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Newsletter
 Longshore
Newsletter (Apr. 2009)
Settlements
Lien Rights
M.K. v. California United Terminals, BRB Nos. 08-0392, 08-0450, 08-0606 (BRB Feb. 12, 2009) (ILWU-PMA’s Section 17 lien claims and claims for reimbursement of medical expenses under
Section 7 must be resolved simultaneously with Section 8(i) settlement agreements entered into by claimants
and their employers; a provision in a settlement application whereby Employer agrees to pay, adjust or litigate ILWU-PMA’s lien does not adequately address the resolution of the lien claims)
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Submission of Section 8(i) Settlements and Stipulations
When judges remand Longshore and Harbor Workers Act cases to the District Directors for Section 8(i) settlement approval (See 33 USC 908(i); 20 CFR § 702.241), or because the parties have indicated that all outstanding
issues have been resolved, they will give the parties a specific date or time period to either submit the settlement papers or inform the District Director
of the status of the matter. This will shorten the period in which it takes claimants to receive their settlements or benefits.
Settlement Judges
OALJ continues to experience a high settlement rate through the Settlement Judge
process in Longshore cases. Requests for Settlement Judge Appointments in Longshore cases should be
addressed to the Associate Chief Judge for Longshore or to the appropriate district Chief Judge. While
reasonable efforts will be made to accommodate requests for specific dates, there can be no guarantee that requests for specific judges will be granted.
Medicare Secondary Payer Act & § 8(i) settlements
Publication Policies
Claimant Names in Decisions
Policy Announcement: HTML | PDF
Regulatory Amendment: HTML | PDF
Timing of Posting
Decisions in LHWCA cases are transmitted to the OALJ web site five business days after issuance by the ALJ. Links
become available six business days after issuance by the ALJ.
Attorneys Fees
Informal
Conference Needed in Most Circuits in Order to Obtain an Attorney Fee Under Section 28(b)
With its decision in Davis v. Eller & Co., 41 BRBS 58 (June 4, 2007) HTML | PDF arising out of the Eleventh Circuit,
the Board has now realigned itself with the majority of circuits (Fourth, Fifth and Sixth) which hold that in order
for a claimant to obtain an attorney fee under Section 28(b), there must have been an informal conference. Since
the position of the Ninth Circuit (Claimant is entitled to a fee where the extent of liability is controverted and claimant
successfully obtains increased compensation regardless of whether employer specifically rejected an
administrative recommendation.) remains unchanged, the Board’s position is not applicable law in that circuit.
The Defense Base Act
Modification of Hearing Policy on
Defense Base Act Cases - June 16, 2008
OALJ will no longer automatically expedite Defense Base Act cases arising in a war zone, but will require a written request for expedited processsing.
ALJs in most cases may now require an initial conference and initial disclosures similar to those
required by Fed. R. Civ. P. 26(f)(2).
Chief ALJ's Memo (June 16, 2008) HTML | PDF
The Defense Base Act:
Kerry Anzalone, The Defense Base Act—A Growth Industry?"
(This article appeared in the August 2004 BRBS Commentary on Longshore and Related Matters.
Matthew Bender has given its permission for this article to be posted on our web site.)
OWCP FAQs on the
Defense Base Act.
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