FULL STATE AWARD NOT AVAILABLE FOR CREDIT BENEFIT, CIRCUIT SAYS

NYLJ 5/23/07

4. FULL STATE AWARD NOT AVAILABLE FOR CREDIT BENEFIT, CIRCUIT SAYS

4. Another lesson of “Our Lexicon In Action” is, more specifically, two words in the Longshore and Harbor Worker’s Compensation Act, 33 U.S.C. Section 901 language which is, ultimately, the issue between a federal administrative law judge and the U.S. Court of Appeals for the 2nd Circuit. This would seem altogether academic and austere, twee even, were it not the end of a man in another of those sad series of events, choices, acceptances, of our daily burden as wage slaves without much recourse other than a shrug and a sigh of “That’s our lot in life”.

Mr. Shipfitter, shall we say, contracted asbestos lung over the years at Electric Boat, putting in a claim for the pittance figure of $30,000 for his debilitation over the years. Small price to pay for your health, it would seem, but the company must have thought any other amount would have been less deserved as they invoked Section 8(f) of the act which states that an employer only has to compensate an employee for two years where said employee has an “existing permanent partial disability,” and then sustains a work-related injury that results in total disability. And after these two years are up the only recourse remaining is a special fund administered by the Secretary of Labor. So the Boat people were perfect citizens under the letter of the Law. But that doesn’t mean words.

So, leaving aside the probability that it was only his job which killed him, when Mrs. Shipfitter went to apply for death benefits to Washington, it was still their right to persuade the power-that-do-such-things to credit the whole 30k for the disability award to this application. After all, they shouldn’t be taxed twice for the same payoff, don’t you agree? The judge sure did, stating, “in the absence of specific evidence of the apportionment of a state settlement, the employer is entitled to credit the amount of the state benefit paid.”

But wouldn’t you know it?—it was the minority reort who had the last word, and, ultimately, the best.

USCA 2nd found the reading of Section 3(e) as credit should be given for “amounts paid for the same injury, disability or death for which the benefits are claimed.” Judge Kittykat said, “the use of the present tense unambiguously indicates that only those injuries currently being claimed can be considered in applying the 3(e) credit.”

That he goes on to further cite the Black Letter law of Grammar makes it all the better. “When disability and death are listed in the disjunctive in the Longshoreman’s Act, they should be treated independently, even when both were cause by the same event.” And further, in accord with how other circuits have addressed the problem of double recovery, the key point is what is being claimed currently, and also that the burden of proof for the allocation lies of the party that seeks to apply the credit.

Kinda makes you glad that, beyond all the Westlaw references, headers, keynotes and such, somebody still uses good old Strunk & White when they really want justice…

LAWYER’S REFUSAL TO RELEASE FILES KEEPS CASE IN LIMBO

NYLJ 3/27/07

[Background preface}

A disbarred attorney, a sheriff’s deputy raid looking for 43 boxes of files he refused to hand over, a wrongful death action on behalf of a Bronx woman who’s husband plummeted to his death at the Brooklyn Navy Yards while working as a ship-rigger.

They came up empty-handed. No photos, trial notes, witness staements, pleadings—zip. And that’s the hand’s-up, hands-down conclusion from the lawyer that took it over.

The previous $25 million award, reduced to $7.6 million, never made it out of the Appellate. And 50 days after they remanded the case back for re-trial, another 1st Dept. panel disbarred the 1st atty for a pattern of improprieties, predating the instant case.

“His (respondent’s) 24-year history of sanctions, his perverse refusal to accept administrative rulings reflective of contempt for te judicial system, reprehensible, unprofessional behavior, including screaming at, disparaging and threatening judges, adversaries and experts, and disrupting the legal process through both verbal and physical aggression…”

Truly, a loose cannon, if not a rolling grenade.

So where are the files? Lost, in a house upstate, damaged by flood, discarded by workers—and baldfaced (-headed) liar too boot! The disbarred atty is an expert in Maritime Law? Small wonder—he swears like a sea cook!

POINT OF CONTENTION FOR APPEAL: whether barge owner breached its active control duty.


