ISSUE: “Longshore and Harbor Workers’ Compensation Act Amendments of 2011”

 Part Three

This is a continuation of a summary of the most significant proposed changes contained in pending Bill S. 669 (112th Congress) to amend the Longshore Act.

Twenty – Section 920 is extensively amended.  Section 920(a)(2) states, “A presumption described in paragraph (1) shall not be considered evidence once rebutted.  Once a presumption has been rebutted, the burden of production of evidence and burden of persuasion shall be governed by section 556(d) of Title 5, United States Code.”  Presumably this is an attempt to help the Administrative Law Judges and the Benefits Review Board understand the difference between the evidentiary burdens of production and persuasion.

Twenty One – Section 920(a)(3) is new, dealing with rebutting the nonintoxication presumption of Section 920(a)(1)(C).  The proposed language provides several ways in which the presumption may be rebutted, including a refusal of a drug or alcohol test by the employee, the employee testing positive for illegal drugs, and the employee having a blood alcohol concentration level above the permitted driving limit.

Twenty Two – New Section 920(b) states, “It shall be an affirmative and complete defense to any employee claim under this Act that the employee or employee’s agent knowingly made a false statement that is material to obtaining a benefit or payment.”

Twenty Three – New Section 920(c) provides new Rules of Evidence.  It provides, for example, that, “(A) the injury, its occupational cause, and any resulting manifestations or disability  must be proven to a reasonable degree of medical certainty, based on objective relevant medical findings” and “(B) notwithstanding section 4(c) or section 8(c)(13)(B), the employment exposure or accident shall be the major contributing cause of any injury” and “(F) pain or other subjective complaints alone, in the absence of objective relevant medical findings, is not compensable.”

Refer back to Section 902 for definitions for these key new standards.  Clearly, these changes are an attempt to address some of the more extreme manifestations of the currently interpreted “liberal” and “remedial” purposes of the Act.

Twenty Four – Section 921 is very significantly amended.  Section 921(b)(3) is changed.  The current language reads, “The payment of the amounts required by an award shall NOT be stayed pending final decision in any such proceeding unless ordered by the Board.  No stay shall be issued unless irreparable injury would otherwise ensue to the employer or carrier.”  The proposed new language reads, “Disputed amounts required by an award shall be stayed.”

Again, this is an attempt to read some equity into the Act.

Twenty Five – New Section 921(b)(6) codifies the one year appeal period.  “If the Board fails to resolve an appeal during the 1 year period following the date on which the appeal was filed, the decision that was the basis of the appeal is automatically affirmed and such affirmation shall be considered a final order by the Board.”

Twenty Six – New Section 921(c) expressly states that, “a litigating position of the Secretary shall not be entitled to any deference, unless such position has been expressly adopted by the Secretary as a rule made on the record after opportunity for an agency hearing (pursuant to section 556 and 557 of Title 5, United States Code)”.

Twenty Seven – New Section 922(b) provides that if any payment of compensation has been made as a result of fraud, a carrier may at any time seek an order for immediate termination or suspension of all future payments, and full restitution of all amounts paid as a result of the fraud.

Twenty Eight – New Section 922(b) also deals with overpayments.  It provides that if a carrier makes a payment under the Act to a person in amounts in excess of the amounts owed, the carrier may seek an order for repayment by such person, including a credit against any future payment due under the Act or wages paid to the employee.

Twenty Nine – New Section 931(d) provides that the Secretary of Labor shall report credible incidents of fraud involving more than $10,000 to the appropriate United States Attorney.

Thirty – Section 944 is amended to change the formula for the Special Fund assessment.  The formula and calculation factors for self-insured employers remain the same, while for insurance carriers the current paid indemnity loss factor is replaced by a premium surcharge rate calculated by DOL based on premium data that it will collect.  Self-insurers would pay the same assessment under the new formula as they do under the current law.  The amendment allows the insurance carriers to change the assessment from a percent of paid losses to a premium surcharge.

That’s it for what I consider the thirty most significant changes.  I’ll get to the other 40 or 50 important changes in the near future.

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