DBA Newsletter – September 2015

What is a Stipulation?

By Samuel Frankel, Esq.

The Longshore and Harbor Workers’ Compensation Act, and its extensions, such as the Defense Base Act and the Non-Appropriated Funds Instrumentalities Act, are the federal version of workers’ compensation.  As a workers’ compensation law, these Acts require Employers and their insurance Carriers to provide medical and lost wage benefits to covered employees injured at work.  When a benefit is not provided, it becomes an “issue in dispute”.  For example, if your Employer or its Carrier refuse to authorize a recommended medical procedure, it becomes an issue that requires the intervention of the Department of Labor – the federal agency charged with monitoring, supervising, and adjudicating claims under the Longshore and Harbor Workers’ Compensation Act.  Depending on the issue in dispute, there may be several steps to take before the issue is presented to a Judge for resolution.

Like all workers’ compensation laws in the United States, a Longshore Judge can only decide issues that are “ripe, due, and owing”.  That means you have to be owed a benefit, the Employer and its Carrier must know you are owed a benefit, and the benefit must not be provided by the Employer or its Carrier.  Once you are owed a benefit, and after the Employer/Carrier has an opportunity to provide the benefit but fails or refuses to do so, the litigation process can begin.  As we have discussed in past newsletters, the litigation process can take years!

Occasionally, after the litigation process has begun, the Employer/Carrier realizes that it should have provided the requested benefit.  Rather than continuing the litigation and going to trial, the Parties can enter into agreements for the disputed issues.  These agreements are called “stipulations”.  In stipulations, the Parties can agree to resolve some, most, or all the issues pending for trial.  Usually this allows the injured worker to begin getting wage loss benefits, or to see a particular doctor, without having to wait for a Judge’s decision months or years after a trial.  Once the Parties write the stipulations, they are submitted to the Court for review and approval, and the Judge will enter an Order holding the Parties to the agreements.  These agreements become binding on the Parties unless changed by the Court itself.

A stipulation does not settle your case!  It only resolves the issues that were going to be decided by a Judge at that particular time.  Your claim will continue to remain open, and if another issue arises in the future, the entire litigation process can begin again.  The ability and willingness of the Parties to enter into these periodic agreements allow the Employer/Carrier to provided benefits, and the injured worker to receive benefits, without the need of attending trial and waiting for a decision.

Current Events

This year has been a busy time for the attorneys and staff at Barnett, Lerner, Karsen & Frankel, P.A.!  The firm is very interested in giving back to the community and supporting local charities and events.  In January 2015 the firm participated in the Miami Design Preservation League’s annual Art Deco Weekend in South Beach, Miami.  This organization is devoted to preserving, protecting, and promoting the Miami Beach Architectural Historic District, one of the largest Art Deco locations in the world.  The firm is proud to be a part of preserving this historic district and architectural heritage of South Florida.

In March 2015 the attorneys attended The Victory Center’s annual Victory Royale Casino Night.  The Victory Center is a non-profit organization that provides children with autism and other disorders with comprehensive individualized education.  One of the co-founders of The Victory Center is Judge Judith Nelson, a former Florida Judge of Compensation Claims (workers’ compensation), and a good friend of the firm.  David C. Barnett, Esq. is also the chairman of The Victory Center’s Board of Directors, and the firm is proud to sponsor this event every year.

Also in March 2015 the attorneys attended the Annual Longshore Conference sponsored by the Loyola University School of Law and the U.S. Department of Labor in New Orleans, Louisiana.  This conference spans several days, and allows attorneys, adjusters, employers, and judges to gather in an informal setting and learn about the current state of the LHWCA and DBA.  Many issues faced on a daily basis by our clients were discussed, and several of the cases reviewed in this Newsletter were covered during the case law update.  This year David C. Barnett, Esq. is now a member of the Board of Directors, and Samuel S. Frankel, Jr., Esq. spoke during the Longshore Jeopardy session.

The attorneys and staff members participated in several races for charitable causes, the most recent being the March 2015 Mercedes-Benz Corporate Run in Fort Lauderdale, Florida.  The firm sponsored a team for the race, and everyone had a great time!  All proceeds from the race this year were donated to The United Way.

In August 2015 Brian C. Karsen, Esq. spoke during the Longshore Break-Out session at the annual Florida Workers’ Compensation Convention.  This conference spans several days, and allows attorneys, adjusters, employers, and Florida administrative judges to gather in an informal setting and learn about the current Florida workers’ compensation law, and various break-out sessions focusing on industry-specific topics.

The firm is also a proud supporter of the U.S. military, and has received the ESGR’s Patriot Award by the U.S. Department of Defense.  The firm’s continuing support has allowed its employees in the reserves and National Guard to serve the country knowing the firm is here to encourage and assist them.


Recent Cases

N.M. v. Black & Veatch Special Projects Group and Broadspire, 2013-LDA-00355 (Jul. 31, 2015).  In this case the Claimant was injured while off duty at the local base bar in Afghanistan.  A dispute arose between the Claimant and a co-worker during Thanksgiving at the bar provided by the Employer.  The argument moved outside, and the Claimant eventually tried to hit the co-worker.  The Claimant missed striking his co-worker, but was tackled from behind by the bar’s manager.  This tackle resulted in numerous physical injuries.  The claim was denied by the Employer/Carrier, and David C. Barnett, Esq. presented to matter at trial before Judge Paul Almanza.  Judge Almanza issued an Order denying all benefits to the Claimant.  The Judge did not believe the actions of the Claimant fell within the “zone of special danger”.  That concept typically extends coverage to workers injured overseas even if off-duty activities result in injury, so long as the activity was reasonable and foreseeable.  A typical example of the “zone of special danger” doctrine is when a worker is injured playing baseball while off duty.  Since recreational activities are reasonable and foreseeable – especially overseas with few opportunities for stress relief – injuries are covered under the DBA.  In this instance, the Judge found the connection between the Claimant’s injuries and his employment in Afghanistan too remote to award benefits.  The firm is appealing this decision before the Benefits Review Board.

Lesson Learned: Not all injuries incurred while working overseas may be compensable.  Although the Defense Base Act is liberally construed in favor of injured workers, there are instances where the activity leading to the injury may have no connection to the employment or working environment.  Injured workers are urged to speak to an attorney about their injuries and the circumstances surrounding the injuries.