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 to the OALJ, parties to an administrative formal hearing try to refrain from attaching the district director’s written recommendations (known as a Memorandum of Informal Conference, Form LS-280) as trial evidence.  The problem is that most federal circuits require proof of the existence of an informal conference before attorney’s fees may shift pursuant to Section 28(b) of the Longshore and Harbor Workers’ Compensation Act.  See, e.g., Andrepont v. Murphy Exploration and Prod. Co., 566 F.3d 415, 418, 421 (5th Cir. 2009).

Consequently, the DOL-Joint Bar Association suggested modifying the Form LS-18 to include a check “Yes or No” space for the parties to indicate whether an informal conference ever occurred at the DLHWC level.

The DOL-Joint Bar Association’s second suggestion concerns the Longshore Act’s special fund, 33 U.S.C. § 908(f).  When a claim is referred to the OALJ, the district director typically identifies whether Section 8(f) relief is at issue.  An employer’s failure to comply with statutory and regulatory requirements associated with Section 8(f) relief will bar an employer’s subsequent claim for relief.

Considering the important procedural requirements for Section 8(f), the DOL-Joint Bar Association suggested modifying the Form LS-18 to include a check “Yes or No” space for the parties to indicate whether Section 8(f) relief is at issue.

Finally, the DOL-Joint Bar Association’s third recommendation was to increase the time necessary to complete the Longshore Pre-Hearing Statement, Form LS-18.  Presently, the form accounts for a ten (10) minute preparation time.  Experience dictates that the preparation time should be increased to twenty (20) minutes.

Brief in Opposition Filed in Dize, a Jones Act “Seaman Status” Case

The Brief in Opposition has been filed in Dize v. Association of Maryland Pilots, the case concerning seaman status for maritime workers who spend time in the service of a moored vessel.  The Brief in Opposition is a good read that questions the existence of the circuit split advanced by Ms. Dize in her petition.  Here is the Introduction to the Brief in Opposition (with internal citations omitted where possible):

In Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), this Court held that, to qualify as a “seaman” under the Jones Act, an employee “must have a connection to a vessel in navigation (or an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.”  With respect to the “duration” element of that requirement, the Court endorsed “an appropriate rule of thumb”: “A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”  Such a worker is not “regularly expose[d] . . . to the perils of the sea”; is “land-based,” not “sea-based”; and has “only a transitory or sporadic connection to a vessel in navigation.”

The petition seeks review of a single, narrow question: whether a court applying Chandris‘s 30-percent rule of thumb “may . . . consider” time spent “in the service of a vessel in navigation that is moored, dockside, or ashore,” or “must” instead “categorically exclude” such time.  That question is not presented here.  Notwithstanding the petition’s assertions, the Court of Appeals of Maryland rejected a categorical rule that an “employee must spend at least 30 percent of [his] time actually at sea” to qualify as a seaman.  It expressly recognized that “a variety of other circumstances” may count toward Chandris‘s 30-percent threshold.  Petitioner effectively prevailed below on the sole question actually posed by the petition: Under the decision below, courts “may . . . consider” time in service of moored, dockside, and ashore vessels in determining whether an employee is a seaman. Petitioner’s real complaint seems to be that the decision below erred in not counting the particular services William Dize performed for moored, dockside, and ashore vessels.  The petition does not seek review of that fact-specific determination, which does not warrant preview in any event.

The petition’s misreading of the decision below also permeates its claimed conflict among lower courts.  The petition alleges a conflict between the decision below and an unpublished Eleventh Circuit decision, on the one hand, and decisions of the Third, Fifth, Sixth, and Ninth Circuits, on the other.  But the decision below rejected the very Eleventh Circuit decision the petitioner characterizes it as having “followed.”  And the decision below embraced decisions of the Fifth and Ninth Circuits (among others).  The purported decision in the circuits thus rests entirely on an unpublished decision of a single federal court of appeals–a decision that does not even bind that court–and dictum within the decision at that.  That “conflict” does not warrant this Court’s review.

In any event, the decision below is correct.  This Court has emphasized that “Jones Act coverage is confined to seamen, those workers who face regular exposure to the perils of the sea.”  The Maryland Court of Appeals faithfully applied that directive, counting towards the 30-percent threshold all duties that expose a worker to the perils of the sea, whether or not he is in transit over the water.  And it properly ruled that, on the facts of this case, Mr. Dize’s routine maintenance of vessels ashore did not expose him to such perils.  The petition does not challenge that fact-bound conclusion.  Instead, it seeks a categorical rule requiring courts to count all duties in service of a vessel, wherever and however performed.  That rule would make seaman of workers who are never, exposed to the perils of the sea, obliterating the Jones Act’s “fundamental distinction between land-based and sea-based maritime employees.”

