Norman Cole

LHWCA Caselaw Update

There were several attorney fee decisions. All were unpublished and therefore only instructive rather than precedent. In Abassi v. Misson Essential Personnel and Yunis v. Academi, LLC, ALJ’s had based an award in part on fee awards from the district court. The Board directed the ALJ’s to explain how the district court decisions were selected, the market analysis provided in each, and how district court awards were for services by lawyers of comparable skill, experience, and reputation. In Anderson v. Hawaii Stevedores, Inc., the Board affirmed denial of costs when claimant’s attorneys failed to provide documentation verifying the amount, relevance, and necessity of costs. In Hardman v. Marine Terminals Corporation the claimant’s attorney performed services in… Continue reading

LHWCA Caselaw Update

This quarter most decisions were unpublished and not especially noteworthy. Unpublished decisions cannot be cited as precedent are instructive. Huntington Ingalls fought and lost a series of battles against medical providers who sought payment for claim related services. It offered payment equal to the amount the providers agreed to accept in agreements with private insurers. The District Director recommended payment at the OWCP fee schedule rate, which was more than the private insurer rate but less than the amount billed. The Board held it could not consider the validity of the private insurer rates, but under the LHWCA it could order the employer to pay… Continue reading

LHWCA Caselaw Update

Below are recent decisions under the LHWCA. Decisions are published in Lexis and posted on the BRB website through 5/30/17. For those among us who deal with Charles Robinowitz, Judge Clark and Judge Gee awarded fees for 2015/2016 services in the range of $350 to $360 rather than $450 to $466, the amount awarded by the Benefits Review Board and 9th Circuit for appellate services in other claims. Judge Clark and Judge Gee based their awards on civil litigation and general categories in the 2012 Oregon State Bar Economic Survey and classified Mr. Robinowitz as a 75th percentile attorney rather than a 95th percentile attorney. In two unpublished decisions the Board affirmed Judge Clark. An appeal from Judge… Continue reading

LHWCA Caselaw Summary

The following is a review of recent relevant Longshore and Harbor Workers’ Compensation Act caselaw. There were relatively few decisions and none created new law with the possible exception of the 4th Circuit’s decision in Metro Machine Corporation. The Benefits Review Board issued 13 LHWCA decisions in November, 5 in December, and has not posted January decisions on its website. All of the Board decision were designated as unpublished. They are instructive but do not set precedent. Average Weekly Wage – §10(c) No mandate to base average weekly wage exclusively on overseas earnings. Kuza v. Global Linguist Solutions, LLC, BRB 16-0227, 12/8/16 (unpublished). In 2012, for three and one-half months, claimant worked for UPS in the… Continue reading

LHWCA Quarterly Case Law Summary

Cole, Norm -Reg ColorAttorney Fees – Entitlement Board allows fees for defending a fee petition. Baker Botts not binding on fee shifting statutes. Clisso v. Elro Coal Company, 2016 WL 3575792 (BRB 15-0010 BLA, 2016). Employer objected to payment of $300 for one hour of attorney services for defense of the fee petition. The Board held the Supreme Court’s decision in Baker Botts LLP v. ASARCO LLC, 135 S.Ct. 2158 (2015) was not applicable because §28(a) is a fee shifting statute and therefore is an exception to the American Rule that litigants pay their own attorney’s fees. The Board cited United States District Court decisions refusing to apply Baker Botts in a Fair Debt Collection Practices Act, Equal Access… Continue reading

LHWCA Quarterly Caselaw Summary

Cole, Norm -Reg ColorThe Board and courts seem to have taken time off for vacation during the last several months. The volume of new LHWCA cases is relatively low for this quarter. In SSA Terminals & Homeport Insurance Co. v. Carrion and Director OWCP, 2016 WL 2731593 (9th Cir., 13-72929, 5/11/16), the court agreed a cumulative trauma claim filed in 2008 based on employment ending in 2002 was timely because claimant had no knowledge his employment contributed to his disability until receipt of an IME report discussing cumulative trauma. Claimant injured his knee in 1987 when working for Matson. When he returned to work SSA became his employer, and his knee continued to hurt. He retired in 2002. … Continue reading

LHWCA Quarterly Caselaw Update

Cole, Norm -Reg ColorThe most significant decision in this cycle probably is Moody v. Huntington Ingalls, Inc.. Claimant informed the employer he intended to retire as of November 1, 2011. He injured his shoulder before he retired but continued to work. He first sought treatment for the shoulder the day after he retired, had surgery approximately five weeks later, and sought TTD from the date of surgery until he was released to return to modified work. The Board held he was not entitled to TTD because his disability was not because of the work injury. His retirement had already resulted in his complete loss of earning capacity at the time of the shoulder surgery. In Ceres Marine Terminals, Inc.… Continue reading

Longshore Quarterly Caselaw Review

norman cole Attorney fees continue to be a hot topic in caselaw. In Shirrod v. Director, OWCP the 9th Circuit held market rates must be based on rates in the relevant market, which usually is the location where the litigation occurs. Economic surveys that do not report rates in the relevant market are not helpful. The Court indicated the Oregon State Bar economic survey probably is a good source with respect to Oregon litigation. In Modar v. Maritime Services Corporation the 9th Circuit strongly implied fees should be adjusted for delay by applying current rates for past services. The decision is unpublished and is not precedent, and other decisions indicate a two or three year delay does not… Continue reading

Longshore and Harbor Workers’ Compensation Act Case Law Update

norman coleThe last several months yielded several interesting decisions. In Raiford v. Huntington Ingalls Industries, Inc., the Board held a reaction to a legitimate personnel action was not compensable and was insufficient, for purposes of §20(a), to demonstrate an accident or working conditions that could cause harm. To hold otherwise would unfairly hinder the employer in making legitimate personnel decisions in conducting its business. In California, workers who are not entitled to disability under a state or federal workers’ compensation law are entitled to short term disability, payable through the Employment Development Department (EDD) and funded in part through employee payroll deductions. In Cutietta v. National Steel & Shipbuilding Company the Board held an employer obligated to pay compensation… Continue reading

LHWCA Caselaw Update

norman coleOver the last three months there have been several noteworthy decisions under the Longshore and Harbors Workers’ Compensation Act. In M.K. v. California United Terminals, 2009 WL 525237 (BRB 08-0392, 08-0450, 08-0606, 2009), the Board held the ILWU-PMA’s §17 lien claims and all claims for reimbursement of medical expenses under §7 must be resolved simultaneously with settlement agreements entered into by the claimants and their employers. Following M.K., attorneys for the ILWU-PMA Welfare Plan have intervened with greater frequency, seeking reimbursement of indemnity and medical services and payment of attorney fees. In Hunt v. Director, OWCP, 999 F.2d 4129 (9th Cir. 1993), the 9th Circuit held a medical services provider was a “person seeking benefits” and, therefore, was entitled… Continue reading