U.S. Court of Appeals for the 9th Circuit Upholds Longshore and Harbor Workers' Compensation Act: May Now Go To U.S. Supreme Court

Law Offices of Charles D. Naylor leads the effort to fight for workers’ rights

 San Pedro, CA – February 17, 2011 – Just one week after oral arguments were presented, the U.S. Court of Appeals for the 9^th Circuit issued its decision in California United Terminals vs. Towne.  The 9^th Circuit Court of Appeals denied the petition for the case to be reviewed, thus holding employers responsible for the injured party’s (the Claimant’s) litigation costs associated with successful prosecution of legitimate workers compensation claims.  The 9^th Circuit Court’s decision helps to preserve the purpose and integrity of the Longshore and Harbor Workers’ Compensation Act – to provide fair and timely compensation to injured workers.

“We are pleased that the 9^th Circuit is sending a clear message to employers and their insurance carriers – to stop denying legitimate claims by prolonging and increasing the cost of litigation,” said Charles D. Naylor of the Law Offices of Charles D. Naylor, a Los Angeles-based law firm specializing in maritime and admiralty law.  “Had the 9^th Circuit ruled in favor of California United Terminals, it would have set legal precedent allowing employers to continue their practice of denying medical treatment and delaying payment of legitimate compensation claims.  It would have forced the injured worker to absorb the cost of the employer’s legal shenanigans, making the claims process too risky for injured workers and thus completely ineffective.”

California United Terminals is now likely to ask the United States Supreme Court to hear the case, which they must do within 90 days.   

In 2002, Sandra Towne, a 59‑year Marine Clerk, was diagnosed with Carpal Tunnel Syndrome, an injury that is most commonly the result of repetitive trauma over time.  After conservative, non-surgical care failed, she needed surgery.  Towne filed a claim to receive benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA) which provides benefits including medical care compensation for temporary disability at 2/3 of average wages while off work and recovering.  When her claim was denied, she retained Charles D. Naylor.

 “The Longshore and Harbor Workers’ Compensation Act is meant to provide very basic level of compensation and it’s supposed to be made available to those that are injured without the need for an attorney or any litigation,” said Charles D. Naylor, who has represented Ms. Towne since 2002 and has handled hundreds of Longshore and Harbor Workers’ Compensation Act claims throughout his 35-year career.    

While seeking conservative treatment, Towne continued to work on the waterfront.  Like most longshore workers and marine clerks on the West Coast, Towne received work assignments at the union dispatch hall and often worked for a different employer from day to day.  The law applying the LHWCA is very clear on the following: 

·         The last employer where a worker is exposed to repetitive trauma is responsible to provide compensation benefits to a worker injured by repetitive trauma. 

·         If the injured worker has to retain an attorney to collect benefits, and is ultimately successful, the employer is responsible for the Claimant’s attorney’s fees.  

Two and a half years after she was diagnosed, Towne's then employer, California United Terminals, Inc., agreed to pay for the surgery she needed after being joined in the litigation by the judge.  In trial court, and before the Benefits Review Board, California United Terminals was ordered to pay all of Claimant’s attorney’s fees. 

California United Terminals (CUT) took the case to the 9^th Circuit Court of Appeals.  On February 8, 2011, CUT argued that they are only responsible for fees during a 13 day period, at most, out of the eight and one half years of litigation, and that the remainder should come out of Towne's pocket. The Law Offices of Charles D. Naylor, along with Joshua Gillelan II, Esq. of the Longshore Claimants’ National Law Center, represented Ms. Towne.  

An audio transcript of the oral arguments and a copy of the Court’s decision(Memorandum) can be found on the 9^th Circuit Court of Appeals website.

About Law Offices of Charles D. Naylor

Since 1975, the Law Offices of Charles D. Naylor has been compassionately and aggressively representing injured workers from the maritime trades including seamen, longshore and marine construction workers, and cruise ship passengers and crew.  With more than 100 years combined experience, our attorneys specialize in Maritime Personal Injury, Jones Act, Longshore & Harbor Workers Compensation Act and Cruise Ship Injury.  

In 2007, Charles D. Naylor obtained a $55.2 million jury verdict ($5.2M compensatory / $50M punitive) against the now bankrupt DaimlerChrysler for the wrongful death of a longshoreman.  In 2009, the U.S. Bankruptcy Court ordered Chrysler to pay a $24 million settlement. 

