If you are a contractor who has been injured on the job while working overseas in Iraq, Afghanistan or on any military base across the world, your case is covered by the Defense Base Act which is an extension of the Longshore and Harbor Workers’ Compensation Act. At the Law Offices of Gillis, Mermell & Pacheco, P.A., we have a combination of over 43 years of experience in representing injured workers covered by the Defense Base Act and the Longshore and Harbor Workers’ Compensation Act. Let us put our years of experience and our reputation to work for you today! Contact us today at mail@gmpcomplaw.com, or go on our website at www.dbalawyers.com and fill out our form on the contact us page, or call us at 305 595 3350.
Here are some very interesting facts and case summaries regarding Settlements in a DBA or Longshore case coming directly from the Longshore Deskbook from the Benefits Review Board. The Longshore Desk Book is a searchable website which is a public record. According to the Longshore Deskbook:
Section 8(i) provides the requirements for the settlement of claims under the Act. This provision was substantially amended by the 1984 Amendments, following which the Department of Labor promulgated new regulations, effective January 31, 1986. 20 C.F.R. §§702.241, 702.242, 702.243.
Section 8(i) is the only means for compromising an employer’s obligation to pay benefits under the Act, creating an exception to Section 15(b), which states, “No agreement by an employee to waive his right to compensation under this Act shall be valid,” 33 U.S.C. §915(b), and Section 16, which provides that no assignment, release, or commutation of compensation and benefits is valid except as provided in this Act, and that all such benefits are exempt, without possibility of waiver, from claims of creditors and attachment or any other remedy to recover or collect a debt.
Prior to the 1984 Amendments, Section 8(i)(A) provided that whenever the deputy commissioner determined that it was in the “best interests” of an employee, he could approve a settlement discharging employer’s liability for compensation notwithstanding the provisions of Sections 15(b) and 16. Section 8(i)(B) allowed the Secretary to approve settlements of medical benefits notwithstanding Section 16 where it was in the best interests of the employee. Under Section 8(i)(B), only the Secretary, or her designee, had the authority to approve a settlement of medical benefits. Marine Concrete v. Director, OWCP, 645 F.2d 484, 13 BRBS 351 (5th Cir. 1981), aff’g Ladner v. Marine Concrete, 12 BRBS 742 (1980). Also, under the pre-1984 Act, a claim for death benefits under Section 9 of the Act could not be settled. S. H. DuPuy v. Director, OWCP, 519 F.2d 536, 2 BRBS 115 (7th Cir. 1975), cert. denied, 424 U.S. 965 (1976).
Section 8(i), as amended, expressly includes “any claim for compensation under this Act, including survivors benefits,” and allows the deputy commissioner/district director or administrative law judge to approve all settlements, including compensation, survivors’ benefits, and future medical benefits. The amended provision also eliminated the “best interests” standard, providing for the approval of settlements unless inadequate or procured by duress.
Specifically, Section 8(i)(1) provides
Whenever the parties to any claim for compensation under the Act, including survivors benefits, agree to a settlement, the deputy commissioner or administrative law judge shall approve the settlement within thirty days unless it is found to be inadequate or procured by duress. Such settlement may include future medical benefits if the parties agree.
33 U.S.C. §908(i)(1). The section further states that no liability of any employer or carrier is discharged unless the settlement is approved and, if the parties to the settlement are represented by counsel, the agreement shall be deemed approved unless specifically disapproved within thirty days after submission for approval. The regulations contain specific provisions delineating the beginning and ending times for this 30-day period. 20 C.F.R. §702.241(b)-(d),(f).
Section 8(i)(2) states that where the deputy commissioner disapproves an application for settlement, he must issue a written statement within 30 days stating the reasons for the disapproval. Any party to the settlement can then request a hearing before an administrative law judge, after which the judge must enter an order approving or rejecting the settlement. See 20 C.F.R. §702.243.
A settlement approved under Section 8(i) discharges the liability of the employer or carrier, or both. 33 U.S.C. §908(i)(3). This subsection further provides that a settlement may be agreed to at any stage of the proceedings, including after entry of a final compensation order. This provision complements the repeal of Section 14(j), 33 U.S.C. §914(j)(1982)(repealed 1984), which provided for the commutation of benefits by the Secretary after an award had been issued.
Section 8(i)(4) addresses the liability of the Special Fund where the claimant and employer wish to settle a case. See Brady v. J. Young & Co., 17 BRBS 46 (1985), recon. denied, 18 BRBS 167 (1985) (amended provision applies to settlements after enactment date of 1984 Amendments). It provides that the Special Fund is not liable for reimbursement of any sums paid to an employee under an approved settlement or voluntarily paid prior to a settlement by an employer or carrier or both.
A settlement under Section 8(i) thus is a final resolution of a claim. Section 22 of the Act explicitly states that settlements are not subject to modification. 33 U.S.C. §922. However, where the parties enter into an agreement which does not comply with the requirements for a Section 8(i) settlement, the claim remains open and pending if it has not been closed by a compensation order, see Intercounty Constr. Corp. v. Walter, 422 U.S. 1, 2 BRBS 3 (1975), and if a compensation order is issued based on the parties’ stipulations, the case is subject to modification. E.g., Finch v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 196 (1989); Madrid v. Coast Marine Constr. Co., 22 BRBS 148 (1989); Lawrence v. Toledo Lake Front Docks, 21 BRBS 282 (1988); Falcone v. General Dynamics Corp., 21 BRBS 145 (1988). See Finality, infra.
If you have a question about settlement of your DBA or Longshore case, Contact Us today at mail@gmpcomplaw.com, or go on our website at www.dbalawyers.com and fill out our form on the contact us page, or call us at 305 595 3350.
Clifford R. Mermell, Esq., created the law firm of Gillis, Mermell & Pacheco, P.A. on March 1, 1996. Mr. Mermell has been the senior and managing partner of the firm since its creation. The firm was created to champion the rights of injured workers nationwide. It represents cases under the Worker’s Compensation, Wrongful Termination, Personal Injury, Admiralty and Maritime, Defense Base Act, and Longshore & Harbor Worker’s Compensation Act Laws.