More than $1.4 billion in compensation and medical benefits were paid under the Longshore Act and its extensions in 2015, according to a recent report prepared by the Congressional Research Service. In the same year, 23,543 lost-time injuries were reported to the Longshore Division of the Department of Labor. This new report updates earlier versions of the report, prepared by the Congressional Research Service, an arm of the Library of Congress, for members of Congress. The report, which may be read here, provides a convenient overview of the Longshore Act and its extensions.
Certain penalties under the Longshore Act have increased effective January 2, 2018. The penalty under Section 14(g) of the Act, for failure of an employer to report the termination of payments, has increased to $285 from $279. The penalty under Section 30 for failure to report an injury now has a maximum penalty of $23,426, up from $22,957. In assessing this penalty, the District Director may consider certain aggravating or mitigating factors, and may rely upon a graduated schedule of penalty amounts. Finally, the penalty under Section 48a, for discrimination against employees who bring compensation proceedings, ranges from a maximum of $11,712 and a minimum of $2,343. These increases were prompted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires agencies to adjust the levels of existing civil monetary penalties annually based on inflation. The Division of Longshore and Harbor Workers' Compensation of the Department of Labor provided notice of these increases in Industry Notice 163, which may be viewed here.
The U.S. Fourth Circuit Court of Appeal has overturned the Benefits Review Board and held that a claimant who voluntarily retires before a workplace injury becomes debilitating may collect disability benefits.
The Fourth Circuit reversed the Board's decision in Moody v. Huntington Ingalls, Inc., BRB No. 15-0314, 50 BRBS 9 (3/10/16), reported on here. The claimant, Moody, worked for the employer for 45 years. He injured his back in 2001, and, after considerable treatment, he returned to work for the employer in 2011. After he advised the employer he intended to retire, the claimant injured his shoulder, but continued working until the date of his voluntary retirement. The claimant had surgery for his shoulder after he retired, and he alleged he was entitled to temporary total disability benefits while he recuperated. The Administrative Law Judge agreed, finding that the claimant’s retirement prior to the time of his surgery was irrelevant. However, the Board reversed this finding.
In reversing the Board, the Fourth Circuit explained that the issue before it was whether the claimant could be "disabled" after he voluntarily retired. The court began its analysis with the pertinent statutory provision, noting that under Section 902(10), "'[d]isability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." The Fourth Circuit stated that "disability" equates to an "inability" to earn wages. The court believed that the claimant was unable to earn wages during his two-month recuperation period, thereby entitling him to benefits for this period. As the court stated, "[r]etirement, quite simply, is not inherently debilitating. By focusing on the voluntary nature of Moody's retirement, both the Board and Huntington Ingalls confuse being unwilling with being unable."
The Fourth Circuit recognized the employer's argument that prior case law characterizes disability as an "economic harm." However, the court reasoned that those cases define economic harm as the "lost capacity to earn wage, not actual economic loss." Therefore, the court said, "[r]ather than compensating Moody for a torn rotator cuff, the LHWCA mandates compensation for the lost earning capacity—an economic injury—that he suffers as a result of the torn rotator cuff." The court further observed that to "decide otherwise would not only deprive Moody of his rightful benefits but would also confer a windfall on Huntington: it is undisputed that Moody would have received disability benefits had he undergone surgery immediately, rather than discharging his duties in good faith, and Huntington would have had to pay for another driver."
The court further stated that the "fact that Moody did not actually work or seek job opportunities after retirement does not change the analysis. That fact goes to actual economic loss but not incapacity. Because the LHWCA compensates workers for their inability to earn wages due to injury, workers are entitled to disability benefits when an injury is sufficient to preclude the possibility of working. Here, Moody could have changed his mind and chosen to work even after retiring, perhaps in a job that offered better hours. ... His shoulder injury and the resulting surgery took that choice away from him for at least two months. The law compensates that deprivation of economic choice when it is caused by workplace injury."
"In sum," said the court, "voluntary retirement is not a form of total incapacity. As the Board has determined in the past, retirement status, standing alone, is irrelevant to earning capacity and the determination of 'disability' under 33 U.S.C. § 902(10)."
Moody v. Huntington Ingalls, Inc., No. 16-1773 (U.S. 4th Cir. 1/3/18).
