On December 30, 2011, the U.S. Department of Labor issued a new regulation excluding all workers employed in the repair of any recreational vessel (regardless of length) from coverage under the Longshore and Harbor workers’ Compensation Act. A recreational vessel is defined as a vessel that is manufactured or operated primarily for pleasure or leased, rented, or chartered to another for pleasure.

At the edges, the new regulation will not impact marina operators, because the LHWCA excludes from the term “employee” those “individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance),” provided the worker is subject to a state compensation law.

Consequential injury under the Longshore/Defense Base Act.

When an employee sustains an injury at work followed by a subsequent injury or aggravation outside of work, the employer is liable for the entire disability and for medical expenses due to both injuries if the subsequent injury is the natural or unavoidable result of the original work injury and would have occurred notwithstanding the subsequent injury. If the subsequent progression of the condition is not a natural or unavoidable result of the work injury, but is the result of an intervening cause, the employer is relieved of liability for disability attributable to the intervening cause.

Widow claims husband's death was "natural result" of work injury.

In a notable recent case, a longshoreman had an admitted leg injury at work. The employer voluntarily paid temporary total disability and medical benefits. The claimant was prescribed pain medications (Fentanyl patch, oxycodone). Two-and-a-half years later, the claimant underwent an (unrelated) tonsillectomy. He was prescribed pain medications following the (unrelated) surgery, which he took in addition to his "work related" pain meds. Three weeks later, he was dead. The autopsy revealed that Employee died from a multi-drug overdose related to his use of pain killers for both the leg injury and the subsequent non-work related surgeries. The widow filed a claim for death benefits.

Failure to comply with doctor recommendations was an "intervening cause" of death - case dismissed.

At trial the employer was able to prove that the decedent did not tell his doctors that he was taking pain pills for both the work injury and the non-work injury. The trial judge found that the decedent’s failure to inform his doctors of his pain killer abuse was the action that led to his death. The decision was upheld on appeal to the benefits Review Board.

Case: Sinegal v. Island Operating Company, BRB 11-0199 (Decided October 25, 2011).

Most-Requested Articles of 2011 . . .

New York 

10) Challenging Wages in Concurrent Employment Cases Post reform.
9) Overview of the New Permanent Disability Guidelines Effective January 2012.
8) When Are "Exotic Performers" not Employees in New York?
7) New York Workers' Compensation settlements.
6) Suicide and Compensation.
5) Applying the "Attachment to the workforce" test to ongoing benefits.
4) Effective Use of video at trial in New York.
3) Applying the Medical Treatment Guidelines to Out-of-state claimant
2) Rejecting Variances Based on Defective Filings.
1) The Medical Treatment Guidelines in Practice.

New Jersey

9) Using Facebook and other Social Media to Nail Frauds in New Jersey.
8) Attorneys' Fee Trends in New Jersey.
7) Reconstructing Wages in New Jersey.
6) Trying a Medical Provider Claim - the Burn Surgeon's Case.
5) Using a "Tie-Breaker" to Resolve a Medical Treatment Dispute.
4) Was It Too Much Facebook or Too Much Work that Killed Cathleen Renner?
3) Using Video at Trial in New Jersey.
2) Penalties for Carrier's Actions in New Jersey and New York.
1) Love and Bullets for Valentines Day.

Longshore and Defense Base Act

5) Initial Reporting under the Longshore Act.
4) Defenses under the Longshore Act.
3) Calculating Wages under the Defense Base Act.
2) The "True Doubt" Rule.
1) New Longshore Rates in Effect.

All compensation rates are based on a calculation of the claimant’s weekly wage. In every case, the actual benefit amount requires reference to the National Average Weekly Wage as a ‘maximum’ on the possible benefits. The Department of Labor determining the National Average Weekly Wage as follows:

As soon as practicable after June 30 of each year, and in any event prior to October 1 of such year, the Secretary shall determine the national average weekly wage for the three consecutive calendar quarters ending June 30. Such determination shall be the applicable national average weekly wage for the period beginning with October 1 of that year and ending with September 30 of the next year.

See 33 U.S.C. §906(b)(3).

The U.S. Department of Labor has announced the annual rate increase effective October 1, 2011 based on a newly-calculated National Average Weekly Wage (NAWW).

