BENEFITS REVIEW BOARD HOLDS STATE WORKERS’ COMPENSATION SETTLEMENT TOLLS STATUTORY BAR

In the 1970s, Claimant worked for a LHWCA-covered employer as a welder. Subsequently, he worked for non-covered employers until he retired voluntarily. During the course of his employment with the Longshore employer, Claimant was exposed to asbestos, and, in 2009, he was diagnosed with lung cancer. In August 2010, Claimant filed a claim for benefits under Connecticut state workers’ compensation law. On December 5, 2012, the state workers’ compensation commissioner approved settlement, and Claimant received payment on approximately the same day. In October 2013, Claimant filed a claim for benefits under the LHWCA. Employer filed a motion for summary decision, asserting that the claim was not filed timely. The administrative law judge denied the motion and awarded benefits to Claimant; Employer appealed to the Benefits Review Board.

 

The Board, in reviewing Section 13(b)(2), noted that Claimant would be barred from filing a LHWCA claim if he failed to file either within two years of becoming aware of the relationship between his illness and his employment, or within one year of the last payment of compensation. As to the latter factor, the Board looked to the definition of “compensation” under Section 2(12). In interpreting “compensation” under that provision, the Board held that a settlement for workers’ compensation benefits under a state statutory scheme was a “payment of compensation” sufficient to toll the statute of limitations under Section 13(b)(2). Thus, Claimant’s October 2013 claim was timely filed within one year of his state-approved settlement in December 2012.

 

Robinson v. Electric Boat Corp.

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.”

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)

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.