moving equipment between his vessel, the M/V Tara Louisa, and an oil platform permanently affixed to the Outer Continental Shelf.  While performing his task, Hamm became pinned against the side of the vessel by a cargo basket and suffered injuries to his back and hips.

Approximately seventeen months after his injury, Hamm filed suit against Rodan and Island Operating Company, Inc. (“IOC”), the owner of the oil platform.  Hamm alleged admiralty jurisdiction and elected a non-jury trial pursuant to Rule 9(h).  However, IOC and Rodan requested a jury in their answers and the court clerk set the case to be tried to a jury.  Hamm subsequently moved to have the case classified as an admiralty suit and designated for a non-jury trial.  In response, IOC moved alternatively to dismiss or for summary judgment based on the one-year statute of limitations under Louisiana law.  IOC claimed that Louisiana substantive law applied under the Outer Continental Shelf Lands Act (“OCSLA”).  The district court ultimately adopted the magistrate judge’s report and recommendation to grant Hamm’s motion and deny IOC’s.

The defendants moved to have the order certified for interlocutory appeal and the district court obliged.  The Fifth Circuit granted the defendants’ requests for review to consider IOC’s argument that Hamm’s claim should be dismissed or, alternatively, it should be granted summary judgment, because Hamm’s claim was time-barred by Louisiana’s one-year statute of limitations.  Both defendants also argued alternatively that they were entitled to a jury trial.

IOC took the position that Louisiana substantive law applied because OCSLA adopts the law of the adjacent state.  Hamm conceded this would be the case if OCSLA applied but argued federal maritime law, not OCSLA, applied.  Under federal maritime law, Hamm had three years rather than one year to file his suit.

The court explained the three-part test to be applied in determining whether the law of the adjacent state governs as “surrogate federal law.”  First, the controversy must arise on a situs governed by OCSLA.  This includes the subsoil, seabed, or artificial structure permanently or temporarily attached thereto.  Second, federal maritime law must not apply of its own force.  Finally, the state law must be consistent with federal law.

The court focused on the second prong of the test and concluded that federal maritime law applied of its own force.  This determination turned on the allegations of Hamm’s complaint.  Indeed, the test to determine the existence of a maritime tort is the same as that applied to determine admiralty jurisdiction.  This is the familiar test established in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995).  The tort must have occurred on navigable water (or create a land-based injury caused by a vessel on navigable water), it must have a potentially disruptive effect on maritime commerce, and the activity giving rise to the injury must have a substantial relationship to traditional maritime activity.

The court noted that the location aspect of this test was satisfied.  Hamm was injured on the deck of a vessel on navigable waters.  The court also concluded that the incident was potentially disruptive to maritime commerce.  Grubart advised that the type of incident should be characterized at “an intermediate level of possible generality.”  Here, the cause of the injury was an accident during the loading and unloading of cargo and equipment to and from a vessel by crane.  The court reasoned that this type of incident could not only injure seamen but could damage vessels and delay shipment of goods.  The court also found that the general activity involved was substantially related to traditional maritime activity.

Because federal maritime law applied of its own force, Louisiana law could not apply as surrogate federal law under OCSLA.  Therefore, Hamm’s claim was timely under the applicable three-year statute of limitations.

With that determination made, the court turned to IOC’s alternative argument that even if maritime law did govern, it was entitled to a jury trial under the Seventh Amendment.  Although it is well established that there is no right to a jury trial in admiralty suits, IOC argued that this was not an admiralty or maritime suit.  Rather, IOC argued, this was an OCSLA suit in which maritime law applied by virtue of OCSLA’s choice of law provision.  The court was not convinced by this argument, noting that OCSLA was not meant to displace general maritime causes of action any time a court had OCSLA jurisdiction.  Further, the court reasoned that even if there was admiralty jurisdiction and OCSLA jurisdiction, IOC still had no right to a jury trial in light of Hamm’s invocation of Rule 9(h), which provides that where a claim is within a court’s admiralty jurisdiction and also within the court’s subject matter jurisdiction on some other ground, a pleader may designate the claim as admiralty or maritime for purposed of Rule 38(e) which allows for bench trials in maritime cases.

