Each January, Advanced Consulting hosts the only national Defense Base Act (“DBA”) seminar focusing on the defense of DBA claims. Last week, I attended (and spoke at) the seminar, and had a great time doing so. Some highlights of the conference included:
Dr. Michael Hilton’s discussion of psychiatric issues in DBA claims. Dr. Hilton is a board certified forensic psychiatrist. In his private practice, Dr. Hilton “treats a wide range of adult psychiatric conditions, including affective disorders, psychotic illnesses, anxiety conditions, stress reactions, alcohol and substance abuse disorders, chronic pain conditions and work injury related psychological problems.” The good folks at Advanced Consulting were nice enough to post Dr. Hilton’s PowerPoint presentation to their website. Take a look. Dr. Hilton discussed the differences between the DSM-IV and DSM-V with respect to PTSD cases, and particularly how the DSM-V diagnostic criteria are more permissive than past versions of the DSM.
Jeff Knipper’s discussion of Medicare Set Asides from the Longshore perspective. MSAs are not fun. Not for claimants; and not for employers and carriers. Often, MSAs can throw a monkey wrench in settlement plans. But, in some cases, MSAs are necessary to protect the interests of the Centers for Medicare and Medicaid Services. As explained on Mr. Knipper’s PowerPoint presentation, the parties to a DBA claim should take steps to keep MSA costs reasonable. If the MSA is reasonable, the parties are in a better position to reach an amicable settlement.
Alan Brackett’s discussion of Vocational Barriers Under the Defense Base Act. MBLB’s own Alan Brackett, who also happens to be this month’s featured attorney in Attorney at Law magazine, discussed vocational issues faced by DBA employers and carriers. Mr. Brackett’s PowerPoint presentation, prepared by Mr. Brackett and MBLB’s newest attorney, Cassie Preston, addressed everything from the geographical boundaries of the relevant labor market to specific problems posed by foreign nationals. He even highlighted many of the important case law developments over the past year.
Shaun Aulita’s and Andrew Blauert’s discussion of diligent job searches, the vocational rehabilitation process, and credible independent medical examination reports. An injured worker who is capable or working must diligently seek employment. That’s part of the burden shifting framework. If a claimant cannot return to their usual employment, an employer must show the availability of suitable alternative employment. Then, the claimant must establish that they diligently sought work. Ms. Aulita’s PowerPoint presentation addressed cases where diligence was lacking, as well as the need for a job applicant to be proactive in today’s labor market. Mr. Blauert’s PowerPoint presentation discussed another key component for defense claims: the independent medical examination. What are some of the factors that employers and carriers should consider with IME reports? Take a look at Mr. Blauert’s presentation to find out.
Jonathan Tweedy’s discussion of Section 8(i) Settlements. To settle a Longshore or DBA claim, litigants must satisfy the process contained in Section 8(i) of the Longshore and Harbor Workers’ Compensation Act. The Department of Labor’s step-by-step approach for settlements can be found at 20 C.F.R. § 702.242. Make no mistake, all parties to the settlement must assure satisfaction of the statutory and regulatory requirements. Mr. Tweedy’s PowerPoint presentation discussed the who, what, when, why, and how for DBA settlements.
Mark Eckels’ discussion of Pre-Trial Orders, and his discussion of burn pits. When an administrative law judge (“ALJ”) issues a Pre-Trial Order, the ALJ tells the litigants how the case must proceed. The Order contains dates that must be met in order to keep the case progressing smoothly. One of the most instructive comments I have ever heard an ALJ make to a non-compliant litigant was that the dates in the Pre-Trial Order were not aspirational goals…they were requirements. Mr. Eckels’ PowerPoint presentation addressed this same concept: that the Pre-Trial Order is an Order, not a goal. Then, the second half of Mr. Eckels’ presentation addressed Burn Pit Litigation. Mr. Eckels posited that burn pits are the future of DBA litigation, but the future is not yet now because the “[h]arm from military burn pits [is] inconclusive.”
Keith Flicker’s Discussion about changes to the DBA and the advent of the OCCA. The Overseas Contractors Compensation Act (“OCCA”) is exactly what no one wants: a government program where injured contracts are paid directly by a fund maintained by the DOL. In other words, OCCA is akin to the Federal Employees Compensation Act (“FECA”). If I were a DBA claimant, I would not want to trade my DBA benefits for FECA benefits.
All in all, Advanced Consulting’s conference was a rousing success. The conference has grown considerably in the last four years. Attendees included employers, carriers, third party administrators, physicians, and defense lawyers. Without a doubt, I will attend next year’s conference.