Happy New Year to all my readers.
The New Year promises to bring interesting times to the laborers in the vineyard of the Longshore Act and of course its extensions.
We are all going bananas (or plantains) waiting for the Supreme Court’s opinion in Pacific Offshore v Valladolid. Will the Ninth Circuit or the Fifth prevail?
We are eagerly anticipating the oral argument in Roberts v Sealand. Will the Ninth or the Eleventh and the Fifth win?
The Recreational Vessel regulations have just appeared. One of the more controversial proposals failed to survive the comments on the original draft.
Justice Scalia warned us that administrative law is not for sissies, so we should follow his advice and prepare for an eventful and boring New Year.
I’m sure all of you follow the blogs from Mouledoux, Bland, Legrand & Brackett; Tom Langan’s monthly update including his acerbic comments; and Jack Martone’s measured tones on the AEU blog. If anyone knows of any others, please let me know. There is also a LinkedIn group for Longshore, and two for the Defense Base Act.
Roberts v Sealand Services, Inc. et al.
In this case, “Al” is the Director, Office of Workers’ Compensation, the Federal Respondent, represented by Joseph Palmore, who also argued the Valladolid case. The briefs are now available on the web.
Consider this: The Director OWCP, the Benefits Review Board and the Ninth Circuit are on one side; the Fifth and Eleventh Circuits are on the other. Which side is the employer on? Interesting that the employer supports the Ninth Circuit and urges Chevron deference to the Director, against the Eleventh and the Fifth.
At the root of the fuss is an attempt to advance the date on which the “cap”, “ceiling”, or whatever euphemism you choose for “reducing the compensation rate of successful workers, to minimize it in favor of employers” is calculated. Actually, the problem arises from the change in structure for formal hearings in 1972. Before that, a Deputy Commissioner could issue an award and quickly too. Now the parties can either accept the District Director’s informal recommendation or agree to an award; else the case must be referred to the Office of Administrative Law Judges, which consequent unavoidable delay.
Four main points in the briefs call for comment.
1. The argument from consistency.
The respondents point out that awards are issued at different times, and to apply the cap from the date of the award might lead to different caps being applied for workers injured in the same incident. They speak of the date of injury, the date of disability and the date of the disabling injury. All this obfusticates the point that the date when people get hurt can differ from the date they are disabled. Truth will out, if only in a footnote. On page 30, footnote 9, of the Federal Respondent’s brief, this point is noted; the Director opts to use the date of disability, not the date of injury. Of course, in the case of death, the date of death controls. So, if there is an accident involving two people on September 29, and one is immediately disabled but the other works for another 48 hours, they will, in the Respondents’ version, be subject to different caps. The whole notion of Fiscal Year averages is already totally fictitious. The fiscal year of the DOL has nothing to do with injuries on the waterfront any more that the date of the award. Anomalies exist whichever date is chosen.
The respondents point out that awards are issued at different times, and to apply the cap from the date of the award might lead to different caps being applied for workers injured in the same incident. They speak of the date of injury, the date of disability and the date of the disabling injury. All this obfusticates the point that the date when people get hurt can differ from the date they are disabled. Truth will out, if only in a footnote. On page 30, footnote 9, of the Federal Respondent’s brief, this point is noted; the Director opts to use the date of disability, not the date of injury. Of course, in the case of death, the date of death controls. So, if there is an accident involving two people on September 29, and one is immediately disabled but the other works for another 48 hours, they will, in the Respondents’ version, be subject to different caps. The whole notion of Fiscal Year averages is already totally fictitious. The fiscal year of the DOL has nothing to do with injuries on the waterfront any more that the date of the award. Anomalies exist whichever date is chosen.
2. The argument from § 8(c)(20). “Awarded” Means “Entitled”.
The disfigurement benefit reads in part: “Proper and equitable compensation not to exceed $7,500 shall be awarded”. This clearly requires some determination of the amount payable in each case. The “award” reduces the inchoate entitlement conferred by the section from a description to an amount. It is simply wrong to state that this supposed benefit can be paid voluntarily. It can be paid only by agreement or award.
The disfigurement benefit reads in part: “Proper and equitable compensation not to exceed $7,500 shall be awarded”. This clearly requires some determination of the amount payable in each case. The “award” reduces the inchoate entitlement conferred by the section from a description to an amount. It is simply wrong to state that this supposed benefit can be paid voluntarily. It can be paid only by agreement or award.
3. The Argument from voluntary payments and from settlements – the Star Wars version
Digging up a case from 1947, American Stevedores v Porello, the Respondents quote “The employee thus receives compensation payments quite soon after his accident by the force of the Act”. This is of course taken out of context and, as used by the respondents, nonsense. The Force has nothing to do with it. Employers pay, or, with regrettable frequency, file controversions. This allows them to escape penalties. The 10% additional compensation does not apply, and interest is not a penalty. [And if the financial departments of insurance companies cannot get a better return on the money than the rate of interest awarded by the federal courts, their senior management need to make some changes]. Following their resurrection of a 64 year old case, they then disinter part of a footnote from a 35 year old case, and quote “in practice many pending claims are amicably settled through voluntary payments without the necessity of a formal order”. They failed to exhume the earlier part: “voluntary payments in advance of an actual order is common under the Act”.
The use of the word “ settled” is as loose in this context as the respondents wish the word “awarded” was in §6(c). But in order to “settle” a longshore case, you need an 8(i) agreement signed by a District Director or a Judge. If not, you may have paid the case; but you have not settled it. And Justice Rehnquist clearly had no problem with voluntary payments followed up with an actual order. Nor does §6(c).
Digging up a case from 1947, American Stevedores v Porello, the Respondents quote “The employee thus receives compensation payments quite soon after his accident by the force of the Act”. This is of course taken out of context and, as used by the respondents, nonsense. The Force has nothing to do with it. Employers pay, or, with regrettable frequency, file controversions. This allows them to escape penalties. The 10% additional compensation does not apply, and interest is not a penalty. [And if the financial departments of insurance companies cannot get a better return on the money than the rate of interest awarded by the federal courts, their senior management need to make some changes]. Following their resurrection of a 64 year old case, they then disinter part of a footnote from a 35 year old case, and quote “in practice many pending claims are amicably settled through voluntary payments without the necessity of a formal order”. They failed to exhume the earlier part: “voluntary payments in advance of an actual order is common under the Act”.
The use of the word “ settled” is as loose in this context as the respondents wish the word “awarded” was in §6(c). But in order to “settle” a longshore case, you need an 8(i) agreement signed by a District Director or a Judge. If not, you may have paid the case; but you have not settled it. And Justice Rehnquist clearly had no problem with voluntary payments followed up with an actual order. Nor does §6(c).
4. If the petitioner succeeds, the case is over. If it does not, then there will be litigation over what “award” means, since it does not mean what it says.
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