Articles Posted in Longshore & Harbor Workers’ Compensation Act (“LHWCA”)

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In a recent case before the Louisiana Fourth Circuit Court of Appeal, the court reviewed a judgment dismissing an injured worker’s claim for compensation on the grounds that he had sought federal disability compensation through the Longshore and Harbor Workers’ Compensation Act.

SeaIn this case, Shawn Johnson appealed a judgment that dismissed his claim for state compensation benefits under the Louisiana Workers’ Compensation Act, with prejudice. Mr. Johnson worked as a mechanic for the Wood Group. While working on a boat, he was injured. The boat was involved in a collision as it traveled in Grand Pass, a waterway cutting from the Mississippi River to the Gulf of Mexico.

After his accident, Mr. Johnson set forth claims under the Louisiana Workers’ Compensation Act and the Longshore and Harbor Workers’ Compensation Act (LHWCA).   The Wood Group had insurance coverage for state benefits under the LWCA as well as federal benefits under the LHWCA with two separate insurers.

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Recently, a case before the Louisiana Third Circuit addressed the definitions of “situs” and “status” under the Longshoreman & Harbor Workers’ Compensation Act (LHWCA). In this case, the situs, or location, and the status of an injured employee determined his compensation. The plaintiff, Mr. Hernandez, was cutting timber for the construction of a boat ramp when he suffered an injury. The ramp was being built on Bayou Teche in Loreauville to launch boats in the waterway. Mr. Hernandez was injured while working in a grassy area, about 100 feet from the ramp.file00043850637

Mr. Hernandez filed a disputed claim for compensation with the Office of Workers’ Compensation. He was an employee of UNO Enterprises, which had assigned him to work under Durand, LLC, a construction company. When Mr. Hernandez filed his claim, he named UNO as his employer and Louisiana Workers’ Compensation Corporation (LWCC) as UNO’s insurer. LWCC admitted it was UNO’s workers’ compensation carrier, but it denied coverage for Mr. Hernandez’s claim, asserting he was a longshoreman under the Longshoreman & Harbor Workers’ Compensation Act.

UNO then named Durand as the employer of Mr. Hernandez, filing a third-party demand. Mr. Hernandez amended his claim, and Durand filed a cross-claim against UNO and LWCC, alleging that if it was liable as the borrowing employer for benefits, they were liable for half. Durand filed a Motion for Partial Summary Judgment on a jurisdiction issue, and LWCC filed an Exception for Lack of Subject Matter Jurisdiction.

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Many of my Louisiana Workers Compensation, Longshore & Harborworker and Defense Base Act clients injure their back or neck on the job. Often they have back or neck pain that their treating physician wants to treat with epidural steroid injections.

According to a recent April 23, 2014 warning put out by the Food and Drug Administration, these injections inserted into the spine may cause serious negative consequences, including loss of vision stroke, paralysis and even death. A number of the adverse effects have occurred within 48 hours of the injection. The FDA has not approved injections for back and neck pain. Speak with your healthcare provider if you want to switch to an alternative form of treatment.

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Vocational Rehabilitation Counselors are typically paid the the workers compensation insurer or the employer of injury. The Labor Market Surveys counselors generate are used to reduce the amount of money that the employer of injury and its insurer are obligated to pay injured workers. Yes, the insurance companies uses vocational counselors primarily to reduce injured workers benefits.

However, the Louisiana licensed vocational rehabilitation counselor’s Code of Ethics says that the counselor’s primary obligation is to individuals with disabilities who are receiving services from licensed rehabilitation counselors.

Vocational Rehabilitation Counselors are not immune from professional tort liability under the Louisiana Workers Compensation Act provided the injured worker complies with administrative remedies set forth in LA-RS 23:1226. See, Brown v. Adair; 2002-2028 (La. 04/09/03),846 So.2d 687 and LA-RS 23:1226.

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Daylight Savings Time, the practice of temporarily advancing clocks during the summertime so that evenings have more daylight and mornings have less, has been observed since 1895. The practice is the source of much annual anticipation for individuals eager to benefit from longer days and more day lit hours.

A study from the American Psychological Association, however, suggests “springing forward” from Standard Time to Daylight Savings Time may have some unintended consequences such as disrupted sleep patterns and an increased risk for workplace injury.

