Category Archives: Longshore

Proposed Changes to Longshore Act will Affect Defenses.

A bill to change the Longshore and Harbor Workers’ Compensation Act (LHWCA) was recently referred to the Senate Committee on Health, Education, Labor and Pensions. (Track it!:  S. 669)  This bill is in the first step in the legislative process. Introduced bills and resolutions first go to committees that deliberate, investigate, and revise them before they go to general debate.
 
What is on the table?
There is a lot to like in the proposed bill for those of us defending Longshore Act claims:
 
LIKE IT:  A proposed amendment to the act (adding a new section, “901A”) stating “in a claim brought under this Act, the facts are not to be given a broad liberal construction in favor of the employee or of the employer, and the laws pertaining to a claim brought under this Act are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either the employee or employer.”  In other words: the “liberality and generosity” usually afforded to the claimant by the “remedial” legislation is not to be taken by the Courts as an excuse to make every inference in favor of the claimant.
 
LOVE IT:  Extensive revisions to Section 7 (33 U.S.C. 907 et seq.) allowing a carrier to “designate 1 or more participating networks or 1 or more health care panels, or both, for purposes of providing medical services to employees under this Act. An injured employee served by a carrier that has designated an approved participating network under subparagraph (C) or a health care panel under subparagraph (D) shall not be entitled to recover any amount expended by the employee for medical services and supplies unless the employee has secured such medical services and supplies through a physician or other health care provider that is a participant in such network or panel, respectively.”  In other words, medical cost control with the employer/carrier picking the doctors and medical facilities.  Hooray!
 
GOOD:  The revised law would provide a real defense to intoxication by removing the word  “solely” from the sentence, “No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another”. Section 903(c).  Proving a legally drunk claimant’s injury is “solely” due to his intoxication, in light of other possible factors (fatigue, etc.) makes the current defense illusory.  The proposed changes also add a later section ( 920(a)(3)) Section 920(a)(3) which allows that the the nonintoxication presumption of Section 920(a)(1)(c) can be rebutted, by a refusal of a drug or alcohol test by the employee, by the employee testing positive for illegal drugs, or by  the employee having a blood alcohol concentration level above the permitted driving limit.
 
OK:  The employer no longer has to show “irreparable harm” in order to obtain a stay of an order under appeal.  Section 921 would read “Disputed amounts required by an award shall be stayed.”
 
FINALLY:  A proposed change to the way penalties are assessed: The 20% penalty provision of Section 914(f) is changed by striking “within ten days after it becomes due” and inserting instead “within 10 business days after receipt by the employer or carrier of a priority mailing containing the order.”  
 
So far, so good.  But the proposed bill is not all roses. 
 
HATE IT: Ending the Second Injury relief of 908(f) except for modifications of existing 8(f) cases.
 
WHAT THE . . .?: The proposed law would raise the compensation rate to 75% of “spendable earnings” rather than 66.% of average weekly wage.  This introduces a new concept:  “spendable earnings.”  Currently, only six states base workers’ compensation benefits on “spendable earnings” (Rhode Island, Alaska, Connecticut, Iowa, Maine, and Michigan).    The proposed changes calculate “spendable earnings” as follows: first, divide the actual earnings of the employee for the provisos 52 weeks by 52, then subtract “the Federal, State, and local taxes that would have been withheld based on standard deductions and on the domicile of the employee at the time of the injury, and reduced by subtracting the tax that would have been withheld under section 3101 of the Internal Revenue Code of 1986.”  The proposed changes require that a new table be drafted to assist in this calculation.  (Proposed change to Section 10).  Clearly unnecessary and burdensome.
 
What’s next?  We will continue to monitor the progress of this proposed bill and let you know if it makes it out of committee! 

Full text of proposed changes: Link.

