Longshore and Defense Base Act Update 2014
Alan Shapiro and Geoffrey Shapiro attended the Annual Longshore and Defense Base Act
Conference held by Loyola University New Orleans College of Law in conjunction with the U.S. Department of Labor.
While numerous topics were presented, several are of particular importance.
- Average Weekly Wage. The determination is now subject to extensive litigation. It is no longer the contract amount for the year. It is subject to the length of time served oversees as well as prior non-contract service. The insurance carrier now can argue for a much lower average weekly wage than the wage identified in the contract.
- Last Responsible Employer. Identifying the last responsible employer is still in contention. The issue of whether or not there was an aggravation of a work related activity by the subsequent employer or if the medical problem is only a “flair up”, certainly will produce continuing litigation. Even the courts are splits on what constitutes“flair up” verses “aggravation”.
- Supervening Cause. This is similar to the issue of “flair up” doctrine. A supervening cause will terminate the right to benefits. The issue is fact specific and certainly will be used by the insurance carriers to try to defeat claims.
- Lawsuit against Employer. It seems clear that the Courts are not going to allow such claims.
- Maximum Compensation Rate. The Average Weekly Wage (AWW) may change when the employees moves from temporary total disability to permanent total disability.
- Scheduled Disability. A loss of vision award must be based on each eye separately. A hearing loss may be based on the average of the audiograms.
- Surveillance. The employer is likely to intensify the use of surveillance. The more repetitive and strenuous activities that are shown in the video, the greater the prospect that the judge will accept the evidence as discrediting claimant’s testimony. The Insurance Carrier does have the right to show the surveillance to the attending physician. Surveillance may be used to contest the allowance of the claim, continuing temporary total compensation, wage earning capacitiy, or scheduled award.
DBA & LHWA: Longshore Conference March 2011
Dear Defense Base Act and Longshore Harbor Workers Clients,
You may be interested in some of the information that I learned at the March 2011 Annual Longshore Conference held in New Orleans.
1. The reduction in funding will cause the process to become even slower. The ALJ (Administrative Law Judges) will not be able to travel or at best not as often. There will be a reduction in law clerks so it will take even longer to obtain a decision after a trial. This means to the claimant that he/she may be without any funds for a number of years.
2. The various Wars are coming to an end, or will do so within the next several years. The insurance carriers will try to have as many claims as possible assumed by Office of Workers Compensation Programs under the War Hazards Act. Once your claim goes into OWCP's jurisdiction, it becomes very difficult, if not impossible, to settle.
3. Some of the Insurance Carriers may not survive further economic downturn. They certainly will loose a tremendous amount of revenue from premiums once the contractors cease doing business. A claim may end up in a special fund or a State Guarantee Fund. If, for example, AIG went out of business, all of their claims would become the responsibility of another fund and it will take almost forever to resolve the claim.
4. The Courts are not as favorable to the injured worker as the Benefits Review Board (BRB). If there is a change in administration at the next election, the Agency may also become less favorable to the injured worker.
5. Medicare Set Asides are making settlements almost impossible. If you are receiving Social Security or Social Security Disability, Medicare may want almost the entire settlement. If you are not on Social Security retirement or disability, then the Medicare set aside does not apply.
6. If you are receiving ongoing compensation benefits, you would be wise to discuss a durable power of attorney and other estate planning procedures with a local expert. One of the speakers, John Chamberlain, presented an outstanding discussion about what may happen to claimants receiving long term workers compensation benefits once the case passes to the Special Fund of OWCP. You have to think seriously about Power of Attorney issues.
7. Attorney Roger Levy, a well know Defense Attorney, gave an excellent lecture concerning the War Hazards Act and in fact has written a book about this topic. Again, the Wars will end, and I can not imagine the Insurance Companies being left holding the bag for many thousand claims. It is my guess that somehow the claims will find their way to OWCP
The bottom line is that now is the time to give serious thought to settlement of your Longshore Harbor Worker, Non Appropriated Fund, or Defense Base Act claim. Remember settlements of Federal Workers Compensation cases are prohibited by Law. The Insurance Carriers also want to settle claims because they know that are going to have to clear up their books. It is expensive for them to have ongoing open claims.
Sincerely yours,
Alan J Shapiro