Law Offices of Scott J Bloch, P.A.

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Scott Bloch Law Law Blog

Try saying that three times fast

 

US SUPREME COURT RULES ALJ’S NOT VALIDLY APPOINTED

 

 

In a decision that has significant ramifications for DBA and Longshore Claimants who have been on the receiving end of Administrative Law Judge decisions that are disfavorable, the United States Supreme Court ruled on Thursday, June 21, 2018, that Administrative Law Judges of the Securities and Exchange Commission, like those in the Department of Labor are Officers within the meaning of the Appointments Clause of Article II, section 2 of the United States Constitution, whose appointment must be by either the President, a Court or the head of the Agency.

Most ALJ’s in the Department of Labor were hired by the authority delegated to them by the Secretary of Labor in years past, by persons in inferior positions.  Therefore, it is possible that all persons who are aggrieved by decisions of ALJ’s in the Department of Labor may have a basis for setting aside those decision on a timely application to vacate the decisions.

In its ruling yesterday, in Lucia v. SEC, the Supreme Court rule in a 7-2 decision that an administrative law judge at the Securities and Exchange Commission was not lawfully appointed and therefore had no authority to issue a decision.

In her majority opinion joined by the five justices (Chief Judge Roberts, Kennedy, Thomas, Alito, and Gorsuch), Justice Kagan held that the SEC’s administrative law judges qualify as “Officers” and not mere civil service employees under the Appointments Clause of the Constitution.   The Court found that the SEC as a body did not itself appoint ALJ Cameron Elliot; he was instead appointed by SEC staff members. His appointment was therefore unconstitutional.

Justice Breyer wrote a concurring opinion in which he found that the appointment of the ALJ violated the Administrative Procedure Act because the SEC unlawfully delegated its appointment power lower staff.  Justice Sotomayor (joined by Ginsburg, J) filed a dissenting opinion finding that only “the ability to make final, binding decisions on behalf of the Government” qualifies as an “Officer” under the Appointments Clause.  While ALJ’s in SEC as in the Department of Labor do not make final binding decisions, they become final and binding if no appeal is taken or futher proceedings occur.

This case has far-reaching potential for Claimants before the Department of Labor ALJs in Longshore and Defense Base Act cases.  Interested claimants are welcome to make inquiry of the Law Offices of Scott J. Bloch as to how this decision may benefit them.

 

Bloch: Exclusive Remedy Doctrine Not a Miracle Defense for Contracting Companies

DC Circ. Refuses to Extend Exclusive Remedy to defeat Fired Defense Base Workers’ Claims

In another important case with the Law Offices of Scott J. Bloch, the DC Circuit Court reversed a lower court ruling (see Opinion of Court reversing state claims Sickle v Torres) that the Defense Base Act does not preempt breach of contract allegations brought by two overseas military base contractors against their former employer Torres Advanced Enterprise Solutions LLC after they were fired in relation to a workers’ compensation claim, on Friday March 9, 2018.

“The touchstone for implied preemption under the Base Act is a claim’s nexus to the statutory benefits scheme,” the panel said. “Because Elliott sought and obtained workers’ compensation under the Base Act, his tort claims arising from that benefits process are preempted, but his independent claim of contractual injury is not. Sickle, for his part, never set foot into the Base Act’s regulatory arena, so both his tort and contract claims can proceed.”

The DBA, building on a previous program for longshoremen and harbor workers established under the Longshore Act, established a workers’ compensation scheme for civilians and federal contractors working at U.S. military bases outside of the U.S.

Among other provisions, those statutes prohibit retaliation against workers who have made a compensation claim or who “testified or are about to testify” in a related proceeding, providing for reinstatement and back pay for retaliatory discharge. Employers in turn are given limited liability for related claims.

Elliott and Sickle were both subcontract workers for Torres at Forward Operating Base Shield in Baghdad, with Elliott working as a kennel master and Sickle as a medic, according to the opinion. Tasked with moving sandbags in the kennel area, Elliott suffered a back injury, diagnosed by Sickle as a herniated disc.

