Archives for December 2012

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.”

Rig Operator Not Liable for Employee’s Shooting

Vicarious liability is a rule of law which provides that one person can be held responsible for the negligent acts of another.  A superior-subordinate relationship, such as between an employer and employee or a parent and child, is necessary for vicarious liability to apply.  The extent of an employer’s vicarious liability for the negligent acts of its employee was recently tested in the maritime case of Beech v. Hercules Drilling.

In that case, Hercules Drilling’s employee inadvertently brought a gun with him aboard the drilling rig.  This was in violation of an express company rule prohibiting the possession of firearms on the job.  While on duty, the employee was showing off the gun when it accidentally discharged, killing the co-worker. 

The decedent’s widow brought a wrongful death suit against Hercules Drilling, claiming that Hercules was vicariously liable for the negligent act of the employee.  The District Court sided with the widow and determined that Hercules Drilling could be responsible for the accident because its employee was within the course and scope of his employment at the time of the incident.  That ruling was appealed and reversed by the U. S. Fifth Circuit Court.

In addressing inconsistent standards regarding the limits of an employer’s vicarious liability, the Fifth Circuit held that the test for whether a maritime employee is acting within the course and scope of his employment is whether his actions at the time of the wrongful conduct were in furtherance of his employer’s business interests.  Under the facts of this case, the Fifth Circuit observed that employee’s negligent possession and firing of a gun were actions beyond the scope of his employment and did not further any interests of the employer.  Accordingly, Hercules Drilling could not be held liable for the incident.

Maritime employers’ potential liability for the negligent acts of their employees under vicarious liability principles is broad.  However, the Hercules Drilling case is significant in that it recognizes limits on the extent of such liability.  This case makes clear that vicarious liability will not attach where an employee’s conduct is not sufficiently related to some objective of employer’s operations.

Note: This article is also available in the December 2012 issue of WorkBoat magazine and on WorkBoat’s website.

Advanced Consulting, Inc.’s “Managing Defense Base Act Claims: An Employer’s Guide” Conference is Scheduled for January 16, 2013

Already 2013 is shaping up to be a lively year for Defense Base Act practitioners.  Advanced Consulting, Inc. is hosting a Defense Base Act seminar on January 16, 2013.  I can definitely recommend this conference having attended it last year.  Here is the schedule:

Managing Defense Base Act Claims: “An Employer’s Guide”

January 16, 2013:

7:30 am to 8:00 am:  Continental Breakfast

8:00 am to 8:15 am:  Introduction

Haleh Khodayari
Advanced Consulting, Inc.

8:15 am to 8:45 am: Informal Dispute Resolution, a “Win-Win” for All Parties

Miranda Chiu
Director, OWCP, DLHWC

David Widener
District Director, Houston, OWCP

8:45 am to 9:45 am: “What You Can Do To Avoid Having to Hire Us”

Alan Bracket, Esq

Mark Eckles, Esq.

9:45 am to 10:00 am: Break

10:00 am to 10:30 am: “Medical Management GPS: Don’t Let Your Claim Drive You”

Andrew Blauert & Jerad Korte
Labor Management Services, Inc.

10:30 am to 11:15 am: “Anatomy of a Forensic Labor Market Survey”

Shaun Mundy Aulita, MA, CRC, QRP
Labor Management Services, Inc.

11:15 am to 12:00 pm: “Winning” DBA Claims: Substantive and Procedural Strategies

Frank Sioli, Esq.

12:00 pm to 1:00 pm: Lunch

1:00 pm to 1:30 pm: Burn Pit Exposure/Toxic Inhalation Hazard (TIH)

Larry Nelligan
Director, Aon Global

1:30 pm to 2:30 pm: Transitioning Contracts & Non-US Contracting Agencies
Last Carrier/Employer Disputes & Trends in the Law

Keith Flicker, Esq.

2:30 pm to 2:45 pm: Break

2:45 pm to 4:00 pm: Panel Discussion

Alan Brackett
Mark Eckles
Keith Flicker
Kurt Urquhart
Abbase Asgaraly
Frank Sioli

Schedule Released for Loyola’s Annual Longshore Conference on April 4-5, 2013

Every year the Loyola University New Orleans College of Law, in connection with the United States Department of Labor, puts on the Annual Longshore Conference.  In my opinion–and I may be biased because my alma mater hosts conference just a few blocks from my building–this is the best conference devoted to longshore-related workers’ compensation topics.  Now that the schedule has been released for the conference scheduled for April 4-5, 2013, it is clear that Loyola wants this conference to remain the best.

