LexisNexis® Legal Newsroom
Update From the Benefits Review Board

By Karen Koenig, Associate General Counsel, Longshore Benefits Review Board, U.S. Department of Labor, Washington, D.C. BRB Update The Benefits Review Board began this fiscal year in October 2010 with 130 pending Longshore appeals. Historically, appeals are filed in about 10 percent of the...

Longshore Act: The Burden of Proof - Conductive vs. Sensorineural Hearing Loss

By Steven M. Birnbaum, Law Offices of Steven M. Birnbaum, San Rafael, California In a recent decision by the Benefits Review Board (Norris Plaisance, Sr. v. Ceres Gulf , BRB Nos. 10-0562, 10-0562A (June 24, 2011) (unpublished) , the issue of the burden of proof was addressed when looking at conductive...

Diligent Search for Work or Just Diddling Around

By Paul B. Howell, Franke & Salloum, PLLC, Gulfport, Mississippi Most cases under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 , et seq. , involve the issue of a claimant's entitlement to disability. Disability is defined at 33 U.S.C.S. § 902 (10) as...

Diligent Search for Work or Just Diddling Around

By Paul B. Howell, Franke & Salloum, PLLC, Gulfport, Mississippi Most cases under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 , et seq. , involve the issue of a claimant's entitlement to disability. Disability is defined at 33 U.S.C.S. § 902 (10) as "incapacity...

The Supremes Consider OCSLA

Thomas C. Fitzhugh, III, Fitzhugh & Elliott, P.C., Houston, Texas, addresses a case on the Supreme Court's upcoming docket that directly addresses concerns of the Longshore community: Valladolid v. Pacific Operations Offshore, LLP , 604 F.3d 1126 , 44 BRBS 35(CRT) (9th Cir. 2010), cert. granted...

The Supremes Consider OCSLA

Thomas C. Fitzhugh, III, Fitzhugh & Elliott, P.C., Houston, Texas, addresses a case on the Supreme Court's upcoming docket that directly addresses concerns of the Longshore community: Valladolid v. Pacific Operations Offshore, LLP , 604 F.3d 1126 , 44 BRBS 35(CRT) (9th Cir. 2010), cert. granted...

U.S. Supreme Court to Review Longshore Average Weekly Wage Issue

By John E. Kawczynski Field Womack & Kawczynski, LLC, South Amboy, New Jersey The Supreme Court has granted certiorari in the case of Dana Roberts v. Director, OWCP (Sea-Land Services, Inc.), 625 F.3d 1204 , 44 BRBS 73(CRT) (9th Cir. 2010). This case will resolve a split in the circuits regarding...

Court Grants Hearing in LHWCA Settlement When CMS Declined to Review Case Within Its Thresholds

By Jennifer C. Jordan, Esq., General Counsel, MEDVAL, LLC Medicare set-asides have become an albatross for all insurers. And despite all their efforts to do exactly what CMS wants in the interest of protecting the Medicare Trust funds, CMS is constantly changing the rules or arbitrarily making random...

Exclusivity and Intentional Torts Under the Longshore and Harbor Workers’ Compensation Act and the Extension Acts

By Monica F. Markovich and Jonathan A. Tweedy, Brown Sims, P.C., Houston, Texas[fn1] Section 905(a) limits the liability of an employer and its insurance carrier for benefits under the Longshore and Harbor Workers’ Compensation Act (“LHWCA,” 33 U.S.C.S. § 901 et seq.) by stating...

LHWCA: Responsible Employer Determination in Cases Involving Multiple Traumatic Injuries: Seeking Analytical Clarity

By Yelena Zaslavskaya, Senior Attorney for Longshore Office of Administrative Law Judges, U.S. Department of Labor, Washington, D.C. Relevant Precedent [fn1] Case precedent prescribes the rules for identifying the responsible employer/carrier in cases potentially involving multiple traumatic injuries...

Longshore Act: Newly Awarded? Newly Entitled? Or Newly Paid?

At the Roberts Argument, SCOTUS Tries to “Make Sense” of Section 906(c) By: Jon B. Robinson[fn1] I. Introduction: On January 11, 2012, the Supreme Court of the United States heard oral argument in Roberts v. Sea-Land Services, Inc. , a case addressing Section 906 of the Longshore and...

The Case for Clear Guidelines for Nurse Case Managers

By Steven M. Birnbaum, Law Offices of Steven Birnbaum, San Rafael, California The cost of medical care has risen throughout our society and calls for cost control are no louder than in workers' compensation cases and Longshore cases are included in that. Thus, the insurance industry has tried a...

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...

Compensation Orders in Litigated LHWCA Claims: What the ALJs and the Parties Should Know

By Yelena Zaslavskaya, Senior Attorney for Longshore, Office of Administrative Law Judges, U.S. Department of Labor, Washington, D.C. © Copyright 2013 U.S. Department of Labor. All rights reserved. Reprinted with permission. This article appeared in the Benefits Review Board Service—Longshore...

About Time! New ALJ Regulations Finally Final

By Thomas C. Fitzhugh III, Fitzhugh & Elliott, P.C., Houston, Texas The comment period for proposed new regulations for ALJ proceedings closed more than two years ago. For months we were promised that the new rules would be forthcoming “soon.” In May the final rules were published...

Fifth Circuit Takes the Bang Out of Winchester

By Paul B. Howell, Franke & Salloum, PLLC, Gulfport, Mississippi For 33 years the Fifth Circuit Court of Appeals promulgated an expansive view of the situs test for jurisdiction under the Longshore and Harbor Workers’ Compensation Act (LHWCA, 33 U.S.C.S. § 901 et seq .).[fn1] The situs...

Update from the Benefits Review Board (July 2016)

By Karen Koenig, Associate General Counsel, Longshore Division BRB Personnel News Last year, I reported on the retirement of Judges Dolder, Smith and McGranery, and the appointments of Judges Buzzard and Gilligan. In July 2015, the Secretary of Labor appointed Jonathan Rolfe as the Board’s...