The U.S. Department of Labor (DOL), through the Division of Longshore and Harbor Workers’ Compensation (DLHWC), in the Office of Workers’ Compensation Programs (OWCP), administers the Longshore and Harbor Workers’ Compensation Act (LHWCA, or Longshore Act) and extensions: the Defense Base Act (DBA), the Outer Continental Shelf Lands Act (OCSLA), and the Nonappropriated Fund Instrumentalities Act (NFIA).
The Longshore Act provides for a three-step process for the adjudication of claims:
As the first in a three-part series reviewing this process, this article reviews informal mediation and formal hearings leading up to the ALJ decision.
DLHWC maintains district offices where District Directors (DD) and their staffs provide informal dispute resolution services and medical management. Effective April 6, 2020, the DLHWC reorganized its compensation districts into three consolidated districts:
Claims examiners may hold Informal Conferences, issue recommendations, and generally try to avoid delays and resolve claim disputes in an expeditious manner.
What happens when a party disagrees with a district office’s recommendation, or the parties are otherwise unable to resolve one or more issues at the informal district office level?
Upon the request of any party, the DD transfers the file to the OALJ. Information transferred includes Forms LS-18 (Pre-Hearing Statement) filed by each party, along with all evidence that the parties intend to submit for the record at the formal hearing; the information transferred does not include any memoranda or recommendations prepared in the district office. The DD’s instruction to the parties states, “All documents and other exhibits to be submitted at the formal hearing must be furnished by the party who intends to submit them. All exhibits must be listed and identified on the LS-18.”
At this point, you’re at step two in the process of adjudication: a formal hearing at the OALJ. Once a case is transferred, the District Director no longer has control over the file. There is no simultaneous jurisdiction on any issue.
The OALJ is a function of the DOL in which the Administrative Law Judges operate independently. On December 17, 2017, all incumbent ALJs were ratified by the Secretary of Labor under the U.S. Constitution’s Article Two Appointments Clause.
The OALJ National Office is in Washington DC. The OALJ has Regional Longshore offices in Boston, MA, Covington, LA, Newport News, VA, and San Francisco, CA.
When the case referral arrives at the OALJ, a docket number is assigned, and the case goes to an OALJ regional office. When a docket is full for a particular location, hearings will be held.
NOTE: As of the publishing of this article on June 15, 2020, the OALJ has issued several Administrative Orders and Notices in response to the temporary pandemic conditions. These Notices deal with suspensions of hearings and procedural deadlines and filings by e-mail. These Notices and other communications can be accessed at the Office of Administrative Law Judge website of Administrative Law Judge website.
The pre-hearing stage is used by the parties for discovery procedures, such as obtaining documents from opposing parties (by subpoena if necessary) and for conducting interrogatories and depositions.
At the pre-hearing stage, the assignment of a Settlement Judge may be requested. The Settlement Judge is a fully qualified ALJ acting as a mediator using alternative dispute resolution techniques. The process is “off the record”, and the purpose is to settle the case and avoid a formal hearing. It is based on the voluntary participation of all the parties, and the settlement process can be terminated at any time by any party. There is no fee for this mediation service.
If the efforts of the Settlement Judge are unsuccessful, the case goes forward for formal hearing.
Formal hearings at the OALJ are conducted in accordance with the Administrative Procedures Act (APA) provisions at 5 U.S.C. Section 554. This is the result of the transfer of hearing functions from Deputy Commissioners to the OALJ as part of the 1972 Amendments to the Longshore Act.
NOTE: Section 19(d) (33 U.S.C. 919(d)) of the Longshore Act was amended in 1972 to provide that, “All powers, duties, and responsibilities … in the deputy commissioners with respect to such hearings shall be vested in such administrative law judges.”
The 1972 Amendments did not change references to deputy commissioners elsewhere in the statute. You can read the title “District Director” as generally interchangeable with the holdover title “Deputy Commissioner”, except where deputy commissioner means ALJ. At this point, case law and the 1984 Amendments have sorted out the separate authority previously belonging to the successors to the pre-1972 title “Deputy Commissioner”. For example, the 1984 Amendments resolved an ambiguity and expressly provide that both ALJs and District Directors can approve lump sum settlements under section 8(i).
The Longshore Act’s sections 19, 23, 24, and 27, as well as the implementing regulations at 20 C.F.R. 702.331 – 702.351, pertain to formal hearings. The OALJ Rules of Practice and Procedure applies in situations not specifically addressed in the Longshore Act and regulations, while the Federal Rules of Civil Procedure (FRCP) is a final resource for situations not covered by any other provision.
The formal hearing itself is basically a trial:
There are, however, significant differences between adjudication through an administrative hearing conducted by an ALJ under the Administrative Procedures Act, and trials conducted by judges in the courts of the Judiciary Branch.
Section 23(a) of the Longshore Act provides that an ALJ “shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure.” The ALJ has very wide latitude and discretion in conducting the hearing and ruling on the admissibility of evidence.
An ALJ can resolve any issue pertinent to the Longshore Act claim that arises at the hearing, including new issues, by, for example, adding new parties or by holding the record open at the close of the hearing for the admission of additional evidence. Hearsay evidence is generally admissible if the ALJ considers it to be relevant and probative. In fact, the ALJ’s decision may be based entirely on hearsay or circumstantial evidence.
Any ruling by the ALJ with regard to the admissibility or exclusion of evidence is reversible on appeal only if arbitrary, capricious, or an abuse of discretion.
Miscellaneous provisions pertaining to formal hearings:
The purpose of the hearing is to satisfy the requirement of the APA that the parties have the opportunity for submission and consideration of all of the facts, an opportunity to make their argument, to attend a hearing, and to receive a written decision that includes a statement of findings and conclusions, and the reasons and basis therefore on all material issues of fact, law, or discretion in the record.
This article was originally published on August 5, 2014 and was last updated on June 15, 2020.
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.