Finally, this case is an exceptionally poor vehicle.  The “question presented” is not presented here, and the petition fails to challenge the actual basis for the decision below.  This Court’s ability to offer meaningful guidance would thus be severely hampered.  And while the petition asks whether time spent in service of a vessel that is “moored” or “dockside” may count toward seaman status, . . . Mr. Dize’s claim below rested on “shoreside support tasks.”  Accordingly, Mr. Dize’s claim depends on the sort of routine, land-based “maintenance work” this Court has held to be not “substantial for seaman-status purposes.”  The total circumstances here make clear that Mr. Dize was a land-based worker who only sporadically performed launch operator duties and would not qualify as a seaman under any conceivable standard.

Tip of the hat to SCOTUSBlog.

 

 

Fifth Circuit Upholds Denial of Longshoreman’s Claim, Affirms MBLB Win

Today’s post provides us with an opportunity to brag on one of our own, Rob Popich, who successfully argued Hymel v. Dir., OWCP, for the Employer and Carrier.  The Fifth Circuit’s new, unreported Hymel decision is the third victory Mr. Popich earned in this case, having previously prevailed in front of an administrative law judge (“ALJ”), the Benefits Review Board (“BRB”), and now the Fifth Circuit.

Claimant, a longshoreman, filed a claim after he alleged injury as a result of a work-related incident wherein he was struck by a forklift. In accordance with the Longshoremen and Harbor Workers’ Compensation Act, a claimant is entitled to a presumption of application if he can establish 1) he suffered harm and 2) conditions existed at work, or an accident occurred at work, that could have caused, aggravated, or accelerated the condition. (See 33 U.S.C. § 920.)  The employer then has the opportunity to rebut the presumption by presenting substantial evidence establishing the absence of a connection between the injury and the employment.

Through his presentation of evidence to the ALJ, Mr. Popich successfully rebutted the presumption in favor of the Claimant: the ALJ determined Claimant’s credibility was questionable, and his testimony was inconsistent. Based on this evidence, the ALJ found in favor of Employer and Carrier. The Claimant appealed to the BRB hoping to convince it that the ALJ’s finding of facts were not supported by substantial evidence or consistent with the law. However, the BRB affirmed the ALJ’s determination in favor of Employer and Carrier. Claimant then appealed to the Fifth Circuit.

The Fifth Circuit, being limited in its scope of review to consideration of errors of law, had to determine if the BRB adhered to its statutory standard review of factual determinations made by the ALJ.

Claimant first argued the ALJ’s characterization of witness testimony was improper; the ALJ had determined Claimant did not provide a medical provider with all of information necessary for a diagnosis when Claimant neglected to reveal he was previously injured due to an unrelated incident.  The Fifth Circuit held that the ALJ did not, in fact, mischaracterize witness testimony, as the ALJ was in the best position to assess credibility and conflicting evidence.  Second, Claimant argued the ALJ incorrectly found his testimony inconsistent.  Again, the Fifth Circuit noted the ALJ was in the proper position to weigh the testimony of various witnesses, more than one of which recalled the work incident differently than Claimant.  Third, Claimant alleged the introduction of personnel files were improper.  In disagreeing with this argument, the Fifth Circuit noted the ALJ did not abuse their discretion in admitting this evidence, as it was not bound by traditional rules of evidence.

In reaching its conclusions, the Fifth Circuit looked to dicta of Avondale Indus., Inc. v. Dir., OWCP, 977 F.2d 186 (5th Cir. 1992) which stated that “[T]he ALJ’s decision need not constitute the sole inference that can be drawn from the facts . . . . As fact finder, the ALJ determines questions of credibility of witnesses and of conflicting evidence.”  The ALJ had simply weighed the evidence and made a credibility determination, which the ALJ is entitled to do.  Further, the Fifth Circuit noted the ALJ is not bound by formal rules of evidence; admissibility of evidence can depend solely on whether it is such evidence as a reasonable mind might accept as probative.  In conclusion, the Fifth Circuit held that the BRB did not err in finding the ALJ’s determinations supported by substantial evidence and in accordance with the law.

NASA Issues Final Rule Clarifying A Contractor’s Resonsibility to Obtain and Maintain Longshore and Defense Base Act Insurance

The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) recently issued a Final Rule discussing a contractor’s responsibility to maintain Longshore and Defense Base Act coverage.  This link will take you to a PDF of the Final Rule, which is reprinted below:

Summary:

DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to clarify contractor and subcontractor responsibilities to obtain workers’ compensation insurance or to qualify as a self-insurer, and other requirements, under the terms of the Longshore and Harbor Workers’ Compensation Act (LHWCA) as extended by the Defense Base Act (DBA).

DATES:

Effective: July 1, 2014.

FOR FURTHER INFORMATION CONTACT:

Mr. Edward N. Chambers, Procurement Analyst, at 202-501-3221 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-74, FAR Case 2012-016.