According to the study’s authors, the hour of sleep lost when Americans set their clocks an hour ahead each spring results in higher rates of workplace accidents caused by sleep loss. The study analyzed accident and time use data from the Mine Safety and Health Administration and Bureau of Labor Statistics, concluding that the average person sleeps about 40 minutes less the Sunday night of the time switch resulting in approximately 3.6 more work injuries the following Monday in hazardous occupations such as mining and construction.

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If you were hurt on the job and are collecting wage loss benefits, company detectives may be stalking you to try to prove you are malingering. For about $300, Private Investigators (PIs) may mount a Global Position System (GPS) to the underside of your car and follow you throughout the day from their laptop computer. Some GPS devices are powered by the car’s battery and typically placed under the dashboard while other devices are equipped with their own batteries to enable inconspicuous placement on the vehicle’s body. PIs use the GPS device to see if you are working and not reporting your wages or if you are participating in physical activities beyond your work restrictions.

Using a GPS in this fashion may have potential criminal stalking and civil privacy implications. For example, California and Texas ban the use of GPS trackers without consent with exceptions for law enforcement and car owners. If you find one of these devices on your vehicle, immediately contact your local police department.

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Often times an injured worker is forced to ask his or her employer for the name of its workers compensation insurer after an work related injury. The employer might try to encourage the injured worker to use his or her health insurance.

However, in Louisiana, health insurance usually does is not provide primary health insurance coverage for a work related injury unless the the employer and its insurer denies that the employee’s injury is compensable under the Louisiana Workers Compensation Act.

Unfortunately, many employers are unwilling to report a work related injury to their workers compensation insurer or provide the injured employee with the name of the insurer.

In the past, If you were trying to find the name of your employer’s insurer so that you can report the claim to them and see if the claim is compensable, you had to call the individual insurers like Louisiana Workers Compensation Corporation (“LWCC”), LUBA, CNA, Travelers, Chartis or other workers compensation insurer.

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The Bureau of Ocean Energy Management, Regulation and Enforcement ( BOEMRE) has completed its investigation into the fire that broke out on an offshore oil platform 100 miles off the Louisiana coast in September of 2010. The fire forced the 13 platform workers to jump in to the water and await Coast Guard rescue. The fire aboard the Mariner Energy Vermillion 380-A platform occurred just months after the April 2010 BP oil spill, offering a chilling reminder of the importance of strict safety standards in the offshore oil industry. The official investigation report cites a combination of factors, including crucial equipment failure, corroded equipment, and a fire water pump that could not be used due to generator failure, as causes for the incident.

“The report underscores the need for offshore operators to maintain their equipment consistent with existing standards, to protect the safety of personnel working onboard and to protect the environment,” BOEMRE Director Michael Bromwich stated.

According to the Bureau of Ocean Energy Management, Regulation and Enforcement, noncompliance citations may be issued to Mariner Energy Inc. Mariner Energy, which has recently been taken over by Apache Corporation, may also face civil charges related to the September fire.

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If your job injury claim falls under the jurisdiction of the Louisiana Workers Compensation Act or Longshore & Harbor Workers Compensation Act and your treating doctor says you are physically capable of returning to modified duty work either with your employer of injury or with another prospective employer in your geographic region. The vocational counselor says you have the skills necessary to do the position. What should you do?

If the Modified Position is with Your Employer of Injury

If the modified duty position is with your employer of injury, get to work and try the job. If you fail to return by the return to work date, you may be fired and your employer will probably reduce or terminated your workers compensation indemnity payments. See, Banks v. Industrial Roofing & Sheet Metal Works, Inc.pdf Furthermore, without showing up, you will never be able to determine if the position offered pays your pre-injury wage, if it is full-time or part-time, if the position is within your physical restrictions and skill set or if the position even exist. Sometimes these positions are even temporary or perhaps even created solely for purposes of terminating or reducing your indemnity payments.

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If you suffered a hearing loss as a result of working at a shipyard like Ingalls or Avondale, you may have a claim for Longshore & Harbor Workers Compensation benefits.

How is a Longshore & Harbor Workers Compensation Hearing Loss Calculated? First, the impairment rating % is determined by a Physician by the using the AMA Guides.

The employee’s Average Weekly Wage (“AWW”) is determined as of the date of last exposure to harmful noise.