For claims filed under the U.S. Longshore and Harbor Workers’ Compensation Act (the Longshore Act), the informal conference (IFC) process is an opportunity for parties to resolve disputes in a quick and efficient manner, while avoiding costly litigation. At the request of either party or of their own volition, the Claims Examiner or Department of Labor District Director will schedule an informal conference to be held in person at the DOL District Office or telephonically. At the IFC, each party is given the chance to explain and support its position on issues related to the claim, as well as listen to the other party’s perspective. The Claims Examiner facilitates discussion among the parties, leading to agreement or compromise. He or she then makes written recommendations based on review of the evidence and application of case law. The recommendations are not binding on the parties.
In my experience as a District Director for the Department of Labor, many employers did not fully understand the IFC process and how it can be used to their favor. Here are three examples of lesser-known facts about IFCs that could make a big difference to employers.
1. Employers May Attend
Although your claims specialist or legal counsel will do most of the talking and negotiating during an IFC, the employer can be an asset if they attend as well. Employer representatives can provide insight regarding the worksite, the injured worker’s job duties, the availability of transitional work opportunities, and more.
Communication between the employer and injured worker can be strained after the injury and any time spent away from work. The IFC can be used to re-open the lines of communication between the employer and injured worker, which can aid in claims resolution.
2. Parties May Request an Order Following the Informal Conference
According to §702.315 of the Code of Federal Regulations:
“Conclusion of conference; agreement on all matters with respect to the claim.
(a) Following an informal conference at which agreement is reached on all issues, the district director must (within 10 days after conclusion of the conference), embody the agreement in a memorandum or within 30 days issue a formal compensation order, to be filed and served in accordance with §702.349. If either party requests that a formal compensation order be issued, the district director must, within 30 days of such request, prepare, file, and serve such order in accordance with §702.349.”
Employers rarely request these orders because they can be difficult to modify, especially in the case of temporary total disability. To be modified, either the injured worker must voluntarily agree to cessation/reduction of compensation or an Administrative Law Judge (ALJ) must issue a modification order.
Although these orders are generally not in the best interest of the employer/carrier, there can be some benefit at times to a permanent disability rate, an average weekly wage or choice of physician.
3. Parties May Request a Reconsideration from the District Director
Sometimes the Claims Examiner doesn’t consider some evidence that is presented, incorrectly applies the Longshore Act or case law, or just plain gets it wrong. At this juncture, the parties may request that the District Director look at the case in depth and decide whether a reconsideration is appropriate. This request should be filed as soon after the receipt of the conference memorandum as possible.
A convincing reconsideration request clearly outlines the what was wrong about the recommendation and provide the appropriate evidence to justify it. The request should also explain the proper recommendation to the District Director.
A reconsideration should not be filed when the disagreement involves a “judgment call” made by the Claims Examiner. In most instances, a District Director will agree with and back up the Claims Examiner’s judgment call.
IFCs are an excellent opportunity to expedite claims resolution. Understanding all the nuances of IFCs can not only help ease tension between employers and injured workers, but it can also have a major impact on the result of the claim. If you have questions about IFCs or any matter related to claims, please contact your AEU claims specialist or send us a message here.
ABOUT THE AUTHOR
David Widener joined AEU in 2019 as Director of Claims Advisory Services. Widener began his longshore career in 2003 with F.A. Richard/American Equity Risk Services, where he was a claims supervisor for eight years. He joined the U.S. Department of Labor as a claims examiner in 2011, and was promoted to District Director six months later, overseeing operations for the Houston District Office. David has a B.S. in finance from Louisiana State University and is a credentialed mediator for the state of Texas.