I’ll be speaking at the Workers’ Injury Law & Advocacy Group 2022 Annual Convention in Scottsdale, Arizona on October 1. You may be wondering why I would be invited to speak at a convention of worker’s compensation lawyers. Good question! (Although longtime readers may remember that Merlini v. Canada, the case I successfully litigated against the Canadian government on behalf of a US employee at a Canadian consulate, began as a humble worker’s compensation matter).
It turns out that there is a very lively and interesting corner of the law about which I knew nothing at all until about a year ago. Under the Defense Base Act, the US government provides a workers’ compensation-like remedy to employees of US contractors, including defense contractors, abroad. Cases are heard by an administrative law judge in the Department of Labor, just as state workers’ compensation cases are heard by administrative tribunals.
I gather that until relatively recently, the judges and lawyers would travel around the world holding hearings, without considering the international or foreign law implications. Somehow, the idea that there was an issue came to everyone’s attention, and as a result, the ALJs have gotten very, very interested in the details of the law in this area. Which means that I have gotten somewhat busy drafting commissions, letters of request, motions for issuance of commissions and letters, expert declarations, and so forth. I find that my work is more valuable to my clients in this arena is among the most valuable work I have done in international assistance, for two reasons. First, the nature of worker’s compensation practice is such that the lawyer who have been consulting me generally are not part of firms with the in-house expertise to address the issues I address; and second, in many of these cases it is the claimant who needs to testify from abroad, and in the absence of good advice on taking evidence abroad, the claims might not be able to go forward at all.
There are a lot of interesting issues that crop up here. Is the administrative law judge a “judicial authority” who can issue a letter of request under the Evidence Convention? Is it necessary for a commission to issue from a “judicial authority,” too, or can it issue from an ALJ even if he or she is not a judicial authority? Is a workers’ compensation proceeding “civil or commercial?” If it is necessary to get a court to issue the letter of request, what is the procedural mechanism to make that happen? The All Writs Act? Also, many of the countries at issue are, for me at least, off the beaten trail: countries throughout the Balkans, South American countries, and others. So I have been a little bit like a kid in the candy store and am happy to try to return the favor.
Anyway, if you will be attending the conference or otherwise in Scottsdale on October 1, please let me know. I always love catching up with Letters Blogatory readers!