The Set Aside Reference Guide (WCMSA Ref. Guide Vers. 3.5) was updated on January 10, 2022 to state that Medicare no longer gives “non submit” set aside allocations the same deference as “submitted and approved” set aside allocations. This will have a big impact on workers’ compensation settlements.
This is new and conflicts with other guidance issued by the Center for Medicare & Medicaid Service regarding both required pre-approval and the review thresholds. Two key questions emerge.
First, the new Guide states throughout that submission of a set aside for pre-approval by CMS is not required. All of the language in the Guide that confirms that pre-approval is not required is the same.
Second, the new statement, that CMS will not give deference to “non-submit” allocations conflicts with the fact that many allocations can not be submitted for review, according to Medicare’s own rules.
Extensively updated for 2021, this is our essential handbook to defending Longshore claims. This edition contains an entirely new chapter analyzing the compensability of COVID-19 claims and our latest guidance on efficient defense of Longshore and Defense Base Act matters.
This is the PDF (Adobe Acrobat) version of “Longshore & Harbor Workers’ Compensation Law – 2021 Edition” by Gregory Lois. This is the “Go To” Handbook for Defending Longshore and Defense Base Act Claims and is written in plain English for the risk professional, self-insured employer, and carrier.
This book covers the basics of the Longshore and Harbor Workers’ Compensation Act with references to the LHWCA, practical tips for defending claims brought under the Act, and review of recent relevant case law.
This is also a Practical Guide to Defense Base Act Litigation.
This book covers the differences between the LHWCA and the Defense Base Act, as well as provides a practical guide to defending DBA claims brought by employees doing public work overseas, including government-related construction projects, work connected with the national defense, or employment under a service contract supporting either activity. This handbook discusses working abroad both in- and out- of the “zone of special danger” and provides practical guidance to risk professionals.
What’s New in the 2021 Edition?
Entirely new chapter on COVID-19 Claims!
Expansion of Chapter 15, “The Defense Base Act.”
Updates to Chapter 4 “Employers and Employees” to include a discussion of the presumptions afforded to claimants under Section 20 of the Act.
Changes to Chapter 14, “Medicare Secondary Payer Act” to reflect current best practices for set-asides.
Updated all references to maximum and minimum rates with latest benefits rates and National Average Weekly Wage Information.
CHAPTER 1: INTRODUCTION TO THE LONGSHORE ACT
CHAPTER 2: INITIAL REPORTING
CHAPTER 3: JURISDICTION
CHAPTER 4: EMPLOYERS AND EMPLOYEES
CHAPTER 5: ARISING OUT OF AND IN THE COURSE OF
CHAPTER 6: DEFENSES
CHAPTER 7: MEDICAL BENEFITS
CHAPTER 8: INDEMNITY BENEFITS
CHAPTER 9: WAGES & RATES
CHAPTER 10: TRAUMATIC INJURIES
CHAPTER 11: OCCUPATIONAL EXPOSURE CLAIMS
CHAPTER 12: COVID-19 CLAIMS (new for 2021 edition)
CHAPTER 13: TRIAL, SETTLEMENT & DISMISSAL
CHAPTER 14: DEFENSE BASE ACT
CHAPTER 15: MEDICARE SECONDARY PAYER ACT
CHAPTER 16: HIPAA
APPENDIX: THE ACT
ABOUT LOIS LLC
ABOUT THE AUTHOR
About the Publication
List Price: $199.00 (Amazon) 6″ x 9″ (15.24 x 22.86 cm) Black & White on White paper 206 Pages ISBN-13: 9798692982384 BISAC: Law / Litigation
Instant Download Now:
About the Author, Gregory Lois, Esq.
Gregory Lois represents employers, self-insured companies, third party administrators, and insurance carriers in workers' compensation matters. Greg has served as lead attorney on more than 100 trials involving workplace discrimination, workers' compensation, and civil claims.
About Longshore Defense at LOIS
We defend employers and carriers in workers' compensation claims arising under the Longshore and Harbor Workers' Compensation Act in litigation before the U.S. Department of Labor and the U.S. Office of Administrative Law Judges. The LHWCA is a federal statute designed to provide medical benefits and compensation for lost income to longshoremen, harbor workers, dock men, ship repairmen, ship builders, and other maritime workers who are injured during the course of their employment.
