Jones Act Maritime Lawyer

2011: Year in Review for Arnold & Itkin

Arnold & Itkin — Thu, 29 Dec 2011 12:14:46 -0600

The year of 2011 was yet another monumental year for Arnold & Itkin, LLP. Over the years, we have been proud to recover hundreds of millions of dollars in verdicts and settlements on behalf of our clients and this was no different in 2011. In fact, we are proud to announce that we successfully recovered over $250 million in the last year alone; an enormous success and a true testament to our dedication to our clients, as well as our unwavering commitment to always providing the highest quality of legal representation.

Recovering this much comes from pairing aggressive out-of-court negotiation skills along with a “never say never” attitude. Our opponents know that we are not willing to settle for an unsatisfactory amount, that we will always be willing to prepare and take a case to the courthouse if that is what is required to obtain justice for our clients. Better yet, they know that when we say this, we actually mean it because we have done so before. We often will claim that it is this level of uncertainty that gives us the upper edge in negotiations.

Still, in some cases even this upper hand isn’t always enough to come to a fair out-of-court settlement. In some cases, we have to back up our word and fight for clients in trial – and we have proven that we are more than willing to do so. Take for example a case that we settled in 2011 involving Diamond Offshore. Our client had been working aboard the Ocean Yorktown at the time of the injury when he had been unexpectedly hoisted over twenty feet into the air and had his fall protection fail. This resulted in serious injuries such as a loss of consciousness, a crushed arm, three fractured vertebrae, three herniated discs, broken ribs and a closed head injury. We tried the case in the 157th District Court in Harris County, TX before Judge Wilson. The case lasted for a week and a half and resulted in the jury returning with a unanimous verdict of $4.9 million.

It was cases like this that made 2011 the success that it was and we were proud to represent clients such as this in their fight for justice. As always, we are proud to help clients get the compensation that they deserve – helping them to receive the medical treatment that is required. Such was the case as we continued to work to defend those who were aboard the Deepwater Horizon at the time of the April 20, 2010 explosion. In fact, we have been honored to represent over a fifth of the entire crew during this time.

We are compassionate to the tragedy that has victimized our clients and their families and we have worked tirelessly to provide them with supportive guidance while aggressively fighting to hold negligent companies liable. During this time, we are grateful to have gotten to know these crew members and have fought tooth and nail to help them get the maximum recovery that they deserve. We encourage you to watch some of the videos from clients involved in Deepwater Horizon case to learn more about their experience with our firm:

While a colossal year, 2011 is just the beginning. We at Arnold & Itkin, LLP are prepared to face 2012 full force and look forward to the challenges that the new year will bring. If you have recently been injured or have suffered from the negligence of a third party, do not let another minute go by without receiving the high quality legal assistance from a maritime attorney that you deserve. Contact an offshore injury lawyer from our firm to schedule your free, no-obligation consultation. We are here to help you. Call today.

Second Circuit: ALJ Could Take Judicial Notice Of AMA Guidelines

Maritime Lawyer — Thu, 08 Sep 2011 12:27:26 -0600

Staubley v. Electric Boat Corp., No. 10-3186 (2nd Cir. September 1, 2011) (Summary Order On Petition For Review)

Clyde Staubley sought review of a Benefits Review Board decision affirming an award issued by an administrative law judge (ALJ) under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950. The ALJ had awarded LHWCA benefits to Staubley for a ten percent permanent impairment of his lungs due to work-related asbestos exposure.

Staubley argued in his petition for review that the ALJ erred by not taking judicial notice of the American Medical Association’s Guides to the Evaluation of Permanent Impairment when deciding his claim for benefits.

The United States Court of Appeals for the Second Circuit agreed with the Board on the judicial notice issue, namely that the ALJ most likely erred by not taking judicial notice of the Guides.

Because the LHWCA requires that a claimant’s permanent impairment be determined “under the [G]uides,” the court said, it stood to reason that an ALJ could rely on the Guides without the parties first introducing them into the record.

Even so, the court went on to explain, here the ALJ’s error was not prejudicial to Staubley’s case under the facts of record. In particular, the ALJ’s decision not to credit a physician’s medical opinion was supported by substantial evidence irrespective of the ALJ’s failure to take judicial notice of the Guides. Likewise, in her decision the ALJ had accounted for a certain variation in the standards employed by other expert physicians when they evaluated Staubley’s condition. The court thus denied Staubley's petition for review.

For a free consultation, call a maritime accident lawyer at Arnold & Itkin LLP toll free at (877) 632-8168, or contact us using the form on this page. Our maritime injury attorneys can advise you on all aspects of maritime law, including the Jones Act, the Longshore and Harbor Workers’ Compensation Act, the principle of maintenance and cure and the Death on the High Seas Act.

Government Maintains Plan To Sell New Offshore Gulf Oil Leases

Maritime Lawyer — Wed, 07 Sep 2011 20:50:17 -0600

The federal government continues in its plans to sell offshore oil leases in the Gulf of Mexico for the first time since the catastrophic destruction of the Deepwater Horizon drilling rig in April 2010. The sale, scheduled to take place in New Orleans on December 14, 2011, is anticipated even as federal officials continue to mull proposed changes to safety regulations governing the oil industry.

The newly-announced lease offering makes available swaths of western Gulf parcels off the coast of Texas. According to media reports, Interior Secretary Ken Salazar described the federal agency as comfortable with resumption of Gulf deepwater drilling in light of new and rigorous standards in place. Still, the announcement has been met with skepticism in some quarters, as environmental advocates question whether safe drilling practices will prevail. For its part, the American Petroleum Institute expressed cautious optimism but was less than enthusiastic about the announcement that minimum bids for deepwater leases would be significantly increased.

The bid package indicates that minimum bonus bids must be at least $25 per acre for blocks in water depths of less than 400 meters, or $100 or more for blocks in deeper waters. According to the government, the previous minimum bid level of $37.50 per acre for deepwater blocks had been in place since 1999, when oil prices were near $20 per barrel.

Details of the Proposed Notice of Sale are available at the website of the Bureau of Ocean Energy Management, Regulation and Enforcement.

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Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, use the form on this page to contact a maritime attorney at Arnold & Itkin LLP for a free consultation, or call our maritime law office toll free at 866-222-2606.

Cruise Passenger Could Recover Punitive Damages Under General Maritime Law

Maritime Lawyer — Wed, 07 Sep 2011 10:44:25 -0600

Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620-CIV (S.D. Fla. Aug. 23, 2011) (Altonaga, J.)

