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.”
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 (9th 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.
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.
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.
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.
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.”