New Longshore Director Job Opening

There is a job opening at the Department of Labor for Director, Longshore and Harbor Workers’ Compensation.  Check out www.usajobs.com for the full listing.  For now, here are the job duties:

The incumbent will be responsible for developing, administering, and enforcing administrative procedures and practices for examination, investigation, and review of claims for compensation for disability and death arising under the following acts: (a) Longshore and Harbor Workers’ Compensation Act; (b) District of Columbia Compensation Act; (c) Defense Base Act; (d) Outer Continental Shelf Lands Act; (e) Non-Appropriated Funds Instrumentalities Act; and (f) War Hazards Compensation Act. The incumbent will formulate national policies in connection with these laws. The incumbent will study current legislation in relation to program objectives and economic trends in order to identify legislative changes necessary to meet such objectives and make recommendations for changes as may be needed.  The incumbent will appear before appropriate Congressional committees in order to present and explain proposed legislation affective the Division’s program.

The Fifth Circuit Explains the Application of Maritime Law to Jack-Up Rigs and Removal of OCSLA Claims

After watching his friend and co-worker die as a result of an accident on a jack-up rig attached to the Outer Continental Shelf (“OCS”), Plaintiff filed suit in a Texas state court.  Plaintiff conceded that he did not sustain a physical injury, but he alleged to have suffered severe emotional distress from witnessing his friend’s death.  Further, the emotional distress caused physical problems.  In response to Plaintiff’s state court lawsuit, Defendants removed the action to the United States District Court for the Southern District of Texas under the federal question jurisdiction of the Outer Continental Shelf Lands Act (“OCSLA”).  The federal district court then determined that Plaintiff could not recover under either Texas law or maritime law and granted Defendants’ motion for summary judgment.  Plaintiff appealed the district court’s decision and the Fifth Circuit affirmed.

The “difficult question” the court had to answer was “whether federal, state, or maritime law provides the substantive rule of decision for [Plaintiff’s] OCSLA claim.”  The OCSLA provides a federal cause of action for incidents arising on the OCS.  State law can fill in any gaps in federal law (where applicable and not inconsistent with federal law).  But if maritime law applies of its own force, then the maritime law “displaces not only state law, but any federal law that might have applied to the action.”  For maritime law to apply to an OCSLA tort action, there must be both a “maritime situs and a connection to traditional maritime activity.”  The Fifth Circuit further explained the test as follows:

To satisfy the first prong of this test, a plaintiff must show that the tort at issue either “occurred on navigable water,” or if the injury is suffered on land, that it was “caused by a vessel on navigable water.” Id. In this circuit, jack-up drilling platforms (like the one at issue in this suit) are considered vessels under maritime law. Demette, 280 F.3d 498 n. 18 (collecting cases); Smith, 960 F.2d at 460; but see Rodrigue, 395 U.S. at 360 (holding that fixed drilling platforms “were islands, albeit artificial ones …. [and that] drilling platforms are not within admiralty jurisdiction.”). Even though the first prong of this test is satisfied, however, maritime law will not apply unless this suit also involves a “connection to traditional maritime activity.” Hufnagel, 182 F.3d at 351; accord Exec. Jet, 409 U.S. at 261 (emphasizing the importance of this second factor).

To satisfy the second prong of the maritime requirement, a plaintiff must show that the incident caused a “potentially disruptive impact on maritime commerce,” and that “the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.” Great Lakes, 513 U.S. at 534 (citations and internal quotation marks omitted). In other words, the question is whether “the tortfeasor’s activity … is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand.” Id. at 539–40; see also Sisson, 497 U.S. at 367 (holding that “the fundamental interest giving rise to maritime jurisdiction is ‘the protection of maritime commerce.’ “ (quoting Richardson, 457 U.S. at 674)).