Claimants do not have a statutory or regulatory right to select their own audiologist, according to the Benefits Review Board.
At the hearing before the Administrative Law Judge in Jones v. Huntington Ingalls, the parties entered into a number of stipulations. The employer agreed to authorize hearing aids for the claimant, but argued that the claimant could not choose his own audiologist to provide the aids. In examining the issue of entitlement to select an audiologist, the Board noted that active supervision of a claimant’s medical care falls to the District Director under Section 7(b) and 20 C.F.R. § 702.401 et seq., including the determination of “the necessity, character and sufficiency of any medical care furnished or to be furnished the employee.” The Board further explained that disputes over factual matters relating to treatment, such as whether a claimant sought authorization for medical treatment, fall to an ALJ. The Board said the issue before it did not involve a factual matter requiring resolution by an Administrative Law Judge.
Further explaining the statutory scheme, the Board instructed that Section 7(b) gives a claimant the right to choose an “attending physician,” and that Section 702.204 of the regulations defines “physician” as “doctors of medicine (MD), surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law … Naturopaths, faith healers, and other practitioners of the healing arts which are not listed herein are not included within the term ‘physician’ as used in this part.”
The Board observed that “audiologists” are not included in the definition of the term “physician,” therefore, a claimant does not have the right to choose an audiologist. The Board recalled Potter v. Electric Boat Corp., 41 BRBS 69 (2007), which held that a claimant’s choice of pharmacists should be regulated by the District Director, with the right of direct appeal to the Board. Similarly, the Board found that selection of an audiologist concerns the “character and sufficiency” of a medical service, an aspect of the claimant’s treatment to which the District Director is authorized to supervise.
Jones v. Huntington Ingalls, Inc., 16-0690, 51 BRBS 29 (10/10/2017).
A federal district court recently rebuffed a claimant’s attempt to skirt the Act’s appeal mechanisms by filing a purported enforcement action in federal court.
The claimant worked for the Marine Corps Community Service, an entity of the Defense Department. Following a hearing, the administrative law judge ordered the employer to to pay the claimant temporary disability compensation, to reimburse her reasonable medical expenses, and to provide future reasonable and necessary medical expenses. The employer appealed the ALJ’s decision. The Benefits Review Board mostly affirmed the decision, but remanded the claim to the ALJ to reconsider the ruling of a continuing loss of wage-earning capacity. On remand, the employer sought not only a reconsideration but a modification of the order. The ALJ modified the order, and both the employer and claimant appealed to the BRB.
While the BRB appeal was pending, the claimant filed a lawsuit in the federal district court seeking enforcement of the ALJ’s order under Section 21(d), and also seeking additional benefits for pain management and attorneys’ fees, and alleging claims for negligence and misrepresentation against the carrier. The carrier filed a motion to dismiss, alleging failure to state a claim or a lack of jurisdiction. In ruling on the motion, the court noted that an ALJ’s decision may be appealed to the BRB. Thereafter, the BRB decision becomes “final” 30 days after it is filed in the District Director’s office, unless a party seeks reconsideration from the BRB. Under the statutory scheme, under Section 21(d), once the order “has become final,” a party may seek “enforcement, not review,” of the order. The federal district court determined that the order at issue was not final, and held that “this court lacks jurisdiction over plaintiff’s request for enforcement of an order that is not yet final.”
The district court also found that it lacked jurisdiction over the claimant’s request for pain management benefits, attorneys’ fees and late fees. The court said it lacked jurisdiction over the non-final orders regarding the fees and penalties, and that the request for pain management essentially sought a modification rather than enforcement of an order. The court also found that the claims for negligence and misrepresentation related to the merits of the compensation due, an issue over which the court lacked jurisdiction. As a result, the court dismissed the claimant’s entire lawsuit.
Warner v. Contract Claims Servs., 7:17-CV-17-FL (E.D.N.C. Nov. 3, 2017); 2017 WL 5075250; 2017 U.S. Dist. LEXIS 182567
The Department of Labor, Division of Longshore and Harbor Workers' Compensation, recently determined the annual updates to the maximum and minimum compensation rates. The maximum rate is $1,471.78, and the minimum rate is $367.94. The annual Section 10(f) cost of living increase is 2.46 percent. The Department's full notice may be viewed here.