SUPPLEMENTARY INFORMATION:

I. Background

DoD, GSA, and NASA published a proposed rule in the Federal Register at 78 FR 17176 on March 20, 2013, to make the necessary regulatory revisions to revise the FAR to clarify contractor and subcontractor responsibilities to obtain workers’ compensation insurance or to qualify as a self-insurer, and other requirements, under the terms of the LHWCA, 33 U.S.C. 901, et seq., as extended by the DBA, 42 U.S.C. 1651, et seq. Three respondents submitted comments on the proposed rule.

II. Discussion and Analysis

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:

A. Summary of Significant Changes

This final rule includes one change to align the FAR with Department of Labor’s (DOL) regulations and implementation of section 30(a) of the LHWCA. This change involves deleting proposed paragraph (b) of FAR clause 52.228-3, which stated that the actions set forth under paragraphs (a)(2) through (a)(8) may be performed by the contractor’s agent or insurance carrier. The DOL’s regulations place the responsibility for reporting injuries on the employer, see 20 CFR 703.115. The removal of proposed FAR 52.228-3 paragraph (b) also promotes consistency with the statutory requirements.

B. Analysis of Public Comments

1. Support of the Proposed Rule

Comment: Two respondents expressed support for the rule.

Response: The public’s support for this rule is acknowledged.

2. Clarify Term “Days”

Comment: One respondent recommends that the ten-day reporting period within the report of injury requirements set forth in proposed FAR 52.228-3 paragraph (a)(2) should be revised to read “ten business days.” The respondent asserts this modification will clarify the reporting period.

Response: The intent of this rule is to alert contractors to their obligations under the LHWCA, rather than to alter those obligations. The respondent’s suggested revisions could result in altering a contractor’s obligations and therefore are beyond the scope of the FAR rule. The DOL’s regulation interprets the ten-day injury reporting period set forth in LHWCA section 30(a), 33 U.S.C. 930(a), as ten calendar days. See 20 CFR 702.201(a) (using unqualified term “days” to describe reporting period). Thus, adding “business” days would alter the intent of the law.

3. Inclusion of “Work-Related” Terminology

Comment: The respondent states that the terms injury and death should be modified by adding the phrase “work-related” before both. The respondent asserts that this modification will serve to clarify a contractor’s obligation.

Response: The Councils do not recommend adding the phrase “work-related” to the terms “injury” and “death.” The added phrase is not necessary as the LHWCA defines an injury in 33 U.S.C. 902(2) and the concept of work-relatedness is subsumed in the term “injury.” Moreover, the question whether a particular injury is work-related is often a difficult issue to resolve, and a contractor may not be able to decide whether a particular injury arose out of and in the course of employment within the meaning of the statute. By leaving the terms “injury” and “death” unqualified, contractors will be encouraged to err on the side of reporting any incident that may be work-related.

4. Inclusion of “Actual” Terminology

Comment: One respondent suggests that the provision should specify that the contractor’s “actual/constructive” knowledge of the injury triggers the reporting period. The respondent recommends this revision to further clarify a contractor’s obligation.

Response: DOL’s governing rules use the unqualified term “knowledge of an employee’s injury or death” when describing the event that triggers the reporting period. This FAR rule simply tracks that language.

5. Conflicts With Current Practice

Comment: One respondent states that FAR 52.228-3 paragraph (b), which allows the contractor’s agent or insurance carrier to submit the first report of injury referenced in paragraph (a)(2), is inconsistent with section 30(a) of the LHWCA, 33 U.S.C. 930(a), as extended by the DBA, and the DOL’s current practice. The respondent argues that it is inappropriate to redefine this statutory provision through a FAR clause. The respondent recommends the proposed paragraph (b) should be amended to conform to current practice both under the DBA and LHWCA.

Response: The Councils concur with the respondent. The intent of this FAR rule is to clarify and inform contractors of their obligations under the DBA and the DOL’s regulations, not to alter those requirements. Section 30(a) of the LHWCA, as implemented by the DOL’s regulations, places the responsibility for reporting injuries on the employer. See 20 CFR 703.115. Accordingly, the Councils are removing the proposed FAR 52.228-3 paragraph (b) to promote consistency with the statutes referenced above.

6. Contractors Should Provide Insurance

Comment: One respondent states that the contractors should have sufficient insurance to be able to pay compensation if an employee is injured.

Response: The Councils concur that the views of this respondent are in accord with the intent of the law, this FAR rule, and the existing FAR clause 52.228-3.

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule merely clarifies the existing prescriptions and clauses relating to contractor and subcontractor responsibilities to obtain workers’ compensation insurance or to qualify as a self-insurer, and other requirements, under the terms of the LHWCA as extended by the DBA, and implemented in DOL Regulations. No comments from small entities were submitted in reference to the Regulatory Flexibility Act request under the proposed rule.

The rule imposes no reporting, recordkeeping, or other information collection requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules, and there are no known significant alternatives to the rule.

Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The FAR Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.