Passenger Elise Lobegeiger was seriously injured at sea while aboard a Celebrity Cruises, Inc., vessel. Lobegeiger had attempted to adjust the heavy back panel of a deck lounger when the panel crashed down onto her hand, severing her left index finger. As a result of the injury, Lobegeiger was left with a permanent deformity.

Lobegeiger sued Celebrity Cruises and others in the United States District Court for the Southern District of Florida, where she alleged a variety of personal injury claims. Celebrity and Royal Caribbean Caribbean Cruise Ltd. (Cruise Lines) moved to dismiss those portions of Lobegeiger’s claims that sought non-pecuniary damages in the form of pain and suffering, mental anguish, emotional distress, loss of capacity for enjoyment of life, and the like. The Cruise Lines cited the “well settled” proposition that a personal injury claimant can only assert a claim under the general maritime law for pecuniary loss.

The federal district court identified two questions raised as to Lobegeiger’s damages demand: whether she could recover for pain and suffering under general maritime law, and whether she could recover punitive damages.

The court answered the first question in the affirmative. Simply put, it was undisputed that damages recoverable for pain and suffering were non-pecuniary damages that were properly awarded in maritime personal injury cases. Such damages, despite being nominally non-pecuniary, were recoverable. Thus Lobebeiger was entitled to seek recovery for her pain and suffering, mental anguish and emotional distress, inconvenience, and loss of capacity for the enjoyment of life.

It was more complicated, however, whether a passenger could recover punitive damages for personal injury under general maritime law. In Atlantic Sounding Co., Inc. v. Townsend, 129 S. Ct. 2561 (2009), the Supreme Court indicated that punitive damages are available as damages in all actions under general maritime law absent a specific limitation to the contrary imposed by Congress.

As pertinent here, there was no congressional legislation to limit a passenger’s right to recover punitive damages in a personal injury action under general maritime law, the court wrote. The court thus declared that a plaintiff may recover punitive damages under general maritime law, consistent with the common-law rule, where the plaintiff’s injury was due to the defendant’s “wanton, willful, or outrageous conduct.” As a result, the court rejected the Cruise Lines’ attempt to preclude Lobegeiger from stating a claim for punitive damages, and she was entitled to do so if the evidence warranted.

Among separate issues, the court also addressed whether Celebrity might be held liable for the actions of its ship’s medical staff regarding their alleged negligence as to Lobegeiger’s treatment after her injury. While the majority rule was that a cruise line cannot be held vicariously liable for the negligence of a ship’s doctor in the care and treatment of passengers, some courts had held it permissible for a court sitting in admiralty to hear vicarious liability claims premised on shipboard doctors’ negligence under the theory of apparent agency where cruise lines held out shipboard doctors to passengers as their agents. The court in Lobegeiger’s case found that applying the notion of apparent agency was consistent with general maritime tort principles, assuming the necessary elements were satisfied. The court went on to find that Lobegeiger adequately pled a claim for negligence against Celebrity under an apparent agency theory, with the result that she could go forward on her claim.

To discuss a case with an experienced maritime lawyer, contact a maritime attorney online at Arnold & Itkin LLP using the form on this page, or call the maritime law office of Arnold & Itkin LLP toll free at 866-222-2606.

Recent Deepwater Horizon Rulings Address Key Issues In Litigation

Maritime Lawyer — Tue, 06 Sep 2011 10:48:54 -0600

United States District Judge Carl Barbier recently issued a broad order on pending motions to dismiss in the multi-district litigation arising out of the April 2010 loss of the Deepwater Horizon oil rig. (In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, MDL No. 2179 (E.D. La.))

The dismissal motions pertained to the court’s “B1” pleading bundle, which collects together over 100,000 individual claims for private economic loss and property damages. The B1 pleading bundle “master complaint” asserts claims against BP defendants and Transocean defendants, among others. The claims allege causes of action under the Oil Pollution Act of 1990 (OPA), various state laws, and general maritime law.

As described by the court, in their various motions the defendants sought to dismiss all claims brought pursuant to either general maritime law or state law, leaving only OPA-related claims.

In its extensive discussion resolving the dismissal motions, the court determined, among other things:

The Deepwater Horizon was at all material times a vessel in navigation.
Admiralty jurisdiction exists because the defendants' alleged torts occurred upon navigable waters of the Gulf of Mexico, disrupted maritime commerce, and the operations of the Deepwater Horizon bore a substantial relationship to traditional maritime activity.
Outer Continental Shelf Lands Act (OCSLA) jurisdiction is also present because the casualty occurred in the context of exploration or production of minerals on the Outer Continental Shelf.
Claims alleged under state law, whether statutory or common law, had to be dismissed because they were preempted by maritime law.
General maritime law claims that did not allege physical damage to a proprietary interest had to be dismissed under the Fifth Circuit’s “Robins Dry Dock” rule, unless they fell into an exception for commercial fishermen. In addition, OPA claims for economic loss need not allege physical damage to a proprietary interest, the court said.
OPA does not displace general maritime law claims against “non-Responsible” parties, while conversely, OPA does displace general maritime law claims against Responsible Parties, but only with regard to procedure (such as OPA’s presentment requirement).
Presentment under OPA is a mandatory condition precedent to filing suit against a Responsible Party.
There is no presentment requirement for claims against non-Responsible Parties.
Notably, the court ruled that claims for punitive damages are available for general maritime law claimants against Responsible Parties and non-Responsible Parties.

Trial in the case is scheduled for February 2012.

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, use the form on this page to contact a maritime attorney online at Arnold & Itkin LLP for a free consultationn or call our maritime law office toll free at 866-222-2606.

Coast Guard Investigates, Reports No Leakage From Deepwater Horizon Well Head

Maritime Lawyer — Sun, 28 Aug 2011 09:22:56 -0600

The United States Coast Guard reports that two remotely operated vehicles deployed to the Macondo 252 well head in the Gulf of Mexico have confirmed there is no oil leaking from the well head.

According to the agency, as part of the investigation into recent reports of sheen observed in the vicinity of last year's BP Deepwater Horizon oil spill, two ROVs were deployed to survey the well head. The ROVs conducted a full survey of the well head and vicinity, looking for evidence of leaking oil. Additionally, a zoom lens was used to examine both the well head and the base of the well head to look for smaller, less obvious signs of leakage. The ROV also visited the two relief well sites. No evidence of leaking oil was found.

Experts from the Coast Guard, National Oceanic & Atmospheric Administration, BOEMRE, DOI, and representatives from BP, as well as the State On-Scene Coordinators for Louisiana and Mississippi, viewed the live feed from the ROVs and agreed that nothing shown from the ROVs indicated any sort of leak from the well head.

The video and data collected by the ROVs was to be verified for accuracy once the vehicles were retrieved.

