It is that time of the year again. Subjective lists and year-end round-ups dominate the blogosphere. Why should we be any different? Accordingly, here are the Top 5 Longshore Cases for 2012:
In an 8-1 decision, the Supreme Court addressed a hypertechnical argument concerning Section 6 of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). It held that “an employee is ‘newly awarded compensation’ when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.” So, “newly awarded” means “newly entitled,” without reference to the date when a formal compensation order is issued by the District Director or an Administrative Law Judge. An interesting offshoot of Roberts comes from a footnote. The Court noted that an employee may be injured on one day and disabled another day. The employee’s compensation rate is determined by the date of disability. Because the National Average Weekly Wage increases each year on October 1st, a high wage-earning employee who is injured before the increase but disabled after the increase can most likely claim the higher compensation rate.
Although it may be cheating, I am including the Eleventh Circuit’s Boroski II decision as 1A. In another decision discussing the meanings of certain terms in Section 6 of the LHWCA, the court determined that “currently receiving” means “currently entitled.” Combining Roberts and Boroski II reveals that the LHWCA’s Section 6(c) can be read as follows:
Determinations under subsection (b)(3) with respect to a period shall apply to employees or survivors currently [entitled to] compensation for permanent total disability or death benefits during such period, as well as those newly [entitled to] compensation during such period.
In this Outer Continental Shelf Land Act case, the Supreme Court determined that the proper test for a claimant seeking benefits was established by the Ninth Circuit. A claimant “must establish a substantial nexus between the injury and extractive operations on the shelf.” The Court rejected the the Third Circuit’s “but for” test and the Fifth Circuit’s “situs-of-injury” test.
In a very well reasoned Defense Base Act (“DBA”) decision, the United States Court of Appeals for the Fifth Circuit determined that the DBA is an employee’s exclusive remedy for injuries sustained during employment. The facts in Fisher were very sympathetic: family members brought suit after their loved ones were wither brutally injured or killed by insurgents with improvised explosive devices, rocket-propelled grenades and machine gun fire. The Fifth Circuit determined that the employees were injured or killed by third persons because of the employee’s employment. The DBA, according to 42 U.S.C. § 1651(c)(1), is an employee’s exclusive remedy against his employer (unless the employer committed an intentional tort).
An en banc Ninth Circuit took a bite out of the Director’s litigating power when it published Price. In Price v. Stevedoring Services of America, the court determined that it would no longer give Chevron deference to the Director of the Office of Workers’ Compensation Program’s litigating positions, and that employers and carriers must pay compound interest (instead of simple interest) if interest is owed pursuant to Section 14 of the Longshore and Harbor Workers’ Compensation Act. The Chevron deference is important. Refusing to give Chevron deference to a litigating position means that a greater degree of fairness will be injected into Ninth Circuit litigation.
The “blended” average weekly wage (“AWW”) approach is not dead after all. In Jasmine v. Can-Am Protection Group, the Benefits Review Board created a distinction for the AWW determination of DBA employees. The seminal case concerning the AWW of DBA employees is K.S. [Simons] v. Service Employees Int’l, Inc., 43 BRBS 18, aff’d on recon. en banc, 43 BRBS 136 (2009). In that case, the BRB “held that where claimant is injured while working overseas in a dangerous environment in return for higher wages under a long-term contract, his annual earning capacity should be based upon the earnings in that job as they reflect the full amount of the annual earnings lost due to the injury.” Simons, 43 BRBS at 21. But, there is an exception: “if the record contained credible evidence that a claimant’s employment overseas was in fact, or was intended to be, short-term, i.e., for less than a one-year contractual term, the result here [exclusive use of overseas earnings] would not necessarily control.” In Jasmine, the exception applied, and the BRB affirmed the ALJ’s use of a blended approach to the determination of Claimant’s AWW. Because of the short-term nature of the employment contract (six months), and Claimant’s rotation of stateside and overseas employment, an AWW calculation that combined war zone and stateside wages was warranted. Claimant’s war zone employment was cyclical, and his employment history interspersed domestic employment in Louisiana with overseas employment. Finally, Claimant did not demonstrate “a long-term commitment to overseas employment.”