For these reasons, where ILWU-PMA has properly intervened, its lien and reimbursement claims must be resolved simultaneously with the claimants' claims.
By virtue of its intervention in these cases in pursuit of its Section 17 lien and claim for reimbursement of medical benefits, ILWU-PMA is a party-in-interest in this case. It follows that, as a party to the "claim[s] for compensation" it is entitled under Section 8(i)(1) to participate in any resolution of the claims by means of settlement agreements. Thus, in these cases, claimants and employers cannot settle "any claim for compensation under [the Act]" pursuant to Section 8(i) without ILWU-PMA's participation and agreement. Moreover, only after addressing ILWU-PMA's interests as they pertain to its Section 17 lien claims for disability benefits and Section 7 claims for medical reimbursement can an administrative law judge determine whether the amount of the settlement is "adequate," as is required for approval under Section 8(i). See 33 U.S.C. §908(i); 20 C.F.R. §702.243(f). Since ILWU-PMA was not a party to the settlements, the administrative law judges erred in approving them.
Therefore, we vacate the Orders of Judge Pulver and the Decision and Order of Judge Berlin approving the settlements in these cases. Moreover, as the settlement agreements in these cases do not resolve the outstanding Section 17 and Section 7 claims of ILWU-PMA, the settlements, in and of themselves, cannot stand as written. The cases are remanded to the administrative law judges for action necessary to resolve claimants' claims for benefits and ILWU-PMA's Section 17 lien and Section 7 derivative reimbursement claims. Additionally, on remand, we note that Judge Berlin must acknowledge ILWU-PMA's status as an intervenor in the R.B. case, and thereafter address both ILWU-PMA's Section 17 lien and medical reimbursement claim under Section 7.
[Page 16]
Accordingly, the Orders Approving Partial Settlements and Attorney Fees of Judge Pulver, and the Decision and Order Approving Settlement of Judge Berlin, are vacated, and the cases are remanded for further consideration consistent with this opinion
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
[ENDNOTES]
1 ILWU-PMA is a joint labor-management multi-employer welfare trust fund established and maintained by the International Longshore and Warehouse Union and the Pacific Maritime Association in compliance with Section 302(e) of the Labor-Management Relations Act of 1947 and 29 U.S.C. §186(c). Specifically, the ILWU-PMA plan is a welfare benefits plan which pays medical and disability benefits on behalf of its participants, including those involved in workers' compensation or third-party proceedings.
2 Maersk and APM are, in essence, part of the same company. Specifically, APM Terminals was established as an independent organization in 2001 within the A.P. Moller–Maersk Group. See generally http://www.apmterminals.com.
3 Maersk/APM agreed to pay M.K. a lump sum of $268,500 to settle her claims for temporary total, temporary partial, and permanent partial disability benefits relating to the 1995 and 2003 injuries. Additionally, the settlement provided for an attorney's fee of $20,000 for M.K.'s counsel. The settlement application also provided that Maersk/APM would pay, adjust or litigate the liens of "the ILWU-PMA Welfare Plan and Dr. David Morgan." CUT agreed to pay M.K. a lump sum of $1,500 "to effectuate the settlement of the present claim for past and future disability and medical benefits against" it. CUT also agreed to "pay, adjust or litigate any lien asserted by the ILWU-PMA Welfare Plan with respect to this alleged cardiac/internal claim."
4 Pursuant to the settlement, Yusen agreed to pay claimant a lump sum of $75,000 to effectuate the settlement of all disability and medical benefits claims arising from her December 24, 2005, cumulative traumatic injuries, as well as an additional $20,000 in attorney's fees to R.B's counsel. The parties additionally agreed that $2,000 of the proposed $75,000 would be allocated for future medical care and treatment. Moreover, Yusen agreed "to pay, adjust or litigate outstanding liens of EDD, the ILWU-PMA Welfare Plan, and Dr. Michael Samuelson."