Charles D. Naylor received California Lawyer magazine’s prestigious CLAY Award in 2008, has an AV rating from Martindale-Hubbell and has been recognized by Southern California Super Lawyers as one of the “top attorneys in Southern California” (2007- 2011).  For more information, visit www.NaylorLaw.com.

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Law Offices of Charles D. Naylor Presents Arguments to the U.S. Court of Appeals for the 9th Circuit to Maintain Rights of Injured Longshore and Harbor Workers

Ninth Circuit Court’s decision could render the Longshore and Harbor Workers’ Compensation Act (LHWCA) ineffective

 Los Angeles, CA – February 8, 2011 – Today the Law Offices of Charles D. Naylor, along with Joshua Gillelan II, Esq. of the Longshore Claimants’ National Law Center, present oral arguments to the U.S. Court of Appeals for the 9th Circuit (California United Terminals, Inc. vs. Towne).  By way of one injured longshore worker, today’s arguments represent the right for all workers to receive fair and timely compensation and the culmination of nine years of litigation for a case that should have never have seen a court room. 

Sandra Towne, a 59‑year Marine Clerk, was diagnosed with Carpal Tunnel Syndrome in summer 2002.  Carpal Tunnel Syndrome is an injury that is most commonly the result of repetitive trauma over time.  After conservative, non-surgical care failed, she needed surgery.  Towne filed a claim to receive benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA) which provides compensation for the cost of medical care and 2/3 of average wages while recovering. 

 “The Longshore and Harbor Workers’ Compensation Act is meant to provide very basic compensation and it’s supposed to be made available to those that are injured without the need for an attorney or any litigation,” said Charles D. Naylor of the Law Offices of Charles D. Naylor, a Los Angeles-based law firm specializing in maritime and admiralty law.  Over the course of his 35-year career, Naylor has handled hundreds of Longshore and Harbor Workers’ Compensation Act claims. 

While seeking conservative treatment, Towne continued to work on the waterfront.  Like most longshore workers and marine clerks on the West Coast, Towne received work assignments at the union dispatch hall and often worked for a different employer from day to day.  The law applying the LHWCA is very clear on the following:

• The last employer where a worker is exposed to repetitive trauma is responsible to provide compensation benefits to a worker injured by repetitive trauma.

• If the injured worker has to retain an attorney to collect benefits, and is ultimately successful, the employer is responsible for the Claimant’s attorney’s fees.  

When all Towne’s employers denied benefits, she retained Charles D. Naylor of the Law Offices of Charles D. Naylor.   Two and a half years after she was diagnosed, Towne's then employer, California United Terminals, Inc., agreed to pay for the surgery she needed after being joined in the litigation by the judge.

In trial court, and before the Benefits Review Board, California United Terminals was ordered to pay all of Claimant’s attorney’s fees.  Today California United Terminals will try to argue that they are responsible for fees during a 13 day period, at most, out of the eight and one half years of litigation, and that the remainder should come out of Towne's pocket. 

“Ms. Towne only hired an attorney because she had to, and now because her employers were able to pass the buck for so long, the attorney’s fees far exceed the cost of her surgery and her lost wages during her recovery,” said Charles D. Naylor.   “If the 9^th Circuit rules in favor of California United Terminals it will set a precedent that will allow employers to deny treatment or stall approval of legitimate claims.  This will essentially render the claims process under the Longshore Act too risky for the injured worker and therefore completely ineffective.”

If Towne and the Law Offices of Charles D. Naylor are successful in holding California United Terminals responsible for all the attorney’s fees, it will discourage employers and their insurance carriers from denying legitimate claims by prolonging and increasing the cost of litigation.    California United Terminals are likely to ask the United States Supreme Court to hear the case if they are unsuccessful.

A decision is expected within 90 days.  An audio transcript of the oral arguments will be made available on the 9th Circuit Court of Appeals website (by 12 p.m. PST, Wednesday, February 9).

About Law Offices of Charles D. Naylor

Since 1975, the Law Offices of Charles D. Naylor has been compassionately and aggressively representing injured workers from the maritime trades including seamen, longshore and marine construction workers, and cruise ship passengers and crew.  With more than 100 years combined experience, our attorneys specialize in Maritime Personal Injury, Jones Act, Longshore & Harbor Workers Compensation Act and Cruise Ship Injury.  

In 2007, Charles D. Naylor obtained a $55.2 million jury verdict ($5.2M compensatory / $50M punitive) against the now bankrupt DaimlerChrysler for the wrongful death of a longshoreman.  In 2009, the U.S. Bankruptcy Court ordered Chrysler to pay a $24 million settlement. 

