US Supreme Court Rules When Disability Commences in Longshore Case

Sonia Sotomayor, U.S. Supreme Court justice
(Photo credit: Wikipedia)

The US Supreme Court ruled that an employee must be "newly awarded compensation" in a Longshore and Harbor Workers Act (LHWCA) claim when he was injured and not when the award was entered. This determination sets the time frame for the calculation of benefits.


Justica reports:


"In an opinion authored by Justice Sonia Sotomayor, the court held that in order to support an administrable rule "that will result in equal treatment of similarly situated beneficiaries and avoids gamesman ship in the claims process," an employee must be "'newly awarded compensation' when he first becomes disabled and thereby becomes statutorily entitled to benefits under the Act, no matter whether, or when, a compensation order issues on his behalf." The court further concluded that:

'[A]pplying the national average weekly wage for the fiscal year in which an employee becomes disabled advances the LHWCA's purpose to compensate disability, defined as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury." Just as the LHWCA takes "the average weekly wage of the injured employee at the time of the injury" as the "basis upon which to compute compensation" it is logical to apply the national average weekly wage for the same point in time.

Roberts v. Sea-Land Services

Workers Compensation Is Quietly Under Attack in America

Guest Blog
by Steve Cooper*

As the economy crawls out of the dumps and more people return to the job site, a strong workers compensation environment is as important as ever. Unfortunately, workers comp appears to be under quiet attack in many states.

In Virginia, a law aimed at stopping Virginia dock workers from “double-dipping” may actually leave longshoremen more vulnerable than workers doing much safer work. HB153 is making its way through assembly and has the International Longshoremen’s Association (ILA) concerned:

“Why in the world should a Virginia harbor worker be denied benefits that are provided for other Virginia citizens who work in a business across the street from the harbor?” said Deborah C. Waters, general counsel for the longshoremen’s union.

Arthur W. Moye Jr., executive vice president of the Virginia Maritime Association, which represents more than 400 member organizations employing more than 70,000 workers in port-related jobs, said the primary reason for seeking the legislation was duplication.

Harbor workers are the only employees in the state who can seek workers’ compensation coverage under both state and federal programs, he said. Most workers in Virginia are eligible for coverage only under the state program.

“We feel the federal act covers the needs of an injured worker and covers it in a far superior way than the Virginia state act does,” Moye said.

There are differing opinions about this bill, however. The sticking point is the limitation on what the federal act covers. Worker representatives feel it is hardly sufficient, especially for a worker faced with a serious injury such as a lost limb or a family incurring a costly funeral. It is difficult to classify something as “double-dipping” when the first “dip” doesn’t do enough. Moreover, “double-dipping” is prohibited, making the new law appear obsolete on arrival:

Today, injured maritime workers in Virginia, like those in some other states, are covered under the state’s workers’ compensation program as well as two federal programs: the Longshore and Harbor Workers’ Compensation Act and the Merchant Marine Act, or Jones Act, which applies only to members of crews of vessels under way.

Under the current arrangement, an injured shipyard worker can file claims under the state and federal longshore-act program, though the laws prohibit “double-dipping.”

“There’s a lot of things that the state act does that the longshore act doesn’t cover,” said Stephen Harper, a Richmond attorney and chairman of the workers’ comp section of the Virginia Trial Lawyers Association.

In the event of a fatal injury, for example, the state program offers the family of the victim a $10,000 funeral benefit plus $1,000 in transportation costs, Harper said.

Under the federal program, the maximum funeral benefit is $3,000.

Under the state and federal plans, Harper said, if a worker suffers a permanent injury, such as a crushed ankle, that prevents him from returning to his old job, he is eligible for compensation for a certain period of time, based on a doctor’s evaluation of the degree of impairment.

In most cases, once the payment is made under the federal programs, the insurer’s obligation ends. Through the state workers’ comp program, however, benefits can last as long as 500 weeks, or 9-1/2 years.

“They’re putting the longshore people in a much, much worse situation than the guy working down the street at Walmart,” Harper said. “The same injury, the guy down at Walmart may be able to get lost wages because of that ankle fusion for 9-1/2 years, potentially, but under the longshore act it could be a lot less.”

In Kansas, House Bill 2531 is poised to diminish workers comp as well. The law changes how those appointed to hear workers comp cases are selected. It is alleged that the new selection process skews anti-worker:

Such judges are now chosen by a panel consisting of one member picked by the Kansas Chamber of Commerce and one picked by the Kansas AFL-CIO. The bill would use a seven-member panel composed of the state labor secretary, a person from an employee organization chosen by the labor secretary, and representatives of the Kansas Chamber of Commerce, National Federation of Independent Businesses, Kansas AFL-CIO, Kansas State Council of the Society of Human Resource Management and Kansas Self-Insurers Association. More people at the table may be a good idea, but the proposed lineup is hardly rich with employee representation.

In Pennsylvania, employers successfully won a 5.7% decrease in workers comp funding this week:

The Pennsylvania Insurance Department (PID) recently approved a 5.7 percent overall decrease in workers’ compensation costs. The rate cuts will result in $160 million in savings for Pennsylvania employers, the department estimates.

