Articles by Alan Brackett

Benefits Review Board To Enforce Attorney Fee Petition Deadline

The Clerk of the Benefits Review Board has issued a notice to the community that the Board has reviewed its policy concerning handling of untimely attorney fee petitions. Effective March 1, 2017, attorney fee petitions must be filed within the time limits established in 20 C.F.R. §802.203(c) and 802.219(e). The Board will not consider a late filed attorney fee petition absent a valid basis for late filing, which must be specifically requested and will be considered on a case by case basis. This serves notice to claimants’ counsel that late attorney fee petitions will not be permitted as a matter of practice, as has been done in the past.

Pursuant to 20 C.F.R. §802.217, any out of time request must be submitted as a separate motion directed to the Clerk of the Board. Untimely filings are not allowed unless found to be “warranted.”

Punitive Damages Not Available For Failure To Pay Maintenance & Cure

In a case of first impression, the United States District Court for the Western District of Washington has held that punitive damages for the failure to pay maintenance & cure are not available where seaman’s status is reasonably disputed.

Plaintiff was a pile driver hired to work in the construction of a wharf for the federal government. He was assigned to work in connection with “flexi-floats,” which are used as floating work platforms in maritime construction. He alleged he injured his back in the course of his employment.

Plaintiff sued under the Jones Act and sought punitive damages for the failure to pay maintenance & cure. The employer filed a Motion for Summary Judgment seeking dismissal of the punitive damages claim. Whether Plaintiff was a seaman was disputed and the court previously denied Plaintiff’s Motion for Summary Judgment as to whether he was a seaman. The court held:

“Because reasonable minds could differ on whether Plaintiff’s duties rendered him a seaman, no rational juror could find that Defendants’ opposition to maintenance and cure was in bad faith. Therefore, the Court grants Defendants’ motion for summary judgment and finds that punitive damages are unavailable for Defendants’ allegedly wrongful refusal to pay maintenance and cure.”

Ward v. Ehw Constructors, U.S.D.C. W.D.WA. No. C15-5338

Death on Platform in State Waters May Be Within OCSLA Jurisdiction

A worker was killed on a platform located in Louisiana state waters when a pressurized valve blew, striking him in the head. The platform was a “collecting point” for pipelines running from Outer Continental Shelf platforms to shore. The platform owner filed a Motion for Summary Judgment to dismiss claims against it on the basis the OCSLA could not apply and that the decedent was covered by the Louisiana Workers’ Compensation Act. As a state worker, the decedent would be a statutory employee and the platform owner therefore protected from suit due to the exclusivity provision of the state act.

The District Court granted the Motion for Summary Judgment, but on a Motion for Reconsideration, denied the MSJ and allowed the suit against the platform owner to proceed. Citing the Supreme Court’s decision in Pacific Operators Offshore, LLP v. Valladolid, 132 S.Ct. 680 (2012), the court found that OCSLA has only two requirements: that extractive operations take place on the OCS, and that the injury in question must result from those operations. The “resulting from” standard requires a “substantial nexus” exist between the OCS operations and the injury.

Plaintiffs argued that the valve that blew causing the decedent’s death was pressurized to facilitate the movement of crude oil from the OCS through the transfer point on the platform. The court found this was a genuine issue of material fact sufficient to deny the Motion for Summary Judgment, as those facts could establish the necessary substantial nexus between OCS operations and the injury.

Mays v. Chevron Pipeline Co., No. 14-3098 U.S. D.C. W.D.LA. (2017)

Same Sex Spouse Can Recover Under DOHSA

In what appears to be a case of first impression, the U.S. District Court for the Southern District of Florida has held a same sex spouse can recover damages under the Death on the High Seas Act (DOHSA) arising from the death of his husband while on a cruise on the high seas.

The facts recited by the Court are compelling: Plaintiff and his husband were subjected to ‘repetitive anti-gay insults’ while passengers onboard the cruise. On their first day onboard, they were repeatedly called a ‘lipstick’ by a bartender. The couple immediately complained to the cruise operator’s management about the incidents. The next evening, the husband was extremely distraught when employees called him ‘a pedophile and other anti-gay slurs.’ He returned to his stateroom and told his husband about the insults. Afterward, security officers reported to the couple’s stateroom and ‘engaged in an argument’ with them. ‘A series of events’ ensued and the decedent fell over the couple’s seventh deck stateroom balcony onto a life boat on deck six. He held on to the life boat for several minutes as crewmembers attempted to rescue him. The crewmembers grabbed his hand but failed to rescue him, and he fell into the ocean. The ship did not stop for some time and did not timely deploy rescue boats. After receiving a distress call from the cruise, the United States Coast Guard searched for the decedent but did not find him.

The Plaintiff sued for wrongful death of his husband, as well as for the intentional infliction of emotional distress for witnessing his husband’s death. On a Rule 6 Motion to Dismiss, the Court allowed the DOHSA claim to continue, but dismissed the claim for intentional infliction of emotional distress because, although Plaintiff was mere feet away from his husband and witnessed his fall and disappearance, he was not himself in the ‘zone of danger’ where he was at risk of physical harm.

Elbaz v. Royal Caribbean Cruises, No. 16-24568, U.S.D.C., S.D.FL.