longshore and defense base act injuries

The Legal Quagmire of the Last Responsible Employer/Carrier Doctrine

The Longshore and Defense Base Acts involve unique situations that arise due to the nature of the industries for which the laws cover. In the Longshore sector, the local International Longshoremen Associations (collectively “ILA”) are responsible for employing workers who are then assigned to certain jobs at the ports with a variety of maritime employers and stevedores. On any given day, a longshoreman can work for numerous maritime employers, and in some cases, more than one maritime employer in a single day. This unique organizational structure creates difficult liability questions with regard to workplace injuries and the employers and carriers that may be responsible for workers’ compensation benefits. In order to solve the question of liability, the “last-responsible-employer” rule is applied.

In Defense Base Act (“DBA”) cases, the last responsible employer/carrier doctrine also arises frequently but not due to the same organizational issues of the ILA. In DBA cases, the employers enter into contracts for services with United States government agencies, such as the Department of Defense and Department of State. Once a DBA employer secures a government contract, the employer is required to provide DBA coverage to its employees. Like anyone shopping for insurance, the employers seek low premiums, and in order to maintain low premiums, frequently switch insurance carriers.

As a result, civilian contractors with prior compensable injuries or multiple injuries almost always find themselves in the predicate where two insurance companies are placing blame on one another – creating the scenario for application of the last responsible carrier doctrine. The last responsible employer doctrine works essentially the same in DBA cases but arises when an injured civilian contractor changes employers. In some cases, the different employers share the same insurance carrier, for example, AIG, but the insurance carrier itself has the fiduciary duty to each respective employer (for premium purposes, etc.) to determine which employer is liable for the civilian contractor’s injuries.

Determining Liability Under the Last Responsible Employer/Carrier Doctrine

Liability under both the Longshore and worker compensation and Defense Base Acts becomes more uncertain depending on the types of injury(ies) involved; the different situations include pre-existing injuries/conditions, multiple traumatic injuries, and occupational diseases. While there is usually no one answer to a given situation, the attorneys at RITE law are here for you to provide guidance on the Last Responsible Employer/Carrier Doctrine.

Complications of Designating Responsibility

1. Different Tests for Different Injuries – Occupational Disease Versus Traumatic Injuries

When insurance giants enter the scene, things can get complicated. This is true for the Longshore and DBA world in 1955 with the creation of the last-responsible-employer/carrier rule in Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d Cir.), cert. denied, 350 U.S. 913 (1955).  Essentially, the Court established the rule that when more than one Longshore or DBA employer may be responsible for a work-related injury, the last employer to expose the injured worker to injurious stimuli shall be fully liable. The Cardillo test became the standard for occupational disease cases.  However, the test evolved into something different, and perhaps more complicated, for cases involving traumatic injuries.

For traumatic-injury cases, the last responsible employer/carrier rule was formulated in Foundation Constructors, Inc.:

If the disability resulted from the natural progression of a prior injury and would have occurred notwithstanding the subsequent injury, then the prior injury is compensable and accordingly, the prior employer is responsible. If on the other hand, the subsequent injury aggravated, accelerated or combined with claimant’s prior injury, thus resulting in claimant’s disability, then the subsequent injury is the compensable injury, and the subsequent employer is responsible.

Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 624, 25 BRBS 71, 75 (CRT) (9th Cir. 1991). To simplify the rule, the key to determining liability turns on natural progression versus aggravation: 1) is the current condition and need for treatment the result of the natural progression of the original work injury (for example, the natural degenerative process of arthritis), or 2) did the subsequent employment aggravate or accelerate the prior injury resulting in the current injury and need for treatment.

2. Requirements for a Final Determination – Compensability and Liability

Interestingly, an injured Longshoremen or civilian contractor does not bear the burden to show which employer is responsible; only that he/she has a compensable injury sustained while employed for any of the employers. Simply put, an injured worker must show that the injury was caused by his/her work and workers’ compensation benefits should be provided – this is the compensability aspect.

Once an injured Longshoreman or civilian contractor has established compensability, the injured worker is not required to prove which employer is responsible. Instead, the burden shifts to the employers to prove each respective employer is not responsible for the compensable injury using the rules above. The rules get complicated when someone goes to work for an employer who is not covered by the Longshore Act. At this point, the last responsible covered employer rule takes precedence. In effect since 1983, it states that the last employer who was covered by the Longshore Act that exposed a worker to “injurious stimuli” is fully liable – regardless of whether a subsequent and non-covered employer also exposed the worker to injurious conditions.

The Sticky Situation for Injured Longshoremen and Civilian Contractors

You don’t have to graduate from law school to see where insurance companies and defense lawyers can detect the obvious loopholes in the rules and then try their best to pry them wide open. Unfortunately, injured workers get caught in the middle of the sparring once a compensable injury has been established – only adding to the stress and anxiety of a work injury and inability to work.

The scenario often plays out like this: on one side, the defense lawyer for the second employer/carrier says the injury is the “natural progression of the original injury.” Meanwhile, the defense lawyer for the first employer/carrier attempts to shift responsibility by alleging the subsequent employment “aggravated” or “accelerated” the original injury. Ironically, the defense lawyers are not focused on challenging the cause of the injury or need for medical care, per se; the focus is on who ought to pay for it. However, while this may seem like a good scenario for an injured worker, benefits are often delayed or denied, including medical treatment, until the respective employers determine which is liable – all the while the injured worker suffers and typically the injury(ies) worsens.

RITE law are here for YOU!

If you’re caught in this type of legal tug-of-war, don’t stand by the wayside in hopes that the employer/carriers will come to a swift determination. These cases involving the last responsible employer/carrier rule often take years to reach a final determination with each pointing the finger at the other rather than accepting responsibility.

Instead, call on the aggressive representation of the Longshore and Defense Base Act attorneys at RITE law We possess an abundance of tenacity and perseverance, but more importantly, reputation within the industry that allows us to communicate effectively with all players involved. As a result, we are often able to effectuate deals more quickly than the time it would take to receive a judge’s decision after trial, but only when it benefits the injured worker by obtaining quicker benefits to get them better and back on their feet. Our simple goal is to get our clients the benefits for which they are entitled and more importantly, to assist them in returning to the workforce.

For a free consultation and answers to general questions, please contact RITE law today by phone at 904-500-7483 or visit our website www.rite4justice.com.