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In March, the Loyola University New Orleans College of Law hosted the 2012 Annual Longshore Conference (“ALC”), which was a rousing success.  The following issues of import were discussed at the conference:

1. A presentation given regarding significant judicial decisions.  Of particular interest was the BRB decision Obadiaru v. ITT Corp, 45 BRBS 17 (2011) concluding that a subsequent DBA carrier, when found liable for an aggravation, is liable for the entirety of Claimant’s attorneys fees under Section 28(a) when the subsequent carrier did not pay benefits within thirty (30) days of the Claimant’s filing a claim for compensation against the subsequent carrier.
2. There was a presentation by an orthopedic physician who explained his methodology for performing examination of claimants. The doctor used the acronym SOAP for subjective, objective, assessment, and plan.  (S) Subjective: patients described the reason for their visits and any past history of similar problems to the doctor.  (O) During the objective portion, the doctor provides physical exam, may require laboratory testing, imaging, etc.  (A) Assessment: the doctor provides his diagnosis and then a (P) plan of treatment.  The medical provider determines if additional tests or disability ratings are needed.
3. There was a panel presentation regarding the proposed amendments to the Act via Senate Bill 699.  The consensus of the panel was that Senate Bill 669 should fall short in attempting to amend the Act.  Serious consideration must be given to the Longshore Act’s extension and how any proposed changes in the longshore arena would affect claimants in the U.S. and abroad.
4. There was a presentation regarding Section 8(f) requirements.  One issue discussed was the Special Fund’s statutory lien against the proceeds of third-party settlements for the amount of payments made by the Special Fund. (Section 33(g)(3)).  The Benefits Review Board found in Lindsay v. Bethlehem Steel Corporation, 22 BRBS 206 (1989), that the employer has first lien rights and the Special Fund has secondary lien rights against the net proceeds of the third-party settlement.
5. Regarding Section 9 of the Act: one practice point to remember was that the statutory minimum for compensation does not apply to aliens and non-nationals of the United States or Canada pursuant to Section 9(g).  However, whatever the compensation rate may be for aliens and non-nationals it should still be adjusted yearly in accordance with Section 10(f).
6. A presentation regarding psychological claims arising out of the Act discussed an overview of the history of PTSD issued by the National Center for PTSD, a division of the U.S. Department of Veterans Affairs.  The overview evaluates the criteria for PTSD, diagnosis of the same, and how PTSD is assessed and treated.
7. During a presentation regarding the handling OCONUS claims an audience discussion ensued.  One claims handling lesson of particular import was the fact that District Directors are requesting employers and carriers to illustrate that at least three attempts were made to find/identify an overseas injured worker who is otherwise no longer working with the employer or is missing for purposes of obtaining an OWCP Bulletin No. 05-01 informal conference.

For more information regarding the 2012 ALC, please contact us at Mouledoux, Bland, Legrand & Brackett, LLC.

Recently, the Department of Labor revised two mandatory forms filed in claims arising under its jurisdiction. The amendments of Form LS-202, Employer’s First Report of Injury or Occupational Illness, and Form LS-206, Payment of Compensation Without Award provide more stringent requirements for the employer and carrier.

A few revisions were made to Form LS-202.  Beginning with Item 6, if an injury arises under the Defense Base Act, the Employer is now required to enter the name of the contracting agency (i.e. which governmental agency issued the contract) and the contract number. Furthermore, Section 28 is now divided into two parts. The additional requirement here is to verify whether the employer has issued Form LS-1, Request for Examination and/or Treatment, to the claimant’s choice of physician. Finally, Item 38 requires a submission of a contact phone number along with the name of the employer’s representative preparing the Form LS-202.

The Department of Labor considers the use of the newly revised Form LS-202 as a requirement, effective immediately.  It should be treated as such. Furthermore, penalties are being issued for the late filing of an LS-202 submission – up to an $11,000.00 civil penalty.

The new Form LS-206 should be used effective November 1, 2011 per the Department of Labor’s instruction.  The “Note” at the top of Form LS-206 was amended from “This Notice is to be filed with the District Director when the first payment is made” to “This Notice is to be filed with the District Director not later than the same day that first payment is made.”  Also, Items 9a. and 9b. were added to the form. Item 9a. requires the employer’s and carrier’s representative, in a DBA claim, to state whether the employer is continuing to pay a claimant’s salary. And if so, 9b. requires a determination if salary is being paid in lieu of compensation payments.

Employee worked as a railroad switchman or conductor for Norfolk Southern Railway Co.  As he spotted coal-filled rail cars at a dock in Virginia, he fell from a car and injured himself.  He sued Norfolk for damages in Missouri State court under the Federal Employers Liability Act (“FELA”).  Norfolk removed the action to federal court, claiming that jurisdiction was proper under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) and not FELA.  The district court disagreed and remanded the matter back to state court for further proceedings.

On appeal to the U.S. Eighth Circuit Court of Appeals, Norfolk claimed that the LHWCA should control, because its employee was engaged in maritime employment at the time of his accident, namely spotting coal-filled rail cars about to be loaded onto ocean-going vessels.  Although it was disputed that the employee’s accident occurred at a maritime situs, Norfolk argued that the employee’s job of switching railroad cars onto the correct tracks and in the correct sequence was essential to the vessel loading process.  The Eighth Circuit found that the employee did not assist in the loading process, because he had nothing to do with preparing the rail cars for their descent to the docks for unloading onto the vessels.  The employee’s job involved the rail cars before the vessel loading process began.  Consequently, the employee was not a maritime employee for purposes of the LHWCA and the district court’s judgment was affirmed.

In re: Norfolk Southern Ry. Co., 592 F.3d 907 (8th Cir. 2010).