Hamm v. Island Operating Co., Inc., 2011 WL 5570644 (5th Cir. 11/16/11).

The rights of U.S. seamen under the law are, by tradition, closely guarded by the Courts.  This includes the seaman’s right to wages, which are protected by the Seaman’s Wage Act (46 USC 10101-11507).  Generally the Master (employer) must pay each seaman promptly at the end of the voyage the balance of wages due within twenty-four hours after the cargo has been discharged or within four days after the seaman is discharged, whichever is earlier.  The Act imposes a penalty on the non-paying employer.  If payment is not made “without sufficient cause” the seaman must be paid “two days” wages for each day payment is delayed.  The U.S. Supreme Court in Griffin v. Oceanic Contractors, Inc., 102 S.Ct. 3215 (1982) held that there is no room for discretion when enforcing this penalty.  If the employer has refused to pay the seaman his wages and the refusal is without just cause, the penalty applies.  In Griffin, the employer withheld $412.50, and the District Court awarded $6,881.60, which represented a penalty only for the period of non-payment while the employee was out of work.  The Supreme Court held that Griffin was due $302,790.40 because the $412.50 was not paid until over four years after he was discharged.  Because of the dilemma this presents, the employer in any wage dispute should endeavor to resolve the matter as quickly as possible, and if there is litigation, pay the disputed sum into the registry of the Court.  This action may toll the running of penalties.

The wrongful withholding is not enough to give rise to penalties.  The employer’s action also must be arbitrary, willful or unreasonable.  (Admiralty and Maritime Law, 4^th Ed. Schoenbaum).  The employer has the burden of showing that its actions in withholding pay were reasonable.  Insolvency of the vessel, good faith mistake or clerical error, seaman’s negligence of his duties, where there are honest doubts about the seaman’s demand, and where the seaman refuses to submit a written claim have all been deemed fair reasons to deny payment with no penalty attached.

There are important exceptions to the double wage penalty statutes.  They do not apply to fishing vessels, nor do they apply to the vessel owner when the vessel is under bare boat charter.

One of the most significant exceptions is that vessels engaged in coastwise trade are not subject to the double wage penalty.  The Act does not define “coastwise.”  However, courts have defined it as “a voyage between a port in one state and a port in another state” (except an adjoining state).  Frederick v. Kirby Tankships, 2105 F. Ed. 1277 (11^th Cir. 2000), Powell v. Global Marine, LLC, 2009 WL 4456571.

Exceptions or not, whenever there is a dispute over wages, the employer will be well served if it undertakes to thoroughly investigate, document the claim and, if the claim is denied, the reasons for denial.  If the double wage penalty attaches, the award can be significant.  (See Raby v. M/V PINE FOREST, 918 F.2d 80, reversed on other grounds), where the Court awarded over $32 Million to twenty-one Filipino seamen who had been wrongfully deprived of $166,000 in wages.

Although “best of” lists tend to be completely subjective, we could not help ourselves.  As such, here is Navigable Waters’ first annual write up of the year’s ”Top 5 Longshore Cases.”

1. Boroski v. Dyncorp Int’l, — F.3d —-, 2011 WL 55555686 (11th Cir.  2011):

In Boroski, the Eleventh Circuit determined that the maximum compensation rate for a claimant receiving “newly awarded compensation” for permanent total disability benefits pursuant to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) was governed by reference to the national average weekly rate in effect on the date when he received his award.  Boroski must be compared to Roberts v. Director, OWCP, 625 F.3d 1204 (9^th Cir. 2010), cert. granted, 132 S.Ct. 71 (2011).  In Roberts, the Ninth Circuit held that the claimant was “newly awarded compensation,” for purposes of determining which fiscal year’s national average weekly wage to apply, when he first became disabled, and that the claimant was “currently receiving compensation for permanent total disability” when he was entitled to receive benefits.  The Supreme Court agreed to review Roberts and it will no doubt discuss Boroski when it decides whether the date of injury or the date of an award controls particular claimant’s compensation rates.

