July 2015 Newsletter

New Regulations in Effect

By Samuel Frankel, Esq.

In 2012 the U.S. Department of Labor proposed new regulations governing practice and procedure for proceedings before the United States Department of Labor, Office of Administrative Law Judges (OALJ) – the Court for all Longshore and DBA cases.  The regulations were first published as a final rule in 1983 and were modeled on the Federal Rules of Civil Procedure (FRCP), the set of rules that apply to all federal court cases.  The purpose of the original regulations was to bring the procedures before an Administrative Law Judge more in line with the standards and practices before a federal court judge.

Since 1983 the Federal Rules of Civil Procedure have changed, and the Office of Administrative Law Judges has had time to analyze best practices before its Administrative Law Judges.  In 2012 the Department of Labor proposed revisions to and reorganization of these regulations.  The revisions make the regulations more accessible and useful to Parties.  The revisions also harmonize administrative hearing procedures with the current FRCP and with the types of claims now heard by OALJ, which increasingly involve whistleblower and other workplace retaliation claims, in addition to a longstanding caseload of occupational disease and injury claims, such as Longshore and DBA claims.

The new regulations were approved by Congress, and became effective June 18, 2015, under 29 C.F.R. 18.10, et seq.

Although most of the new regulations involve actions of the lawyers in a case, some do require our clients to be proactive in their claims, and will apply to any Claimant wishing to proceed on their own before the OALJ.  Lawyers must now file a formal Notice of Appearance in each case before the Office of Administrative Law Judges, something that was not required before.  All submissions to the OALJ that contain social security numbers and dates of birth must have that information removed; only the last four digits of a social security number, and the year of birth, can be included in documents submitted to the Court.  Any cases involving minors may only use the minor’s initials for identification, and not the full name.  There is no requirement that passport numbers or other identifying information be redacted.

All Motions must contain a statement that the Parties communicated, or made a good faith effort to communicate, before the Motion was filed in an effort to resolve the issue before having the Court intervene.  Each Motion or other paper filed with the OALJ must be signed, dated, and contain the sender’s address, telephone number, facsimile number, and email address.  If the sender is an attorney, the attorney’s license number for the licensing jurisdiction must also be included.

Any violations of the new regulations may result in sanctions by the Court imposed on the attorney and the attorney’s law firm.  Law firms are responsible for the actions of their attorneys and staff.

The new regulations establish the time frame for beginning the discovery process in a case, what must be exchanged between the Parties, and when expert witnesses must provide written reports.  Depositions require at least 14 days’ notice unless the Parties agree to a shorter timeframe.  This means our clients will usually have at least two weeks’ notice before having to attend their depositions.  The Court must be consulted if there will be more than ten total depositions in a claim, or if another deposition of the same witness is required.  Many of our clients have had “update” depositions taken by Employer/Carriers; now the Court must allow update depositions, unless the Parties agree otherwise.

Interrogatories (written questions) are limited to 25 questions, including subparts.  The answers to interrogatories must also be signed by the person answering them.  That means our clients who provide us answers to interrogatory questions will also be required to sign their answers as complete and correct to the best of their knowledge and recollection.

Independent medical exams must be scheduled at least 30 days before the exam is to take place, unless the Parties agree otherwise.  This means our clients will have at least 30 days’ notice before having to attend an IME.  Also, once completed the IME physician must provide a copy of the report within seven (7) days, including copies of any other IME reports for the same body part examined.  This new regulation should end the wait for our clients receiving a copy of the IME report.

The Parties must speak at least 21 days before trial to review the issues for trial and complete a Pre-Hearing Statement.  The Parties have only 10 days after trial to request the Court reconsider a Decision and Order.

The most important thing to take away from the new regulations is that the Department of Labor is treating all proceedings before the OALJ the same as any other judicial proceeding in federal court.  There are strict requirements for attorneys and their clients to perform certain actions in a timely fashion, and any attorney or Party that fails to do so may be sanctioned by the Court, up to and including having a case dismissed.  Therefore, if your attorney asks for information, or advises you to attend a deposition or IME, it is imperative you respond as soon as you can.  Ensuring you keep your lawyers updated with your contact information and email address will help tremendously.

The new regulations are available here or on the OALJ website, http://www.oalj.dol.gov/.

Industry Trends

By Samuel Frankel, Esq.

Over the past year our firm has noticed certain trends by Employers and their Carriers.  There now appears to be a reluctance to settle claims unless the Employer/Carrier is getting a good deal out of the settlement.  Although each claim is different and depends on unique facts and circumstances, overall the trend is to refuse settling a claim unless the Claimant is willing to take an amount less than the Claimant, together with his or her attorney, believes to be a fair amount.

If the Parties cannot settle a claim, and there remain issues outstanding for trial, another option normally available to the Parties is to negotiate a resolution of the outstanding issues and avoid the necessity of trial.  This is typically done with a Stipulation of the Parties, where each side agrees and stipulates to the facts of the case, and any compromises or concessions on the litigated issues.  This Stipulation is normally presented to the Court, which will then review and, if accepting the Stipulations, will enter an Order making the Stipulations the established facts of the case.  We use this method to resolve questions such as an injured worker’s average weekly wage, whether the claim is accepted or denied, what doctors are authorized, or what injuries are accepted by the Employer/Carrier.