The new NAWW effective October 1, 2011, is $647.60. This represents a 3.05% cost of living increase over October 1, 2010. All beneficiaries receiving permanent total disability or related death benefits as of September 30, 2011, receive a 3.05% increase in their weekly rate.

The new NAWW also establishes the new maximum and minimum rates under section 906(b); effective October 1, 2011, the maximum weekly rate under the Longshore Act is 200% of the NAWW, so the new maximum rate is $1,295.20 per week. The minimum rate is 50% of the NAWW, so the new minimum rate is $323.80 per week.

Judges hearing Longshore and Harbor Workers' Compensation claims have long applied a "true doubt" rule - which shifts the burden of persuasion to the party opposing a benefits claim. Although the "true doubt" rule was thrown out in 1994 with the Supreme Court's decision in Greenwich Collieries (discussed below), there is a pervasive attitude in workers' compensation that fact disputes should always be resolved in favor of the claimant.

While the Greenwich Collieries decision is nearly 20 years old, the bias is so ingrained that recently proposed changes to the Longshore and Harbor Workers' Compensation Act, amend Section 901(a) to state “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.” (See my earlier post on the proposed changes).

In case decided September 6, 2011, the Court of Appeals (4th Circuit) ruled that where both sides presented diametrically opposed but equal evidence, the claimant must lose.

The Green Decision

Robert Green claimed that exposure to loud noises during 23 years of employment as a Longshoreman caused him to develop compensable sensorineural hearing loss. According to Green, he was often removing and installing twist-lock cargo container "shoes" (which fasten one container to another on a cargo ship). Green alleges that the noise of the freed containers contacting the waiting truck chassis, along with normal dock noises - machinery, diesel forklists, etc., - led to his hearing loss.

Green provided the court with the testimony of his audiologist (Joseph Gillespie) who testified that the claimant suffered from hearing losses at specific frequencies and which impacted the claimant's ability to distingish some spoken workds, including "the S's and F's and K's and TH's." He diagnosed "slight to mild sensorineural hearing loss, left greater than right" and calculated a 3.75% binaural hearing loss. Gillespie recommended that Green obtain in-the-ear hearing aids. Green filed a claim for disability benefits under the Longshore and Harbor Workers' Compensation Act.

In response, the employer had Green examined by a second licensed audiologist, who performed comprehensive audiological testing on the claimant. This new testing showed no hearing impairment (0% binaural). The claim for benefits was denied.

A trial ensued. Both audiologists testified that in order for two audiograms to be within "good reliability" there should be no more 5db difference between the two tests. The tests in question showed more than 5db variability at tested frequencies. The claimant's audiologist, Gillespie, testified that the differences between the two tests could be due to

1. the claimant's inattentivieness during the test; or
2. The presence of a cold or other medical condition which could have affected middle ear pressures.

The claimant's audiologist recommended that the claimant get a new (third) hearing test performed - but he claimant declined to do so.

The Administrative Law Judge found that the audiograms were both credible and "entitled to equal probative value" and so averaged the results to find an overall disability of 1.85% binaural hearing loss. The Benefits Review Board affirmed this decision.

The Appeal.

The employer appealed - arguing that the claimant did not meet his burden of proof under the law. The claimant essentially argued that in the case of a "tie" - two equally credible audiologists with differing views of disability allows the Judge to make a "split the difference" call. The employer argued that the evidence was not simply reliable - that the tests demonstrated too much variability and therefore neither could be relied upon. Further, both audiologists admitted that the variability between the two tests was beyond the threshold for determining reliability - on short, neither test could be considered "reliable" and therefore a Judge averaging two unreliable results could not yield a third, more reliable estimation of disability.

In a new decision issued September 6, 2011, the Appellate Court overturned the decision, citing the Spreme Court's decision in Director, Office of Workers' Compensation Programs, DOL v. Greenwich Collieries (93-744), 512 U.S. 267 (1994), which stands for the proposiiton that when the evidence is evenly balanced, the claimant must lose.

Case: Ceres Marine Terminals, Inc. v. Green, — F.3d —-, 2011 WL 3891891 (4th Cir. 2011).

in a recent case (decided June 20, 2011) the claimant worked for a long time in foreign combat environments. He then took a "safer" job working on the United States Army Kwajalein Atoll in the South Pacific. In 2008 he sustained a neck injury and was admittedly entitled to medical and lost time (indemnity) benefits. The administrative law judge (“ALJ”) had to determine the average weekly wage. The ALJ determined that Claimant’s rate of pay at the time of his injury on the Atoll, a non-hostile environment, would form the basis of his wage calculation under 33 U.S.C. § 910. The claimant appealed, arguing he had earned more when working in more dangerous environments previously.