Elliott flew to the U.S. for treatment and had planned to return to Iraq, but after seeking workers’ compensation benefits, was told by Torres he was no longer needed and terminated, the opinion said. After an initial rejection of his workers’ compensation claim — purportedly due to Torres claiming to insurers that Elliott had falsified his claim — Elliott received a copy of a medical file from Sickle and was subsequently granted compensation and underwent back surgery.

Sickle was then allegedly pressured into recanting his support for Elliott’s claim and sent home to “think things over” for a month, and also terminated when he refused to recant, according to the opinion.

The pair jointly sued, alleging retaliatory discharge in relation to Elliott’s workers’ compensation claim, breach of contract and an alleged conspiracy with Torres’ insurance carrier.

Scott Bloch, counsel for the plaintiffs, said the clients feel vindicated by the decision, even if they would have preferred all of their tort claims to go forward, saying it helped flesh out a similar earlier ruling and was likely to have further-reaching effects in other cases.

“For many years, Mr. Sickle and Mr. Elliott have felt like big government contractors had a force field around them, preventing justice,” Bloch said.

The panel’s aside on DBA preemption jurisdiction is also likely to impact other similar cases, Bloch said, saying Torres and other defendants in previous cases had tried to steer courts toward a strict reading of preemption that went beyond what was intended in statute.

“That’s just not what this law is,” he said.

U.S. Circuit Judges Judith W. Rogers, Sri Srinivasan and Patricia Millett sat on the panel for the D.C. Circuit.  Reportage also was done by Law 360 and Thompson Reuters.

The case is Sickle et al. v. Torres Advanced Enterprise Solutions LLC, case number 14-7009, in the U.S. Court of Appeals for the District of Columbia Circuit.
 

BLOCH OBTAINS CLASS CERTIFICATION AGAINST US MARSHALS SERVICE

The Law Offices of Scott J. Bloch, working with Los Angeles based law firm, LA Superlawyers, and head partner William W Bloch, obtained an order on January 9, 2018, reversing an Administrative Judge’s previous ruling denying class certification to the class of Detention Enforcement Officers of the Marshals service.   “This is a good decision to help the DEOs who have endured for many years being put into a lower class of employees of the Marshals service while at the same time standing alongside the higher paid Deputy Marshals performing some of the same duties but being refused the ability to promote or enjoy equal pay for their actual duties,” said their attorney Scott J. Bloch.

In this order of the EEOC 20180109–Appeal Order EEO Class–Ramsey Tuaua et al. reversed the ALJ order refusing to Certify the Class of United States Marshal Service Detention Officers in the class action of Race, Age and Disability Discrimination, the panel at the EEOC set forth that the Marshal’s service has used for years fitness requirements that DEOs had long since passed and met to deny them promotion up to the Deputy position.  Many other pieces of evidence show that the United States Marshal’s Service has discriminated against DEOs on the basis of Race, Age, and Disability, and retaliated against those who led the charge in this class action.  The EEOC remanded for appointment of an ALJ and further proceedings on the case.

NEW DEPARTMENT OF LABOR REGULATIONS AFFECTING RATES OF PAY

There are two areas injured workers need to be watching, one is the civil penalties assessed against insurance companies and employers for discrimination against employees (such as firing you for filing a workers compensation claim overseas, or having an injury that is likely to result in a claim) or penalty for failure to report injury or death (failure to file the LS 202), or termination of payments (failure to file the LS 207).   These regulations will increase the amount assessed against employers, and provide a small disincentive for them to misbehave.

The other regulation to watch is the implementation of the Roberts rule, based on Roberts v. Sea-Land Services, Inc., 566 U.S. __, 132 S.Ct. 1350, 1354 (2012), which would put in a regulation what the courts and the Benefits Review Board of the Department of Labor have long held: that the rate for persons determined to be Permanently Totally Disabled (PTD).  As it is now, the insurance companies get to pick a rate they like to pay a person determined to be PTD, and only give one COLA increase to their original rate at time of accident when they were only TTD (temporarily totally disabled).  Roberts and cases interpreting it and the section 6(c) language “newly awarded compensation” for what rate to pay a person first determined to be PTD, says that the rate is the prevailing rate of maximum average weekly wage in effect on the date when they were determined to be PTD.  That will significantly increase the pay for persons who become PTD after they are initially injured.