An Employer faces payment of an attorney’s fee if it pays some, but not all, benefits sought by a claimant.
The Benefits Review Board reached this conclusion in Taylor v. SSA Cooper, LLC, BRB No. 16-0174 (6/30/17). At issue in this case was the meaning of the phrase “any compensation” in Section 28(a), which provides, in part, “[i]f the employer or carrier declines to pay any compensation on or before the thirtieth day after receiving written notice of a claim for compensation … on the ground that there is no liability for compensation … and the person seeking benefits shall thereafter have utilized the services of an attorney at law in the successful prosecution of his claim, there shall be awarded, in addition to the award of compensation, in a compensation order, a reasonable attorney’s fee against the employer or carrier.”
The employer paid the claimant medical benefits, but not the one-week of compensation benefits the administrative law judge ultimately awarded the claimant. The claimant’s attorney sought a fee of $11,136.28 for successfully prosecuting the claim by obtaining the week of benefits. The employer refused to pay the attorney’s fee, relying on precedent that an employer is not liable for an attorney’s fee under Section 28(a) if, within 30 days of notice of the claim, it “admits liability for the claim by paying some compensation to the claimant.” (Emphasis added.) The employer further argued that, for purposes of Section 28(a), “compensation” has been held to include medical benefits. Therefore, the employer maintained it was not liable for an attorney’s fee because it paid “some compensation,” in this case, medical benefits. The ALJ agreed and denied an attorney’s fee.
The Board ruled in favor of the claimant, awarding attorney’s fees. The Board determined that the term “compensation” in Section 28(a) must be interpreted as “disability and/or medical benefits.” As the Board further explained, “a claim may be made up of parts, i.e., disability benefits, death benefits, medical benefits. If any type of benefit is denied and legal services are necessary to obtain the denied benefit, the claimant is entitled to an employer-paid fee because the employer’s denial caused the need for attorney involvement. Specifically, if both medical and disability benefits are claimed, and the employer pays one but not the other type of benefit, the employer is liable for an attorney’s fee if the claimant is later successful in obtaining the denied benefit. To hold otherwise is to reduce the claimant’s successfully-obtained benefits, which the employer had denied, by the amount of his attorney’s fee.” (Citations omitted.)
Taylor v. SSA Cooper, LLC, BRB No. 16-0174 (6/30/17)
An administrative law judge cannot determine rights under contracts for medical services, according to a recent decision from the Benefits Review Board.
In Watson (Wardell Orthopaedics) v. Huntington Ingalls Industries, the employer voluntarily paid all benefits arising from the claimant’s knee injury, including medical benefits. However, the employer paid one provider less than half its claimed invoice, alleging that a series of contracts the employer had with its health insurance company and that insurer’s affiliates allowed it to pay reduced fees for the medical provider’s services. Over the employer’s objection, the administrative law judge determined she had authority over the dispute. The employer filed an interlocutory appeal to the Benefits Review Board.
The Board began its analysis of the issue presented by recognizing that Section 19(a) of the Act grants an ALJ “full power and authority to hear and determine all questions in respect of such claim.” This statute has been interpreted as allowing an ALJ to hear and determine contractual issues that are necessary to the resolution of a claim. For example, an ALJ may determine rights under a workers’ compensation insurance policy. However, the U.S. Fifth Circuit Court of Appeals has held that Section 19(a) does not grant jurisdiction for an ALJ to consider contractual issues wholly unrelated to a claim for compensation.
The Board determined that the ALJ could consider the amount of fees due to the medical provider, but could not adjudicate whether the contracts with the health insurer entitled the employer to reduced fees. The Board found that the primary issue before the ALJ was the amount of fees to which the medical provider was due. The Board recognized that the medical provider could bring its own claim for these fees, and the ALJ had the authority to determine the amount of the fees at the prevailing community rates. However, the Board held that interpreting the contracts the employer had with its health insurer was not “in respects” of a claim, and could not be considered by the ALJ. According to the Board, “[i]nterpretation of these contracts goes beyond that which is necessary to resolve the claim under the Act.”
Watson (Wardell Orthopaedics) v. Huntington Ingalls Industries, BRB No. 16-0545 (6/30/17).
