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.

District Court Allows Jones Act Matter to Proceed

Plaintiff filed a Jones Act complaint in United States District Court, Northern District of Mississippi. Plaintiff alleged that he was severely injured during a personnel basket transfer while working in his capacity as a barge-loading supervisor for Defendant, his employer. Defendant filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), alleging that Plaintiff was a Longshoreman whose exclusive remedy was benefits under the Longshore & Harbor Workers’ Compensation Act (“LHWCA”).


The court, in applying Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), looked to the four corners of Plaintiff’s complaint to see if he had sufficiently pleaded: (1) that his duties contributed to the function of a vessel or to the accomplishment of its mission; and (2) that Plaintiff had a connection to a vessel in navigation or to an identifiable group of vessels. As to the first factor, Plaintiff alleged in his complaint that he was regularly loading fracking sand and that his job responsibilities required him to board and remain aboard inland river barges; thus Plaintiff alleged that his actions contributed to the mission of the barge fleet. As to the second factor, Plaintiff alleged that he was assigned to perform work aboard an identifiable fleet of barge vessels and that he was required to work “every morning” on those barges. In denying the 12(b)(6) motion, the court held that Plaintiff had sufficiently alleged that he had status under the Jones Act.


Defendant also argued that it could not be a Jones Act employer because it was not a vessel owner. However, the court found no merit to this argument, citing Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir. 1972), which held that a Jones Act claim only requires proof of an employment relationship with an employer who assigns the worker to a task creating a vessel connection. Thus, it was not necessary for Defendant to be a vessel owner or operator to incur Jones Act liability.


Welch v. Prop Transport & Trading, LLC, et al