The problem with Plaintiff’s case was that “exploration and development of the Continental Shelf are not themselves maritime commerce.”  Offshore drilling, like the kind Plaintiff was engaged in, is not maritime activity.  Nonetheless, the Fifth Circuit recognized that accidents on a jack-up rig may result in a maritime claim when arising during the transport of the rig over water, or similar situations.  Thus, the Fifth Circuit issued the following conclusion:

Navigating this precedent we conclude that, when determining whether maritime law applies to a tort suit, this court must look to whether the act which gave rise to the incident in question—in this case, replacing casing over a well—was in furtherance of the non-maritime activity of offshore oil exploration and drilling, or whether it was related to repair and maintenance of a jack-up drilling rig for the purpose of enabling the rig to move across water.

Here, Plaintiff made no allegations that his emotional injuries were caused or affected by the movement of the jack-up rig over water.  Therefore, the “general character of this incident appears to be non-maritime in nature.”  Still, however, the court refrained from affirmatively deciding whether maritime law applied to this action.  Instead, it upheld the district court’s grant of summary judgment in Defendants’ favor by explaining why Plaintiff could not recover under either Texas state law or maritime law.

The Fifth Circuit also resolved an inter-Circuit split regarding the removal of OCSLA claims, stating that, “[m]aritime law, when it applies under OCSLA, displaces federal law only as to the substantive law of decision and has no effect on the removal of an OCSLA action.”  Thus, it was appropriate to remove the case to federal court based on the OCSLA’s grant of federal question jurisdiction, regardless of the application of maritime law.

Barker v. Hercules Offshore, Inc., — F.3d —- (5th Cir. 2013).

DOL Proposes Revisions to Rules of Practice Before the Office of Administrative Law Judges

The Department of Labor (“DOL”) has proposed to revise the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges.  The Rules were enacted in 1983, but they have not been amended like the Federal Rules of Civil Procedure (“FRCP”).  The DOL’s proposed changes are designed to reflect the changes in litigation and discovery over the past 28 years, provide clarity through the use of consistent terminology, and adequately address the expanded roles of Administrative Law Judges (“ALJ”).  Congress has tasked ALJs with handling a wider variety of cases than anticipated when the Rules were promulgated in 1983 (including whistleblower and workplace retaliation cases), and the proposed revisions address the “more structured management and oversight” necessary to manage the complexities of these claims. 

Having thumbed through the changes, it is clear that the DOL wants the Rules to mimic the FRCP, both in form and substance.  There are some interesting changes proposed.  For instance, there is a proposed rule for redacting personal data identifiers from exhibits submitted in a hearing; there is a a change in how time is computed for purposes of the litigation; there is an affirmative duty for each party and their attorney to investigate the existence of electronically-stored information, including e-mails; there is a proposed uniform format for papers filed (but font size is not mentioned); and it appears that there are going to be more judge-mandated conferences in each case.

Finally, Longshore practitioners should keep in mind that the Rules cannot supersede the Longshore-specific adjudication regulations found at 20 C.F.R. § 702.301 et seq.  As the DOL made clear in its proposed revisions: “Additionally, the Department recognizes that the provisions of a specific regulation may be inconsistent with these rules.  In such event, the specific regulation–and not these rules–applies.”  Of course, some of the Longshore-specific regulations cannot be followed in practice and should be amended too (like the 20-day window for an ALJ to issue a comprehensive Decision and Order in a Longshore or Defense Base Act case, see 20 C.F.R. § 702.348).

We plan to review the proposed revisions, but we ask for others to do the same.  The public comment period ends on February 4, 2013. 

Here is a link to the proposed revisions.

Top 5 Longshore Cases for 2012

It is that time of the year again.  Subjective lists and year-end round-ups dominate the blogosphere.  Why should we be any different?  Accordingly, here are the Top 5 Longshore Cases for 2012:

1. Roberts v. Sea-Land Services, Inc., 132 S.Ct. 1350 (2012):

In an 8-1 decision, the Supreme Court addressed a hypertechnical argument concerning Section 6 of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).  It held that “an employee is ‘newly awarded compensation’ when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.”  So, “newly awarded” means “newly entitled,” without reference to the date when a formal compensation order is issued by the District Director or an Administrative Law Judge.  An interesting offshoot of Roberts comes from a footnote.  The Court noted that an employee may be injured on one day and disabled another day.  The employee’s compensation rate is determined by the date of disability.  Because the National Average Weekly Wage increases each year on October 1st, a high wage-earning employee who is injured before the increase but disabled after the increase can most likely claim the higher compensation rate.

