For approximately 33 years, Loyola University, in conjunction with the United States Department of Labor, has been putting on its annual Longshore Conference in New Orleans.  In spite of the recent catastrophe a few years ago, the Conference has continued to exist and grow, with its largest attendance present in 2008, with over 250 registered participants.

Interplay of Other Laws with the Longshore Act

The seminar started out with a presentation of ``The Interplay of Other Laws with the Act.''  The panel discussed the fact that one of the initial factors to be decided is the question of answering what is a ``vessel,'' so you can decide whether the Jones Act (46 U.S.C.S. § 688 et seq.) or the Longshore Act (33 U.S.C.S. § 901 et seq.) applies.  The Supreme Court of the United States in Stewart v. Dutra Construction Company, 543 U.S. 481, 160 L. Ed. 2d 932, 125 S. Ct. 1118, 39 BRBS 5(CRT) (2005), has given us some recent guidance, which included the fact that watercrafts that could be used ``on'' the water could be considered vessels.

The panel further discussed the case of Becker v. Tidewater, Inc., 335 F.3d 376, 37 BRBS 49(CRT) (5th Cir. 2003), which further helped decide the interplay between the Jones Act and the Longshore Act.  Essentially, the Court in Becker held that in a situation where the injured worker spent only thirty percent (30%) of his time as a Jones Act seaman that he would not be covered under the Jones Act.  The panel further discussed the interplay of state workers' compensation, the Longshore Act, and the Outer Continental Shelf Lands Act (OCSLA) (43 U.S.C.S. § 1331 et seq.), and how indemnifications would apply, depending upon which Act was applicable.

There was also discussion about forum selection and arbitration, such that two (2) specific new issues have arisen.  One issue is where the employer insists in its agreement with the employee only to file in certain venues.  The second issue involves the situation where after an injury, the employer agrees to pay an increased rate of maintenance and cure, but they make the employee sign an agreement to go to arbitration.  In Terrebonne v. K-Sea Transportation Corporation, 477 F.3d 271 (5th Cir. 2007), the Court of Appeals provided an avenue for employers to seek enforcement of forum selection and arbitration with a Jones Act seaman.  The Court noted that an arbitration agreement, which was not part of the original employment agreement, could be binding on the injured worker.

Recent Developments Affecting the Administration of the Longshore Act

A lively discussion at the seminar existed with a discussion of ``Recent Developments Affecting the Administration of the Act.''  In particular, a photographer on a special purpose vessel was held not to be covered under the Longshore Act because the Court held that they were hired by a retail outlet; although, they never even got to the issue of whether or not the special purpose vessel was a museum, which would also lead to an exception under the Act.  Peru v. Sharpshooter Spectrum Venture LLC, 493 F.3d 1058, 41 BRBS 28(CRT) (9th Cir. 2007).  In Coppola v. Logistec Connecticut Inc., 283 Conn. 1, 925 A.2d 257 (2007), the Court held that under certain circumstances, a state workers' compensation system has concurrent jurisdiction with the Longshore Act, even where an injury occurred onboard a vessel in navigable waters.  Another interesting case was Irby v. Blackwater Security Consulting, LLC, 41 BRBS 21 (2007), where the Benefits Review Board upheld the administrative law judge's decision that a claimant's motion to withdraw its request for a hearing and claim was not in the claimant's best interests, where the claimant wanted to withdraw the claim and file a wrongful death action in the state courts.  The Court noted that the administrative law judge that heard the case determined that any recovery in the state courts was too speculative at best, and therefore, a guaranteed flow of money under the Longshore Act was a better avenue for the claimant to proceed down.  Another interesting case was Confer v. UNUM Life Insurance Company of America, No. 06-60502, 2007 U.S. App. LEXIS 842 (5th Cir. Jan. 15, 2007) (unpublished), which held that if the employer also provides a long-term disability policy, the disability company could reduce benefits owed to the injured worker by the amount of Longshore benefits that are paid by the employer.  Other cases were discussed as well.

Settlement of Claims Under Section 8(i) of the Longshore Act 

The next panel discussed ``Settlement of Claims under Section 8(i) of the Act.''  The panel, which consisted of a District Director, OWCP, an administrative law judge, a representative from a carrier, and a claimant's attorney, discussed items such as special provisions and the consensus of all was that anything that is not specifically listed in the Longshore Act is a special provision.  The panel specifically addressed issues such as were decided in the recent case of M. T. v. Universal Maritime Service Corporation (BRB No. 07-0766 (Feb. 29, 2008 (unpublished)), wherein an employer and its carrier attempted to require that part of the settlement would represent a designated credit towards compensation benefits owed if the injured worker should get injured in the future with one of the companies that the carrier provided workers' compensation coverage for.  As noted in the Universal Maritime case, the District Director pointed out that typically this would never be allowed under any circumstances.

