Update From the Benefits Review Board (May 2013)

Update From the Benefits Review Board (May 2013)

By Karen Koenig, Associate General Counsel, Longshore, Benefits Review Board, Washington, D.C.
© Copyright 2013 U.S. Dept. of Labor. All rights reserved. Reprinted with permission. This article appeared in the Benefits Review Board Service—Longshore Reporter (LexisNexis).
BRB Statistical Update
The Board began this fiscal year in October 2012 with 114 pending Longshore appeals.  During the last fiscal year, which ended September 30, 2012, the Board received 169 appeals in cases under the Longshore and Defense Base Acts, 32 fewer than the year before (Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 et seq. and Defense Base Act, 42 U.S.C.S. § 1651).  A total of 205 Longshore Act decisions were issued, seven more than the year before; 17 orders on reconsideration also were issued.[fn1]  We received decisions from the appellate courts in 30 of the Board’s Longshore/DBA decisions, and the Board’s decisions were affirmed in 93.7 percent of them.  Last year, an average of 11 months elapsed between the date an appeal was filed with the Board and the date a decision on the merits was issued.
As of April 30, 2013, the Board has approximately 139 pending Longshore appeals, which includes 30 appeals under the DBA.  This fiscal year, the Board has received 114 new Longshore/DBA appeals and issued 94 dispositions.  Thus far, the Board has received 19 decisions from the appellate courts and the Board’s decision was affirmed in 14 of these cases. 
The entire staff of the Benefits Review Board will be furloughed for an average of seven days in FY 2013 due to the federal budget sequestration, which could affect the timely disposition of both Longshore and Black Lung appeals (Black Lung Benefits Act, 30 U.S.C.S. § 901 et seq.).  
DBA Developments
Court jurisdiction
In December 2012, the United States Court of Appeals for the First Circuit issued Truczinskas v. Director, OWCP, 699 F.3d 672, 46 BRBS 85(CRT) (1st Cir. 2012), in which this court joined the Second, Seventh and Ninth Circuits in concluding that initial appellate review in DBA cases is to the court of appeals and not the district court.  See Service Employees Int’l, Inc. v. Director, OWCP, 595 F.3d 447, 44 BRBS 1(CRT) (2d Cir. 2010); Pearce v. Director, OWCP, 647 F.2d 716, 13 BRBS 241 (7th Cir. 1981); Pearce v. Director, OWCP, 603 F.2d 763, 10 BRBS 867 (9th Cir. 1979).  The Fourth, Fifth, Sixth and Eleventh Circuits have held that a final Board decision must first be challenged in the appropriate district court, and then may be appealed to the circuit court.  ITT Base Services v. Hickson, 155 F.3d 1272, 32 BRBS 160(CRT) (11th Cir. 1998); Lee v. Boeing Co., Inc., 123 F.3d 801, 31 BRBS 101(CRT) (4th Cir. 1997); AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 24 BRBS 154(CRT) (5th Cir. 1991), cert. denied, 502 U.S. 906, 116 L. Ed. 2d 241, 112 S. Ct. 297 (1991); Home Indemnity Co. v. Stillwell, 597 F.2d 87 (6th Cir.), cert. denied, 444 U.S. 869, 62 L. Ed. 2d 94, 100 S. Ct. 145 (1979).  The Board’s notice of appeal rights reflects these differing procedures.
Average Weekly Wage
The Southern District of Texas recently vacated the Board’s decisions in K.S. [Simons] v. Service Employees Int’l, Inc., 43 BRBS 18, aff’d on recon. en banc, 43 BRBS 136 (2009), and the unpublished decisions in Smith, BRB Nos. 09-0786 and 11-0326.  Service Employees Int’l, Inc. v. Director, OWCP, 2013 U.S. Dist. LEXIS 32887 (S.D. Tex. Mar. 11, 2013).  The court held that the Board erred in holding that the decision in Proffitt v. Service Employers Int’l, Inc., 40 BRBS 41 (2006), was controlling authority on the issue of average weekly wage calculation merely because the facts in the cases were similar.  In Simons, the Board held that, in calculating average weekly in a warzone DBA case, the administrative law judge had to rely solely on the overseas earnings of the claimant to reflect his recent receipt of higher wages under at least a one-year contract in exchange for work in a dangerous environment; the overseas “earnings under this contract thus provide the best evidence of claimant’s capacity to earn absent injury” which is the focus of Section 10(c), 33 U.S.C. § 910(c).  In vacating the Board’s decision, the district court held that the Board failed to adhere to its substantial evidence standard of review and provided no support for requiring all cases with similar facts to have similar outcomes, noting that this deprives the administrative law judge of his discretion to calculate average weekly pursuant to Section 10(c) and relegates him “to simply playing the role of calculator.”  Service Employees Int’l, supra, at p. 12 of slip op.
WHCA
In response to the Director’s motion for reconsideration, the Board clarified that when an employer’s application for reimbursement under the War Hazards Compensation Act is approved, employer nonetheless remains a party to the DBA case and remains primarily liable to claimant, even if the DFEC opts to pay claimant directly (War Hazards Compensation Act, 42 U.S.C.S. § 1701 et seq.).  The Board’s prior decision stated that employer was “relieved” of liability when its application for WHCA coverage was approved.  Cathey v. Service Employees Int’l, Inc., 47 BRBS 9 (2013), clarifying on recon. 46 BRBS 69 (2012).
Footnote:
1. In addition, the Board received 528 appeals under the Black Lung Act during the last fiscal year and issued 623 final dispositions.  338 Black Lung decisions have been issued in the current fiscal year.
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