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Workers' Compensation

2012 Annual Longshore Conference

 By Ralph R. Lorberbaum, Zipperer, Lorberbaum & Beauvais, Savannah, Georgia

A record crowd of 342 were in attendance at the 34th Annual Loyola Longshore Conference held in New Orleans on March 15 and 16, 2012. Excellent speakers presented well-prepared papers and oral presentations on a number of important and relevant topics. Judge Paul Johnson, Jr., Associate Chief Administrative Law Judge for Longshore, was present to give an update as to what was happening in Washington at the United States Department of Labor. Judge Johnson explained that his office has been inundated with whistleblower and immigration cases, which have caused delays in handling and deciding the LHWCA and DBA claims. Judge Johnson encouraged all practitioners to continue using ADR and other resolution methods to resolve their claims.

Attendees also received a word of thanks from Maria Pabón López, the Dean of the Loyola University, New Orleans, College of Law. She hoped Loyola would continue to work with the U.S. Department of Labor in putting on the Annual Longshore Conference.

Lewis Fleischman of Houston explained that a new scholarship fund was being set up in honor of the late Judge Richard Mills, Administrative Law Judge, who died in December 2011, at the age of 79. By the end of the Conference, a sufficient amount of contributions were raised for this cause, and they will be used to fund the endowment to honor a Loyola student every year. The scholarship is being set up solely by the Loyola University School of Law.

Tom Fitzhugh of Houston, Texas, explained that there were many new cases having an impact on the Act. Of particular importance are the new regulations and law that exclude recreational vessels from coverage under the LHWCA. It is found at 20 C.F.R. 70.501 et seq. The new act allows the manufacturer to decide if the vessel is for recreation or not. This new law, which went into effect on February 17, 2009, excludes any injury occurring in the repair of any recreational vessel, regardless of its size. It was also noted that the State of Virginia just passed a law removing concurrent jurisdiction between their State workers’ compensation laws and the LHWCA. This can be found at Va. HB153, and becomes effective July 1, 2012.

Tom noted several other important decisions. Some of these included the following: in Brown v. Avondale Shipyards, 46 BRBS 1 (02/27/2011), wherein the Board held that a default order cannot be issued if a compensation order has not been issued. In Ports Texas v. Director, OWCP, 446 Fed. Appx. 724 (5th Cir. 2011), the Court again applied the aggravation rule, saying that the injury need not be the primary cause of an injury, so long as it contributes or aggravates a condition. In Fisher v. Halliburton, 667 F.3d 602, 45 BRBS ___(CRT) (5th Cir. 2012), the Court of Appeals for the Fifth Circuit ruled there are no exceptions to the exclusivity provision of the DBA, and that sub-contractors cannot be sued by employees for any reason. The Raymond v. Blackwater Security Co., 45 BRBS 5 (2011) case discussed post-injury wage-earning capacity claims. In Young v. Newport News Shipbuilding, 45 BRBS 35 (2011), the Court held that a claimant’s proceeds from illegal drug sales was relevant and could be used to reduce indemnity benefits. The Pacific Offshore Operators v. Valladolid, ___U.S. ___, 181 L. Ed. 2d 675, 132 S. Ct. 680, 45 BRBS 87(CRT) (U.S. Sup. Ct. 2012) case was also discussed as it applies to the jurisdiction of claims under OCSLA. Other cases were presented in his paper, but time limits prevented an oral presentation of all of them.

Keith Flicker of New York, Joshua Gillelan of Washington, D.C., and David Kormis of the Benefits Review Board presented a detailed discussion of Section 22 modifications (33 U.S.C.S. § 922), including how they are filed and when they could be used. Generally, they explained that cases may never be over until settled or limited by time restraints after appeals. In essence, any party has the right to file for modification could allow parties to retry cases even over the same issues.

Dr. Kenneth Adatto of New Orleans, as well as attorneys Herb Chestnut of Atlanta and Frank Tavers of Metairie, Louisiana, presented an excellent analysis of understanding both orthopedic injuries as well as second opinion evaluations. Dr. Adatto noted that medical evaluations are typically governed by standards set forth by the AMA, as well as the Guides to the AMA. The panel discussed using the Department of Labor in setting up “independent medical evaluations” because professionals can disagree.

