This is a continuation of our discussion
concerning the authority and responsibility of the U.S. Department of Labor’s District Directors in the adjudication/administration of claims under the Longshore Act. Remember, references in the statute to the Secretary usually include his designee the District Director, and references to “Deputy Commissioner” mean either the District Director, the Administrative Law Judge, or both, depending on context.
– This is the second injury provision. It begins with the District Director. Section 8(f)(3) provides that, “Any request (for second injury relief) filed after the date of enactment of (the 1984 amendments) for apportionment of liability to the special fund … for the payment of compensation benefits, and a statement of the grounds therefore, shall be presented to the deputy commissioner prior to the consideration of the claim by the deputy commissioner. Failure to present such request prior to such consideration shall be an absolute defense to the special fund’s liability ….”
Comment: If the employer/carrier is seeking to place a case in the Special Fund under Section 8(f) then they have to raise the issue when permanency first becomes an issue in the case or DOL will raise the absolute defense of section 8(f)(3).
– “Where a trust fund which complies with section 302(c) of the Labor-Management Relations Act of 1947 (29 U.S.C. 186(c)) established pursuant to a collective-bargaining agreement in effect between an employer and an employee covered under this Act has paid disability benefits to an employee which the employee is legally obligated to repay by reason of his entitlement to compensation under this Act or under a settlement, the Secretary shall authorize a lien on such compensation in favor of the trust fund for the amount of such payments.”
Section 18(a) – “In case of default by the employer in the payment of compensation due under any award of compensation for a period of thirty days after the compensation is due and payable, the person to whom such compensation is payable may, within one year after such default, make application to the deputy commissioner … for a supplementary order declaring the amount of the default ….”
Comment: The Special Fund may pay an insolvency case. It starts here with a default order.
– “In cases where judgment cannot be satisfied by reason of the employer’s insolvency or other circumstances precluding payment, the Secretary of Labor may, in his discretion and to the extent he shall determine advisable after consideration of current commitments payable from the Special Fund … make payment from such fund upon any award made under this Act and in addition, provide any necessary medical, surgical, and other treatment required by section 7 of the Act ….”
– “Subject to the provisions of section 13 a claim for compensation may be filed with the deputy commissioner … at any time after the first seven days of disability following any injury, or at any time after death, and the deputy commissioner shall have full power and authority to hear and determine all questions in respect of such claim.”
– “Within ten days after such claim is filed the deputy commissioner … shall notify the employer and any other person (other than the claimant), whom the deputy commissioner considers an interested party, that a claim has been filed….”
– “The deputy commissioner shall make or cause to be made such investigations as he considers necessary in respect of the claim, and upon application of any interested party shall order a hearing thereon….”
– “A compensation order shall become effective when filed in the office of the deputy commissioner ….”
Comment: This is important because the location of the District Director who “files” the Order usually determines which federal court of appeals the parties will end up in on appeal. It is also important because it determines the effective date for subsequent events, such as appeals and when compensation is due and payable.
Comment: “Filing” simply means the dating and receipt of an Order in the office of the District Director. It does not include service on the parties.
– This section permits modifications based on mistakes of fact or change in conditions within one year after the date of the last payment of compensation or within one year after the rejection of a claim, in any claim whether or not a compensation order has been issued. The modification procedure begins with the District Director.
– Attorney fees are awarded in appropriate cases for work done at each level of the adjudication process. The District Director approves attorney fees for work done at the informal district office level, based on a fee petition showing the work performed and the hourly rate. All attorney fees must be approved by DOL.
– “Within ten days from the date of any injury, which causes loss of one or more shifts of work, or death … the employer shall send to the … deputy commissioner … a copy of a report ….” This is the Form LS-202, Employer’s First Report of Injury. There is a civil penalty of up to $11,000 per occurrence for failure to file the required report.
– “The Secretary shall annually prepare a list of those individuals in each compensation district who have represented claimants for a fee in cases under this Act and who are not authorized to represent claimants.”
Comment – There is currently no list.
– “If the person entitled to compensation institutes proceedings within the period prescribed in section 33(b) the employer shall be required to pay as compensation under this Act, a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the net amount recovered against such third persons….”
Comment – The District Director determines the amount based on the net amount received by the injured worker in his third party suit..
– “The Secretary shall direct the vocational rehabilitation of permanently disabled employees …. “
Comment – District Directors have broad discretion here.
Section 49 (33 U.SC. section 948(a))
– “It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation ….”
Comment – The District Directors handle discrimination complaints.
The District Directors, as well as the Claims Examiners, can be an excellent resource for both parties in the handling of a Longshore Act claim.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.