Saturday, July 24, 2010

Illegal Immigration and Longshore

Bollinger Shipyards, Inc. v Director, Office of Workers’ Compensation Programs,  the court considered whether Jorge Rodriguez, an undocumented immigrant was entitled to benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA).

The employer asserted that the injured worker was not entitled to benefits since his “injury caused him no loss of wage-earning capacity because he had no legal wage-earning capacity at the time he was injured.” The court disagreed and upheld the ALJ’s ruling-that Rodriguez was entitled to receive benefits under the LHWCA.

The court reasoned “The remedy provided by the LHWCA is merely a substitute for the negligence claim that an employee could otherwise bring against his employer in tort. As one court has observed, “it would not only be illogical but it would also serve no discernable purpose to accord illegal aliens the right to bring affirmative claims in tort for personal injury but deny them the right to pursue the substitutionary remedy for personal injuries sustained in the workplace.”

They granted Mr Rodrigues Longshore benefits and emphasized 1) Longshore is a non-discretionary remedy
2) Longshore was enacted as a substitute for tort claims, and
3) Longshoree xpressly provides for the award of benefits to nonresident aliens.

Saturday, July 17, 2010

Ferry Worker for State Transportation District Denied LHWCA Benefits

Gale Wheaton was a ferry repairman and mechanic for the Golden Gate Bridge, Highway & Transportation District (“District”) who suffered a back injury working aboard a vessel on navigable waters.

The ALJ found that the District was a subdivision of the State of California and therefore was excluded from coverage. On appeal the parties agreed that the District is not an arm of the state entitled to the protections of the Eleventh Amendment nor entitled to state sovereign immunity from federal claims. They also agree that, under California law, the District has the status of a local public agency such as a county or municipality.

In Tyndzik,v Director OWCP the 9th Circuit held the University of Guam was not a subdivision of a state under LONGSHORE. The University was created by the legislature, had a Board of Regents appointed by the legislature, and had a budget controlled by the legislature. However, it held the University was not a subdivision of Guam because the Guam government did not otherwise control the University, and the University could not perform basic government functions on its own, viz., take property by eminent domain, enact ordinances, or impose taxes.

The court upheld the ALJ’s determination, affirmed by the Board, that the District is a subdivision of the state as reasonable. And thus gave no cover under LONGSHORE due to the government exclusion.

Friday, July 9, 2010

The Power of the Ex Mod in Longshore

Experience modifiers and Longshore are a mystery to most.
Close to 2/3rds of the total Longshore payroll across the country is not reported to the rating authorities or counted in the experience mod. . . . How so? you ask.

The simplest example is California - WCRIB require the reporting of Longshore payroll and claims but DO NOT include it into the calculation of their mod. . . I have no idea why.

Also, look at the MUTUAL and SURPLUS LINES carriers that write LONGSHORE; best estimate is that between them they make up almost half the Longshore payroll (and claims) but do not report to NCCI.

It is absolutely worth the effort to correct this.

Filing the missing data with NCCI for a particular client recently dropped their mod from 1.10 to 0.75. They were insured by a carrier that does not report to NCCI for the LONGSHORE.

Not only did this save them some $50K or so on their state act premium this year, but it gave them a true mod to tell their customers. . . a very powerful message in today's competitive market. Last, but by no means least, the account suddenly becomes more attractive to new markets! Great effect for what was basically a bunch of paperwork.

Oh I forgot, the mod went down for 3 years, and save them well over $100K over the 3 years!