Kenneth Engerrand of Houston gave a detailed explanation of claims arising on the Outer Continental Shelf. These claims came about after President Truman issued a proclamation in 1945 asserting jurisdiction and control by the United States over the submerged lands to the edge of the Continental Shelf, which the U.S. Supreme Court defined as “ . . . the gentle sloping plain which underlies the seas adjacent to most land masses . . .” Generally this covers injuries on fixed oil platforms. The OCSLA was enacted by Congress to define a body of law applicable to the seabed, the subsoil and fixed structures. Ken discussed the history of the cases for all types of injuries, including those on the structures. Of importance was the Supreme Court’s recent decision in Pacific Operators Offshore v. Valladolid, decided in 2012, which tried to consolidate the disputes of some jurisdictional problems involving injuries of platform workers who were injured off of the platforms. The Supreme Court’s opinions of a “substantial nexus” test, though, has raised new issues.

David Duhon, District Director in Houston, Anthony Filiato of Signal Administration in Connecticut, Jan Robinson of New Orleans and Jeffrey Winter of San Diego presented a lively discussion of Senate Bill 699, which would amend the Longshore Act. Since the Longshore Act has not been amended since 1984, a new proposal was first presented to Congress in 2006 by Senator Johnny Isakson of Georgia. This is Senator Isakson’s third attempt to have legislation passed. His past efforts have not made it out of committee. The panel discussed and argued whether the amendments were really in the best interests of both the injured worker and the employer/carrier. Some of the new provisions would change the intoxication defense to remove “solely”. There is a change to the last employer rule to make it apply to the last employer rather than the last maritime employer. There is an insertion for state law pre-emption. The average weekly wage would be reduced to spendable earnings before a percentage for the calculation of the compensation rate was determined. Injuries would now have to be the major contributing cause of the condition. Section 8(f) would be removed (33 U.S.C.S. § 908(f)). There were many other provisions, but the reader can determine if they feel they are really needed.

Mark Reinhalter, Counsel for Longshore, U.S. Department of Labor in Washington, D.C., and Raymond Warns of Seattle discussed problems and procedures in the filing and handling of claims under Section 8(f). As Mark Reinhalter noted, his office requires specific items under the Act before they can approve relief under Section 8(f) asked for by carriers. Without every requirement of the Act being met, an application will fail. On the other hand, Raymond Warns explained problems employers and carriers have in always getting the documents needed.

The first day of the conference ended with the audience participation of Longshore Jeopardy hosted by Judge Patrick Rosenow of Covington, Louisiana. Judge Rosenow had contestants from the East coast, Gulf coast and the West coast, who attempted to answer questions ranging in difficulty.

Day 2 got off to a great start with a very educational ethics presentation from Dane S. Ciolino, who is the Alvin R. Christovich Distinguished Professor of Law at Loyola College of Law. Professor Ciolino gave an interesting talk regarding understanding ethics and why it is important to the legal process. Professor Ciolino made numerous comparisons of ABA Ethics rules and ethics rules under Louisiana law.

Paul Doolittle of Jacksonville, Florida, and Bradley Soshea of Houston, discussed the handling of death claims under Section 9 of the LHWCA (33 U.S.C.S. § 909). They discussed problems with finding sponsors, children and other beneficiaries, especially when dealing with foreign nationals. They discussed the problems when dealing with common law marriages, same-sex marriages and countries that allow multiple spouses, as well as problems documenting who the beneficiaries are.

Kathleen Charvet of New Orleans and David Barnett of Fort Lauderdale presented a very interesting and important discussion about how to handle psychological injuries under the Act. Problems with experts, the use of the DSM IV, and prior problems workers may have had add to the difficulty in determining whether the worker’s present problems are all pre-existing or related to their jobs. Both counsel noted the problems and difficulties in proving PTSD cases.

The conference concluded with a presentation by Nina Hogan of Philadelphia and Mick Thomas of San Francisco on the topic of handling claims outside the U.S. which fall under NAF, the LHWCA and the DBA. As they noted, there are problems with language and finding the correct people. Witnesses are hard, if not impossible, to find. Medical records and reports from experts may be hard to get. Some medical providers will not be cooperative. Marriage licenses and birth certificates may not be able to be located in Iraq or Afghanistan. Cities may not have accurate addresses so as to be able to locate people or deliver funds. All in all, it is very difficult in handling these claims.

It was pointed out that next year’s conference will be two (2) weeks later than usual. More details will follow. All who attended will certainly return. Those that did not attend missed a great program and should attend next year.

© Copyright 2012 by Zipperer, Lorberbaum & Beauvais. All rights reserved. Reprinted by permission. This article will appear in a forthcoming issue of the Benefits Review Board Service—Longshore Reporter (LexisNexis).

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