The Benefits Review Board (“BRB”) upheld the ALJ’s average weekly wage calculation, finding that because the Claimant’s pre-Atoll jobs were performed under different conditions, they would not form the basis for calculating his current wages.

Interestingly, this case is the exact opposite of the typical war zone cases, where a claimant is working in a high-danger job, often at a premium for any hazardous duty, and often for a short time before the disabling accident occurs - in which case the claimant gets the benefit of the higher wages (even if only briefly earned) in establishing his wage rate for the purposes of compensation.

Defining Wages.

The LHWCA defines the term "wages" as the money rate at which the service rendered by an employee is compensated by an employer under the contract of hiring in force at the time of the injury, including the reasonable value of any advantage which is received from the employer and included for purposes of any withholding of tax under subtitle c of the Internal Revenue Code of 1954 (relating to employment taxes). The term "wages" does not include fringe benefits, including (but not limited to) employer payments for or contributions to a retirement, pension, health and welfare, life insurance, training, social security or other employee or dependent benefit plan for the employee's or dependent's benefit, or any other employee's dependent entitlement. 33 U.S.C. § 902(13). This definition does include housing and meals in the calculation of a claimant's wages provided that they were not fringe benefits except in the Ninth Circuit, which holds that the the IRS criteria for deciding whether non-monetary compensation counts as wages. (For more on the definition of "wages" see Chapter 8 of my book, Longshore and Harbor Workers' Compensation Law, 2011 edition.)

Calculating Wages.

In the case where the claimant worked substantially the same employment as the employment he was engaged in at the time of the injury, whether for the insured or another employer, for most of the year the Act provides:

. . . his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed. 33 U.S.C. § 910(a).

Making this determination requires knowledge of whether the claimant was six- or five-day worker. Next, a wage statement should be obtained, with daily and weekly wages if available.
If the claimant did not work in the employment or a similar employment for “substantially the whole part of the year” then his wages will be based on a co-employee of “the same class working the whole of such immediately preceding year in such employment in the same or neighboring place” using the same 260- or 300-day multiples. 33 U.S.C. § 910 (b).

If neither of these metrics fit the fact situation (for example, a new hire working on a new project without a similar project in a neighboring locale) then the wages will be based on the previous earning of the claimant, the reasonable value of the services provided if the claimant was engaged in self-employment, and the wage experience of similar workers.

Wages in Traumatics versus Occupationals

The LHWCA calculates the claimant's average weekly wage differently based on the type of injury sustained.

Traumatic Cases

In a trauma case the employee's average weekly wage "at the time of the injury" is used to compute the claimant's compensation. LeBlanc v. Cooper/T. Smith Stevedoring, Inc., 130 F.3d 157 (5th Cir. 1997). This is relatively easy to do. In a traumatic case where the injury is to the low back, neck, head, shoulder, or psyche, the AWW is very important as the unscheduled disability award will be based on the claimant’s pre- and post-injury earnings. In all cases, claimants will receive more benefits for higher wages, subject to the statutory maximums in place at the time of loss.

Occupationals

In an occupational case the time of injury, is when the claimant became aware of, "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.” Therefore, the wage earned by the claimant at that time (time of discovery) is used. This can be higher than during the period of actual exposure or employment.

Rates: a key the difference between Longshore and the Defense Base Act.

All Longshore compensation rates are based on a calculation of the claimant’s weekly wage. In every case, the actual benefit amount requires reference to the National Average Weekly Wage as a "maximum" on the possible benefits. For accident occurring now (Aug 2011) the maximum is $1,256.84 and the minimum is $314.21. Although the benefits available under the DBA are identical to the LHWCA, there is one key distinction: minimum compensation rates. While the minimum compensation rate under the LHWCA is 50% of NAWW, there is no minimum weekly compensation rate under the DBA.

New Case: Calculating wages under the Defense Base Act.