The regulation has gone past the public statement phase, but because of the change in administration it is unclear whether this regulation will simply fall into a batch of any regulations pending at the time of the end of the prior administration and be held up pending further review for what cost and effect it would have on business.

The Regulations

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires the Department of Labor (DOL) to annually adjust its civil money penalty levels for inflation. On January 13, 2017, DOL promulgated a final rule adjusting penalties for 2017.  The rule makes small upward adjustments to the following penalties assessed by the Office of Workers’ Compensation Programs under the Longshore and Harbor Workers’ Compensation Act:

  • 20 C.F.R. 702.204

Penalty for late report of injury or death.

  • 20 C.F.R. 702.236

Failure to report termination of payments.

  • 20 C.F.R. 702.271(a)(2)

Discrimination against employees who bring proceedings.

The public inspection version of the rule is available on the Federal Register’s website athttps://www.federalregister.gov/documents/2017/01/18/2017-00614/department-of-labor-federal-civil-penalties-inflation-adjustment-act-annual-adjustments-for-2017. The Federal Register will publish the final version on January 18, 2017. The rule became effective on January 13, 2017.

The regulation that has already passed the public comment on the “newly awarded compensation” language of Section 6(c) of the Act, is found at https://www.regulations.gov/documentD=WCPO-2016-0001-0001.

BLOCH TO U.S. SUPREME COURT: STOP ABUSE OF INJURED WORKERS

Afghanistan war

In 2011, a Class Action of 30 plus individuals was filed by Scott J. Bloch in Washington, DC., alleging widespread abuses of injured workers by large government contractors and the insurance companies who have been paid hundreds of millions of dollars in high premiums by tax payer money to protect these workers overseas who are working side by side with the military in combat or support roles, but have instead pocketed the money of the tax payers and then sought to harm the workers and their families in deliberate scheme.

In July of this year, the federal circuit court in DC upheld this barbaric practice, claiming that the the exclusive remedy provisions of the law prevented any second guessing the employer or the insurance carriers for any of their conduct however extreme and intentional, limiting them to the benefits provided under the law.

The lower court opinion has been appealed to the U.S. Supreme Court.  Read the Petition for Writ of Certiorari here As filed Cert Petition Brink et al. v Continental Ins et al.

In this Brief we argue that  the law is confusing on the question of what cases one may sue an employer or insurance carrier on when there is workers compensation insurance, that there is conflict among the circuits, and that courts even though they broadcast an “intentional tort” exception to the exclusive remedy doctrine of the DBA and Longshore Acts, they never allow cases regardless of how extreme the conduct and how deliberate the injuries inflicted on workers to proceed.

But the time has arrived to tell the truth and to fix this twisted interpretation of the law.  No longer should these companies be able to have carte blanche in causing families to lose their homes or credit, to worsen their mental and physical injuries or create wholly new injuries by deliberate frauds on the Department of Labor and the injured workers or their families.

Bloch appears in Press on Plight of “Disposable Army”

 

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Scott Bloch was quoted extensively in an article in the Post Courier, “Injured in Iraq, Terry Caulder fights for fairness as member of ‘disposable army’” by writer Jeff Hartsell.  After describing the harrowing injuries to several individuals, Hartsell quotes Bloch on the mountain of obstacles they face in the DBA system:

“These are people who were working alongside the military, and many of them were decorated military heroes,” said Washington attorney Scott J. Bloch, who is representing Biddle and others in the suit. “They were treated as part of the American enterprise over there, and were excited to be able to contribute, whether they were driving a truck or doing security or cooking meals.

“But once they were injured, they faced a mountain of obstacles put up by the contracting companies and the insurance companies, who were paid handsomely to take care of their disabilities and medical expenses.”

“They end up facing a very hostile regimen of mistreatment …,” the attorney said. “There’s a whole class of people whose lives were destroyed, who lost homes and property. And this stress and difficulty was visited not just on the contractors themselves, but their families as well.”

