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
- 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 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.
All forms that need to be filed with the Division are available online:
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.