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1. The typical case coming within this provision of the WHCA would be a DBA-covered worker who incurs harm outside the course of his employment - circumstances that would ordinarily preclude payment because the harm does not constitute an injury within the meaning of the LHWCA, 33 U.S.C.S. § 902(2).
2. The regulations state, “[t]he transfer of a case to the Office [of Workers’ Compensation Programs] for direct payment does not affect the hearing or adjudicatory rights of a beneficiary or carrier as established under the Defense Base Act ….” 20 C.F.R. § 61.105(e).
3. When the claimant refused to be deposed, the insurance carrier requested that the District Director forward the matter to OALJ pursuant to Maine v. Brady-Hamilton Stevedore Co., 18 BRBS 129 (1986) (en banc). In Maine, the Board held that if a party frustrates pre-hearing discovery by refusing to produce requested evidence, even while the case remains “at the informal level” before the District Director, an ALJ may issue a necessary subpoena. 18 BRBS at 133. In Armani, the District Director referred the subpoena request to OALJ, and the ALJ granted the motion for a subpoena compelling the claimant’s deposition. The claimant appealed, but the Board initially dismissed the appeal as interlocutory. The Director sought reconsideration urging the Board’s review given the importance of the issue and notwithstanding its interlocutory nature. The Board agreed and reinstated the appeal.
4. While a DBA insurance carrier’s attorney fee expenses are reimbursable under the WHCA, 20 C.F.R. § 61.104(b), a DBA claimant’s attorney fee expenses may only be shifted to the DBA carrier if the terms of the relevant LHWCA provision, 33 U.S.C.S. § 928, are satisfied. It is difficult to see how a claimant’s attorney fee could ever be shifted to the DBA insurance carrier for work relating solely to the carrier’s WHCA reimbursement claim because such services would not result in the successful prosecution of the DBA claim or an increased amount of DBA compensation paid to the claimant.
5. The OALJ discovery regulation, similar to Rule 26(b)(1) of the Federal Rules of Civil Procedure, limits the scope of discovery to “any matter, not privileged, which is relevant to the subject matter involved in the proceeding.” 29 C.F.R. § 18.14(a).