Said Bloch, “I compare it to a prison sentence. For many, it’s the second injury and maybe the worst injury, to be put into this system.

Read the entire story: http://www.postandcourier.com/article/20150426/PC16/150429584/1005

 

Scott Bloch Appears in International Documentary on DBA Contractors

Imagine flipping through channels at the end of a long day of work in a foreign country, trying to get to sleep, when you land on a channel that features yourself talking about the problems of international contractors.  Surreal does not begin to describe it.  That happened to me while I was in South Africa last year.  See an excerpt here:

I had forgotten I was interviewed for a documentary about international contractors working in Iraq and Afghanistan who are severely harmed by the actions of their companies and the insurance carriers who are legally bound to pay their benefits and not try to make their lives a living hell.  I thought the piece had aired in American and around the world and I’d just missed it.  I was interviewed for “Forgotten Heroes,” in 2013.  It was produced by ARTE television out of Germany and aired in America, France, Germany, Israel and many other countries, but I had no idea it was going to come on late at night in Cape Town, South Africa.

It was an advertisement for the documentary that was going to air some other time on RT, a Russian television channel, but there I was speaking to myself, there in the bed, flipping channels instead of counting sheep.  I told clients about it the next day and it got quite a laugh, especially the part of how I almost fell out of bed.

But what should have a lot of officials and citizens staying up at night is the travesty of thousands of contractors – many decorated former military – who have fought alongside our military in the global theaters of war, only to be cast aside as so much fodder for a money making machine.  Those empowered with helping them are indifferent to their plight.  They are served up a meal of humiliation, frustration, accusations, lies, and often, financial ruin.  To suggest that the companies make the Defense Base Act benefits hard to get is an understatement of serious proportions.

The person in the excerpt is a client of the Law Offices of Scott J. Bloch, PA.  Hers is a powerful story of how personal these companies and insurance companies make it.  It is all too true for many of my clients over the past six years.  It ought to be only about money, but for many of these privileged companies making billions off the public monies, it is about personal destruction.  It is about playing games with the lives of individuals and their families, about making sure they are worse off than when they entered the DBA system.  It is about them flexing their muscle and showing everyone that you cannot stand up to their power.  That is not right.  That is not what the campaign of America abroad has been or should be about.

We must fight this form of corporate mayhem and greedy arrogance.  First, by suing these companies when possible to bring them to justice and change the law.  Second, by refusing to give into them.  Third, by bringing awareness to the problem and publicizing when the abuse occurs and naming the people involved, as happens on numerous blogs that are being operated by public-minded servants.

Together we can and have made a difference.  Together we have to save the shattered lives.  Together we have to bring good out of the evil that has been visited on so many.

SCOTT BLOCH WARNS OF EXPLOSIVE CONSEQUENCES FOR MISTREATING CONTRACTORS WITH PTSD

Post-traumatic stress disorder is real,” says attorney Scott Bloch, www.dcresultslawyers.com, a well known advocate for contractors who have been discarded after the wars.   “The explosions they experienced in Iraq or Afghanistan are nothing compared to the explosion in their lives and the lives of those close to them.”  Bloch describes a condition that is affecting tens of thousands of contractors who worked alongside the military, many of them undiagnosed.

Iraq explosion

“I have at least 50 clients who have had serious combat exposure of death, major injury and near-death experiences, some over a 5-10 year period.  Some did not know they had it until I asked them a battery of questions and sent them to be assessed by qualified psychiatrists and psychologists. It is in the nature of PTSD and related conditions that they hide themselves from the person who has them. It is their coping mechanism run amok that lands them in the difficult grips of this psychological and physiological nightmare.  Anyone in the military will tell you, nobody comes back from combat without the scars.  PTSD or some of the residual trauma that is left over will haunt most who have seen combat all their days.   I don’t think people believe it because they don’t have to live with them.”