The Deepwater Horizon, a massive offshore oil rig leased to BP PLC, was drilling southeast of Venice, La., in 5,000 feet of water when it exploded April 20, 2010, after a well blowout. While most of the 126-member crew were fortunate to escape from the burning oil rig before it sank into the Gulf of Mexico, eleven rig workers died and 30 others were seriously injured. The accident also resulted in the largest marine oil spill in United States history.

To discuss a case with an experienced maritime lawyer, contact a maritime attorney online at Arnold & Itkin LLP, or call the maritime law office of Arnold & Itkin LLP toll free at 866-222-2606.

Break In Service Negated Seaman Status

Maritime Lawyer — Sat, 27 Aug 2011 10:48:31 -0600

A rig worker’s three-year hiatus from employment meant that his status as a seaman failed to carry over when he was injured while re-employed in off-vessel jobs.

Abram v. Nabors Offshore Corporation, No. 11-20166 (August 24, 2011) (per curiam) (unpublished)

In a summary calendar decision, the United States Court of Appeals for the Fifth Circuit affirmed a district court’s determination that a former seaman no longer qualified as such at the time he was injured while working for Nabors Offshore Corporation.

The evidence established that Ricky Abram worked for Nabors in various jobs on drilling rigs from 1994 until 2002, and again from 2005 until 2009. The testimony of Abram and his co-workers showed that his first period of employment was on jack-up drilling rigs. The testimony was silent as to whether he worked on those rigs from 2005 to 2009, his second period of employment.

Nabors, however, offered evidence supported by its personnel records which indicated that Abram did no work on vessels from 2005 to 2009. That was the relevant time period, the court said. In a prior case, for instance, the court had held that a mere four-month hiatus in employment was significant enough to require a separate evaluation of duties during a worker’s period of re-employment, for purposes of determining whether the employee qualified as a “seaman” when injured.

Because no evidence disputed the time periods and nature of Abram’s work in his 2005-2009 employment, he did not qualify as a seaman when he was injured. Unfortunately for Abram, this ultimately meant the district court did not err in granting summary judgment for Nabors on his Jones Act, general maritime law claims for the injuries he suffered while on the job.

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, contact a maritime attorney online at Arnold & Itkin LLP for a free consultation, or call our maritime law office toll free at 866-222-2606.

Houston Maritime Injury Attorneys Applaud Commercial Shrimping Safety Program

Maritime Lawyer — Wed, 24 Aug 2011 10:20:39 -0600

Houston maritime attorneys Kurt Arnold and Jason Itkin recently applauded an initiative to reduce deaths and injuries in the commercial shrimping industry by providing customized safety classes and training for Gulf shrimpers.

The program is the result of a partnership between the University of Texas Southwest Center for Agricultural Health, Injury Prevention and Education and the U.S. Coast Guard.

“We were gratified to learn of this partnership that is aimed at seeking ways to stem the tide of accidents and injuries among Gulf shrimp boat workers,” said Arnold, a founding partner of Arnold & Itkin LLP and an experienced Houston maritime accident attorney.

“We hope all Gulf shrimping firms will seek out this additional education and training for their working crews and managers,” Arnold said.

A study by the Southwest Center found that shrimping is the most dangerous job in commercial fishing. The Southwest Center’s director, Dr. Jeffrey Levin, reported drowning and becoming caught in machinery as the top two causes of commercial fishing deaths.

The outreach program, mentioned here earlier, has reached about 500 of the several thousand Gulf shrimp fishermen as of late July, according to the Associated Press.

“As maritime attorneys, we see the disabling injuries that are all too common among shrimpers and commercial fishermen of all kinds, as well as among other maritime crews,” said Itkin, a veteran Houston maritime injury lawyer and Arnold & Itkin LLP founding partner.

“Clearer communication and additional training is certain to be helpful. We applaud the partnership of the Southwest Center and the Coast Guard, and the initiative of those shrimpers who have already participated in the new program,” Itkin said.

Unfortunately, too many injuries and deaths on fishing boats are not the result of employee conduct but, rather, the result of boat owners’ and employers’ recklessness and negligence, Arnold said.

“When workers are injured because of negligence or recklessness, they or their families need to act quickly to contact attorneys who are well versed in maritime law, the Jones Act and other avenues for securing proper compensation for the costs, pain and suffering that catastrophic injuries entail,” Arnold said.

The maritime lawyers at Arnold & Itkin LLP, a Houston personal injury law firm, provide legal guidance on all aspects of maritime law and the benefits that offshore workers are entitled to under the Jones Act, the Death on the High Seas Act, the principle of maintenance and cure, or the Longshore and Harbor Workers’ Compensation Act.

Arnold & Itkin LLP handles maritime claims at port cities along the Gulf Coast in Texas, Louisiana, Mississippi and Alabama. The firm can be contacted toll free at (877) 398-4972 or using the firm's online form.

CRUISE Act Would Address Foreign Cruise Ships' Access To Domestic Ports

Maritime Lawyer — Sat, 20 Aug 2011 10:44:35 -0600

Proposed legislation introduced last month by U.S. Representative Blake Farenthold, of Texas, seeks to amend federal maritime law to address what Rep. Farenthold believes is an outmoded restriction on the ability of foreign cruise ships to call at United States ports.

Under current law, the Jones Act (Section 27 of the Merchant Marine Act of 1920) generally restricts foreign-flagged, -built and -crewed vessels from steaming directly between U.S. ports. Instead, in order to travel directly between domestic ports of call, cargo and passenger vessels must be U.S.-flag ships that were built in the United States and are owned by U.S. citizens or permanent residents. As originally enacted, the Jones Act restriction was intended to protect and support the United States maritime industry. It has come under criticism, however, by those who cite changed economic realities in the shipping industry.

Rep. Farenthold’s legislation, the Creating and Restoring U.S. Investment and Stimulating Employment Act (CRUISE Act)*, H.R. 2460, takes aim at perceived barriers to tourism-based economic development by allowing “operation of foreign-flag cruise ships in the coastwise trade of the United States.” The bill would, in essence, exempt foreign-flag cruise ships from the Jones Act restriction against making consecutive calls at U.S. ports.

According to media reports, Farenthold notes that in 2009 the cruise industry generated some 15,000 jobs and revenues of $788 million in Texas via the state's sole port now servicing cruise ships, in Galveston. The deepwater ports in Brownsville, Port Lavaca, and Corpus Christi are cited as other Texas ports that might benefit from receiving cruise ship visits if the changes proposed in the CRUISE Act are approved.