In a recent case (decided June 20, 2011) the claimant worked for a long time in foreign combat environments. He then took a "safer" job working on the United States Army Kwajalein Atoll in the South Pacific. In 2008 he sustained a neck injury and was admittedly entitled to medical and lost time (indemnity) benefits. The administrative law judge (“ALJ”) had to determine the average weekly wage. The ALJ determined that Claimant’s rate of pay at the time of his injury on the Atoll, a non-hostile environment, would form the basis of his wage calculation under 33 U.S.C. § 910. The claimant appealed, arguing he had earned more when working in more dangerous environments previously.

The Benefits Review Board (“BRB”) upheld the ALJ’s average weekly wage calculation, finding that because the Claimant’s pre-Atoll jobs were performed under different conditions, they would not form the basis for calculating his current wages.

Interestingly, this case is the exact opposite of the typical war zone cases, where a claimant is working in a high-danger job, often at a premium for any hazardous duty, and often for a short time before the disabling accident occurs - in which case the claimant gets the benefit of the higher wages (even if only briefly earned) in establishing his wage rate for the purposes of compensation.

Case: Luttrell v. Alutiiq Global Solutions, BRB No. 10-0555 (2011).

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.

Using surveillance video at trial in New York, New Jersey, and Longshore/DBA workers' compensation claims.

New York: Special surveillance video rules.

Under the New York Workers' Compensation Law, making false statements to obtain workers' compensation benefits is illegal and will result in the claim being thrown out (WCL § 114(a)) and the claimant referred for prosecution. The fraud defense will be based on two types of statements made by the claimant: (1) statements made inside a court room and (2) statements made to doctors in examining rooms.

In a recent case, a New York Appellate Court affirmed a disqualification from benefits where video surveillance of the claimant showed him going to and leaving a medical examiner's office with a leg brace and a cane AND A WALKER.  (Wait a second - - -a cane AND a walker?  How could he manage that with only two hands?!?)  While that portion of video showed a severely disabled victim, in later scenes the claimant was able to move his legs freely.  The video revealed that he was not not using a brace,  cane or walker, and showed that he actually had no impairment in his daily activities. 

The Board ruled that the claimant had violated WCL § 114(a) and was disqualified from workers' compensation benefits.  The appellate panel, on review, affirmed that disqualification.  (Case: Retz v. Surpass Chem. Co.,).

Practical note: New York has specific submission requirements for video - it must be in either ".avi" or ".wmv" and submitted to the WCB on a DVD-ROM.  In my experience, the submission will be noted as a "NS-OBJECT" in e-case ("Non-scannable object").  The video must be viewable in "Windows Media Player" or the WCB will reject the video.

Video in New Jersey: Getting the video into evidence.

Video surveillance is often relied upon by the defense in New Jersey  to either challenge credibility or to demonstrate that a claimant is not as disabled as he appears from his own testimony or his doctor’s examination.  Video does not have to be disclosed during the normal discovery process, even though adversary counsel may demand copies of videotape.  Under the current rules, video does not have to be revealed unless the respondent intends on using the video and only after the petitioner testifies.

One exception to this is where the respondent has shown the video to an examining or treating physician.  If the video has been shown to an attending or examining doctor prior to the petitioner's testimony, then it is discoverable by the petitioner prior to his testimony.

Practical Tip:  Ever since the decision of Gross v. Neptune the introduction of videotape evidence in contested workers’ compensation trials in New Jersey is limited by the disclosures on the Pre-Trial Memorandum. In Gross, the respondent did not disclose surveillance video on the Pre-Trial memorandum.  During the trial (after the claimant testified), the respondent obtained videotape surveillance of the petitioner.  The video evidence was not admissible due to the failure of the respondent to provide proper notice that the video was to be used.

Best practices:  Whether or not we have surveillance, we always put (on every "green sheet" Pre-Trial memorandum) that the "respondent reserves the right to obtain video surveillance of the claimant after the trial has started as per Gross v. Neptune.

Video in Longshore/DBA claims.

The Federal Rules of Civil Procedure require that surveillance evidence must be disclosed if it is to be used at trial. FRCP 26(b)(1).   However, video used as "impeachment evidence" - to challenge the credibility of the claimant - is not subject to discovery.  So, if you have great video on the claimant, but you only intend to use the video during cross-examination (and not send it to your evaluating doctor, for example), is it discoverable?