2.  Wheeler v. Newport News Shipbuilding and Dry Dock Co., 637 F.3d 280 (4th Cir. 2011):

In Wheeler, the Fourth Circuit addressed the meaning of the term “compensation,” as used in Section 22 of the LHWCA.  The Fourth Circuit concluded that “interpreting ‘payment of compensation’ in Section 22 [and all other uses of the term “compensation” in Section 22] to exclude an employer’s payment of medical benefits is most harmonious with the purpose of both the statute’s limitations period and the Act as a whole.”  In other words, “compensation” in Section 22 does not include the payment of medical benefits.

 3. Dyncorp Int’l v. Director, OWCP, 658 F.3d 133 (2d Cir 2011):

In Dyncorp Int’l, the Second Circuit was called upon to determine whether Claimant timely filed a psychological injury claim.  The key for the Second Circuit was whether Claimant knew or should have known that the injury would permanently impair her earning power. Employer argued that substantial evidence supported its denial. For instance, Claimant (1) changed assignments for Employer; (2) sought psychological counseling from the Army; (3) obtained a prescription for sleeping and anti-anxiety medication from a psychiatrist; (4) submitted to a psychological evaluation ordered by Employer and even sought an independent psychological evaluation; and (5) was experiencing symptoms of PTSD. The Second Circuit disagreed, determining that while Claimant may have recognized she was psychologically distressed, her work was largely unaffected for one year after the shooting. Therefore, Claimant timely filed a claim within one year of the time when she knew or should have known that she had suffered a permanent impairment of her earning power.

4. Luttrell v. Alutiiq Global Solutions, BRB No. 10-0555 (2011):

In Luttrell, the Benefits Review Board (“BRB”) added another piece to the puzzle that is average weekly wage determinations for a Defense Base Act employees.  The BRB upheld an Administrative Law Judge’s (“ALJ”) average weekly wage calculation. The ALJ refused to include Claimant’s wages from an earlier job, which were higher, because Claimant’s earlier job was performed under drastically different conditions. Whereas Claimant’s earlier job was performed in a hostile environment, the job on which he was injured was not. Thus, the ALJ found that this case represented “the mirror image” of war zone cases. Claimant voluntarily left the higher-paying jobs in the Middle East for the lower-paying jobs in the Bahamas and the South Pacific. Further, at the time of the injury, Employer was not paying Claimant a premium for any hazardous duty. It was appropriate to calculate Claimant’s average weekly wage using only the wages Claimant earned in the South Pacific, a non-combat zone.

5. Langfitt v. Fed. Marine Terminals, Inc., 647 F.3d 1116 (11th Cir. 2011):

Last, but not least, the Eleventh Circuit’s decision in Langfitt, addressed the borrowed-employment standard for Longshore cases.  After a lengthy discussion of the common law origins of the borrowed-servant doctrine, the court noted that the common law tests for the doctrine must be tweaked for workers’ compensation claims. Based upon its prior case law, the court “distilled” the following standard for establishing whether a borrowed-employment relationship existed under the LHWCA:

“When a general employer transfers its employee to another person or company, the latter is the employee’s borrowing employer for purposes of the LHWCA, and thus is liable for the Act’s compensation and has the benefit of the Act’s tort immunity, if each of the following three criteria is satisfied:

“(1) Employee Consent to the New Employment Relationship. The employee must be shown to have given deliberate and informed consent to the new employment relationship with the borrowing principal. The test is objective, and the employee’s consent may be shown to have been given either expressly or impliedly.

“(2) Borrowing Principal’s Work Being Done. The work being performed by the employee at the time of the injury must be shown to have essentially been that of the borrowing principal–that is, that it was primarily the borrowing principal’s interests that were being furthered by the employee’s work.

“(3) Borrowing Principal Assumed Right to Control the Details of Employee’s Work. The borrowing principal must be shown to have received, from the employee’s general employer, the right to control the manners and details of the employee’s work. This might be evidenced by: (a) an express agreement between the general employer and the borrowing principal that directly evidences a transfer of control over the employee to the borrowing principal; (b) the borrowing principal’s actual exercise of control; (c) the borrowing principal’s furnishing of the equipment and space necessary for the employee to perform the work; (d) the borrowing princpal’s right to terminate the employee’s relationship with the borrowing principal; and (e) the method and obligation of payment for the employee’s services.”