|
Decisions |
|
|
|
Library |
|
|
|
|
|
|
Contents of Main Volume | Contents of Supplement
DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
PDF Version: Volume I (Topics 1-21) | Volume II (Topics 22-90)
TOPIC 14
Topic 14.2.1 Payment of
Compensation--Contoversion—Notice of Controversion
Hitt v. Newport News Shipbuilding & Dry Dock Co.,
38 BRBS 47 (2004).
Overturning the ALJ, the Board found that when determining the validity of a
notice of controversion, the document must be examined on its face. "[T]he
information required and provided in the four corners of the document, standing
alone, determined the validity of the filing…. Resort to other documents in
order to divine employer's true intentions unnecessarily clouds the inquiry
into employer's liability for a Section 14(e) assessment. Compliance with
Section 14(d) in a timely manner is all that the statute requires of employer
in order to avoid an additional 10 percent assessment." The Board held that
as the employer filed a notice of controversion stating the reason for its
controverting the claim, the employer complied with the requirements of Section
14(d).
Noting the employer had tried to persuade the claimant to enter into a
settlement on the same day that it controverted the claim, and for the degree
of disability for which it was controverting the claim, the ALJ had concluded
that the employer obviously did not dispute the extent of the claimant's
impairment and controverted the claim only as a pretext to avoid the claimant's
right to seek modification absent the issuance of an order.
The Board noted that this matter occurred within the jurisdiction of the Fourth
Circuit and that that court has stated that the validity of a motion for
modification must come from the content and context of the [request for
modification] itself… in order to ascertain whether the motion expresses an
actual intent to seek compensation for a particular loss. The Board further
noted that within the Fourth Circuit, the Board has held that
consideration must be given to the circumstances surrounding the filing of a
motion for modification, as well as to the content of the actual filing itself,
in order to establish whether a valid motion for modification has been filed.
However, the Board declined to extent this line of cases and require an ALJ to
look beyond the four corners of a notice of controversion under Section 14(d)
in order to determine its validity.
Topic 14.4 Payment of
Compensation--Compensation Paid Under Award
Newport News Shipbuilding & Dry Dock Co. v. Brown,
376 F.3d 245( 4th Cir. 2004).
An award under Section 14(f) for an employer's late payment of compensation is
a successful prosecution of a claim for compensation for purposes of awarding
attorney fees. The Fourth Circuit reasoned that the amount due for late
payment satisfies the definition of "compensation" because it is a
"money allowance payable" to the employee who is due the basic
compensation award. "[W]hen the language of Sec. 14(f) is read together
with the LHWCA's definition of compensation, and the Act's structural
distinction between compensation and penalties is taken into account, it is
plain that an award for late payment under Sec. 14(f) is compensation."
Topic 14.4 Payment of
Compensation--Compensation Paid Under Award
Hanson v. Marine Terminals Corporation, 307 F.3d 1139
(9th Cir. 2002).
The Ninth Circuit reversed federal district court decision which had
denied Section 14(f) relief for overdue compensation on "equitable
grounds." (Claimant had provided incorrect addresses on two occasions––at
time of filing claim and when he submitted settlement for approval.) Agreeing
with other circuits, the Ninth concluded that equitable factors have no
place in the district court's consideration of a Section 14(f) penalty. The court
noted that it need not decide whether fraud or physical impossibility would
constitute a defense to a Section 14(f) penalty because neither fraud nor
physical impossibility were at issue. The court simply stated that the statute
limits the district court's inquiry solely to the question of whether the order
was in accordance with law.
Topic 14.5 Payment of
Compensation--Employer Credit for Prior Payments
Cooper/T. Smith Stevedoring Co. v. Liuzza, 293 F.3d
741 (5th Cir. 2002).
The Fifth Circuit held that in view of the language of Section 14 and
Congressional intent, the court's precedent addressing similar issues, and the
deference owed the Director's interpretation, Section 14(j) does not provide a
basis for an employer to be reimbursed for its overpayment of a deceased
employee's disability payments by collecting out of unpaid installments of the
widow's death benefits. In reaching this holding, the court referenced Oceanic
Butler, Inc. v. Nordahl, 842 F.2d 773 (5th Cir. 1988). (An employer
and insurer were not entitled to offset the disability settlement amount
against liability to the employee's widow for death benefits.)
|