Head over to Loyola’s Continuing Legal Education website for a .pdf of the schedule.  Also, you can register online and check out the new location for the conference: the Hilton New Orleans Riverside Hotel.  Finally, consider making a donation to the Richard “Dick” Mills Memorial Scholarship, which was started in honor of a terrific administrative law judge and mediator.

The schedule is:

7:30 a.m. – 8:15 a.m. Registration

8:15 a.m. – 8:30 a.m. Introduction and Announcements

María Pabón López, Dean
Loyola University New Orleans College of Law

Lana A. Corll, Director of Continuing Legal Education
Loyola University New Orleans College of Law

Alan G. Brackett, Esq., Advisory Board Chair
Mouledoux, Bland, Legrand & Brackett, LLC
New Orleans, Louisiana

8:30 a.m. – 9:30 a.m. Significant Judicial Decisions Impacting Claims Under the Act

Billy J. Frey
Tucker & Associates
Dallas, Texas

Brian C. Karsen
Barnett & Lerner
Fort Lauderdale, Florida

9:30 a.m. – 10:30 a.m. The Jurisdictional Scope of the LHWCA

Eric R. Gotwalt
Zipperer, Lorberbaum & Beauvais
Savannah, Georgia

Monica F. Markovich
Brown Sims, P.C.
Houston, Texas

10:30 a.m. – 10:45 a.m. Break

10:45 a.m. – 11:45 a.m. What is a “Vessel?”

John F. Karpousis
Freehill, Hogan & Mahar, LLP
New York, New York

11:45 a.m. – 1:00 p.m. Lunch

1:00 p.m. – 2:30 p.m. The Explosion of Post-Traumatic Stress Syndrome and Related Psychological Claims

Lori R. Cohen, Ph.D.
Independent Claim Consultants Network, LLP
Haydenville, Massachusetts

Richard L. Garelick
Flicker, Garelick & Associates, LLP
New York, New York

Hon. Clement J. Kennington
Office of Administrative Law Judges
Covington, Louisiana

Gary B. Pitts
Pitts & Mills
Houston, Texas

2:30 p.m. – 3:00 p.m. Break

3:00 p.m. – 4:30 p.m. Practice and Procedure Before the Office of Administrative Law Judges

David A. Duhon
District Director, Seventh Compensation District
New Orleans, Louisiana

Robert N. Popich
Mouledoux, Bland, Legrand & Brackett, LLC
New Orleans, Louisana

Hon. Patrick Rosenow
Office of Administrative Law Judges
Covington, Louisiana

Steven C. Schletker
Attorney at Law
Covington, Kentucky

4:30 p.m. – 5:30 p.m. Longshore Jeopardy!

5:30 p.m. – 7:00 p.m. Cocktail Reception

Friday, April 5, 2013

8:30 a.m. – 9:30 a.m. Professional Ethics Across Jurisdictions

Patricia A. Krebs
King, Krebs & Jurgens
New Orleans, Louisiana

9:30 a.m. – 11:00 a.m. In This Economy, Can An Injured Worker Really Find A Job?

Shaun M. Aulita
SMA Case Management
Margate, Florida

Amie C. Peters
Blue Water Legal PLLC
Edmonds, Washington

Lawrence P. Postal
Seyfarth Shaw, LLP
Washington, D.C.

Hon. Lee J. Romero, Chief Judge
Office of Administrative Law Judges
Covington, Louisiana

11:00 a.m. – 11:15 a.m. Break

11:15 a.m. – 11:45 a.m. An Update of Average Weekly Wage Litigation

Christopher M. Galichon
Galichon & MacInnes
San Diego, California

11:45 a.m. – 12:15 p.m. HIPAA, the Privacy Act, and Their Implications Under the Act

David A. Duhon
District Director, Seventh Compensation District
New Orleans, Louisiana

Robert A. McLaughlin
McLaughlin & Associates
San Diego, California

12:15 p.m. – 1:00 p.m. Issues in Medical Case Management

Arthur J. Brewster
Attorney at Law
Metairie, Louisiana

Kay McLaughlin
Review Med, L.P.
Dallas, Texas