2010 Annual Longshore Conference

2010 Annual Longshore Conference

On March 18 and 19, 2010, the Annual Longshore Conference put on by Loyola University and the United States Department of Labor was held in New Orleans. Despite the current state of the economy in the United States, a record turnout of over 310 people attended.  Included in the attendees were Acting Chief Judge Stephen Purcell and Acting Associate Chief Judge Daniel Sutton. Also attending were judges from California to Covington as well as several District Directors of the OWCP. The conference was dedicated to the Honorable John M. Vittone, who retired recently as Chief Judge of the United States Department of Labor, and conference planners also thanked him for his years of service and dedication to the conference.

All of the sessions were well attended. The seminar started out with a lively discussion about handling claims from inception to the informal conference at the OWCP. The discussion centered around the investigative aspect of claims once they come in, from interviewing the claimant, getting photographs when needed, witness statements, diagrams, and a list of the parts of the body injured. Adjusters attempt to get claimants to the appropriate medical providers, get nurse case managers when needed, and get appropriate releases and other forms signed. Additionally, adjusters determine when surveillance is or may be necessary.

Later, a discussion about the War Hazards Act was held (War Hazards Compensation Act, 42 U.S.C.S. § 1701 et seq.), and why it is important to all parties. The panelists noted how the Act works and what kind of evidence and testimony was needed to preserve the claim. Many attendees clearly noted that they did not know that an administrative law judge cannot determine if the War Hazards Act can apply in a case, or that all settlements can be reviewed independently to determine if a claim is proper under the War Hazards Act.

Vocational rehabilitation under the DBA was another topic (Defense Base Act, 42 U.S.C.S. § 1651 et seq.), and there was a panel with an administrative law judge, claimant's attorney, defense attorney, and vocational rehabilitation consultant. The major portion of the presentation involved a discussion as to where the labor market survey needs to canvass, since suitable alternate employment is where the claimant normally resides. Because employment under the DBA is typically overseas, then where should the labor market be looked at?  Naturally, the claimant's restrictions are very important, and how often the claimant worked outside the country.

The next presentation discussed "Ethical Concerns under the Act." The panelists discussed problems under the Act (LHWCA/Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 et seq.), including failing to file necessary medical reports, making false representations to the court, intentional delays, and the failure to abide by court orders.

Next came a panel discussion involving medical care under Section 7 of the Act (33 U.S.C.S. § 907). Opinions from District Directors covered change in physicians and medical evaluations. There was clearly a disagreement between the panelists as to whether case managers are needed, and if so, what role they should take. There was also a talk about the delay in medical care and how far should the employer be able to send the claimant for evaluations.

Acting Chief Judge Stephen Purcell and Acting Associate Chief Judge Daniel Sutton presented an update from the United States Department of Labor. They discussed topics including the finding of a new Chief Judge, the delay in getting hearings, and making all delays shorter. Judge Purcell explained how many cases have been handled, and how the number of DBA cases has increased greatly in the last four (4) years, as well as how the Department of Labor's budget cuts and restraints have hurt getting cases decided as quickly as the Department of Labor would like, but with the hiring of two (2) new judges, hopefully things will improve.

The next topic was the interplay of different benefit schemes. There was much explanation of how social security disability claims, Medicare Set-aside plans (MSAs), private plans, and credits under the Act affect claims.

One of the highlights of the entire program was "Longshore Jeopardy" with the Honorable Patrick Rosenaw as the moderator. Three (3) defense attorneys played against three (3) claimants' attorneys, answering question after question in the television "Jeopardy" show format. A close contest ensued, using topics under the LHWCA as well as the DBA.

Another interesting panel discussion involved the topic of malingering. A neuropsychologist presented interesting views about malingering, and how to look for it. There was much talk about the DSM-IV, and how it is used to determine whether someone is malingering.

Another panel discussion involved situs and status. Panelists had a lively discussion about construction workers, dock workers, and other specialists. Recent decisions such as Coastal Production Services, Inc., v. Hudson, 555 F.3d 426, 42 BRBS 68(CRT) (5th Cir. 2009), reh’g denied, 567 F.3d 752 (5th Cir. 2009), and D. S. (Daniel X. Smith) v. Consolidation Coal Co., 42 BRBS 80 (09/29/2008), were discussed.

A lively discussion on the topic of "Alternative Dispute Resolution" occurred. Clearly, ADR is an important consideration in all claims. Because cases are never over, a settlement becomes a valuable tool for all parties. There were debates about private mediation and the use of settlement judges. The consensus was that it works and to keep doing it.

The final topic involved a discussion as to what to do when a party becomes insolvent. This was a topic that very few people knew much about. The attendees learned about default payments, supplementary orders, and use of the Special Fund.

The initial reviews of the conference were excellent, and plans are being made for next year's conference to be held on March 24 and 25, 2011, at the Intercontinental Hotel in New Orleans.

 © Copyright 2010 LexisNexis. All rights reserved. This article, which was written by by Ralph R. Lorberbaum, Zipperer, Lorberbaum & Beauvais, Savannah, Georgia, was published in the Benefits Review Board Service – Longshore Reporter.