The Act would exclude a variety of vessels from its definition of exempted “passenger vessels.” These would include public vessels, those owned or operated by a state or local government, and those used for transportation between particular places on a regular schedule. The exclusions presumably address businesses such as domestic ferry operators, who have voiced concerns in the past in regard to Jones Act amendments that would open foreign shipping operations between domestic ports.

The CRUISE Act has been referred to the Committee on Transportation and Infrastructure.

For a free consultation regarding a maritime injury or other maritime claim, call a maritime accident lawyer at Arnold & Itkin LLP toll free at (877) 632-8168, or contact us online. Our maritime injury attorneys can advise you on all aspects of maritime law, including the Jones Act, the Longshore and Harbor Workers’ Compensation Act, the principle of maintenance and cure and the Death on the High Seas Act.

Shrimping Vessel Saved By Prompt Action On Part Of Crew, Coast Guard

Maritime Lawyer — Thu, 18 Aug 2011 10:21:51 -0600

The United States Coast Guard recently responded to a commercial shrimping vessel in distress off the Texas coast. The prompt action by the shrimp boat's crew in summoning aid, and the Coast Guard’s fast and effective response, prevented the vessel from sinking some 14 miles out to sea.

The Coast Guard’s rescue operation began when a radio call from the Odin’s crew indicated that the ship was taking on water through its propeller shaft in the pre-dawn hours on Sunday morning. A Coast Guard rescue helicopter was dispatched and reached the vessel within approximately 45 minutes. Two de-watering pumps were lowered, along with a rescue swimmer.

The pumps reduced the water level inside the shrimping vessel sufficiently to allow it to stay afloat while it was towed back to port by a sister vessel.

The pilot of the Coast Guard’s rescue helicopter praised the Odin’s crew for its prompt call for immediate assistance. “The crew of this boat did the right thing by using VHF-marine channel 16 to contact the Coast Guard early enough that it was still a controllable situation,” he said.

The dire situation facing the shrimping vessel Odin in the early morning darkness demonstrates yet again the substantial dangers that maritime workers face every day as they earn a living at sea. The crew of the Odin is to be commended for acting quickly to summon aid; their prompt action may have avoided injury or loss of life, as well as loss of the vessel itself.

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

We provide free consultations, and we can advise you on all aspects of maritime law and the benefits you are entitled to under the Jones Act, the Death on the High Seas Act, the principle of maintenance and cure, or the Longshore and Harbor Workers’ Compensation Act.

Deepwater Horizon Trial Charted

Maritime Lawyer — Wed, 17 Aug 2011 12:15:14 -0600

During the August monthly status conference in the pending Deepwater Horizon litigation, federal district judge Carl J. Barbier, of the United States District Court for the Eastern District of Louisiana, set out the likely schedule and format for trial proceedings anticipated to get underway early in 2012.

Judge Barbier related that trial should commence on February 27, 2012, as scheduled, with the action going forward in three phases. Phase one will be an “incident” phase that focuses on the facts surrounding the catastrophic blowout aboard the Deepwater Horizon drilling rig, as well as the ensuing fiery blast, the loss of the oil rig, and the enormous release of oil into the Gulf of Mexico. That phase could last as long as several months.

The second phase of trial will start after an intermediate break, and will see the court and the parties address the amount of oil spilled during the Deepwater Horizon catastrophe. Also at issue will be establishing and allocating responsibility among the defendants for bringing the gushing Macondo well under control and ultimately stopping the flow of oil into the marine environment.

The third and final phase of the trial proceedings will resolve all other pending issues, including issues pertaining to cleanup efforts in which parties and others sought to contain, break up, and collect the spilled oil.

Also to be litigated during trial is the issue of whether defendant Transocean can limit the amount of its liability to claimants under maritime law.

If you have any questions regarding a maritime incident or have suffered a maritime injury, contact a maritime attorney online at Arnold & Itkin LLP for a free consultation or call our maritime law office toll free at 866-222-2606.

Eleventh Circuit Sets Out "Borrowed Servant" Standard In LHWCA Actions

Maritime Lawyer — Wed, 10 Aug 2011 12:57:25 -0600

The United States Court of Appeals for the Eleventh Circuit recently addressed its standard for determining whether a borrowed-employment relationship exists in cases arising under the Longshore and Harbor Workers' Compensation Act.

Langfitt v. Federal Marine Terminals, Inc., No. 10-12088 (11th Cir. July 29, 2011) (Tjoflat, J.)

Bruce Langfitt worked as a temporary day laborer for labor broker Able Body Temporary Services, Inc..

Able Body supplied Langfitt and other employees to Federal Marine Terminals, Inc. (FMT), which needed assistance at a longshoring facility in Florida.

Langfitt was seriously injured while performing longshoring services for FMT.

As compensation for his injury, Langfitt received Longshore and Harbor Workers’ Compensation Act (LHWCA) benefits from Able Body’s LHWCA insurer. It was undisputed that Langfitt was engaged in maritime employment when he was injured, and so he was eligible for LHWCA compensation for the injury received while he was supplied to FMT for longshoring work.

Seeking to supplement his LHWCA benefits, Langfitt sued FMC, contending that he was injured by the negligence of one of FMT’s employees.

FMT responded that it was Langfitt’s employer for purposes of LHWCA, which meant that LHWCA benefits were the sole remedy that he was entitled receive. FMT cited LHWCA § 905(a), LHWCA’s exclusive remedy provision. 33 U.S.C. § 905(a).

The federal district court in Florida agreed and granted summary judgment in favor of FMT.

The United States Court of Appeals for the Eleventh Circuit affirmed, holding that FMT was Langfitt’s “borrowing employer” for purposes of LHWCA, so that his negligence claim was barred by § 905(a).

In an extended discussion of the law governing who qualifies as a LHWCA “employer” in cases like Langfitt’s, the Eleventh Circuit observed that its approach has been to apply the common law borrowed-servant doctrine, with modifications that accommodate important policy concerns unique to LHWCA.

Under the borrowed servant doctrine, an employee who is directed or allowed to perform services for another may become the employee, or “borrowed servant,” of the other (the “borrowing employer”), with the borrowing employer being held liable to third parties on account of the borrowed servant’s negligence in the scope of the borrowed-employment relationship.

The same considerations that determine whether someone was an employee, rather than an independent contractor, guide the borrowed-servant analysis, the court said, except that the focus is which of the two potential employers had the right to control the worker’s performance.

In cases arising under LHWCA, the focus is even more limited than at common law. The borrowed-servant doctrine is applied in the LHWCA context only to assess whether an employee covered under the Act, and injured in the course of employment, was a borrowed servant at the time of injury. Where this is found to be true, the term “employer” in the Act encompasses the borrowing employer, with the result that the borrowing employer is liable to the employee for LHWCA benefits but remains immune from tort liability under the LHWCA exclusive remedy provision.

