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

Part Four

This is a continuation of a series listing key proposed changes to the Longshore Act contained in S. 669 now pending in the 112th Congress.

Thirty One – New Section 908(k) proposes to clarify the provision for the maximum rate payable in cases where the employee qualifies concurrently for compensation for disability caused by 2 or more injuries.  It states that, “In no case shall the amount of compensation payable for all such injuries when combined exceed the lesser of (1) 75 percent of spendable earnings at the time of the last injury, or (2) the maximum rate of compensation, as determined under section 6(b), at the time of the last injury.”  Aside from the issue of ‘spendable earnings’, this overturns case law in some instances.

Thirty Two – Section 909(a) is amended to increase the amount of reasonable funeral expenses payable from $3,000 to $7,500.

Thirty Three – Section 916 is amended by striking “no assignment” and adding, “(b) Limitation – Benefits due or payable under this Act shall be subject to withholding and any other legal process in the same form and manner, and in the same extent, as withholding and other legal processes apply under section 206 of the Employment Retirement Income Security Act of 1974 (29 U.S.C. 1056)”.

Thirty Four – Section 902(1) is amended to clarify the definition of “person”.  The definition of “person” does not include the Secretary (of Labor).

Thirty Five – The definition of “wages” in Section 902(13) is amended to provide that “wages” does not include “… an incentive or 1 time payment, severance pay, a settlement of an employment law claim, a bonus that is not guaranteed, container royalties, stock, or stock options.”

Thirty Six – New Section 902(25) provides a definition of fraud, to include “… failing to provide material information that could result in the obtaining or denying, in whole or in part, of compensation under this Act.”

Thirty Seven – New Section 904(c)(3) requires a finding by the treating physician of the percentage of the employee’s disability that was a result of an injury arising out of and occurring in the course of the employment involved and what percentage of such disability was the result of prior injury and other nonoccupational factors.

Thirty Eight – New Sections 904(e)(1)(A) and 904(e)(1)(B) deal with the last responsible employer doctrine.  Subsection (B) provides that “the employer responsible for the benefits under this section shall retain all rights and defenses that any employer who contributed to the injury or death would otherwise have had.”

Thirty Nine – New Section 904(e)(3) defines “Noncontributing Employment Exposure”.  Employment exposure is noncontributing if the medical condition that resulted in the injury or death was diagnosed before employment commenced, or the employer did not expose the employee to conditions capable of causing or contributing to the injury or death.

Forty – Section 908(a)(13)(B)(iii) provides that the measurement of presbycusis shall be in accordance with the methodology adopted in section 1910.95 of title 29, Code of Federal Regulations, appendix F, applied to the applicable decibel levels for hearing loss determinations as provided in clause (ii).

Forty One – Section 908(a)(13)(B)(iv) provides clarification for the weighing of audiogram evidence by providing statutory audiogram standards.

Forty Two – Section 908(j)(1) is changed.  The present language, “The employer may inform a disabled employee of his obligation to report to the employer not less than semiannually any earnings from employment or self-employment, on such forms as the Secretary shall specify in regulations” is changed by striking “a disabled employee” and inserting “an employee”.  This intends to change current case law.

Forty Three – Section 910(a)(4) changes Section 10(c) by replacing the phrase “average annual earnings” with “average weekly wages” each time it appears.

Forty Four – New Section 910(e) defines “spendable earnings”.

“METHOD OF CALCULATION – The spendable earnings of an employee shall be the average weekly wage, as calculated under subsection (a), reduced by subtracting 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.”

Forty Five – Section 912(a)(3) provides that the notice of hearing loss in a hearing loss case shall be given not later than 1 year after the last date of employment or not later than 1 year after the diagnosis of a non-traumatic injury, whichever occurs first.

Forty Six – New Section 920(a)(4) provides that “No other presumptions shall be authorized under the Act.”  Presumably we would no longer see references to an unwritten presumption of coverage.  And goodbye as well to Mr. Matulic’s presumption (work 75% of the year prior to the injury and you are presumed to have worked the full year with the result that under section 910(a) the average weekly wage is inflated).

Forty Seven – New Section 920(c)(1) provides more guidance for adjudicators under new Rules of Evidence.

(E)     in cases involving occupational disease or repetitive exposure both causation and sufficient exposure to support causation shall be proven by clear and convincing evidence; and

(F)     pain or other subjective complaints alone, in the absence of objective relevant medical findings, is not compensable.

(2)    JUNK SCIENCE –

(A)     Expert Testimony – With respect to a claim under this Act, expert testimony shall not be considered if it does not meet the requirements of Rule 702 of the Federal Rules of Evidence.

(B)     Medical Opinion – In order to be considered with respect to a claim under this Act, a medical opinion shall be based on not less than 1 peer reviewed study that – (i) has been published in a major medical journal; and (ii) is accepted by the majority of the scientific community.

I hear you.  That’s enough.  There are more changes contained in the proposed amendments, but I think I’ve got at least most of the more important ones.

These proposals contain some very employer friendly changes (e.g., the section 907 changes in treating physician, the section 908 introduction of spendable earnings, the section 921 stay on payments under an Order); they contain plenty of advice and instruction for the Office of Administrative Law Judges and the Benefits Review Board (e.g., the changes in the section 920 presumptions, the section 901A statement of intent, the section 920(c) and elsewhere new rules of evidence); they contain equitable provisions simply seeking to introduce fairness into the administration of the Act (e.g., the section 914(f) penalty provision, the section 910(a) calculation of average weekly wage, the section 904(c) exclusion of nonoccupational factors, the sections 912 and 913 notice and claim time limits, the section 904(e) changes in last responsible employer liability, the section 905(a) attempt to resolve concurrent jurisdiction issues, and the section 922(b) provision for restitution for fraud); and they contain provisions that the insurance industry believes represent sound business practice (the section 908(f) elimination of the second injury provision and the section 944 change in the assessment formula for insurance carriers to a premium based ratio).

Without a doubt, these are significant amendments.  It is now up to Congress.

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