Initial reporting of claims under the Longshore and Harbor Workers' Compensation Act

My book – “Longshore and Harbor Workers’ Compensation Act and Defense Base Act Claims 2011 Edition” is getting ready for publishing and we are finalizing the cites and references for the 2011 editiion (shipping: April 2011). Here’s a sneak preview of the second chapter (note: all cites & footnotes have been removed):

Chapter 1: Initial Reporting

Overview

  • The employee must notify the employer immediately by reporting the accident.
  • If medical treatment is sought, provide the claimant with Form LS-1, which authorizes treatment by a doctor of the employee’s choice.
  • The claimant will then receive medical treatment.
  • The claimant must provide written notice of the injury within 30 days to the employer on Form LS-201. Notice of death must also be given within 30 days. Additional time is provided for certain hearing loss and occupational disease claims.
  • (Optional – does not happen in all cases). To obtain permanency and some other benefits under the Act, the injured worker must file either Form LS-203 or a written statement identifying the alleged injury and stating that the identified claimant is seeking benefits. This must be filed within one year after injury, or, if the employer or its insurer has made voluntary payments, within a year after the last payment. If the alleged condition is an “occupational disease” rather than a specific accident, the filing period is two years from the date it was recognized as employment-related and disabling character.

Forms & Procedure – Controverting claims.
An employer controverting the right to compensation must file a Notice of Controversion of Right To Compensation10 with the District Director on or before the fourteenth day, after knowledge of the alleged injury or death (from the date the claimant files Form LS-207). following the filing of a Notice of controversy, an informal conference will be scheduled at the District Office and a Longshore claims examiner will preside over an informal conference to discuss and potentially resolve the dispute. If the issues cannot be resolved informally, the parties will be directed to file a Pre Hearing Statement. The case will then be referred to the Office of Administrative Law Judges for a formal hearing. The Administrative Law Judge will issue a formal decision and order regarding the benefits claimed.

Appeal.
Appeal from the decision of the Administrative Law Judge is to the Benefits Review Board. Appeal of the benefits Review Board’s decision is to the appropriate Circuit Court and finally the Supreme Court of the United States.

DLHWC Forms
All forms that need to be filed with the Division are available online:
http://www.dol.gov/owcp/dlhwc/lsforms.htm
These forms include: wage statement (LS-200), pre-hearing statement (LS-18), and employee’s claim forms (LS-203).

Notice in specific accident cases.
Notice of an injury or death for which compensation is payable must be given within 30 days after injury or death, or within 30 days after the employee or beneficiary is aware of, or in the exercise of reasonable diligence or by reason of medical advice should have been aware of, a relationship between the injury or death and the employment.12 It is the claimant’s burden to establish timely notice. The claimant is provided a presumption that timely notice has been provided.13 Where one injury arises out of an accident has been reported, the claimant does not have to give separate notice of other injuries resulting from the same incident.14
     
Notice in occupational disease cases.
In the case of an occupational disease which does not immediately result in disability or death, notice must be given within one year after the employee or claimant becomes aware or in the exercise of reasonable diligence or by reason of medical advice, should have been aware of the relationship between the employment, the disease, and the death or disability. Thus, the period does not begin to run until the employee is disabled. It is possible for an employee to bring an occupational disease claim “post-retirement.” In a post-retirement occupational disease claim, the claimant will be required to show that the retirement was ‘involuntary’ in that the allegedly occupationally-related condition caused him to leave the workforce.
         
Giving the report of loss.
The injured worker can provide notice to:

  • The first-line supervisor (including foreman, hatch boss or timekeeper), local plant manager, or personnel office official;
  • Any partner, if the employer is a partnership; or
  • Any authorized agent or officer, therefore, upon whom legal process may be serviced or person in charge of business at the place of injury if the employer is a corporation.

Notice as a defense.
Notice to the employer is a requirement. Therefore, the lack of notice to the employer can be a defense to a claim. We discuss using ‘Notice’ as a defense in Chapter 5, infra.

New Book Project . . .

The first chapter of my new book – “Longshore and Harbor Workers’ Compensation Act and Defense Base Act Claims 2011 Edition” is off to the publisher and we are finalizing the cites and references for the 2011 editiion. The publication will ship in April 2011(note references below). Here’s a sneak preview of the introductory chapter:

Introduction

The Longshore and Harbor Workers’ Compensation Act (“LHWCA”) was enacted in 1927 to provide no-fault workers’ compensation benefits to longshoremen injured in the navigable waters of the United States. These benefits extend to longshoremen injured within three miles of shore which includes the docks along the shore. In the last year for which such statistics are available, there were 27,000 new claims filed and $764M in benefits issued under the LHWCA. Since its inception in 1927, the LHWCA has been amended many times, usually to extend the benefits available under the Act to more workers.

