Articles by Rob Popich

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).

Vicarious Liabilty Not Extended to Accidental Shooting of Son’s Friend

A seventeen year old was accidentally shot by his friend while visiting the friend’s home.  The handgun belonged to the friend’s father, who normally kept the gun in his work truck.  The work truck was used in connection with the family businesses.  Plaintiffs filed suit and alleged that the handgun at issue was a “business tool” used for protection when the father travelled to and from job sites.  As a result, plaintiffs contended that the businesses were vicariously liable for the shooting.  The district court disagreed, and granted defendants’ Motion for Summary Judgment, dismissing the claims against the companies.

On appeal, plaintiffs alleged that even though the shooting occurred inside the home and not in the work truck, defendants’ liability nonetheless extended to inside the premises because the father regularly conducted business activities for the companies there.  Plaintiffs further argued that the father acted in the course and scope of his employment when he removed the loaded gun from his work truck and negligently left it in an unsafe place, where it was accessible to minors.

The father testified that he always carried a gun with him for personal protection, even on personal vacations.  He further stated that the gun belonged to him individually, and not the business.  He also denied having a home office, testifying that “sometimes” he would review business-related paperwork after his family went to bed.

In rejecting plaintiffs’ arguments, the Louisiana First Circuit held that the facts and circumstances did not warrant a conclusion that the negligent storage of the handgun in the residence was imputable to the gun owner’s employer.  The accident did not occur withing normal working hours, nor did it occur on business property.  The court concluded that because the handgun was personally owned by the father and because it was kept in the father’s personal residence for several days, any negligence in the handgun’s storage was likewise personal to the father only.

Drummond v. Fakouri,  — So. 3d —-, 2009 WL 4980378 (La. App. 1 Cir. 12/23/09).