U.S. 5th Circuit Adheres to Strict Application of Longshore Act § 933 (g)
Parfait v. Director, Office of Workers Compensation Programs, No. 16-60662, 2018 U.S. App. LEXIS 25736; 2018 WL 4326520(5th Cir., Sept. 11, 2018)
This decision was released on the evening of Sept. 11, 2018. The employee filed a claim for compensation in 2013 and also filed suit against two other third parties. He was awarded temporary total and temporary partial benefits for a chest injury, but was denied compensation for his back injury. He appealed. In the meantime while the appeal was pending, he settled with one third party and having obtained a judgment against the other third party, the employer learned of the settlement and judgment. The employer then moved to dismiss the employee’s appeal on the basis that he did give notice to the employer or obtain the employer’s written consent to the settlement. The Benefits Review Board then granted the employer’s motion to dismiss for the employee’s failure to give notice or obtain the employer’s consent.
The 5th Circuit in an opinion by Judge Davis affirmed noting that the U.S. Supreme Court in Estate of Cowart v. Nicklos Drilling Co.. 505 U.S. 469 (1992) interpreted the provisions of the Act strictly. “Under the statutory scheme, if an employee makes a settlement with or obtains a judgment against a third party, at a bare minimum, the employee must give notice of the settlement or judgment to his employer.”
The panel also noted that there is a dearth of cases on the type of notices which must be given to the employer by the employee. Here the employee argued that the employer was invited to attend the settlement conference with the remaining third party but failed to do so. This was sufficient notice. In any event, the BRB has strictly interpreted the notice provision. The BRB in Fisher v. Todd Shipyards Corp., 21 BRBS 323 (1988), addressed a similar argument and stated: “Employer’s mere knowledge of settlements or the absence of prejudice to employer will not suffice to prevent the absolute bar to compensation from being invoked.” Id.
In addition, the Fifth Circuit rejected the employee’s argument that the filing of the judgment in the records of the court was notice to the employer. ”A finding that this constituted the requisite notice would, in the language of the Supreme Court in Cowart, be contrary to “the clear meaning”18 of § 33(g)(2) as written, and the “affirmative duty to notify.”
The employer’s motion to dismiss the appeal was granted.