According to the Eleventh Circuit, the borrowed-servant doctrine had to be restated in LHWCA cases. A restatement of the doctrine was necessary because LHWCA represents a statutorily imposed “industrial bargain,” like all workers’ compensation laws. Under the bargain, the covered employee gives up the right to sue the employer for negligence, and thus loses the possibility of a more significant damages award from the employer; the employer, for its part, loses its common law defenses available in employee negligence actions. The benefits are that the employee receives more certain compensation for injuries arising from the employment, regardless of fault; the employer, in turn, avoids litigation expenses and pays only scheduled LHWCA benefits.

That bargain, according to the court, meant that for purposes of the borrowed-servant doctrine, the issue was not only whether a borrowing principal assumed control over an employee from his or her general employer, but also whether the employee gave deliberate and informed consent to the borrowed-employment relationship. Only then could the relationship result in a bar to the employee’s common law tort claims.

The court distilled its analysis to an express statement of the standard for determining whether a borrowed-employment relationship exists in cases arising under the LHWCA:

When a general employer transfers its employee to another person or company, the latter is the employee’s borrowing employer for purposes of the LHWCA, and thus is liable for the Act’s compensation and has the benefit of the Act’s tort immunity, if each of the following three criteria is satisfied:

Employee Consent to the New Employment Relationship. The employee must be shown to have given deliberate and informed consent to the new employment relationship with the borrowing principal. The test is objective, and the employee’s consent may be shown to have been given either expressly or impliedly.

Borrowing Principal’s Work Being Done. The work being performed by the employee at the time of the injury must be shown to have essentially been that of the borrowing principal—that is, that it was primarily the borrowing principal’s interests that were being furthered by the employee’s work.

Borrowing Principal Assumed Right to Control the Details of Employee’s Work. The borrowing principal must be shown to have received, from the employee’s general employer, the right to control the manners and details of the employee’s work. This might be evidenced by: (a) an express agreement between the general employer and the borrowing principal that directly evidences a transfer of control over the employee to the borrowing principal; (b) the borrowing principal’s actual exercise of control; (c) the borrowing principal’s furnishing of the equipment and space necessary for the employee to perform the work; (d) the borrowing principal’s right to terminate the employee’s relationship with the borrowing principal; and (e) the method and obligation of payment for the employee’s services.

In Langfitt’s case, the court concluded that the elements of the analysis were met. Working for a labor broker, Langfitt knew that he would be assigned to new work situations on a regular basis, and this implied his consent to working under the control of Able Body’s clients. Likewise, here Langfitt’s assignment to the FMT job was voluntary, and one which he willingly accepted.

The “control” element also was satisfied, as Able Body expressly ceded authority to control Langfitt to FMT for purposes of the longshoring operations. FMT also could terminate Langfitt’s employment with FMT, it furnished the place for performance of FMT’s work, and it was obligated to compensate FMT for his work. The record showed, too, that FMT actually did exercise control over Langfitt’s work.

Thus, because all the elements necessary for a borrowed-employment relationship were met, the district court did not err in concluding that FMT was Langfitt’s borrowing employer for purposes of LHWCA and that, consequently, Langfitt’s negligence claim was barred by 33 U.S.C. § 905(a).

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, use the form on this page to contact a maritime attorney online at Arnold & Itkin LLP for a free consultation, or call our maritime law office toll free at 866-222-2606.

Study To Address Worker Safety In Offshore Renewable Energy Operations

Maritime Lawyer — Sat, 06 Aug 2011 15:38:30 -0600

The Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) has announced the start of a new study that will focus on regulating worker safety in the rapidly expanding offshore renewable energy field.

According to its August 1 announcement, the federal bureau has engaged the National Research Council’s Marine Board to carry out the study, which will consider worker safety issues in connection with offshore renewable energy operations on the Outer Continental Shelf (OCS). The study should be completed within one year, no later than the end of July 2012.

BOEMRE indicates that the study will identify particular hazards in the offshore energy operations workplace, including a variety of risks associated with construction and maintenance of offshore wind turbines. At its conclusion the study is to identify areas not adequately addressed in current regulations, and make recommendations on means of enhancing workplace safety regulation.

“We are committed to ensuring that offshore energy development is conducted safely,” said BOEMRE Director Michael R. Bromwich. “The results of this study will enhance and enlarge our understanding of the potential risks faced by workers during construction and operation of renewable energy facilities on the OCS.”

The maritime injury attorneys at Arnold & Itkin LLP applaud all efforts to improve worker safety in offshore energy operations, whether in the field of renewable or non-renewable energy production.

Working in the offshore energy field is an inherently dangerous job. The developers, owners and operators of offshore renewable energy sources are obliged to ensure that they adopt the best procedures, and provide the best equipment, to prevent accidents and preserve the health and lives of their workers. As has been demonstrated all too often in the offshore oil industry, when that doesn’t happen, it is the workers and their families who suffer the consequences.

In some cases, offshore workers’ injuries may be covered under the Jones Act, a federal law that protects seamen who are injured or killed on the job due to the negligence of their employers. While Jones Act settlements can assist families in coping with the injuries and pain and suffering that accompany accidents at sea, preventing accidents by maintaining rigorous workplace safety is always the best “remedy” for Gulf Coast workers.

Employer's Contribution Liability On Defendants' Third-Party Admiralty Claims Was Not Restricted By Its Workers' Compensation Exposure To Injured Employee

Maritime Lawyer — Thu, 04 Aug 2011 18:32:22 -0600

In re RQM, LLC, No. 10 CV 5520 (N.D. Ill. July 26, 2011) (St. Eve, J.) (Memorandum Opinion)

Scot Vandenberg’s employer, Trace Ambulance, Inc., sponsored an event on a motor yacht that it chartered from RQM, LLC. Vandenberg was seriously injured when he fell from an upper deck of the yacht. As a result, Vandenberg and his wife brought personal injury claims against RQM and the motor yacht’s manufacturer, Brunswick Corporation, in state court.

RQM filed suit in the United States District Court for the Northern District of Illinois, seeking to eliminate or limit its liability to the Vandenbergs pursuant to the Shipowners’ Limitation of Liability Act, 46 U.S.C. §§ 30505, et seq. The Vandenbergs responded by asserting negligence and strict liability claims against Brunswick in the federal proceeding, as well as negligence claims against RQM.

Both RQM and Brunswick filed third-party admiralty or maritime claims against Trace, seeking contribution or indemnification in the event they were found liable to the Vandenbergs.