“At a time when many are feeling a financial pinch and doing more with less, it is a very hopeful sign that the business community may now be able to pay less in workers’ compensation insurance premiums,” said Insurance Commissioner Mike Consedine.

The article makes no mention of the impact this could have on workers, but does suggest that Pennsylvania employers are given an even larger discount when they display superior safety practices:

Businesses enrolled in the Certified Workplace Safety Committee program of Pennsylvania’s Department of Labor and Industry (DOLI) receive an additional 5 percent discount. Currently 9,652 businesses have certified safety committees. Participating businesses have realized insurance premium reductions totaling $432.8 million since the program began, DOLI reports. “Pennsylvania employers are able to benefit from the outstanding job they are doing to provide safer workplaces,” said Labor Secretary Julia Hearthway.

In Wyoming, nearly $1,000,000 in workers compensation has gone unpaid, according to the WyoFile:

Did you know; of Wyoming’s 18,228 employers 1,212 of them are delinquent on their Wyoming Workers’ Compensation premiums — to the tune of $943,498.73, according to state officials? That’s 6.6 percent of Wyoming’s employers who pay into Wyoming Workers’ Compensation — delinquent. $1 million. Yet, those delinquent employers still enjoy legal immunity for their own proven negligence in a worker injury/death — because that’s part of the compromise of workers’ compensation?

Employees in Wyoming do not enjoy the same leniency when it comes to delinquency. If an injured worker files 1 day late, no case, no benefits. No matter.

To make matters worse, workers compensation legislation can often be misleading. In Missouri, workers comp was recently “expanded” to include many job-related diseases. What this means is that the state is now on the hook, rather than businesses, for harm done to employees by employers. This appears to be a win for workers on the surface, but is actually a Republican-driven move aimed at making Missouri more “business friendly”:

In a move that Republicans contend will make Missouri more attractive to businesses, the state Senate has approved legislation to expand the workers’ compensation program.

The measure, SB572, approved with a largely party-line 28-6 vote, would cover occupational diseases under the workers’ compensation program — freeing businesses from potentially costly litigation.

But this bill tucked in some very questionable caveats, including lumping together disparate diseases and the exclusion of immigrants and prisoners:

St. Louis County Democratic Sen. Tim Green drafted — but did not offer — an amendment that would have excluded occupational diseases from the compensation program. He said curable injuries like carpal tunnel syndrome aren’t similar to lethal diseases such as mesothelioma, a type of cancer that can be caused by exposure to asbestos.

“I don’t think they should be treated the same,” Green said. “Putting it back in the workers compensation system isn’t right and that’s what this bill did.”

The legislation would also prevent illegal immigrants or people who are in prison from collecting workers’ compensation benefits.

The bill is expected to breeze through the Missouri House.

A surprising bright spot is South Carolina which is attempting to make up the decrease in workers comp responsibility that business owners have witnessed since 2009:

South Carolina employers could see their workers’ compensation premiums increase next year if state regulators go along with a proposed 7.3 percent increase in the state’s loss cost rates.

The National Council on Compensation Insurance filed for the proposed increase earlier this month, making it the first such proposed increase since 2008. Most recently, the state has seen three loss cost decreases totaling 13.4 percent.

Based on 2009 and 2008 policy year data, the rate filing calls for a 5.3 percent increase in experience, a 2.2 percent increase in trend, a 0.1 percent increase in benefits, and a slight decrease of 0.4 percent in loss adjustment expenses.

Even if the current proposed rate change is approved as filed by South Carolina Acting Insurance Commissioner Gwendolyn Fuller McGriff, employers will still have seen a cumulative decrease of 7.1 percent since 2009.

On the national level, reports are emerging of a disproportionate number of workers in need of disability compensation, especially for mental illness. Typically anti-worker source The New York Post suggests that workers are grasping at safety net straws due to the country’s economic decline:

“It could be because their health really is getting worse from the stress of being out of work,” Matthew Rutledge, a research economist at Boston College, told the paper. “Or it could just be desperation — people trying to make ends meet when other safety nets just aren’t there.”

The paper said that, according to recent research by JPMorgan Chase, the government was mailing out disability checks to about 10.5 million people, including 2 million to spouses and children of disabled workers, at a cost of about $200 billion annually.

The stagnant economy has grown those ranks. About 5.3 percent of the population between the ages of 25 and 64 are collecting federal disability payments, a jump of 4.5 percent since the recession hit in 2009.

There is no question these numbers represent a drastic leap, but how our system treats the injured and disabled is not to be taken lightly. JPMorgan and The New York Post have been champions of the austerity that has been the enemy of many a necessary program from a worker standpoint. Workers compensation can ill-afford to be next on the chopping block.

Steve Cooper (E.m. Ployd) lives in Washington, DC, and is the editor of We Party Patriots. He educates union members on the benefits of social media, offering instruction on engaging on Facebook and Twitter. When not ruining his posture and finger muscles through endless computer use, Cooper is an avid chef and musician. The We Party Patriots has an active on Facebook page that is "A bold, accessible online approach to achieving the Labor Movement's goals and defeating the powers that Tea."

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