What happens immediately after the alleged injury occurs?
The employee must notify the employer immediately. If medical treatment is sought the employer must provide the claimant with Form LS-1, which authorizes treatment by a doctor of the employee’s choice. Unless otherwise noted, as of publication, all forms to be filed with the OWCP Division of Longshore and Harbor Workers’ Compensation can be found at http://www.dol.gov/owcp/dlhwc/lsforms.htm.
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. 33 U.S.C. § 912(a). Notice of death must also be given within 30 days. Additional time is provided for certain hearing loss and occupational disease claims.
(Elective – 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 contesting the right to compensation must file a Notice of Controversion of Right To Compensation 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. This conference will be held approximately one to three months following the filing of the request.
The informal conference can take place over the phone or in the district office where the case is venued.
If the issues cannot be resolved informally at the informal conference, the parties will be directed to file a Pre-Hearing Statement. The Pre-Hearing Statement is form LS-18, and can be submitted electronically (through SEAPortal). The case will then be referred to the Office of Administrative Law Judges for a formal hearing. An Administrative Law Judge will issue a formal decision and order regarding the benefits claimed.
Does Longshore Coverage Apply?
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.
We analyze whether Longshore jurisdiction applies, defend claims, and pursue lien recovery. Contact us.
Calculation of a claimant’s Average Weekly Wage (AWW) is dependent on the number of days and months worked, as well as the type of employee that he was at the time of the injury (e.g., a part-time or seasonal worker). NY WCL Section 14 provides a breakdown of how a claimant’s AWW is to be calculated. The generally-accepted method of calculating the AWW is to divide the total annual wages by the number of weeks worked. This is called the “straight division method”, and it is usually not a problem when the claimant worked for 52 weeks (give or take a few weeks) in the year prior to the accident. However, there are several circumstances under which a different method of calculation is warranted: Continue reading Friday F.A.Q.: Calculating Average Weekly Wage→
Attorneys Karen Vincent and Greg Lois of the Lois Law Firm explain how New Jersey’s Second Injury Fund works, when relief can be obtained from the Fund, and strategies for maximizing the contribution of the Second Injury Fund. The presentation includes a practical step-by-step illustration of the impact of Fund contribution in a total disability case with pre-existing conditions.
On large construction projects the main general contractor may obtain a workers’ compensation insurance policy to cover all workers on a the job site – this policy is called a “wrap-up” policy. A wrap-up policy has an expiration date that coincides with the planned completion date of the project.
Disability stemming from any disease within the course of employment may entitle the employee to compensation, if the disease is found to be occupational in nature. Di Nicola v. Crucible Steel, Inc., 83 A.D.2d 735, 736, 442 N.Y.S.2d 582, 584 (3d Dept. 1981); see also Rodriguez v. Atlantic Gummed Paper Corp., 61 A.D.2d 873, 402 N.Y.S.2d 238, 239 (3d Dept. 1978). To be considered an occupational disease, the disease must be the “result of a distinctive feature of the kind of work performed by claimant and others similarly employed, not an ailment caused by the peculiar place in which the particular claimant happens to work … or caused by ordinary contact with a fellow employee ….” Paider v. Park East Movers, 19 N.Y.2d 373, 380, 280 N.Y.S.2d 140, 144, 227 N.E.2d 40, 43 (1967) (citations omitted). In order to obtain workers’ compensation benefits based upon an occupational disease, the claimant must “establish a ‘recognizable link’ between his condition and a distinctive feature of his occupation.” Engler v UPS, 767 NYS2d 496, 498 . Therefore, the foundation of determining if a disability resulted from an occupational disease is whether a distinctive feature of employment caused the disability.
A recent decision serves as a reminder that when cases are bifurcated for trial, the ruling may only be limited to the issue before the Court. In Moran v. Cosmetic Essence, the Judge of Compensation issued a ruling on temporary disability following a bifurcated trial regarding the compensability of an alleged work-related injury. On March 14, 2018, the Appellate Division of the Superior Court of New Jersey remanded the matter finding that the workers’ compensation judge should not have ruled to award temporary disability benefits following a bifurcated trial on compensability.
The facts in Moran.
The petitioner, Nestor Moran, filed a Claim Petition alleging that he was injured on January 28, 2016 while lifting a heavy box. Respondent filed an Answer denying compensability and alleging that no accident occurred while working. Petitioner then filed a Motion for Temporary and Medical Benefits. However, due to the fact that the Respondent denied a work-related accident occurred, it was agreed that they would bifurcate the trial limited to whether a work-related injury occurred and if such an injury did not occur, whether the petitioner committed fraud by pursuing the matter. Continue reading Practical Advice for Bifurcated Trials in New Jersey→