The Federal Rules (FRCP 26(a)(3)) clearly excludes from pretrial discovery material which will be used "solely for impeachment purposes;" the obvious rationale for excluding impeachment material from discovery is that their disclosure would substantially impair their impeachment value.  In Fee v. Calcasieu Paper Co., videos of a claimant were obtained by elaborate detective work which included inducing the disabled man to dig, to conceal cameras in fox holes and to surveil on his activities.  That video was deemed admissible by the judge. However, in a recent  case arising under the Jones Act, the Fifth Circuit has held that a surveillance videotape of an injured worker's daily activities constituted substantive evidence subject to disclosure pursuant to a discovery request.  The trial court's admission of the tape solely for impeachment purposes, when the evidence was in part substantive, constituted reversible error. Chiasson v. Zapata Gulf Marine Corp.

The decision whether to admit surveillance films and the weight to be accorded such evidence are matters within the discretion of the judge. 

Longshore and Harbor Workers' Compensation Law

2011 Edition

Authored by Gregory Lois
Edited by Matthew P. O'Malley
List Price: $19.00 Order now (soft cover) or for Kindle. Coming soon to the iBookstore!

From the publisher's description:

THE MOST PRACTICAL, up-to-date and easy-to-understand guide to Longshore and Harbor Workers' Compensation claims. This guide is written in plain English by an attorney and provides a detailed analysis of relevant statutes and regulations; a complete recap of recent court decisions; and a full description of current practice and procedure. This book provides a behind-the-scenes look at the complicated issues and makes the law understandable for business owners.

Updated chapters on the Defense Base Act, the Medicare Secondary Payer Act, and HIPAA considerations are included. [2011 Edition.]
Publication Date: Apr 15 2011
ISBN/EAN13: 1461030447 / 9781461030447
Page Count: 226
Binding Type: US Trade Paper
Trim Size: 6" x 9"
Language: English
Color: Black and White
Related Categories: Law / Labor & Employment

Order now (soft cover) or for Kindle.

How is jurisdiction established under the LHWCA?

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. (See my overview of the LHWCA).

“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.

Status.

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.

Situs.

The jurisdictional trigger for a claim under the LHWCA is an injury upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel). Jurisdictional questions based on issues of situs are fact-sensitive.

In a new case, decided last month, the employer argued that the claimant did not satisfy either the status or situs prerequisites of the LHWCA. The Benefits Review Board ruled that the claimant did satisfy the status requirement, because he was maintaining and repairing loading equipment used in Longshoring activity.

However, the claimant worked in a garage, more than 400 feet from any navigable water (the Monongahela River). The employer argued that the claimant did not meet the 'situs' test.

Taking a liberal view, the Circuit Court adopted a broad reading of "other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel," requirement of the Act. In defining "adjoining area," the court held that "[s]o long as the site is close to or in the vicinity of navigable waters, or in a neighboring area, an employee's injury can come within the [Act]. To require absolute contiguity . . . would frustrate the congressional objectives of providing uniform benefits and covering land-based maritime activity." The Board ruled that the garage where claimant was injured was a covered situs, and awarded benefits.

Case: Consolidation Coal Co. v. BRB, et al. [Smith], __ F.3d __, 2010 WL 5176847 (3d Cir. 2010).

Have any questions about this article? Contact Greg Lois.

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 Chapter 6: Medical Benefits (note: 43 footnotes with citations have been removed):

Chapter 6: Medical Benefits under the LHWCA

Section 907 of the Act requires that the
. . . employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the injury or the process of recovery may require.

The employer must respond to a request for treatment upon notice of the injury, even if the work-relatedness of the injury is challenged. The duty of the employer to provide medical treatment is absolute. The medical care provided must be both “reasonable and necessary” and appropriate for the injury.   The claimant has the right to choose his own attending physician.

The physician chosen by the claimant must submit a report to the carrier within 10 days.

The right of the claimant to choose his own physician is only limited by the ‘prohibited’ provider list of physicians and facilities who do not meet standards established by the DOL.

The employer is liable for all medical expenses for any consequences of the compensable injury, including the chosen physician's malpractice.  While an employer is not liable for medical expenses due to the degenerative processes of aging, an employer is responsible for ‘aggravations’ of prior injuries. An employer is responsible for treatment even if the work-related injury only partly causes the need for that treatment, and that is true in psychological injury cases as well as physical injury ones.

