Benefits Review Board Denies Claimant’s Request for Benefits at Rate Greater than Maximum

Following a formal hearing, Claimant was awarded benefits associated with his injuries suffered in Iraq while employed with Employer as an armed escort.  The administrative law judge issued her Decision and Order finding Claimant entitled to various periods of differing types of disability benefits.  At the time of the formal hearing, Claimant was earning $480.00 in stateside employment and therefore, the administrative law judge awarded permanent partial disability benefits for that time period going forward.  His average weekly wage was determined to be $2,594.56.   The administrative law judge found that Claimant was therefore, entitled to two-thirds of the difference between his average weekly wage and his wage-earning capacity; she did not expressly apply the Section 6(b)(1), 33 U.S.C. § 906 (b)(1), maximum compensation rate in her Order.

The Order was served by the District Director’s office, which included a compensation and interest calculation prepared by the District Director’s office.  Each payment was calculated at two-thirds of the difference between the average weekly wage and Claimant’s earning capacity.  However, Employer/Carrier paid benefits pursuant to the maximum compensation rate.  Claimant sent the District Director a letter stating he was entitled $1,409.71 per week pursuant to the administrative law judge’s Order and that Employer/Carrier was only paying him $1,047.16 per week (applicable maximum compensation rate in effect).  Thereafter, the District Director’s office issued an amended calculation noting the applicable maximum compensation rate, among other adjustments.  Claimant wrote another letter to the District Director’s office claiming entitlement to $1,409.71 pursuant to Administrative Law Judge’s Order and that Employer’s/Carrier’s challenge to that rate was improper because no party appealed the Order.   Thus, Claimant requested that Employer/Carrier be assessed a Section 14(f) penalty for not making payments in accordance with the Order.   The District Director responded that Employer/Carrier were paying benefits at the proper (maximum) rate and denied Claimant’s requests.

Following the District Director’s letter, Claimant appealed to the Board.  The Board ruled that Claimant’s appeal was proper as the Board viewed the District Director’s letter as an Order denying a Section 14(f) assessment and thus, the Board has jurisdiction.

The Board ruled there was no legal basis to support Claimant’s position and agreed with Employer/Carrier that the benefits are subject to the statutory maximum rate under Section 6(b)(1).  The Board further struck down Claimant’s argument that Section 6(b)(1) did not apply to benefits awarded under Section 8(c )(21).

Ari Navalo v. Cochise Consultancy, Inc., BRB No. 14-0095 (Aug., 27, 2014).

Longshore Conferences and the Louisiana Comp Blog

First, there’s a new workers’ compensation blog in town.  Louisiana Comp Blog (http://compblog.com/), which is published by LCI Workers’ Comp, looks great.  I’m a fan of the design and the content, and I look forward to many insightful discussions in the future.  I have already subscribed and I suggest you do the same.  The following snippet explains Louisiana Comp Blog’s mission:

Louisiana Comp Blog’s fresh and original content ranges from features and profiles of industry leaders to commentary/opinion articles and event coverage.  We also publish a daily Comp News Bulletin every morning, which allows our readers to get a head start on their day with the top three to five stories affecting Louisiana’s workers’ comp industry on both the local and national scale.  All of this makes us your one-stop source for the best workers’ comp reporting from across Louisiana.

Second, we are one month away from the annual DOL West Coast Symposium.  Loyola University New Orleans College of Law, in cooperation with the United States Department of Labor, have scheduled an outstanding conference.  Feel free to register through Loyola’s enrollment webpage or via the standard mail-in registration form.  Although a more in-depth schedule is available on Loyola’s website, topics for the Symposium include:

Updates from the Department of Labor, the Joint Bar Association, and WILG
Adequacy of Section 8(i) Settlement Agreements
Self-Executing Compensation Orders in light of the Benefits Review Board’s Mitri Decision
MSA Guidelines
Emerging Social Issues Affecting the Longshore Act
A Round Table Discussion with the San Francisco Administrative Law Judges
Attorneys Fees on the West Coast

Third, we have three additional Longshore-related conferences to look forward to.  Save the dates for:

November 18, 2014: A Day with the Department of Labor in Houston, TX
December 9, 2014: A Day with the Department of Labor in New Orleans, LA
March 19-20, 2015: Loyola’s Annual Longshore Conference in New Orleans, LA

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: https://dol-appeals.entellitrak.com

If you have any questions or comments, please contact us at: Boards-EFSR-Help@dol.gov

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.