1A. Boroski v. Dyncorp Int’l, — F.3d —- (11th Cir. 2012):

Although it may be cheating, I am including the Eleventh Circuit’s Boroski II decision as 1A.  In another decision discussing the meanings of certain terms in Section 6 of the LHWCA, the court determined that “currently receiving” means “currently entitled.”  Combining Roberts and Boroski II reveals that the LHWCA’s Section 6(c) can be read as follows:

Determinations under subsection (b)(3) with respect to a period shall apply to employees or survivors currently [entitled to] compensation for permanent total disability or death benefits during such period, as well as those newly [entitled to] compensation during such period.

2. Pacific Operators Offshore, LLP v. Valladolid, 132 S.Ct. 680 (2012):

In this Outer Continental Shelf Land Act case, the Supreme Court determined that the proper test for a claimant seeking benefits was established by the Ninth Circuit.  A claimant “must establish a substantial nexus between the injury and extractive operations on the shelf.”  The Court rejected the the Third Circuit’s “but for” test and the Fifth Circuit’s “situs-of-injury” test.

3. Fisher v. Halliburton, 667 F.3d 602 (5th Cir. 2012):

In a very well reasoned Defense Base Act (“DBA”) decision, the United States Court of Appeals for the Fifth Circuit determined that the DBA is an employee’s exclusive remedy for injuries sustained during employment.  The facts in Fisher were very sympathetic: family members brought suit after their loved ones were wither brutally injured or killed by insurgents with improvised explosive devices, rocket-propelled grenades and machine gun fire.  The Fifth Circuit determined that the employees were injured or killed by third persons because of the employee’s employment.  The DBA, according to 42 U.S.C. § 1651(c)(1), is an employee’s exclusive remedy against his employer (unless the employer committed an intentional tort).

4. Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820 (9th Cir. 2012):

An en banc Ninth Circuit took a bite out of the Director’s litigating power when it published Price.  In Price v. Stevedoring Services of America, the court determined that it would no longer give Chevron deference to the Director of the Office of Workers’ Compensation Program’s litigating positions, and that employers and carriers must pay compound interest (instead of simple interest) if interest is owed pursuant to Section 14 of the Longshore and Harbor Workers’ Compensation Act.  The Chevron deference is important.  Refusing to give Chevron deference to a litigating position means that a greater degree of fairness will be injected into Ninth Circuit litigation.

5. Jasmine v. Can-Am Protection Grp., BRB No. 11-0610 (Apr. 19, 2012):

The “blended” average weekly wage (“AWW”) approach is not dead after all.  In Jasmine v. Can-Am Protection Group, the Benefits Review Board created a distinction for the AWW determination of DBA employees.  The seminal case concerning the AWW of DBA employees is K.S. [Simons] v. Service Employees Int’l, Inc., 43 BRBS 18, aff’d on recon. en banc, 43 BRBS 136 (2009).  In that case, the BRB “held that where claimant is injured while working overseas in a dangerous environment in return for higher wages under a long-term contract, his annual earning capacity should be based upon the earnings in that job as they reflect the full amount of the annual earnings lost due to the injury.”  Simons, 43 BRBS at 21.  But, there is an exception: “if the record contained credible evidence that a claimant’s employment overseas was in fact, or was intended to be, short-term, i.e., for less than a one-year contractual term, the result here [exclusive use of overseas earnings] would not necessarily control.”  In Jasmine, the exception applied, and the BRB affirmed the ALJ’s use of a blended approach to the determination of Claimant’s AWW.  Because of the short-term nature of the employment contract (six months), and Claimant’s rotation of stateside and overseas employment, an AWW calculation that combined war zone and stateside wages was warranted.  Claimant’s war zone employment was cyclical, and his employment history interspersed domestic employment in Louisiana with overseas employment.  Finally, Claimant did not demonstrate “a long-term commitment to overseas employment.”