Solicitor of Labor

A discussion entitled the ``Solicitor of Labor'' was presented by counsel with the Solicitor's Office, and discussed their role and when they get involved in cases.  In particular, they get involved if an ``adjudicator'' requests their involvement.  They also get involved if the interests of the Special Fund (33 U.S.C.S. § 908(f)) are at stake.  They typically get involved in ``situs'' and ``status'' issues.  They also get involved in the calculation of benefits, or if the authority of any adjudicator is involved. 

Psychiatric and Psychological Claims

A lively panel discussion was held in the topic of ``How to Handle Psychiatric and Psychological Claims.''  There was a discussion as to causation, the Section 20(a) presumption (33 U.S.C.S. § 920(a)), and a number of recent cases discussing the nature and extent of disability with psychiatric and psychological claims.

Mock Direct and Cross Examination of Vocational Expert

There was a mock direct and cross examination of the employer's vocational expert and the claimant's vocational expert in order to determine the extent of wage-earning capacity.  The direct examination of the employer's expert delved into the ability of the expert to interpret the medical records, get limitations from the doctor, and find potential jobs that the injured worker could do within the restrictions found by the treating doctors.  The cross-examination of the defense expert attempted to pick apart the opinions based upon the reports of the treating doctor over that of the independent medical evaluator.  The same type of examination and cross-examination in reverse took place during the claimant's expert portion of the panel.

Defense Base Act

On the second day of the seminar, the program began with a topic entitled ``Handling Claims under the DBA, Unique Issues, and Determining Average Weekly Wage'' (Defense Base Act, 42 U.S.C.S. § 1651 et seq.).  A brief overview of the calculation of the average weekly wage under Section 10(a), (b) and (c) (33 U.S.C.S. § 910(a), (b), (c)) started out the presentation.  At that point, there was a discussion as to what factors go into the calculation of the average weekly wage by an employee, as well as the employer, where the injured worker had worked less than twenty (20) weeks overseas.  The employee stressed the contract rate and the uniqueness of the work overseas, while the employer attempted to argue reasonable unlikelihood of doing this same type work for years into the future, and that a balance of past wages should be blended in.  Similar arguments were made for workers who worked more than forty (40) weeks.

There was a thorough panel discussion involving ``Handling Discovery in DBA Claims.'' It was initially noted that in claims that arose either in Iraq or Afghanistan, there would be problems getting medical records, and even when they were obtained, they might have to be translated.  Additionally, claims and investigator reports might be hard to obtain, and even if obtained, might have to be translated.  It was noted that a lot of times, hearings are set very quickly because of the preferential treatment being assigned to DBA cases, but that in a number of situations, the parties are nowhere near being ready for trial, and have not been able to conduct thorough discovery.

There was also a discussion involving ``Unique Medical Issues in DBA Claims,'' with a presentation regarding psychiatric claims, and those involving post-traumatic stress disorder.  It was discussed that there are problems in proving the same, and in getting prior records to either confirm or deny that the incident occurred or was related to the work overseas.

Zone of Special Danger 

The last presentation at the seminar involved the ``Zone of Special Danger.''  It was pointed out that there is nothing clear-cut to determine whether or not an injured worker is within the ``Zone of Special Danger.''  Those cases that appear to be covered aren't, and those cases that might not appear to be covered are.  Although the Longshore Act does not spell out the words ``zone of special danger,'' these words come from a reading of O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 95 L. Ed. 483, 71 S. Ct. 470 (1951).  It was further noted that the Supreme Court, fourteen (14) years later in O'Keeffe v. Smith, Hinchman & Grylls Associates, 380 U.S. 359, 362, 13 L. Ed. 2d 895, 898, 85 S. Ct. 1012, 1014-1015 (1965), went on to clarify O'Leary to essentially hold that only in those cases where the employee had become ``so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.''  The problem, as noted by the speakers, is that it is very difficult to determine what is ``so thoroughly disconnected from the service of the employer.''  For example, a case involving auto-erotic asphyxiation was held to not be covered, but heterosexual behavior was covered.  Where drinking and driving that resulted in an injury was covered, another case involving a pork illness was not.  Again, the only thing that was certain is that there is no certain case.

2009 Conference

As noted, this was the largest, or at least one of the largest crowds that has ever attended the conference, and for those interested in planning for the next year, the conference will be on Thursday and Friday, March 19 and 20, 2009. Please make your plans now to attend.