In the event that a work-related injury or accident results in the death of an employee covered under the LHWCA, the Act also provides death benefits to the decedent's eligible survivors. We analyze whether Longshore jurisdiction applies, defend claims, and pursue lien recovery.
Download the handout, with cases and statutory citations, from the live training on COVID-19 and workers’ compensation here:
Question: What are the state's laws regarding the compensability of exposure to a virus? Could illnesses caused by coronavirus be covered in this jurisdiction?
NEW YORK: Yes, a disease contracted by an employee within the course of employment may be compensable. For example, illnesses or infections caused by specific workplace exposure such as a needlestick incident will be found compensable. In general, illnesses or infections caused by exposure to co-employees or general workplace risks will not be compensable. Most coronavirus claims will not be compensable.
NEW JERSEY: Yes, an infection caused by exposure in the workplace can be compensable as an occupational disease. For non-first responder employees, illness or infection will be compensable where there has been a specific, documented incident resulting in infection. For first responders, mere 'potential exposure' triggers a presumption of compensability. Most coronavirus claims will not be compensable.
LONGSHORE: Yes, infections caused by exposure in the workplace are compensable. To be found compensable, the exposure must be the result of a specific incident and not simply exposure to a general health risk. Most coronavirus claims will not be compensable.
Question: When would the condition be covered, when would it not be covered? What is the standard of proof the claimant must meet?
NEW YORK: A disease is considered to be compensable if it 'is the result of a distinctive feature of the kind of work performed by claimant and others similarly employed, not an ailment caused by a peculiar place in which particular claimant happens to work . . . or caused by ordinary contact with a fellow employee.' In general, ailments contracted from common exposure not specific to the workplace should not be found compensable. However, where the employee can show that the nature of the employment brought with it exposures to specific causes of disease or infection, then the resulting condition can be compensable. Examples of diseases that have met this standard includes pulmonary diseases such as bronchitis, infectious hepatitis, and staph infections. In those cases, the employee was able to demonstrate or allege a very specific exposure that was unique or peculiar to the employment. Additionally, where there has been a specific definite exposure, for example a teacher who contracted mumps after exposure to pupils during an epidemic, that illness was found compensable. Because the risk of coronavirus infection is not peculiar to any one workplace, with the exception of perhaps some medical or emergency response employments, a theory of general workplace exposure is unlikely to succeed for claimants alleging they contracted the disease due to exposure to co-employees or the general public in their workplace.
NEW JERSEY: The Act defines the phrase “compensable occupational disease” to 'include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment.' A petitioner has the burden of proving by a preponderance of the evidence that his or her environmental exposure was a substantial contributing cause of the alleged occupational disease. A petitioner must prove legal causation (the injury is work-connected) and medical causation (the injury is a physical or emotional consequence of work exposure). It is sufficient to prove that the risk or danger in the workplace was a contributing cause. Direct causation is not required. Activation, acceleration or exacerbation of disabling symptoms is sufficient. In general, it is extremely unlikely that a New Jersey petitioner will be able to satisfy this requirement by alleging contacts with co-employees or the general public resulted in contracture of the disease. The exception, discussed below, is New Jersey's 'first responders' in light of the recent (2019) law change granting them a presumption of compensability (see below).
LONGSHORE: Any disease arising out of exposure to harmful conditions of the employment, when those conditions are present in a peculiar or increased degree by comparison with employment generally. There is a three-step test for determining whether an employee has a compensable occupational disease:
First, the employee must suffer from a “serious derangement of health” or “disordered state of an organism or organ.”
Second, the specific working conditions of the employment must be the cause of the disease.
Third, the hazardous conditions must be “peculiar to” one’s employment as opposed to other employment or general living. In other words, there must be something extraordinary about the work exposures that directly relates to the condition allegedly disabling the affected worker.
In general, a Longshore or Defense Base Act claimant will not be successful alleging a claim for infection or illness unless there has been a specific incident of exposure; general exposure to co-employees or the public will not meet the standard for compensability.
If an employee tests positive, does the WC policy cover the employer testing employees for the virus?
NEW YORK: Yes, if the underlying condition is compensable, then testing or diagnostic treatment necessary to detect or confirm the condition would be medical treatment and the responsibility of the employer/carrier. Negative test results and 'screening' or preventative testing is not covered by the WCL.
NEW JERSEY: Yes, where the illness is found compensable, medical treatment includes diagnostic testing and is the sole responsibility of the employer/carrier. Negative test results and 'screening' or preventative testing is not covered by the Act.
