The Supreme Court Refused to Review Lincoln v. Director, OWCP

On October 14, 2014, the Court issued its second Order List for the 2014 term.  One of the cases that the Supreme Court denied was Lincoln v. Director, OWCP.

Lincoln was an interesting case that involved the attorneys fee provision of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) and the meaning of the term “compensation.”  The facts of Lincoln are fairly straight forward.  The employee filed a hearing loss claim on May 24, 2011.  Initially, the employer filed a notice of controversion stating that the hearing loss was noise-induced, but it needed additional information to determine the correct disability payment.  On June 14, 2011, the district director served notice that the claim was filed.  Then, on July 7, 2011, the employer voluntarily paid employee $1,256.84, amounting to compensation for “0.5% [binaural] hearing loss” and the equivalent of one week of permanent partial disability benefits under the maximum compensation rate.

The dispute in this case arose after the claimant’s attorney filed a petition for attorney’s fees.  The employer opposed the petition, arguing that fees were not owed due to non-compliance with the LHWCA’s attorney fee statute, 33 U.S.C. § 928.  Fees were not owed under Section 28(a) because “compensation” had been paid within thirty days of receiving notice of the claim from the district director.  Further, the employer argued that fees were not owed under Section 28(b) because an informal conference had never taken place.  The district director, Benefits Review Board, and the United States Court of Appeals for the Fourth Circuit disagreed.

The Fourth Circuit’s decision explores the definition of “compensation.”  The claimant argued that the $1,256.84 payment was not an actual payment of “compensation,” as intended by the LHWCA.  The argument was reminiscent of a fairly recent case, Green v. Ceres Marine Terminals, where the employer paid $1 in “compensation,” but the BRB held that the $1 payment was not “true” compensation.  The Fourth Circuit distinguished Lincoln from Green, finding that the $1 payment in Green was “untethered to the underlying claim,” but that the $1,256.84 payment in Lincoln was “directly tied to Lincoln’s alleged injury.”

Now that the Supreme Court has denied review, Lincoln is over.

This link will take you to the Fourth Circuit’s Lincoln decision.

This link will take you to the Benefits Review Board’s Lincoln decision.

One More Thing To Consider Before Voluntary Retirement…

In this decision presented to the Benefits Review Board, Claimant appeals, and Employer and Carrier cross-appeal, the Decision and Order of Administrative Law Judge Steven B. Berlin.

Claimant originally sustained right knee injuries due to an unrelated-work injury.  Claimant began working for Employer as a marine machinist in 1998.  On September 18, 2007, Claimant sustained injuries to his right knee.  Claimant underwent surgery, which was voluntarily paid for by the Carrier at the time- American Home Assurance/ AI Surplus Insurance/ Chartis/ AIG Worldsource (Chartis).  Claimant returned to work on April 16, 2008, at which time Signal was the Longshore and Harbor Workers’ Compensation Act carrier.  Claimant began working part-time in August 2008 and continued until he retired voluntarily in April 2011.

In September 2010, Claimant filed a claim alleging residuals from a surgery caused increased pain during his work activities.  Chartis moved to add Signal to the claim asserting that Claimant’s continued work activities after April 2008 aggravated Claimant’s condition such that Signal would be the responsible carrier.

In its cross-appeal, Signal argued that Claimant’s claim was time-barred under Section 13, which applies to traumatic injury cases and provides that the right to compensation shall be barred unless the claim is filed within one year of the time the claimant is aware, or should have been aware, of the relationship between the injury and the employment.  See 33 USC 913(a).  The BRB rejected Signal’s contention and instead found the claim to be timely filed; the claim was filed within one year of a May 2010 medical opinion linking claimant’s increased knee pain to his 2007 work-related accident.  The BRB also rejected Signal’s contention that it was not the last responsible Employer.  Affirming the ALJ’s decision, the BRB agreed that Claimant presented substantial evidence that he sustained an aggravation of his right knee condition when he was working part-time, which was during Signal’s coverage period.

In his appeal, Claimant argued he was improperly denied total disability benefits when the ALJ found that since Claimant voluntarily left the workforce at a time when he was still able to work, he incurred no wage loss due to his work injury.  Relying on Hoffman v. Newport News Shipbuliding & Dry Dock Co., 35 BRBS 148 (2001), the BRB agreed: if a Claimant retires for reasons unrelated to his work-injury, he is not entitled to permanent total disability benefits.  Accordingly, Claimant was not entitled to permanent total disability benefits, even though his claim had been timely filed.

Horner v. Cascade General/Vigor Industrial, LLC, BRB Nos. 13-0555 and 13-0555A (Aug. 21, 2014).

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 (, 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