Doctors Were Not Entitled to Intervene in Defense Base Act Case at the OALJ

Claimant was injured while working as a linguist in Iraq.  His claim was referred to the Office of Administrative Law Judges (“OALJ”) for adjudication, in part because of a medical payment dispute.  Employer paid some of the medical bills in question after it received itemized statements.  Believing that the disputed medical payment issue was resolved, Claimant and Employer/Carrier submitted Stipulations which outlined Claimant’s injury, medical treatment, entitlement to benefits, and Claimant’s responsibility to provide itemized invoices and statements for medical expenses.  The Administrative Law Judge (“ALJ”) then remanded the claim to the district director at the Division of Longshore and Harbor Workers’ Compensation.

While the parties were resolving their issues, but before the ALJ remanded the claim, two doctors attempted to intervene in the Defense Base Act litigation.  The doctors alleged that they had not been paid for their treatment of Claimant’s work injuries.  After the ALJ remanded the claim, the doctors filed a motion for reconsideration which the ALJ ultimately denied.  Remand was appropriate where only a “billing” dispute existed and the doctors could present their complaints to the district director.  See, e.g., 20 C.F.R. §§ 702.413-414(c).  Thus, the ALJ denied the doctors’ request for reconsideration and attorney’s fees.  The doctors appealed, arguing that they were entitled to intervene at the OALJ level to secure payment of their bills.

The Benefits Review Board disagreed.  There are two types of intervention contemplated by Rule 24 of the Federal Rules of Civil Procedure: an intervention of right and a permissive intervention.  An intervention of right is permitted if the intervenor has an interest in the property or transaction of the litigation which may be impaired and the putative intervenor’s interest is not adequately  represented.  Here, the doctors were not entitled to an intervention as a matter of right.  The parties to the case stipulated that Employer was liable for benefits, thus there was no further factual dispute on that issue.  The doctors did not demonstrate the existence of any additional issues for the ALJ to resolve.  Plus, the ALJ correctly decided that the district director was the appropriate individual to consider payment of the doctors’ fees.

A court may grant the second type of intervention–a permissive intervention–if there is a timely motion, a common question of law or fact with the main litigation, and there will not be any undue delays or prejudice.  Here, the doctors were not entitled to a permissive intervention.  Again, after the parties stipulated that Employer was liable for medical benefits, no remaining factual disputes existed regarding the payment of medical treatment.  Any recourse for the doctors would have to come from the district director.

Younan v. Global Linguist Solutions, BRB No. 13-0594 (Aug. 19, 2014).

Benefits Review Board Accepts Electronic Filings

This following notice is posted on the Benefits Review Board’s home page.

Notice Regarding Availability of Electronic Filing and Electronic Service

All parties to appeals before the Benefits Review Board (BRB) may now use the Board’s Electronic File and Service Request (EFSR) system.  The EFSR portal allows parties to file new appeals electronically, receive electronic service of Board issuances, file briefs and motions electronically, and check the status of existing appeals via a web-based interface accessible 24 hours every day in lieu of paper documents.

The EFSR system is open to any party to an appeal before the Board.  An e-Filer must register as a use and must be validated by the Board before e-filing any document.  An e-Filer will complete an online registration form.  A valid e-mail address is required to register as an e-Filer.  Once registered, an e-Filer will be able to use the EFSR for electronic filing (eFile), which is the submission of forms and documents to the Board through the Internet instead of using postal mail and fax.  After the Board has accepted an e-Filing, it is handled just as it would be had it been filed in a more traditional manner.  e-Filers will also have access to electronic service (eService), which is simply a way to receive documents issued by the Board through the Internet in lieu of mailing paper notices/documents.

Information regarding registration for access to the EFSR system, as well as a step by step user guide and FAQs can be found at:

If you have any questions or comments, please contact us at:

This is great news for Longshore and Defense Base Act cases.  Electronic filing saves costs and time.  The Federal Judiciary has used electronic filing for years via the PACER system.  Immediate docket updating and printing is very helpful for litigation.

The BRB’s e-filing registration process is quick and painless.  You provide contact information, establish a security question, and the confirm receipt of an e-mail from the e-Filing system.  Done and done.

DOL Issued 2014-15 National Average Weekly Wage Increase for Longshore Claims

On October 1, 2014, the National Average Weekly Wage applicable to Longshore claims (including Longshore extensions like the Defense Base Act) will increase pursuant to Section 10 of the Longshore and Harbor Workers’ Compensation Act.  The new compensation rates are:

National Average Weekly Wage: $688.51
Maximum Compensation: $1,377.02
Minimum Compensation: $344.26
Percentage Increase: 2.25%

Do You Need a Medicare Set Aside for Your Longshore or Defense Base Act Settlement?

In every case where a Longshore worker or Defense Base Act contractor agrees to close or limit their right to future medical benefits, the parties must consider whether a Medicare Set Aside is needed.  What is a Medicare Set Aside and why is it needed?  Essentially, the Centers for Medicare and Medicaid Services (“CMS”) does not want to pay for workers’ compensation injuries.  The Medicare Secondary Payer laws protect CMS from workers’ compensation litigants who may want to shift the liability for payment of future medical benefits to CMS.

Consequently, in certain situations, the parties to a workers’ compensation settlement must prepare “a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury, illness or disease.  These funds must be depleted before Medicare will pay for treatment related to the [injury].”  Moreover, CMS will want proof (in the future) that the injured worker actually spent the settlement proceeds devoted to future medical expenses on those expenses.

So, when is a Medicare Set Aside needed?  Although CMS’s and Medicare’s interest must be considered in every settlement, a Medicare Set Aside is only needed when certain criteria are met.  The following questions may help you determine if you need an MSA for your Longshore or Defense Base Act settlement.

Does the settlement close or limit future medical benefits? 

If so, CMS’s or Medicare’s interests must be considered.

Is the claimant 65 years old or older, or has the claimant been on SSDI for 24 months or longer?
Is the total value of the settlement (including indemnity, liens, future medical benefits and attorney’s fees) more than $25,000?

If so, a Medicare Set Aside is likely needed, and CMS review of the MSA is recommended by CMS.

Is the claimant on SSDI but not yet Medicare eligible?
Has the claimant applied for SSDI benefits?
Has the claimant been denied for SSDI but is appealing the denial?
Is the claimant 62 1/2 years old?

If the answer to all of the preceding questions was, “No,” then CMS review of the Medicare Set Aside is not necessary.

However, if any of the preceding questions can be answered in the affirmative, then a Medicare Set Aside may be necessary.  There is one more question to ask:

Is the total value of the settlement (including indemnity, fees, future medical benefits and attorney’s fees) over $250,000?

If not, then CMS review of the MSA is not necessary.

If so, then CMS review of the MSA is recommended by CMS.

In conclusion, the government is very clear that it does not want to pay medical benefits for an on-the-job injury.  Stiff penalties exist for parties who fail to secure a Medicare Set Aside.  In the event an MSA is needed, hire an expert to prepare the document and take care of the submission process.