Any injury sustained during the course of a medical examination scheduled at the employer's request for an alleged work-related injury is covered under the LHWCA, because such an injury necessarily arises out of and in the course of employment.

Exceptions to the claimant’s choice of physician

Emergencies

The employer is allowed to select a doctor or facility the claimant can not due to the nature of his injury and the injury requires urgent treatment, the employer is to select a physician for him. The claimant must be incapacitated and in need of emergent treatment for this exception to be invoked. Once the claimant regains his faculties, then he regains the freedom to chose his own attending doctor.

Changing doctors

Once a claimant has made an initial unrestricted choice of a physician, he may change physicians only upon obtaining prior written approval of the employer, carrier, or deputy commissioner. If the claimant fails to obtain the required authorization to switch treaters, the carrier/employer does not have to reimburse the claimant for the costs of the new, unauthorized treatment. Note: referral to a specialist from an attending physician will not invoke a need for new authorization from the carrier.
         

Requesting treatment.

The claimant must report his injury and request treatment in order to trigger an employer’s responsibility to pay for such care. There are many instances where an employee does not have to formally report his injury - for example, where an employer’s representative is at the scene of the accident. An employer “has knowledge of an injury” when an accident occurs and a reasonable person could conclude that there might be liability for compensation and should investigate further.

Mere knowledge of an accident is not enough to make an employer liable for paying medical bills - accident happen everyday and no treatment is sought. The employee must affirmatively request care in order to trigger responsibility on the part of the employer for any resulting medical bills.

The employee does not have to request treatment when a request would be futile. For example, if the claimant was fired for reporting the accident, there would be no duty on the part of the claimant to seek treatment from the employer.

Judicial review of medical treatment

A claimant only has to present the opinion of a qualified physician that treatment was necessary for a work-related condition to establish a prima facie case for compensable medical treatment. The judge can order the employer to make payment for medical treatments already received by the claimant. The Judge can also order that a specific course of medical care be authorized by the employer. However, a judge can not pick specific medical facilities for the care to take place - that would abrogate the claimant’s right to pick his own doctor.

A judge has no authority to deny a medical expense on the technical grounds such as a particular physician's expertise, whether the fee charged was within the customary range, or where the medical treatment was not documented. The Judge can only rule on the reasonableness of the medical services.

It is up to the employer to raise the reasonableness and necessity of treatment before the presiding judge.

What counts as medical treatment?

Stories are legion and Longshore caselaw is replete with references to dubious medical treatment prescribed by treating physicians and ruled to be the employer’s expense (for example - the install of a jacuzzi for the ‘recovery’ of a claimant, a physician ordered who ordered his patient relocate to a ‘warmer climate,’ or a doctor writing prescriptions for first class travel). The regulations define medical care to include laboratory, x-ray, and other technical services, such as prosthetic devices for the care and treatment of the injury or disease. Treatment does not have to be ‘medically accepted’ but merely “helpful.” The treatment does not have to be administered by a therapist or practitioner with any sort of license. Meeting this rather low burden are pseudo-medical treatments such as biofeedback.

Chiropractors are allowed to treat Longshore patients and are paid for their care only to the extent that it consists of manual manipulation of the spine to correct a subluxation shown by x-ray or clinical findings. Chiropractors are not to be paid for treating shoulders, hips, knees, etc., or administering physical therapy.

Travel to and from medical appointments, as well as special travel needs, are generally compensable.
Generally, travel will be reimbursed for physicians within 25 miles of the residence of the claimant.

Regulation 20 C.F.R. § 702.403 states:
In determining the choice of physician, consideration must be given to availability, the employee's condition, and the method and means of transportation. Generally, 25 miles from the place of injury or the employee's home is a reasonable distance to travel, but other pertinent factors must also be taken into account.

Independent Medical Examinations

33 U.S.C. § 907(e) states:
In the event that medical questions are raised in any case, the Secretary shall have the power to cause the employee to be examined by a physician employed or selected by the Secretary and to obtain from such physician a report containing his estimate of the employee's physical impairment and such other information as may be appropriate. Any party who is dissatisfied with such report may request a review or reexamination of the employee by one or more different physicians employed or selected by the Secretary. The Secretary shall order such review or reexamination unless he finds that it is clearly unwarranted. Such review or reexamination shall be completed within two weeks from the date ordered unless the Secretary finds that because of extraordinary circumstances a longer period is required. The Secretary shall have the power in his discretion to charge the cost of examination or review under this subsection to the employer, if he is a self-insurer, or to the insurance company which is carrying the risk, in appropriate cases, or to the special fund in section 44 [33 USC § 944].

