Loyola Holds Day With the DOL Program

Loyola Law School, in cooperation with the United States Department of Labor, will hold its Day With the DOL program on Friday, October 14, 2016 at the Pan-American Life Center, 601 Poydras Street, New Orleans.

Topics include:

Handling Claims Before OWCP
• Administration of Claims and How to Navigate Your Way
• Medical Oversight Within OWCP’s Authority
• Resolution of Disputes

Pain Management and the Opioid Crisis
• What is Medically Necessary and Reasonable
• Guidelines for Pain Management
• Impact on Maximum Medical Improvement and Return to Work

Question and Answer Session with OWCP and OALJ

Speakers include Administrative Law Judge Larry W. Price, District Director David A. Duhon, Dr. Patrick H. Waring, Arthur J. Brewster and Alan G. Brackett. For information and registration, go to:


OWCP Gives Notice of Increased Penalties

Implementing the Federal Civil Penalties Inflation Adjustment Act Improvements Act, signed into law by President Obama on November 2, 2015, OWCP has announced adjustments to certain penalties under the Longshore and Harbor Workers Compensation Act, 33 U.S.C. §901, et seq., that will become effective August 1, 2016. The notice from the Federal Reigster can be found at https://www.federalregister.gov/articles/2016/07/01/2016-15378/department-of-labor-federal-civil-penalties-inflation-adjustment-act-catch-up-adjustments.

The penalties that will be increased are:

Failure to file first report of injury or filing a false statement or misrepresentation in first report:

Former maximum penalty: $11,000
New maximum penalty: $22,587

Failure to report termination of benefits:

Former maximum penalty: $110
New maximum penalty: $275

Discrimination against employees who claim compensation or testify in a longshore proceeding:

Former minimum/maximum penalty: $1,100/$5,500
New minimum/maximum penalty: $2,259/$11,293

Additional information can be found at:

Plaintiff’s Construction Defect Claims Against Offshore Spar Manufacturer Dismissed

In June 2011, an offshore worker was injured on a spar (a floating platform shaped like a giant buoy) on the outer continental shelf when he was struck in the face with the flange of a valve.  He filed a personal injury lawsuit against the manufacturer of the spar, McDermott, Inc., alleging his injury was caused by defective design and construction of the spar.


McDermott filed a motion for summary judgment, arguing that the plaintiff’s right of action was perempted under Louisiana law.  McDermott asserted that because plaintiff was covered by the Outer Continental Shelf Lands Act (OCSLA), the law of the adjacent state (Louisiana) applied as a surrogate to federal law.  McDermott then pointed to a Louisiana statute, La. R.S. 9:2772, which provides a five year peremptive period in which to bring an action arising out of deficiencies in the design or construction of immovable property.  Because McDermott delivered the finished spar to its customer (plaintiff’s employer) in 2004, plaintiff’s design defect claim filed in 2013, was time barred.  The District Court agreed with McDermott and dismissed plaintiff’s claims.  Plaintiff appealed to the U.S. Fifth Circuit Court of Appeals.


On appeal, plaintiff argued that La. R.S. 9:2772 did not apply to his claim because the spar was not an immovable, which was a matter of first impression for the Court.  The Fifth Circuit had previously determined that a spar is not a vessel for purposes of the Jones Act, but no court had ever addressed whether a spar is immovable property under Louisiana law.  The Court noted that fixed platforms are considered immovable property.  The Court further noted that the spar in question was permanently moored to the ocean floor, was intended to remain in its location for its twenty year life, and it would take months of planning to move the spar.  The Fifth Circuit concluded that enough similarities exist between a spar and fixed platform that a spar is immovable property under Louisiana law.  Thus, plaintiff’s design defect claims were dismissed as time barred by state law.


Hefren v. McDermott, Inc.

5th Circuit Finds Record Insufficient to Confirm OCSLA Situs in Indemnity Dispute

The U.S. Fifth Circuit Court of Appeals recently addressed the situs requirement of a personal injury claim arising under the Outer Continental Shelf Lands Act (OCSLA).  Tetra Technologies was performing a salvage operation on a decommissioned oil production platform in the Gulf of Mexico and retained Vertex Services to assist with the project.  A rigger employed by Vertex was injured when he fell approximately 80 feet into the water.  He sued Tetra for personal injury and Tetra sought indemnity from Vertex pursuant to a Master Service Agreement between the two companies.  The District Court determined Tetra was entitled to indemnity from Vertex and Vertex appealed to the 5th Circuit.


On appeal, Vertex raised several arguments including that under OCSLA, Louisiana law was applicable and the indemnity agreement was voided under the Louisiana Oilfield Indemnity Act (LOIA).  The first question for the Court was whether OCSLA applied to this case such that Louisiana law should be applied as a surrogate to federal law.  The adoption of state law as a surrogate to federal law requires 1) that the controversy arise on a situs covered by OCSLA (such as a fixed platform on the outer continental shelf); 2) that federal maritime law must not apply of its own force; and 3) state law must not be inconsistent with federal law.  For the controversy to arise on a situs covered by OCSLA in a contractual dispute, the majority of the work performed under the contract must occur on a stationary platform or other OCSLA situs.


After reviewing the plaintiff’s deposition testimony, the MSA, and the Salvage Plan, the Court was unable to conclude whether the majority of Vertex’s work was to be performed on an OCSLA situs.  The Court determined the record was inadequate and the case was remanded to the District Court for further evaluation of this dispositive question.


Tetra Technologies v. Continental Insurance Co.