1. LAWYER’S REFUSAL TO RELEASE FILES KEEPS CASE IN LIMBO

Call it the “Closeout Sale on Sanity”. Rational behaviors and reactions end up in the cut out bin, remaindered among the sample sizes and those items at the edge of expiry.

The robe in the high seat jokes with his clerk, just as he has for the last decade, about the bald fat man with the bottlecap lenses, eyes rolling about and looming in and out, some loony tunes fish caught in an aquarium with magnifier walls, amid the sea of gesticulations accompanying his protestations, raising foam to the lips with every frothy explanation.

“I’ve seen him raving, raging and launching objections to everything from the Affidavit of Service to how much light is coming through the courtroom shades. But, by and large, in the main, on the whole, never seen him as bat-shit crazy as today.”

Clawing at the air while the bailiffs restrain him from approaching the bench, “I have the right to counsel! Your dismissal of my motion is with prejudice—I know that! You’ve had it in for me for 10 years and now you want to take away my boating license? HAH! I’ll have your daughter on the water! We’ll be frigging in the rigging!” dewlaps red and wet, a contrast to the beige polyester one-button showing signs of blown-out elbows and knees on the green mismatch, the disheveled dervish spins on. “My medical condition precludes your ruling! I have been diagnosed with a bipolar disorder which invalidates your judgments—they discriminate against us suffering from afflications not of our making! These are acts of God! Uninsurable! Where’s my coverage policy? I demand to see the carrier’s underwriter!”

“What was that part about the boat?”

“Maritime Law was his speciality. Any time you have a harbor case, he’ll have a piece of it.”

Hizzonner leans on his hand while the other ambulance chasers bring up their petitions, compliance ordered, restraining notices…and notices the cloth more. ‘These suits are from Syms; that one Filene’s basement, at best,’ as the blueback unfolds before the clerk who hands it up to the bench. “Oral argument, yer honuh.”

“So what do we have here? … Reconsider? Why did your substitution of counsel plea get tossed in the first place?” he thumbs the exhibit tabs in the dismissal, reads, “’Plaintiffs counsel did not execute the Substitution of Counsel Stip’, and that is because… ‘Mr. Todtberg said he was under treatment for repetitive motion stress disorder and on advice and stricture of his doctor’s orders was constrained from---‘ And Judge Levinson let this go on record?”

“As far as I can figure, your honor,” the senior partner offers, like from an open palm attached to French cuffs, it appears, “He was playing it safe.”

“This I understand. None of us wants to get reversed on appeal on our record, but jeez and jeepers…” the judge picks up the record of the proceedings, a finger scanning fast as a veteran of the Evelyn Wood Reading Dynamics Course might, yet muttering a few choice phrases. “…defies… Subpeona Duces Tecum—ok. What happened here?”

The Syms suit juggles some chump changes at the bottom of his pockets. “Said they were in a flood in his office, ruined. Then the landlord said there was no flood and he changed the location to a beach house in Montauk. When he was told to produce an address, it turned out to be an empty lot on Old House Road.”

“Is that anywhere near Shepards’ Neck Inn?”

“I believe it is a few streets up toward the hills, yes, your honor.”

“Used to go there with my parents every August, about 50 years ago. Motor court, they called them in those days. So what was the excuse then?”

“I am entitled to all defenses in my answer! I object to this line of questioning! Only Block Island vacations may be mentioned! You can’t afford it anymore! Not since the Hamptons—“

“Sergeant, please put a sock in him…”

“You want we should take him to a holding pen, yer honor?”

“Naw. Until the M.E. gets here with an analyst, I don’t want to make a move without him. He’s got templates on his Palm Pilot for every occasion from mistrials to prejudicial conduct for mammalian bigotry.”

“Huh,” this stumps the clerk, and even the court steno has to look up. “What’s that?”

“Filed a discrimination class action on behalf of a dolphin that took a wrong turn into the Hudson.”

Filene’s is puzzled as well. “But it thought dolphins were mammals.”

“That’s why it was dismissed on Summary Judgment.”