Ninth Circuit Finds DBA Claimant Failed to Establish Employee-Employer Relationship

The Ninth Circuit recently addressed the employer-employee relationship required in a claim under the Defense Base Act.  Claimant worked as a contractor truck driver with the U.S. military in Iraq.  In 2005, he was injured by an improvised explosive device (IED) and filed a claim under the DBA.  Claimant named his employer as Theodor Wille Intertrade, GmbH (TWI), a Swiss corporation that did business in Iraq as Servco Solutions, LLC (Servco).  TWI/Servco controverted the claim and denied Claimant was its employee.

 

The claim was submitted to the Administrative Law Judge on briefs.  Judge Paul Johnson reviewed multiple deposition transcripts (including two from the Claimant) and affidavits and denied the claim on the grounds that Claimant had failed to establish that there was an employer-employee relationship.  Claimant appealed to the Benefits Review Board, which affirmed Judge Johnson’s decision.  Claimant then appealed to the U.S. Ninth Circuit Court of Appeals.

 

The Claimant testified that he was working for TWI/Servco or one of its subsidiaries and that he took instruction from a TWI/Servco employee, Eddie Nagel.  He also submitted a signed declaration from a friend who confirmed these allegations, as well as a letter of recommendation from Mr. Nagel on TWI/Servco letterhead.  Judge Jonnson discounted Claimant’s testimony based on multiple inconsistencies at his two depositions, gave no weight to the signed declaration, and credited Mr. Nagel’s explanation that he wrote the letter out of sympathy, but did not supervise the Claimant.  The Ninth Circuit affirmed the ALJ’s findings because the credibility determinations were not in conflict with the record and held that substantial evidence supported the ALJ’s finding that Claimant was not an employee of TWI/Servco.

 

Mikha v. Director, OWCP

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.”

Longshore Act Penalties Increased For 2017

The Federal Civil Penalties Inflation Adjustment And Improvements Act of 2015 requires the Department of Labor to annually adjust its civil monetary penalty levels for inflation. On January 13, 2017, DOL promulgated a final rule adjusting penalties for 2017. The new penalties are:

Failure or late filing of Form LS-202: $22,957
Failure or late filing of Form LS-208: $297
Minimum Penalty for Discrimination: $2,296
Maximum Penalty for Discrimination: $11,478

These increased rates are effective January 13, 2017.

OWCP Announces Staff Changes

On November 16th, OWCP announced that effective November 27, 2016, there will be a change in leadership in the Divisions of Longshore and Harbor Workers’ Compensation and Federal Employees’ Compensation. On that day, the current DFEC Director, Doug Fitzgerald, will assume the role of Longshore Director. Tony Rios, the current Longshore Director, will become the DFEC Director.

It was also announced that Rholanda Basnight is serving as the Acting District Director in the Second District Office (New York).