Who is a Longshoreman?
The LHWCA covers employees in traditional maritime occupations such as longshore workers, ship-repairers, shipbuilders or ship-breakers, and harbor construction workers. The term “Longshoreman” typically refers to maritime workers responsible for unloading or loading ships and who are not a master or member of the ship’s crew. The injuries must occur on the navigable waters of the United States or in the adjoining areas, including piers, docks, terminals, wharves, and those areas used in loading and unloading vessels. Non-maritime employees may also be covered if they perform their work on navigable water and their injuries occur there.  

Who else qualifies for benefits under the LHWCA?
Congress extended the LHWCA to include other types of employment. Employees covered by these extensions are entitled to the same benefits, and their claims are handled in the same way as Longshore Act claims. The following are the extensions of the LHWCA:

  • DEFENSE BASE ACT – applying to employment at overseas military bases of the United States and to employees of U.S. government contractors working outside the United States in public work projects or in national defense and military operations;
  • OUTER CONTINENTAL SHELF LANDS ACT – applying to employees working on the Outer Continental Shelf of the United States in the exploration and development of natural resources, for example, off-shore oil drilling rigs;
  • NONAPPROPRIATED FUND INSTRUMENTALITIES ACT – applying to civilian employees of non-appropriated fund instrumentalities of the Armed Forces (for example, military base exchanges and morale, welfare, and recreational facilities).

Who is specifically excluded from benefits under the LHWCA?
The LHWCA specifically excludes from eligibility for benefits the following individuals:

  • Seamen (masters or members of a crew of any vessel);
  • Employees of the United States government or of any state or foreign government;
  • Employees whose injuries were caused solely by their intoxication;
  • Employees whose injuries were due to their own willful intention to harm themselves or others.

We cover these exclusions in depth in our chapter on Defenses. The LHWCA also excludes the following individuals if they are covered by a state workers’ compensation law:

  • Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;
  • Individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
  • Individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);
  • Individuals who (A) are employed by suppliers, transporters, or vendors, (B) are temporarily doing business on the premises of a maritime employer, and (C) are not engaged in work normally performed by employees of that employer covered under the Act;
  • Aquaculture workers;
  • Individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel or dismantle any part of a recreational vessel in connection with such repair;
  • Small vessel workers if exempt by certification of the Secretary of Labor under certain conditions. 

What benefits are available under the LHWCA?
The LHWCA provides for medical benefits and disability benefits to an injured worker. An injured employee is entitled to reasonable and necessary medical, surgical, and hospital treatment and other medical supplies and services required by the work-related injury or illness, such as prescription medications, diagnostic tests, physical therapy, prostheses, hearing aids, attendant care, and the cost of travel for such treatment. An injured employee is entitled to select a physician of his/her choice to provide medical treatment for the work injury. The LHWCA provides for the payment of compensation for the following four types of disability: temporary partial, temporary total, permanent partial, and permanent total. This compensation can not exceed two-thirds of the employee’s average weekly wage during the period of disability, subject to maximum and minimums.

About this Book
This book is designed to be a “plain English” practical and up-to-date guide to handling claims under the Longshore and Harbor Workers’ Compensation Act (and Defense Base Act claims).

The chapters in this book are designed to follow the natural timeline of a LHWCA compensation claim: We begin with initial reporting requirements, establishing jurisdiction, and we address ‘compensability.’ We then discuss the benefits available to an injured worker: medical treatment, wage replacement, and special handling considerations for specific types of claims. Finally, the ending chapters in this book discuss trial considerations, types of settlements, judgment and appeal, and related considerations (HIPAA, Medicare Secondary Payer, etc).

Writing a book on Longshore and Harbor Workers’ Compensation Law is like trying to hit a moving target. The law is evolutionary. As this book goes to press in April 2011, we are confident that it represents the most up-to-date edition we have ever published. We encourage you to subscribe to our free newsletter and visit Greg Lois’ website (www.greglois.com) for the very latest updates.

To subscribe to our free newsletter, please send an email to glois@tompkinsmcguire.com.