ISSUE: National Average Weekly Wage and Impartial Medical Examinations

National Average Weekly Wage

The U.S. Department of Labor has released Industry Notice No. 154, dated September 8, 2015.  The Subject is:  Maximum and Minimum Compensation Rates Under the Longshore Act, Effective October 1, 2015; Adjustments of Permanent Total Disability and Death Cases.

As stated in the Notice, the National Average Weekly Wage is increased by 2.10 percent effective October 1, 2015 through September 30, 2016.  The new NAWW is $703.00.  Consequently, effective October 1, 2015, the new maximum weekly rate under the Longshore Act for permanent total disability and death cases is twice the NAWW, or $1,406.00.  The minimum weekly compensation rate is one-half the NAWW, or $351.50.


Impartial Medical Examinations

Recently I offered District Directors, Parts One and Two, discussing the administrative and adjudicative authority of the U.S. Department of Labor’s District Directors.

This discussion included a reference to Section 7(e) (33 U.S.C. 907(e)) of the Longshore and Harbor Workers’ Compensation Act.  This section contains one of the most direct, immediate, and mutually beneficial provisions of the Act.

The Longshore Act states, “In the event that medical questions are raised in any case, the Secretary shall have the power to cause the employee to be examined by a physician employed or selected by the Secretary and to obtain from such physician a report containing his estimate of the employee’s physical impairment and such other information as may be appropriate….  The Secretary shall have the power in his discretion to charge the cost of examination or review under this subsection to the employer, if he is a self-insurer, or to the insurance company which is carrying the risk, in appropriate cases, or to the special fund in section 44 (33 USC section 944).”

This use of Impartial Medical Examinations (IMEs) benefits all parties to a claim, since “medical questions” are raised in most contested cases.  The DOL Regulations implementing Section 7(e), at 20 C.F.R. 702.408, offers as examples of “medical questions” … the appropriate diagnosis, extent, effect of, appropriate treatment, and the duration of any such care or treatment for a work injury ….”

Whether or not to arrange for an IME is within the discretion of the District Director.  The statute reads that the Secretary (District Director) “shall” have the power to request an impartial medical examination, but while the authority is there in every case, it is not obligatory under any circumstances.  District Directors have broad discretion in this area.

It is important to note that although in instances such as disputed scheduled award cases and questions with regard to the need for surgery, the parties usually abide by the IME opinion and thus quickly and efficiently resolve medical issues, the opinion of the IME examiner is not entitled dispositive weight, i.e., the IME opinion is not necessarily the conclusive, final word on an issue. The IME opinions are not binding, but rather are weighed along with the other medical evidence in the record.

The statute and implementing regulations do provide some rules for administering the IME process.

Neither the employer/carrier’s nor the claimant’s doctor can attend the IME.

The IME examiner is not provided with the prior conclusions of these doctors (he may be provided with the results of diagnostic tests).

The District Director (or Claims Examiner) typically will provide the parties with a list of three proposed impartial examiners and request that the parties agree on one of them (see below).

If the claimant does not want to attend the IME he can appeal the District Director’s order directly to the Benefits Review Board, bypassing the Office of Administrative Law Judges.

If the claimant does not appeal to the Board, and fails to appear for the IME, it is within the discretion of the District Director to suspend the payment of compensation during the period of refusal.  If the District Director takes no action then the employer/carrier can appeal directly to the Board.

Section 7(i)

“Unless the parties to the claim agree, the Secretary shall not employ or select any physician for the purpose of making examinations or reviews under subsection (e) of this section who, during such employment, or during the period of two years prior to such employment, has been employed by, or accepted or participated in any fee relating to a workmen’s compensation claim from any insurance carrier or any self-insurer.”

The statute says, “…the Secretary shall not ….”  The parties must agree to an exception to the section 7(i) limitations on who may be selected as an impartial examiner.  There is no discretion or requirement that any party shows prejudice in the selection process.  If the parties cannot agree under section 7(i) in controverted cases the District Director can turn to section 14(h), which provides:

“The deputy commissioner (District Director) (1) may upon his own initiative at any time in a case in which payments are being made without an award, and (2) shall in any case where right to compensation is controverted, or where payments of compensation have been stopped or suspended, upon receipt of notice from any person entitled to compensation, or from the employer, that the right to compensation is controverted, or that payments of compensation have been stopped or suspended, make such investigations, cause such medical examinations to be made, or hold such hearings, and take such further action as he considers will properly protect the rights of all parties.”

This is another example of the broad authority and discretion and authority granted to the District Director in medical management of cases.

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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 the AEU Longshore Blog.

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