Trace responded that it could not be liable to RQM and Brunswick for any amount beyond its liability under state workers’ compensation law (the Illinois Workers’ Compensation Act). Trace cited an Illinois Supreme Court decision which held that an employer could not be found liable for contribution in an amount that exceeded its workers’ compensation exposure.

RQM and Brunswick moved to strike Trace’s defense, which they said ran afoul of federal admiralty law by limiting their contribution claims. The federal district court agreed.

A prime benefit of applying federal law in admiralty is uniformity, the court observed. And while state remedies are not automatically preempted by admiralty law, a state may not modify or supplement maritime law if it does so in a way that clearly conflicts with admiralty law.

As pertinent here, the Supreme Court had created a nonstatutory right of contribution in admiralty cases. Under the admiralty law’s comparative fault system, damages are allocated among multiple tortfeasors according to the determined liability of each.

Thus, to cap contributions from third-party defendant employers such as Trace would deprive RQM and Brunswick of substantial admiralty rights, namely the full extent of their proportionate liability. This meant that Trace’s attempt to limit its liability to the amount of its workers’ compensation liability necessarily failed.

The court therefore struck Trace’s maritime defense in the ongoing federal proceedings under the Shipowners’ Limitation of Liability Act.

To discuss a case with an experienced maritime lawyer, contact a maritime attorney online at Arnold & Itkin LLP, or call the maritime law office of Arnold & Itkin LLP toll free at 866-222-2606.

Fifth Circuit: Damaged Jacob's Ladder Violated Ship Owner's Turnover Duty

Maritime Lawyer — Tue, 02 Aug 2011 11:00:29 -0600

No exception to turnover duty existed where crack in ladder's rung was not “open and obvious” danger.

McCuller v. Nautical Ventures, L.L.C., No. 09-31084 (5th Cir. July 28, 2011) (per curiam) (unpublished)

Benjamin McCuller worked for Halliburton Energy Services as a longshoreman at a marine terminal in Louisiana. In order to board the docked vessel C-Legend, owned by Nautical Ventures, L.L.C., McCuller was required to use a Jacob’s ladder deployed by the C-Legend’s crew.

After using the Jacob’s ladder several times, McCuller was descending the ladder when a rung snapped. McCuller fell to the dock, sustaining knee and back injuries.

McCuller and his wife sued Nautical under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 905(b), for breach of Nautical’s “turnover duty.” The turnover duty requires a vessel owner to exercise ordinary care under the circumstances to turn over the ship and its equipment in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property.

Upon trial, the United States District Court for the Eastern District of Louisiana found that Nautical had breached its turnover duty by deploying a defective Jacob’s ladder, which had been damaged several weeks earlier.

The court awarded damages to the McCullers for Benjamin’s lost wages, pain and suffering, and medical expenses, and for the loss of consortium.

The court rejected the couple’s damage claims for the loss of Benjamin’s household services and for the cost of in vitro fertilization. The McCullers sought the latter on the ground that one of Benjamin’s surgeries rendered him incapable of producing sperm.

Because McCuller was holding a clipboard while climbing down the Jacob’s ladder, the court found him thirty percent at fault in his accident. The court reduced the damage award proportionately.

Nautical appealed, arguing that the danger of the damaged Jacob’s ladder was open and obvious, so that McCuller should have seen the danger himself, and there was no duty to warn him about the risk of injury.

The Fifth Circuit concluded that the district court did not err in finding that the dangerous condition of the ship’s Jacob’s ladder was not “open and obvious.” While there does exist such an exception to the turnover duty, it did not apply here.

In essence, as the district court concluded, the damaged condition of the ladder would not have been open and obvious to McCuller. He had no experience climbing Jacob’s ladders, and the ladder in question belonged to the C-Legend and was deployed by its crew. McCuller would not have known what to look for even if he had a duty to inspect the ladder before using it, and the small crack in the rung that led to the accident would not necessarily have been something that McCuller would focus on as likely to cause the rung to fail. It was Nautical Ventures’s duty to inspect its own ladder before deployment.

Likewise, the court said, McCuller’s focus was on climbing the ladder while it was hanging from the side of a docked ship, so that what was open and obvious to him, from that position, was not what would have been open and obvious to a ship’s crewman during a reasonable inspection of the ladder while it was laid out on the ship’s deck.

The court likewise rejected Nautical’s attempt to lay blame for the accident with Halliburton as McCuller’s stevedore-employer. While a stevedore does have a duty to provide a reasonably safe place to work, that duty was not so expansive that stevedores had to thoroughly inspect and discover non-obvious dangers on a vessel, the court admonished. Here, Halliburton had no duty to inspect the C-Legend in such a way that it would discover a small crack in one of the rungs of the ship’s Jacob’s ladder.

Turning to the McCullers' claims on appeal, the court observed that they challenged the district court’s finding that Benjamin was thirty percent at fault for his injuries, and they disputed certain components of the damages award.

The court affirmed as to the district court’s finding that McCuller was partially at fault. The district court heard Benjamin’s explanation about how he came down the ladder, and there was evidence that Halliburton’s safety protocol did not authorize carrying the clipboard and that doing so was unsafe.

The district court did err, however, in awarding damages for future medical expenses. While both sides vigorously disputed the maximum amount that should be awarded for the McCullers’ future medical expenses, the minimum amount cited by Nautical’s experts was $400,000. The district court awarded only $100,000, with no explanation as to why the award was substantially below even the lowest cost projected by the parties’ experts. The discrepancy required that the award be vacated and the issue remanded for further proceedings.

As to the McCullers’ requests for damages for loss of household services and in vitro fertilization, the district court did not err by not awarding such damages. The couple claimed that Mrs. McCuller had to perform household chores after McCuller’s injury, but Nautical introduced evidence that Benjamin could engage in activities that involved standing, bending, squatting and climbing, so that he still could do chores around the house as he had done before he was injured.

The evidence also supported the district court’s conclusion that it was highly speculative that the McCullers required medical assistance to conceive another child due to McCuller’s injuries. Evidence of record indicated that the couple had suffered from fertility problems before the injury.

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Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, contact a maritime attorney online at Arnold & Itkin LLP for a free consultation using the form on this page, or call our maritime law office toll free at 866-222-2606.

Texas Maritime Attorneys Applaud Efforts To Improve Oil Safety Regulations

Maritime Lawyer — Wed, 27 Jul 2011 12:18:57 -0600

The Deepwater Horizon disaster should be a lesson that the industry needs better laws to protect offshore workers, say Houston maritime lawyers Kurt Arnold and Jason Itkin.

Federal officials continue to negotiate proposed changes to safety regulations governing the oil industry a year after the BP Deepwater Horizon disaster ended, according to a recent article in the New Orleans Times-Picayune.

