04/29/2009 10:15:27 AM EST
Loyola University Annual Longshore Conference 2009
Loyola University, in co-operation with the United States Department of Labor, put on its annual Longshore Conference on March 19 and 20, 2009, in New Orleans. In spite of the worldwide economic conditions, the conference was well attended. Presentations on aspects of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C.S. § 901 et seq.) as well as the Defense Base Act (42 U.S.C.S. § 1651 et seq.) were given throughout the day-and-a-half conference to the almost 300 attendees.
The Conference started out with a panel discussion of post-hearing proceedings. A number of important points were discussed, including the fact that when a settlement check was sent to the claimant’s attorney that the statutory 20% penalty was still owed for not sending the check in a timely manner to the claimant (Tahara v. Matson Terminals, Inc., 511 F.3d 950, 952-953, 41 BRBS 53(CRT) (9th Cir. 2007)). Additionally, it was reported that different jurisdictions count weekends when calculating the 10 days before penalties are owed. While most of the United States count 10 consecutive days before imposing a 20% penalty, those states within the jurisdiction of the Fifth Circuit do not count Saturdays, Sundays or legal holidays. It was also pointed out that if an appeal is filed after an administrative law judge’s decision and a motion for reconsideration, that a new appeal must be filed after the motion for reconsideration is ruled on.
A lively presentation next followed on chronic pain conditions. Speakers from the medical community pointed out that triple phase bone scans are used to diagnose Complex Regional Pain Syndrome (CRPS) formerly known as Reflex Sympathetic Dystrophy (RSD): However, the problem with triple phase bone scans is that while they can diagnose CRPS, there is a 50% to 60% false-positive result, therefore, the test cannot rule CRPS out, it can only confirm its presence. The presenters also noted that Fibromyalgia Syndrome (FMS) can be aggravated by trauma.
The next presentation involved amendments to the Americans with Disabilities Act which deals with mental or physical impairments which substantially limit a life function. This presentation was followed by a lively talk on Medicare Set-Aside agreements. It was noted that the recent Medicare, Medicaid and SCHIP Extension Act of 2007 requires by July 1, 2009, that all workers’ compensation, liability, no fault insurers and self-insureds report information about the medicare status of the injured party. Reporting will be mandatory and failure to report could result in a penalty of $1,000.00 per day per unreported case. So far, Medicare has not issued any guidelines regarding how parties are to protect their interests in liability cases as in workers’ compensation cases, however, after July 1, 2009, Medicare will scrutinize settlements as to whether the parties have properly reimbursed Medicare and provided for the payment of future injury related medical expenses.
Next came a panel discussion about trying cases before the Office of Administrative Law Judges. A lively debate about the use of stipulations and motions to compel ensued. Then came a discussion on attorney fees. A debate occurred over the interpretation of the new cases out of the Ninth Circuit, Christensen v. Stevedoring Services of America; Price v. Stevedoring Services of America (9th Cir. nos. 07-70247, 07-70297, decided March 2, 2009), 557 F.3d 1049, and Van Skike v. Director, OWCP (9th Cir. no. 07-73886, decided March 2, 2009), 557 F.3d 1041, involving the amount of attorney fees to be paid. Also, panelists discussed the fact that Andrepoint v. Murphy Exploration (No. 08-60251, decided March 17, 2009, unpublished), decided by the Fifth Circuit, requires a favorable recommendation of an informal conference by the District Director as a condition precedent to the employer or insurer covering attorney fees under Section 28(b) of the Act (33 U.S.C.S. § 928(b)).
Then came a panel of discussions regarding competing jurisdictions. The most important point was the explanation that Non-Appropriated Fund (NAF) cases do not come under concurrent jurisdiction laws and that attorneys should not attempt to use state workers’ compensation subpoenas in NAF cases (Non-Appropriated Fund Instrumentalities Act, 5 U.S.C.S. § 8171 et seq.). There was also an explanation about social security offset calculations which basically explained that the coordination of workers’ compensation benefits and social security disability benefits cannot be more than 80% of the average earnings per month based upon the best earnings in the last 5 years prior to disability.
A presentation on negligence actions followed, wherein a discussion of how Section 905(b) of the Act works (33 U.S.C.S. § 905(b)) and how the duties of a ship owner have been outlined by the Supreme Court in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 166-167, 68 L. Ed. 2d 1, 12, 101 S. Ct. 1614, 1622 (1981). Then a presentation on recent developments of the Defense Base Act followed. Although the paper had a lot of good material, the presentation dealt primarily with the case of K. S. v. Service Employees International, Inc., 43 BRBS ***, decided by the Benefits Review Board on March 13, 2009. In K. S., the BRB basically threw out the blended approach to the calculation of the average weekly wage in DBA cases but instead focused on the “actual” wages earned by the injured worker. K. S. v. SEII, BRB No. 08-0583.
The last presentation involved claims under the War Hazards Act, how they arise, when they arise and how they are handled (War Hazards Compensation Act, 42 U.S.C.S. § 1701 et seq.).
In all, the conference was a booming success. Reviews were all outstanding and the panel members were given great ratings. For those who attended, the conference provided great information. For those who missed the conference, there is always next year as the conference will be held March 18 and 19, 2010. For further information, see http://law.loyno.edu/cle/.
© Copyright 2009 by Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. This article, which was written by Ralph R. Lorberbaum, Zipperer, Lorberbaum & Beauvais, Savannah, Georgia, was prepared for the Benefits Review Board Service—Longshore Reporter.