The OWCP, Longshore Division, announced that it is now accepting documents through an online submission system. The system, referred to as SEAPortal, may be accessed here. We've also added a link to SEAPortal on our convenient links on LHWCA.net homepage. All OWCP stakeholders may use SEAPortal to submit case related documents. An industry notice explaining SEAPortal may be accessed here.
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An ALJ cannot vary the terms of an agreed settlement application submitted by the parties, the Benefits Review Board held. “Section 8(i) of the Act and its implementing regulations do not give an administrative law judge the authority to alter a complete Section 8(i) settlement submitted by the parties. Rather, the administrative law judge’s options are limited.” The Board explained that an ALJ has only four options when a settlement application is submitted: “1) issue a deficiency notice if the application is incomplete, 2) approve the settlement if it is adequate and not procured by duress, 3) disapprove the settlement if it is inadequate or was procured under duress; or 4) do nothing, in which case, if the parties are represented by counsel, the settlement will be deemed approved after 30 days.”
In this case, the parties submitted an 8(i) application which provided that a separate settlement application was also submitted to the state workers’ compensation agency. The application further stated that the parties agree that the amount agreed to in connection with the settlement would settle both the state and LHWCA claim. However, the judge conditioned approval of the LHWCA settlement on approval of the state claim. The Board determined that conditioning approval in this manner impermissibly altered the parties’ agreement. Also, in issuing his approval of the settlement, albeit with different terms, the ALJ ordered the carrier to pay the settlement, and indicated that this payment would discharge the carrier’s liability. However, the carrier was not mentioned in the settlement agreement. The Board found that this portion of the ALJ’s order again changed the parties’ agreement, noting that a settlement may only bind the parties to the agreement. The Board also held that the ALJ improperly modified the agreed amount of the attorney’s fee. The Board determined that if the parties agree on a fee, the ALJ may not separately approve or disapprove of the fee portions of the agreement. Instead, if the ALJ finds that the fee is improper, the ALJ must disapprove the entire settlement. Notably, the Board added that the parties may agree that certain portions of a settlement agreement are severable, such as the fee or medical and compensation benefits. Losacano v. Electric Boat Corp., BRB No. 13-0554 (7/28/14) The Baltimore Longshore District Office will physically close on September 30, 2014. It will be consolidated into the Norfolk District Office. Prior to the physical closure of the Baltimore District Office, the case work will transition to the Norfolk District Office for maximum efficiency.
Therefore, effective September 1, 2014, the Norfolk District Office has jurisdiction over past and future cases under the LHWCA, and its extensions, arising in the states of Delaware, Maryland, Pennsylvania, Virginia, West Virginia and the District of Columbia. All forms submitted for the creation of a new case should still be submitted to the Longshore Central Case Create site in New York City. After a case has been created, all case-specific mail should still be sent to the Longshore Central Mail Receipt site in Jacksonville, FL. Please see the attached Industry Notice for further detail. The Benefits Review Board recently determined an employer’s liability under Section 8(f) in cases in which a claimant sustains successive aggravating injuries to the same body part. Initially, the Board upheld the ALJ’s determination that the claimant sustained three distinct work injuries, all to his back. The claimant initially injured his back in 1999. After an extended recovery, he returned to work, and aggravated his back in November 2003. He continued working, but eventually stopped working in June 2004 because of his aggravated condition. The ALJ found that during this time, the claimant experienced periods of permanent partial and permanent total disability. The claimant had back surgery, and returned to work in January 2005. Later in 2005, the claimant again aggravated his back in a work accident, and has been totally disabled since that time. Although the ALJ determined that the claimant experienced three distinct injuries, he believed that the injuries were not “separate, unrelated injuries.” As a result, he commenced the carrier’s liability for 104 weeks of compensation from June 2004, the date on which the claimant’s November 2003 injury reached a permanent and total disability status, and therefore the earliest possible date on which to start the carrier’s 104 week liability.