Michael Bromwich, head of the Department of Interior’s Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), said that broad changes to the laws are needed to create safer drilling and prevent future catastrophes.

Among others, the changes include strengthening requirements for the construction of subsea blowout preventers – the same equipment that malfunctioned in the Deepwater Horizon incident and triggered the largest oil spill in the history of the petroleum industry.

Houston maritime attorneys Kurt Arnold and Jason Itkin say they applaud Bromwich’s effort.

“Eleven offshore workers died in that spill, and even more were injured,” says Arnold, whose law firm represents workers who are injured in maritime accidents. “Although the BP disaster was the most highly publicized, scores of other Gulf Coast oil workers put themselves at risk for serious and fatal accidents every day.”

Working on rigs is an inherently dangerous job. It's the responsibility of owner-operators and contractors to make sure the best equipment and procedures are in place to prevent accidents and preserve human life, adds Itkin, who also handles cases involving injured offshore workers.

“But sadly, proper maintenance sometimes falls by the wayside in an effort to save money,” Itkin says. “It’s the workers and their families – not the oil companies – who are left to suffer the everyday consequences when those preventable accidents happen.”

In some cases, offshore workers’ injuries may be covered under the Jones Act, a federal law that protects seamen who are injured or killed on the job due to the negligence of their employers.

“Jones Act claims are similar to workers’ compensation claims in many ways, but the amount awarded to successful claimants is often much higher than you would find in a workers’ comp case,” Arnold says.

Itkin says that Jones Act settlements can help families cope with the injuries and pain and suffering caused by an accident and help Gulf Coast workers begin to rebuild their lives.

“Hopefully BOEMRE will be able to find common ground among members of Congress and industry representatives so that more stringent requirements prevent offshore workers from injuries altogether,” Itkin says.

The Gulf Coast offshore injury lawyer adds that the key to coming up with a good compromise will be making sure that independent, impartial parties conduct investigations when offshore accidents happen.

“Attorneys need the best, most unbiased research they can find when collecting information for clients who are injured in Gulf Coast oil rig accidents,” he explains.

“Political infighting will be an obstacle that BOEMRE will have to overcome in order to develop and enhance safety regulations for its workers, but the ultimate outcome could assist attorneys who want to make sure that their injured clients receive compensation for offshore accidents.”

Arnold says that contacting an experienced personal injury attorney is crucial for families and offshore workers who have suffered in offshore accidents.

“Laws governing the oil industry are complex, and they are on the cusp of some potentially serious changes,” Arnold says. “Clients will be best served by having lawyers who have their fingers on the pulse of the oil industry.”

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, contact a maritime attorney at Arnold & Itkin LLP for a free consultation using the form on this page, or call our maritime law office toll free at 866-222-2606.

Non-Combat Zone Wages Were Measure Of Earning Capacity During Worker's Break From War Zone Jobs

Maritime Lawyer — Sat, 23 Jul 2011 09:56:18 -0600

Reduced wages earned in non-combat zone were best measure of worker’s earning capacity where injury occurred during voluntary hiatus from hazardous war zone employment.

Luttrell v. Alutiiq Global Solutions, BRB No. 10-0555 (June 20, 2011) (per curiam)

Michael Luttrell was injured while working as a security officer on a United States Army Atoll in the South Pacific. For the previous twelve years, Luttrell had worked overseas in various jobs involving security and police functions. At the time of his injury, however, he was on a temporary break from employment in hazardous areas.

In proceedings before an administrative law judge (ALJ) on Luttrell’s claim for benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq., the only issue was determining Luttrell’s average weekly wage for purposes of establishing the amount of his temporary total disability benefits.

The ALJ concluded that the proper rate of pay was the amount that Luttrell was earning under his employment contract at the time of his injury on the Atoll. The ALJ noted that Luttrell was injured while working under a one-year contract at a different type of job than his former employment and “under drastically different conditions, than he had done earlier, or than he might have done later.”

Luttrell appealed, arguing that the ALJ's computation did not accurately reflect his earning capacity. Luttrell assertethat he was actually offered post-injury employment in Bahrain at a much higher average weekly wage than the amount he earned at the time of his injury. The record below also indicated that he had earned over $82,000 per year during the 52 weeks preceding his work injury.

The Benefits Review Board (BRB) concluded that Luttrell’s average weekly wage was properly computed by the ALJ. Among other things, the ALJ’s average weekly wage finding was consistent with BRB opinions embracing the notion that a claimant’s higher wages for work in a combat zone are a proper framework for calculating average weekly wages under LHWCA § 910(c).

The purpose of LHWCA § 910(c) is to arrive at a sum that reasonably represents a claimant’s annual earning capacity at the time of his injury, the BRB observed. In this instance, the facts of Luttrell’s case were the “mirror image” of war zone cases. Unfortunately for Luttrell, this made it appropriate to determine his average weekly wage based on his lower-paying work overseas, which he took after voluntarily choosing to leave his higher-paying work in the Middle East.

The BRB therefore affirmed the ALJ’s finding that the wages Luttrell earned in the South Pacific, a non-combat zone, were the best measure of his earning capacity at the time of his injury.

District Court Considers Preclusive Effect Of LHWCA Special Fund Proceedings

Maritime Lawyer — Fri, 22 Jul 2011 08:35:43 -0600

District Director’s findings on injured worker’s average weekly wage and disability had no preclusive effect in worker’s suit alleging maritime tort.

Landry v. G.C. Constructors, No. 10-CV-25 (S.D. Miss. July 18, 2011) (Guirola, Jr., C.J.)

Brian Landry was an injured worker covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA).

When Landry reached maximum medical improvement, his employer, G.C. Constructors, and its insurance carrier applied to the District Director for relief under 33 U.S.C. § 908(f) regarding Landry’s permanent total disability benefits.

Under LHWCA’s aggravation rule, if an employment injury aggravates or otherwise combines with a worker’s previous underlying condition, the employer is liable for the full scope of the employee’s total resulting disability. When certain conditions are met, however, Section 8(f) limits the employer’s compensation liability, with any additional compensation being paid from the “special fund” established under LHWCA.

Here, C.G. Constructors and its insurance carrier were able to demonstrate that Landry had a pre-existing permanent partial impairment to his body, which contributed to his current permanent and total disability. The District Director therefore found that § 8(f) applied and the special fund would have liability for Landry’s benefits after a specified date. The District Director issued a Compensation Order - Award accordingly.

In his later maritime negligence action against G.C. Constructors, Landry sought a determination that certain facts were established when the District Director issued the Compensation Order - Award under Section 8(f). These included the amount of Landry’s average weekly wage and that he was totally and permanently disabled.