One of Scott Bloch’s clients, CJ Mercadante, has lived with PTSD and TBI for over 7 years since his injuries with Blackwater in Iraq.  He has been dealing with CNA ever since.  He says: “What the insurance company’s do is nothing short of harassing causing your condition to exacerbate as they did with me personally. CNA challenges every single issue which makes my care impossible at times.  Most medical physicians will drop the injured because they just don’t want to deal with the insurance company.  The key is knowing your rights and finding physicians that are not afraid to challenge the insurer.  The DBA system encourages the insurer to challenge everything as the lawyers and the insurer will be reimbursed by the government under the War Hazards Compensation Act with a 15% kicker ONLY if they challenge the claim.  If they don’t, they get nothing.    Understanding this, the result of this is devastating as they will delay, ignore and harass for this purpose.”

But those with the actual disorder are affected in a more fundamental way. PTSD and traumatic brain injury both alter the bio-chemistry and way of physically experiencing being alive, to exaggerated response of the endocrine system, hyper-adrenaline response, to high blood pressure, greater coronary disease, teeth falling out from carries or bruxism, destruction of personality and deterioration of the ability to be intimate emotionally and physically.  Not all of these are experienced by those with varying degrees of PTSD or TBI.  Some have adjustment disorders, some mere depression, some dissociative disorders to accompany the wild dreams and sleeplessness and strange personality changes.

“My clients are being systematically driven to the brink of death by the insurance carriers and their tormentors,” says Bloch.  “Fraud, lies to government officials, misplaced records, unpaid medical bills, ruination of credit, denials, pretend mistakes, cutting off benefits, fraudulent defense medical exams, all done with the idea of beating clients into submission, of getting them to want to take less than they are allotted by law – all designed to make them worse off than they were to show them the insurance company has a right to its money, the law be damned.  Many of my clients are like the damned in some twisted Inferno of the contractor’s and insurance company’s making.  They and their minions may think it is just business as usual, a way to keep their money – but they are actually eroding the fabric of American society, undermining the core of our laws and making a mockery of our involvement in defending the world from terrorism. Our society is going to be saddled with their problems, in the form of billions in care, for the thousands of contractors who essentially were military out of uniform for a decade, and still are fighting in Iraq and Afghanistan and elsewhere.”

Bloch has sued on behalf of over 2,000 people who have experienced mistreatment and indifference at the hands of contracting giants and their insurance billionaires.  “What has to happen is change in the law, the courts have to be willing to accept genuine cases of intentional wrongdoing that were never intended to be treated like piddling complaints of being annoyed or harassed by insurance companies in routine claims handling problems.  That is not what we have here.  In the name of being free of lawsuits, contracting companies like Blackwater, KBR/Halliburton, DynCorp, AECOM, AEGIS and others, along with insurance giants AIG, CNA and ACE, among others, have used this basic idea and overstepped the line by miles – essentially taking the ‘exclusive remedy’ doctrine of workers compensation as a license to kill.  Untold thousands of family members have had their lives turned upside down by the ruthless fraud of these companies.  They don’t care that they ruin the lives of small children, cause them to lose their homes, breakup of marriages, loss of any hope of a relationship with one of their parents.”

The class action is on appeal to the DC Circuit Court of Appeals and will be argued later in the year.  Joshua Gillelan, III, well known appellate advocate and DBA/Longshore expert of the National Longshore Workers Claimant Center is on the briefs for the contractors who have been harmed by these companies.    See copy of Appellant’s brief here: BrinkDCCir.ApptsBrRe-CorrectedFiled.

NEW RAND STUDY SHOWS CONTRACTORS WITH HIGHER RATE OF PTSD

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A new Rand Corporation survey, “Out of the Shadows,” confirms what we know at the Law Offices of Scott J. Bloch: a large percentage of contractors working in Iraq and Afghanistan suffer from psychological effects due to their exposures to war time conditions, including Post Traumatic Stress Disorder (PTSD) and Depression.  The Rand study, which can be accessed at the following website:  http://www.rand.org/pubs/research_reports/RR420.html, reflects that  Twenty-five percent of private contractors in the study met the criteria for PTSD, while 18 percent screened positive for depression, figures that appear to outflank even service member rates.