The Board noted that, previously, “no cases specifically” dealt with successive aggravating injuries to the same body part under Section 8(f). In reaching its decision, the Board relied on established case law holding that a work-related aggravation is a new injury under the Act. The Board held, “although the 2003 and 2005 injuries were to the same body part, it cannot be said that claimant’s two periods of disability are due to the ‘same injury.’ That is, claimant’s 2003 injury did not alone cause the total disability in 2005.” Therefore, the Board found that the carrier should be liable for 104 weeks of compensation beginning after May 2005, when the claimant’s final injury resulted in permanent disability. Weimer v. Todd Shipyards Corp., BRB Nos. 13-0475, 13-0475A and 13-0475B (7/29/14) The Board rules that when the “claimant successfully defends his award of benefits against employer’s modification request, his counsel is entitled to an employer-paid fee.” The claimant was receiving temporary total disability benefits before the modification request. The ALJ denied the modification request and awarded continuing temporary total disability benefits. Because the ALJ believed that no additional benefits were obtained, he denied an attorney’s fee. Comparing this situation to when a claimant’s counsel successfully defends an appeal of benefits, the Board held that an employer-paid attorney’s fee was proper.
Grabbert v. Electric Boat Corp., BRB No. 13-0560 (6/4/14) The employer should pay for a medical examination in support of its case, according to the Board. The parties were disputing the extent of disability, and the employer wanted medical and vocational evaluations to develop its case. The claimant lived in Rosarito, Mexico, and the employer scheduled evaluations in San Diego, where the claimant had attended his own evaluations. The ALJ granted the employer’s motion to compel the evaluations in San Diego, and further ordered the clamant to pay his own expenses. The Board agreed with the ALJ’s order requiring the examinations in San Diego, but reversed the order requiring the claimant to pay his own expenses. The ALJ considered these evaluations to be an “aspect of discovery,” and the Board agreed. However, as an aspect of discovery, the Board stated that each party had to bear its own costs, such that, in this case, the Employer had to pay the claimant’s costs in attending the evaluations. The “Employer must bear the cost of obtaining its own evidence.” The Board also held that forcing the claimant to pay his own expenses was not an appropriate sanction for the claimant missing earlier appointments for evaluations. Instead, the appropriate remedy is to suspend the claimant’s compensation or certify the discovery dispute to the district court. Notably, the Board initially dismissed the claimant’s appeal, because the order from the ALJ was interlocutory. However, the Board decided that “its guidance [was] necessary to direct the course of the adjudicatory process” in the case, and granted a motion for reconsideration.
Pensado v. L-3 Communications Corp., BRB No. 14-0116 (4/30/14). In a decision broadly supporting the parties’ determination of the adequacy of a settlement, the Benefits Review Board approved a settlement over the objections of the District Director.
The claimant and the employer reached an agreement to settle a partial disability claim, and submitted the settlement to the District Director. The District Director determined that the settlement was inadequate. The District Director found that the $140,000 proposed was well below the present value of the claimant’s benefits, calculated using an eight percent discount. Thereafter, the parties sought a hearing before an administrative law judge, added an insignificant $500 to the settlement amount, and the ALJ approved the settlement. The Director appealed this decision. In urging affirmance of the ALJ’s order, the parties agreed that the settlement was adequate, particularly considering the risk of a decision from the Department adverse to the claimant’s interests. The Board approved the ALJ’s reliance on the determination by the claimant and her attorney that the claim presented meaningful disputed issues. The Board stated that the ALJ “found that claimant and her attorney are in the best position to assess her litigation risks, her life expectancy, and her future earnings, and that neither is ‘obliged to explain to the Department the detailed specifics of the assessment of why she thinks she might lose her case.’” The Board also emphasized the importance of the Act’s provision for automatic approval of settlements when the claimant is represented. “As claimant is represented by counsel who explained the pros and cons of her choices, and as the Act contains an automatic approval provision for settlements when claimants have legal representation, absent a specific disapproval of the settlement, it was reasonable for the administrative law judge to conclude that claimant is entitled to rely on the advice of her attorney.” The Board also noted that approval of the particular settlement at issue did not hinge on an actuarial analysis of the settlement. The Board explained that the actuarial analysis is mandated by Section 702.243(g) of the Regulations, which only applies to cases being paid pursuant to a final compensation order in which no substantive issues are in dispute. Richardson v. Huntington Ingalls, Inc., BRB No. 13-0476 (5/22/14). |
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