The Board recently reaffirmed that “an employee is not entitled to receive a total disability award after he retires for reasons unrelated to [an existing] work injury because there is no loss of wage-earning capacity due to the injury.” In reaching its decision, the Board reaffirmed its holding in Moody v. Huntington Ingalls, Inc., 50 BRBS 9 (2016), recon. denied, BRB No. 15-0314 (May 10, 2016), appeal pending, No. 16-1773 (4th Cir.). However, the Moody decision in on appeal to the United States Fourth Circuit Court of Appeals.
The Board reaffirmed Moody in Christie v. Georgia Pacifica Company, BRB No. 16-0321 (3/7/17). The Claimant in Christie injured his back on June 29, 1999, while working for the employer. He returned to work, but eventually required back surgery on January 9, 2004. The claimant returned to work after his surgery, but with various physical restrictions. When he returned to work, the claimant switched jobs from carpenter to safety inspector, to lessen the physical demands on his back. However, he learned in 2010 that his union planned to eliminate its early retirement option. Concerned that he ultimately might have to retire early because of his back condition, he exercised his early retirement option at the end of 2010. Thereafter, his back condition worsened, and, in December 2012, his physician imposed additional work restrictions. The claimant then sought compensation for permanent and total disability.
At the formal hearing, the claimant admitted that he could have continued working and intended to do so until he learned of the early retirement situation. Considering this testimony, the Board stated that “the only relevant inquiry is whether claimant’s work injury caused a loss of earning capacity two years later, when increased restrictions were imposed. As claimant had no earning capacity at that time, due to his decision to take early retirement at a time that he was not disabled within the meaning of Section 2(10) of the Act, the answer to this inquiry must be that the injury did not cause any loss of earning capacity.”
Christie v. Georgia Pacifica Company, BRB No. 16-0321 (3/7/17)
In a case of first impression, the Benefits Review Board determined that payment of settlement proceeds under a state compensation act extends the time for filing a claim for occupational disease benefits under the Longshore Act.
The claimant worked as a welder in the 1970s for the employer, and then worked for several non-covered employers before he voluntarily retired. In 2010, he filed a claim under the Connecticut workers’ compensation law. The claimant settled this state claim with the employer on December 5, 2012, and received payment from the employer on the same day. In 2013, the claimant filed his claim under the Longshore Act; in 2014, the employer filed a motion for summary decision alleging that the claim was not timely filed under Section 13 of the Act. The ALJ denied the motion for summary decision and awarded the claimant permanent partial disability and medical benefits.
The employer’s motion for summary decision argued that the claim was untimely under Section 13(b)(2) of the Act, which provides a two-year statute of limitations for filing a claim from the time of awareness of an occupational disease, and another limitations period arising “within one year of the date of the last payment of compensation,” whichever is later. It was uncontested that the claimant did not file his claim under the Longshore Act with two years of his awareness of his disease, but it was also uncontested that the payment of the state settlement proceeds was made within one year of his filing his Longshore claim. Therefore, the decision as to whether the claim was timely hinged on whether the payment of a state compensation settlement was a “payment of compensation.”
This issue had never been decided under Section 13(b)(2) relating to occupational diseases. However, several cases had determined that payment under a state compensation law constituted “compensation” under Section 13(a), which provides the one-year statute of limitations for non-occupational disease claims. Section 13(a) instructs that the time for filing a claim is tolled for one-year after the last date on which compensation is paid, if “payment of compensation has been made without an award.” As the Board noted, these cases generally hold that payments are “compensation” under the Act, for purposes of Section 13(a), when they are made voluntarily under the Longshore Act, or voluntarily paid under a state compensation law, or paid pursuant to an award under a state compensation law. The Board noted that these cases generally rely upon the fact that the employer is entitled to a credit for payments made under a state compensation act, and that the claim does not become “stale” because of the employer’s awareness of the state claim. The Board found no reason to differentiate the meaning of the term “compensation” in the two sections of Section 13, and determined that payment of a state compensation settlement constitutes the payment of “compensation” under Section 13(b)(2). As a result, the Board affirmed the ALJ’s ruling that the claim was timely filed.
Robinson v. Electric Boat Corporation, BRB No. 16-0369 (2/15/17)
© 2018 Ira J. Rosenzweig