The IME Process

When a medical question is raised, the Secretary may have the claimant examined by a physician employed or chosen by the Secretary and receive a report to determine the diagnosis, estimate the claimant's physical impairment, or comment on whether additional medical treatment is necessary.

Following the initial report, either the claimant or the employer can then request a review or a reexamination of the employee by a different physicians employed or chosen by the Secretary within two weeks.

The findings of the initial examining physician's findings are not binding on any party.

Immediately following the initial exam, the employer or carrier may request, to have the employee examined.

If the claimant refuses to attend an IME

If the employee refuses to submit to the examination, the proceedings shall be suspended and no compensation is paid until the claimant attends the exam. This applies equally to initial exam and employer-requested IMEs. A claimant's failure to attend an exam with the employer's chosen examining physician can not be excused. Claimants have argued that the physician chosen by the employer are biased or incompetent as excuses for not attending exams. A Judge can not excuse a failure to attend an IME on the grounds that the claimant lacks confidence in the physician, although that would obviously be accepted by the court as a reason to not allow the doctor to act as a treating physician.

From Chapter Five of my upcoming book, "Longshore and Harbor Workers' Compensation Act":

Jurisdiction
The following are excluded from coverage under the Longshore and Harbor Workers’ Compensation Act:

• Master or member of a crew;
• Small vessel workers;
• Officers and agents of the federal, state, local, or foreign governments;
• Clerical/secretarial/security/data processing employees;
• Employed by a club, camp, recreational operation, restaurant, museum or retail outlet;
• Marina workers;
• Employees of suppliers, transporters or vendors;
• Aquaculture workers;
• Recreational vessel construction repair;
• Small vessel building/repairing/dismantling.

Waiver
The claimant’s right to receive benefits under the Longshore and Harbor workers’ Compensation Act by filing a claim for an receiving state workers’ compensation benefits.

Notice & Prejudice
The claimant must provide notice of injury to the employer within 30 days of the injury except for occupational disease cases. In an occupational claim, the notice period extend to one year from when the employee was aware or should have been aware of the condition and the relationship of the condition to work. The claimant must show that either the employer had knowledge during the filing period, or that the employer was not prejudiced by the failure to file timely notice, or that the failure was excused.

Failure to file notice may be excused by the judge where notice was given to an official of the employer or carrier and no prejudice resulted, even if not given to the designated official.80 This frequently happens where an employee reports an injury to a colleague rather than a supervisor. The notice requirement may also be excused if a satisfactory reason exists as to why such notice could not be given.

The employer can show prejudice when due to a lack of timely written notice the employer was unable to effectively investigate to determine the nature and extent of the alleged illness or to provide medical services.

Despite ‘notice’ being a defense, please note that notice is presumed under the Act and must be affirmatively plead.

Intoxicated Workers.
In order for this defense to prevail, the employer must show that the intoxication was the sole cause of injury.

Intentional Injuries
Section 903(c) of the Act states that “ (c) No compensation shall be payable if the injury was occasioned solely . . . by the willful intention of the employee to injure or kill himself or another.”

Suicide or self-harm.
In order to prevail with this defense, the employer must show that the claimant’s injuries arose out of a willful intent on the part of the employee to harm himself - this is more than just a ‘careless’ attitude towards safety or even willful refusal to use a specific piece of safety equipment. The burden of proof is on the employer to demonstrate that the suicide or self-inflicted injury did not arise out of the employment.

Intent to harm another.
The employer bears the burden of showing that the      claimant was injured will attempting to harm himself or another. The employer must show willful intent on the part of the claimant, which can be demonstrated by the claimant's speech and physical activity (gestures and contact) at the time of the incident. The burden shifts to an employer seeking to rely on an employee’s own intentional acts.

Intoxication.
An employee’s own intoxication being the sole cause of the accident is a defense to compensability. However, in order to prevail, the burden shifts to the employer to show that the accident arose solely due to the intoxication of the employee with no contribution from the work.

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.

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.