Recently, however, Employer/Carriers have been very reluctant to enter into Stipulations that will be presented to the Court for an Order.  The Employer/Carriers simply do not want a formal Order by the Judge against them, even on issues the Employer/Carrier no longer dispute!  The Employer/Carriers may send a letter to the Court and the Claimant’s attorney letting them know the Employer/Carrier no longer disputes an accident, or an injury, or that it is now going to provide certain benefits.  Without a Stipulation agreed to by both Parties, most Courts will not enter a formal Order – the Court may simply remand the case back to the District Director and cancel trial.  If the Employer/Carrier then fails to do what it said it would do, the Claimant has to request a whole new trial, which can take many months.  Remember, the Court will only hear cases with issues that are “ripe, due, and owing”, and if the Employer/Carrier voluntarily agree to provide benefits, there is nothing in dispute, and nothing for a Judge to adjudicate.

To limit this type of “revolving door” process, we try to ensure the Employer/Carrier will agree to a Stipulation for a Judge’s approval, or ask the Court itself to enter an Order on any benefits voluntarily provided by the Employer/Carrier.  Again, whether a Court will enter such an Order is solely within the Court’s discretion.  Another option is to insist the Court hold the scheduled trial regardless of the Employer/Carrier’s stated intentions, to ensure the Employer/Carrier follows through with its intentions.  Again, this option would depend on the discretion of the Court.

Lastly, we have seen an increase in attempts by the Employer/Carrier to “modify” prior Orders.  Under Section 22 of the Act, any Party may petition the District Director for an Order “which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.”  There are certain time requirements for a modification, but where an Employer/Carrier is paying compensation benefits regularly (such as in compliance with an Order awarding benefits at trial, or an Order on a Stipulation), the Employer/Carrier can seek a modification of such Orders to reduce compensation payments.  There does have to be a change in circumstances to warrant a reduction – like an injured worker finding a new job paying more money, or an improvement in an injured worker’s medical condition.  Regular requests for independent medical examinations with the Employer/Carrier’s medical experts, vocational evaluations, depositions, completion of wage and earnings statements every month, and other activities are being used to demonstrate a “change in circumstances” to justify a Section 22 modification request.  Although there are procedures that must be followed, and we have various arguments we can make to fight such modifications, the entire process can add the stress and uncertainty of ongoing litigation to a claim.

The lesson to be learned here is that Employers and Carriers may not be willing to negotiate settlements often, or offer amounts that are more favorable to the insurance company, or start additional litigation in an attempt to force a reduction of benefits.  Your attorneys will continue to keep a close eye on these developments, and update you if any of these positions directly affect your case.

Recent Cases

A.M. v. VECO Alaska, Inc., 2012-LHC-00419 (May 15, 2015).  This case has a long and interesting history.  In 1989 the oil tanker Exxon Valdez struck a reef in the Prince William Sound in Alaska, resulting in one of the largest oil spills in U.S. history.  The Claimant was hired by the Employer to assist in the clean-up of the waterways, and the Claimant worked throughout the summer of 1989 on this project on the beach and in the water operating small boats and skiffs, ultimately developing respiratory symptoms.  Not only did the Claimant work on land and in the water, he was housed on board a small ship in the Prince William Sound itself.

In 1989 the Claimant was treated for various injuries, including respiratory symptoms, and some benefits were paid through the Alaska state workers’ compensation system.  These symptoms continued, and in 2009 the Claimant hired the firm to pursue a possible claim under the Longshore Act for follow-up medical care for his respiratory symptoms.  The Employer/Carrier denied the claim, asserting it did not fall under the Longshore Act because either it was a state workers’ compensation claim, or that the Claimant was a member of the crew of the housing ship on which he lived, and the claim was therefore a Jones Act claim.

David Barnett and Samuel Frankel of the firm litigated this matter, and extensive discovery was conducted.  After several years of litigation, in 2012 Administrative Law Judge William Dorsey ordered the Parties to submit written arguments on the question of coverage; i.e., did the Longshore Act apply to the claim.  The Court found that the Claimant was not a crew member of the housing ship (and thus the Jones Act did not apply), and that he indeed worked in a maritime setting pursuant to the Longshore Act.  However, additional arguments were needed to discuss whether the Claimant was actually doing work as a maritime employee in 1989.  Additional briefs were filed, and the Employer/Carrier moved for a summary decision.  The Court granted this Motion in favor of the Employer/Carrier, dismissing the Claimant’s case in November 2012.

The firm appealed Judge Dorsey’s Order to the Benefits Review Board (BRB), arguing the work performed by the Claimant in 1989 was of a maritime nature, and that the Judge misapplied the controlling case law; the Employer/Carrier cross-appealed, arguing the Claimant was a crew member, and the Court should have found the Jones Act the controlling law.

The BRB affirmed that some of the work the Claimant performed on the land was not maritime (such as cleaning rocks or moving tools and equipment), but the BRB required Judge Dorsey to re-evaluate the evidence to determine the exact nature of the relationship between the Claimant’s work, his injuries, and the vessels involved to determine whether any of his injuries occurred on navigable waters.  This re-examination was important, because if the Claimant was indeed injured working on navigable waters, it would not matter if he was a “maritime employee”; the very fact he was injured working on navigable waters would result in his injuries falling under the Longshore Act.  Consequently, in April 2013 the BRB reversed the summary decision, and sent the case back to Judge Dorsey for further consideration of the evidence.

Judge Dorsey reviewed the evidence again, and in May 2015 the Court found that the Claimant was indeed covered under the Longshore Act, and entitled to a follow-up medical evaluation for his respiratory symptoms.  A very detailed examination of the evidence and the controlling case law led the Judge to find the Claimant was indeed injured while operating various watercrafts on behalf of the Employer during the oil clean-up, and therefore covered under the Longshore Act.  The Employer/Carrier declined to appeal this decision.

What this case does show is (1) there is no statute of limitations on medical benefits for Longshore (and by extension, DBA) cases – even for injuries occurring almost 25 years ago; and (2) the length of time and litigation that may be necessary to get a favorable result (in this case, a follow-up visit to a doctor 25 years later).