Charles D. Naylor received California Lawyer magazine’s prestigious CLAY Award in 2008, has an AV rating from Martindale-Hubbell and has been recognized by Southern California Super Lawyers as one of the “top attorneys in Southern California” (2007- 2011).  For more information, visit www.NaylorLaw.com.

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AIG Caught Red Handed

The nations largest insurer, American International Group Inc., AIG, and a major provider of workers compensation insurance to employers under the Longshore and Harbor Workers' Compensation Act (LHWCA) has admitted to misreporting $2.12 billion of workers compensation premium, according to a recent story by the Associated Press. 

AIG's scheme allowed it to misrepresent it's financial condition to Insurance Commissioners in all 50 states and the District of Columbia.  AIG has now agreed to pay $146.5 million in fines and penalties and to subject itself to compliance audits for the next two years.  

The irony of today's news is, in the past, AIG has been quick to "controvert", or dispute, LHWCA claims based on alleged misconduct by injured longshore workers.  

We have always known, but now we have proof of who the bad guy really is.

Shame on you AIG. 

Carnival Splendor Cruise Ship Passengers and Crew At Risk For PTSD

Monday morning some passengers felt a jolt and a shudder run through the CARNIVAL SPLENDOR and some felt nothing; but within minutes everyone aboard knew the ship was in trouble; 200 miles south San Diego and more the 40 miles an engine room fire would soon leave the mega passenger ship dead in the water and powerless.  Cold food, cold showers and hot, dark rooms took the place of the luxury cruise the 3,000 passengers had paid for. 

Carnival Cruise Lines has announced plans to refund the cost of the cruise and offered a free replacement cruise to all of the passengers aboard, but at the same time is preparing to fend off claims from passengers who have suffered psychological injury, or fallen ill from food poisoning or unsanitary conditions. 

Under maritime law, psychological injuries are not compensible unless accompanied by a "physical impact."  Unfortunately, Carnival won't tell you that physical symptoms of psychological injury such as headache, nausea of vomiting may be sufficient to satisfy the "physical impact" requirement and qualify you for compensation.

Fire on a ship is extremely dangerous and is a well recognized cause of psychological injury to passengers and crew. 

Several years ago we were involved in crew member claims arising from an engine room fire on the M/V CAPE HORN. That fire also left the ship stranded at sea and it too had to be towed to port.  In that case, seasoned seamen suffered psychological injuries, some of which became disabling.  Passengers are even more vulnerable to psychological injury from such incidents because their lack of training and experience leads to legitimate feelings of helplessness. 

More recently we became involved with a survivor of the DEEPWATER HORIZON explosion, and again found that even experienced seamen are vulnerable to psychiatric injury when there is fire on a ship.

Post Traumatic Stress Disorder (PTSD) is one of the more serious forms of psychological disorder associated with incidents such as the CARNIVAL SPLENDOR stranding, although there are many other conditions that may be related as well.  If you are experiencing symptoms of PTSD or other psychological injury you should seek treatment as soon as possible.  Early treatment with a doctor trained and experienced in dealing with PTSD dramatically improves the outlook for recovery. 

We also played a major role in handling the injury claims arising from the CROWN PRINCESS "listing" off the coast of Florida in 2006.  While there were many combined physical and psychological injury claims, there were also many "pure" psychological injuries.  Handling those claims we came to appreciate that the symptoms of a psychological injury do not always develop right away.  Often the symptoms did not become apparent for weeks or months after the passengers returned home.  Even so we were successful in resolving all of those claims we handled. 

On the CARNIVAL SPLENDOR, there have also been accounts of food that smelled spoiled and of toilets that did not work.  If you were exposed to either of these problems and are now experiencing illness, it is critical that you tell your doctor you were a passenger or crew member on the CARNIVAL SPLENDOR.  Your doctor will want to run tests to determine whether your illness is caused by food poisoning or unsanitary conditions.  An early and accurate diagnosis will allow your doctor to prescribe the right treatment.  This is particularly important for seniors and others who are susceptible to secondary infections like pneumonia.  

The good news is, it seems that most passengers and crew from the CARNIVAL SPLENDOR escaped without serious injury.  For those that were injured, getting help early is critical to your future well-being. 

If you need help finding the right doctor call us any time.  We can offer referrals to doctors who are experienced with diagnosing and treating PTSD and other psychological injuries.

We can help.  We are experienced cruise ship injury and accident attorneys.  There is never any charge for an evaluation or for medical referrals. 

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