This is a continuation of the discussion of possible amendments to the Longshore and Harbor Workers’ Compensation Act. In that post was a list of what I consider to be the top tier of potential amendments. Following is what I consider to be a second tier of potential amendments.
- The occupational exclusions in section 902(3) covering clerical, secretarial, security, and data processing work should be simplified and clarified. Rather than require that the listed occupations be performed “exclusively” in an “office”, the requirement should be that the employee be performing these duties as a “primary” responsibility for the employer at the time of the injury.
- Previous proposals have included an amendment that effectively ends section 908(f)’s second injury provision. For example, an amendment can state that no new order granting section 908(f) relief can be issued except for cases of modification in existing 8(f) cases.
- Various sections of the Act can be amended to create a right for the employer to seek restitution in instances of fraud and overpayment of benefits. This would overturn existing case law.
- In the case of concurrent benefits for separate injuries, an amendment can overturn existing case law and limit combined weekly benefits to two-thirds of the average weekly wage at the time of the latest injury.
- An amendment can be brought back to codify the one-year pending appeal limit on appeals to the Benefits Review Board (BRB). The amendment can read, “If the Board fails to resolve an appeal during the one 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.”
- Section 8(j) should be amended to reverse the current interpretation of the phrase a “disabled employee”. The present language reads, “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”. The term “disabled employee” can be replaced simply by “an employee”.
- The Section 916 anti-assignment provision can be amended and clarified as to when benefits may be subject to withholding, garnishment, or assignment. In the past, the following additional language has been suggested: “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 (ERISA) (29 U.S.C. 1056).”
- The definition of wages in section 902(13) can be clarified. An amendment can provide that “wages” does not include incentives or one-time payments, severance pay, settlement of employment claims, a bonus that is not guaranteed, container royalties, stock, or stock options.
- Previous proposed amendments have attempted to simplify the confused, multi-part judicial tests and litigation surrounding the issue of the common law doctrine of borrowed employee. Language can be introduced for section 904(d) that provides that in the situation where an employee who is working for another employer at the direction of the employee’s primary employer, all employers of the employee at the time of the injury shall be treated as a single employer for purposes of liability under the Act.
- An amendment may be advisable to codify existing case law regarding employer’s legitimate personnel actions. The definition of “injury” in section 902(2) can be amended to provide that, “Physical or mental conditions caused in part or in whole by an employer’s personnel actions shall not be considered an injury or disease compensable under this Act. Physical or mental conditions caused in part or in whole by an employer’s personnel action may only be compensable under applicable State or Federal employment laws other than workers’ compensation laws.” This would codify existing case law.
- Previous proposals have sought to help the Office of Administrative Law Judges (OALJ) and BRB interpret the Section 20 presumptions and the difference between the evidentiary burdens of production and persuasion by expressly stating the correct procedure. Proposed language: “A presumption 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” (the Administrative Procedures Act).
- Other potential amendments to section 20 provide substantive changes to existing case law as well as new rules of evidence. Proposed language is as follows: “The injury, its occupational cause, and any resulting manifestations of disability must be proven to a reasonable degree of medical certainty, based on objective relevant medical findings…” and “…notwithstanding section 4(c) or section 8(c)(13)(B), the employment exposure or accident shall be the major contributing cause of any injury.” Also, “…pain or other subjective complaints alone, in the absence of objective relevant medical findings, is not compensable.”
- Previous proposed amendments have included a proposal to change the weekly compensation rate from “66 2/3 percent of the average weekly wage” to “75 percent of the spendable earnings”. A proposed definition of “spendable earnings” was, “The spendable earnings of an employee shall be the average weekly wage … 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.”
- Previous proposals have also included an amendment to section 944 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 the U.S. Department of Labor based on premium data that it would collect. The proposal allows insurance carriers to change the assessment from a percent of paid losses to a premium surcharge.
- Previous proposals have included a change to section 921(c) to clarify the issue of judicial deference. The following language was proposed: “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 State Code.”
- Finally, past proposals have included language addressing interpretation and statutory intent along the lines of, “…in a claim brought under this Act, the facts are not to be given a broad liberal construction in favor of the employee or of the employer…” This change seeks to eliminate the ubiquitous references in formal orders and court decisions to the remedial purposes of the Act and the need for a liberal interpretation in favor of the claimant. The U.S. Supreme Court has, in fact, held that the Administrative Procedures Act, which governs adjudications under the Longshore Act, does not permit doubts to be automatically resolved in the injured worker’s favor.
This has been merely a summary of most of what I consider to be the most significant changes previously proposed for amendment to the Longshore Act. Presumably, these would form the basis for possible Longshore Act Amendments of 2018.
This series will conclude in the next post with my own suggestions for possible amendments, not previously proposed.
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.