The United States District Court for the Southern District of Mississippi disagreed.

The issue was the preclusive effect of findings made in LHWCA proceedings. There was no case law addressing the matter, the court said, but it found two cases somewhat helpful. In one of the cases, a Louisiana federal district court refused to accept findings from a LHWCA benefits hearing as preclusive on the scope of a worker’s injuries. In the other case, the United States Court of Appeals for the Fifth Circuit concluded that an injured seaman’s settlement of his LHWCA benefits claim barred his later claim against the vessel that served as his employer.

An important distinction was that neither of those cases involved a Section 8(f) application, the court said here. In a Section 8(f) proceeding, the employee and employer are not adversaries to the degree that would be expected in a traditional benefits proceeding. The worker’s interest is minimal and can even align with that of the employer, who seeks recovery of special funds versus the Director’s goal of protecting the special fund from spurious claims. This ultimately meant that facts in a Section 8(f) proceeding might not be truly “litigated and decided,” an important characteristic for findings that are to be accepted as the basis for issue preclusion in a later adjudication.

Based on its analysis, the district court denied Landry's request that the District Director's findings in the earlier LHWCA special fund proceeding govern for purposes of his maritime tort case.

Deepwater Horizon RICO Claims Dismissed

Maritime Lawyer — Tue, 19 Jul 2011 20:17:35 -0600

The United States District Court for the Eastern District of Louisiana recently issued new orders in the multi-district litigation arising out of the fiery sinking of the BP Deepwater Horizon drilling rig in April of 2010.

One of the Court's July 15 orders dismissed Racketeer Influenced and Corrupt Organizations Act (RICO) claims asserted against the BP defendants in the litigation. Certain plaintiffs accused BP of defrauding government regulators "in connection with the safety of its drilling operations, its ability to respond to any oil spill, and its response to the spill at the Macondo Well." According to the Plaintiffs, the oil spill, and their resulting injuries, stemmed from BP's fraud against government regulators.

Presiding federal district judge Carl J. Barbier agreed with the BP defendants' argument that the RICO claims were not supported by proximate causation. The Court ruled that the Plaintiffs failed to allege a sufficient link between BP's alleged defrauding of regulators and the economic harms that the Plaintiffs ultimately suffered.

The dismissal of the RICO allegations does not affect the numerous other claims that remain pending against BP after the horrific accident, which resulted in deaths and injuries among the Deepwater Horizon's crew and the worst marine oil spill in U.S. history.

Also on July 15, the Court granted BP's motion to stay proceedings on claims asserted against the company by one of its partners in the Deepwater Horizon Macondo Well, Anadarko. The Court concluded that an arbitration provision in the joint operating agreement between BP and Anadarko applied, and that BP had not waived its right to compel arbitration. Thus Anadarko's claims against BP had to be stayed for the time being to allow arbitration proceedings to go forward.

To discuss a case with an experienced maritime lawyer, contact a maritime attorney online at Arnold & Itkin LLP, or call the maritime law office of Arnold & Itkin LLP toll free at 866-222-2606.

Benefits Review Board Reviews LHWCA Claimant's Illegal Earnings

Maritime Lawyer — Sun, 17 Jul 2011 12:47:14 -0600

The Benefits Review Board concludes that a LHWCA claimant's earnings from illegal activity are not evidence of suitable alternative employment, but that a claimant who fails to report such earnings faces forfeiture of benefits.

Young v. Newport News Shipbuilding and Dry Dock Co., BRB No. 10-0678 (June 22, 2011) (per curiam)

Randolph Young injured his knees in the early 1980s while working for Newport News Shipbuilding and Dry Dock Company. An administrative law judge (ALJ) awarded permanent total disability benefits.

Years later, an ALJ issued a stay of compensation order because Young had been incarcerated, apparently after pleading guilty to drug charges.

After Young was released from prison in early 2004, an ALJ lifted the stay of payments, finding that Young still suffered symptoms from his work-related knee injuries. The ALJ rejected the employer's argument that Young's testimony about his symptoms was not credible in light of his criminal conduct. The ALJ distinguished Young's discredited, inaccurate testimony about his criminal activities from his testimony about his medical symptoms, which the ALJ found reliable.

When evaluating Young's physician-imposed work restrictions, the ALJ rejected an assertion by Newport News that Young's illegal activity (in addition to his maintenance job while in prison and his singing in churches at funerals) constituted suitable alternate employment. The ALJ ultimately awarded Young permanent total disability benefits under LHWCA through June 2007, when Newport News established suitable alternate employment. Thereafter Young received an award for partial disability.

The ALJ rejected Newport News's contention that Young's benefits were subject to forfeiture under LHWCA Section 8(j) on the ground that Young failed to report as "income" the earnings from his criminal activity between 1993 and 1996. According to the ALJ, any "income" from such activity did not have to be reported on the LS-200 Report of Earnings form because it was not earnings from employment or self-employment, and it was not included in the regulatory definition of "earnings" found at 20 C.F.R. § 702.285(b).

On appeal to the Benefits Review Board (BRB), the BRB concluded in pertinent part that the fact of a criminal conviction does not negate a claimant's right to benefits or require an ALJ to discredit the claimant's testimony in its entirety. Rather, evidence of a claimant's conviction may be offered to impeach credibility in the customary way.

Here, the ALJ was within his discretion in finding Young's testimony about his knee symptoms credible, where medical records showed that over a span of more than 25 years Young had consistently complained about his knees.

As to the extent of Young's disability, the ALJ correctly found that Young's illegal activities did not constitute suitable alternate employment. The illegal activities were not work available on the open labor market. In Licor v. Washington Metro. Area Transit Auth., 879 F.2d 901 (D.C. Cir. 1989), the court held that any illegal income a claimant may have earned was not an appropriate basis for determining wage-earning capacity. Thus it was proper for the ALJ to determine that any illegal income Young earned was not indicative of suitable alternate employment available on the open labor market.

The ALJ erred, however, in concluding that Young did not have to report any earnings from his illegal activities. For purposes of an employer's request that a claimant report post-injury earnings under Section 8(j), earnings is defined in the supporting regulations as all monies received from any employment, including all revenue from self-employment. That definition was sufficiently broad to include any earnings from a LHWCA benefits claimant's illegal activity.

The court distinguished Licor, observing that that case concerned the extent of a claimant's loss of wage-earning capacity using jobs found on the open market of legal employment, as opposed to earnings from illegal conduct. Licor could not be extended to Section 8(j).

Because the ALJ made no finding about Young's earnings from his illegal activities, the action had to be remanded for findings of fact on that issue, and whether Young's benefits were subject to forfeiture under Section 8(j).

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.