LONGSHORE: Yes, where the claimant has a compensable condition the employer/carrier has an absolute duty to provide all necessary medical care, which includes diagnostic testing. Negative test results and 'screening' or preventative testing is not covered by the Act.
What About First Responders?
NEW YORK: Pursuant to WCL 10(3)(a), testing and diagnosis for first responders is covered when 'in the course of performing his or her duties, [the first responder] exposed to the blood or other bodily fluids of another individual or individuals.' This is an exception to the general rule that 'testing' is not covered until/unless the underlying medical condition is compensable.
NEW JERSEY: N.J.S.A. 34:15-31.5 provides a presumption of compensability in subsection a. if a public safety worker can demonstrate exposure at work to 'the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease.' The Statute also states 'If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.'
LONGSHORE: Not applicable.
What About Quarantine? How Are Employees Compensated for Lost Time Due to Quarantine?
Quarantine or isolation is a preventative/prophylactic measure that is not covered by workers' compensation. Lost time due to quarantine would be compensated either directly by the employer (if at all), or in the case of furlough or work shutdown, by the state unemployment remedy.
Questions about Coronavirus (COVID-19) and Workers’ Compensation?
Contact Greg Lois, managing partner at LOIS LLC with questions.
Learn More About LOIS
LOIS defends employers and carriers throughout New York and New Jersey. For more about the LOIS firm, click here.
More Information: Our Handbooks!
Our up-to-date handbooks are guides to workers’ compensation in New York, New Jersey, and Longshore. Our guides are available here.
This website is not legal advice! The materials presented by this website are for informational purposes only and are not offered as legal advice as to any particular matter. No reader should act on the basis of these materials without seeking appropriate professional advice as to the particular facts and applicable law involved. The materials are not represented to be correct, complete, or up-to-date. Opinions presented by this web site are the opinions of the author. Neither the use of this web site nor the transfer of information to or from this web site shall create or constitute an attorney-client relationship between Greg Lois or LOIS LAW FIRM LLC and any person. You should not send any confidential information to this web site until after you have entered into a written agreement for the performance of legal services.
Coverage under the Longshore and Harbor Workers’ Compensation Act requires a master-servant relationship between employer and an employee. Crowell v. Bensen, 285 U.S. 22, 54 (1932). The Act defines employee as “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker.” 33 U.S.C. § 902(3). The Act also sets out a long list of potential employees who do not fit the criteria: clerical and secretarial workers, marina workers, fishermen, etc.
The issue of employment is usually reached int he context of an alleged independent contractor seeking benefits. Just because an employer has not secured LHWCA coverage for an employee does not mean that that worker is not covered under the Act as an employee. Tanis v. Rainbow Skylights, 19 BRBS 153 (DOL Ben. Rev. Bd. 1986). Continue reading Longshore Employment Defined.→
Which workers’ compensation act applies: the Longshore and Harbor Workers’ Compensation Act or the Jones Act? The Jones Act and the LHWCA are mutually exclusive. Thus, when dealing with a “water-based” (as opposed to “land-based”) LHWCA claim, it must be determined if the claim falls within the criteria of LHWCA coverage, or belongs more properly under the Jones Act. Of course, the claim might not belong under either jurisdiction and should be decided under a state workers’ compensation act.
The Jones Act (The Merchant Marine Act, 1920, 46 U.S.C. § 688), in pertinent part, reads as follows: Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, ... and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury. ... Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.
Admiralty jurisdiction and the coverage of the Jones Act depends only on a finding that the injured was “an employee of the vessel, engaged in the course of his employment” at the time of his injury. The fact that a Jones Act petitioner’s injury occurred on land is not material. 46 U.S.C. § 740; Senko v. La Crosse Dredging Corp., 352 U.S. 370, 373 (1957). Continue reading The Jones Act v. Longshore→
The Longshore and Harbors Workers’ Compensation Act (“LHWCA”) covers longshore/harbor workers and other maritime workers. The Act has also been applied to certain other workers under the Defense Base Act.
“Status” and “situs.”
The LHWCA set forth the requirements for coverage. “Status” refers to the nature of the work performed; “situs” refers to the place of performance.
The employee claiming benefits under the LHWCA must be engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, including any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. There are specific exclusion which apply to status (see below). Continue reading Understanding Jurisdiction Under the Longshore Act→