5 Alternatively, the Director argues that even assuming the employers and claimants could settle the claims without resolving ILWU-PMA's liens, the administrative law judges improperly approved the Section 8(i) settlement applications, as they did not comply with the requirements of Section 702.242(b). In light of our disposition of these cases, we need not address the Director's alternative argument.
6 If "the claim for compensation is not in dispute, but there is a dispute as to the right of the trust fund to a lien, or the amount of the lien," Section 702.162(g) provides that "the district director shall transfer the matter together with all documents relating thereto to the [Office of Administrative Law Judges] for a formal hearing" on the lien issue. 20 C.F.R. §702.162(g).
7 As the Director observes, at no time in the course of the adjudication of these claims has any party disputed ILWU-PMA's claim that it satisfies the requirements of the Act and regulations and thus that it qualifies as a Section 17 lien holder.
8 The language of Section 702.162(a) mirrors the language of this statutory provision, stating that under the aforementioned circumstances, "a lien shall be authorized on such compensation in favor of the trust fund for the amount of such payments." Id.
9 ILWU-PMA likewise moved for the right to intervene in the R.B. proceedings, but its motion was not addressed by Judge Berlin. The failure to address ILWU-PMA's motion is, alone, sufficient error to require remand in that case.
10 ILWU-PMA claims liens for disability benefits of $6,500 paid to M.K. and of $4,339.28 paid to R.B. ILWU-PMA's medical liens amount to $170,419.91 paid on behalf of M.K. and $37,087.67 paid on behalf of R.B.
11 Pursuant to Section 702.162(e), the district director forwarded to the Office of Administrative Law Judges "the application[s] for the lien[s] and all documents relating thereto."
12 We note that Judge Pulver's statement that the settlement agreement confirms employer's "obligation to pay" ILWU-PMA's lien is not an accurate assessment of that agreement, for employer merely agreed to "pay, adjust, or litigate" ILWU-PMA's liens. As such, the language of the settlement agreement falls short of an actual acknowledgement by employer that it has an "obligation to pay" ILWU-PMA's liens.
13 Section 8(i) does not discuss the approval in terms of a compensation order. Rather, Section 8(i)(2) states that the administrative law judge "shall enter an order approving or rejecting the settlement." 33 U.S.C. §908(i)(2); see also 33 U.S.C. §919(c).
14 The parties' settlement is limited to the rights of the parties and to the claims then in existence. See J.H. v. Oceanic Stevedoring Co., 41 BRBS 135 (2008); Cortner v. Chevron International Oil Co., Inc., 22 BRBS 218 (1980); see generally Abercrumbia v. Chaparral Stevedores, 22 BRBS 18 (1988), order on recon., 22 BRBS 18.4 (1989); 20 C.F.R. §702.241(g). ILWU-PMA's Section 17 statutory lien, timely filed with both the district director and the administrative law judges, is certainly a claim in existence at the time of the settlement, further supporting the position that it should be resolved in conjunction with that agreement. Specifically, ILWU-PMA had a "right" to the compensation which the claimants may obtain via the settlement agreements they entered into with their employers.
15 The Act does not grant ILWU-PMA any avenue for enforcing a lien against a claimant who receives his or her full compensation from employer, and then evades repaying ILWU-PMA. Thus, an adjudicator could find that the Section 17 lien can be paid by employer to ILWU-PMA from the disability compensation it owes to claimant under the Act.
16 Section 702.162(c) provides that only the claimant may dispute "the right of the trust fund to the lien or the amount stated." 20 C.F.R. §702.162(c). Thus, employer does not have any right to challenge the propriety of the Section 17 liens raised by ILWU-PMA in these cases. With regard to medical benefits, while employer is liable to ILWU-PMA for any reimbursement, ILWU-PMA's rights rest on claimant's entitlement under Section 7, and claimant must establish the treatment is reasonable and necessary for the work injury in order to establish entitlement. The provision in the settlement agreement providing that employer will pay, adjust or litigate the claims against ILWU-PMA would require ILWU-PMA to prove entitlement. As ILWU-PMA's rights are derivative of claimant's rights, they cannot be litigated separately.