One of the stunning results of the study is that contractors receive no help during their time in war zones, and often receive no screening or services after, being left to their own devices.  Few are ever given psychological screening, and fewer yet are encouraged to seek help through their legal right to compensation and treatment under the Defense Base Act.

The report also reflects a need for post-service assistance for the contractor workforce, which lacks the type of support network provided to veterans.  

This is an important step in the recognition of this grave injustice to contractors, many of whom have stood alongside our fighting men and women, many of whom themselves served honorably in the armed forces before becoming contractors.

CONTRACTORS WITH PTSD ARE LEFT FLOATING WITHOUT A PADDLE

Mary on river

 

 

 

 Post-traumatic stress disorder is a real disease and should be taken seriously. How many tales have we heard about someone who has gone  through a tragedy and never really are the same?  Ask Mary Southerland, a client of Scott J. Bloch, who is doing something about it even though  SOC and the insurance company Allied World/Broadspire are doing everything they can to make it harder for her under the DBA.  She is kayaking on the Ohio River to promote how those with PTSD are “left floating” by the system.

Southerland said it is difficult for veterans and almost impossible for civilian contractors to get proper treatment for PTSD. Unable to work  because of what happened to her, she used up all her savings and was lucky to find a therapist willing to work with her on credit.  Others have not  been so lucky. The Department of Defense has noted military suicides have been rising since 2006, reaching 349 last year, which is more than the 295 reported killed in Afghanistan during the same time.

The Defense Department has argued that the deaths have nothing to do with the deployments, that is just something that is happening in the civilian world because of factors such as mental illness, substance abuse and financial problems. But how many of those deployed suffered from these problems before being sent into a high-stress environment?

Why are we not doing more to help PTSD sufferers in the military and those who have served as civilian contractors in war zones in Afghanistan and Iraq among others? According to figures from the U.S. Department of Veterans Affairs, up to 20 percent of veterans of Iraq and Afghanistan wars experience PTSD. That number was even higher, 30 percent, for Vietnam War veterans.

Southerland said it is difficult for veterans and almost impossible for civilian contractors to get proper treatment for PTSD. Unable to work because of what happened to her, she used up all her savings and was lucky to find a therapist willing to work with her on credit.

Others have not been so lucky. The Department of Defense has noted military suicides have been rising since 2006, reaching 349 last year, which is more than the 295 reported killed in Afghanistan during the same time.  Changes have to be made to clear up the system and specifically to make sure those in the most need of help are being bumped to the head of the line. Leaders also need to be proactive about searching for signs of PTSD in those who return. Stoicism is a part of the military culture. No one wants to admit to having problems and being seen as less able to deal with things. But the military has to protect its members from themselves sometimes.

PTSD sufferers are no less than anyone else, they just need help to get back to the way they once were.  Mary is fighting and we will continue to pursue her case until her employer and the insurance company pay what is required by the law.

Southerland talked about fellow contractors – friends who’ve killed themselves, her growing frustrations with government red tape and private insurance companies she says are responsible for worker compensation payments for contractors injured while abroad.

She also discussed how she’s using the Ohio River as more than a means for travel, but as a path to healing.  There was a time, she says, when she considered committing suicide – even asking her attorney if her family would receive health benefits if she killed herself.

“When you think about ending your life because your head is so wrong, it just scares you to death,” she said.  Mary says she has to remind herself about why life is important. Her speeches encourage others to lobby the government for more mental health services for contractors and soldiers. She doesn’t get specific about what led to her own struggles.

“Not right now. Right now it’s still kind of raw. It’s still extremely very raw,” she said.  Traveling with friends, she credits her faith and her service dog Henry with helping her get through those tough times.  “I know that I’m not there yet but with Henry – that gave me hope. Henry saved my life,” Southerland said.

PTSD sufferers are no less than anyone else, they just need help to get back to the way they once were.  Mary is fighting and we will continue to pursue her case until her employer and the insurance company pay what is required by the law.

For more press on this important story, see this story, http://www.timesonline.com/news/local_news/a-journey-to-raise-awareness/article_c5e7e760-8d62-59de-9dc3-833bd73b461f.html