ISSUE: 2014 – Part One

Jack_crop 72dpiCalendar year 2014 was a relatively quiet year for Longshore Act jurisprudence, but the U.S. Department of Labor, which administers the Longshore Act, was busy with administrative matters.

First, here’s a summary of recent U.S. Department of Labor announcements.

INDUSTRY NOTICE No. 147, NOTICE TO INSURANCE CARRIERS, SELF-INSURED EMPLOYERS UNDER THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT, AND OTHER INTERESTED PERSONS

SUBJECT: Maximum and Minimum Compensation Rates Under the Longshore Act, Effective October 1, 2014; Adjustments of Permanent Total Disability and Death Cases

“Section 6(b)(3) of the Longshore and Harbor Workers’ Compensation Act provides that prior to October 1 of each year, based on the national average weekly wage for the three calendar quarters ending June 30 of that year, The Secretary of Labor shall determine the national average weekly wage (NAWW) to be applicable for the 12-month period beginning October 1. It has been determined that the applicable NAWW for the period beginning October 1, 2014, and ending September 30, 2015, is $688.51.”

The Notice states that the maximum compensation rate for total disability and death is 200 percent of the NAWW, and thus the maximum weekly rate effective October 1, 2014, is $1,377.02.

The minimum compensation rate is 50 percent of the NAWW, or $344.26 (if an employee’s average weekly wage is less than this amount then he receives his entire average weekly wage as compensation for total disability).

INDUSTRY NOTICE No. 148, TO INSURANCE CARRIERS AND SELF-INSURED EMPLOYERS UNDER THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT (LHWCA), AND ITS EXTENSIONS, AND OTHER INTERESTED PERSONS

SUBJECT: The Office of Workers’ Compensation Programs (OWCP), Division of Longshore and Harbor Workers’ Compensation (DLHWC) Secure Electronic Access Portal (SEAPortal)

This Notice announced the DLHWC’s release of a new web-based electronic portal that stakeholders may use to submit case related documents. “Stakeholders” are considered to be injured workers, employers/carriers, their representatives, and OWCP certified vocational rehabilitation counselors.

The Notice states that, “Any person with an internet connection and specific information about a DLHWC case can upload documents directly into a case file. Users do not have to register or enroll to use the SEAPortal. To file a document through the SEAPortal, a user needs the OWCP case number and the claimant’s last name, date of birth and date of injury. If OWCP has not yet assigned a case number, send the LS-201, LS-202, LS-203, or LS-262 to the DLHWC Central Case Create site in New York at the following address: U.S. Department of Labor, OWCP/DLHWC, 201 Varick Street, Room 740, Post Office Box 249, New York, NY 10014-0249).”

To access the SEAPortal, visit the OWCP/DLHWC website and look for the link:

http://www.dol.gov/owcp.dlhwc

Or access the SEAPortal directly at:

https://seaportal.dol-esa.gov

INDUSTRY NOTICE No. 146, TO INSURANCE CARRIERS, SELF-INSURED EMPLOYERS UNDER THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT (LHWCA) AND OTHER INTERESTED PERSONS

SUBJECT: Consolidation of the Office of Workers’ Compensation Programs (OWCP) Division of Longshore and Harbor Workers’ Compensation (DLHWC) District Office in Baltimore, MD with the District Office in Norfolk, VA

The DLHWC Baltimore District Office closed on September 30, 2014. Case work began transitioning to the Norfolk, VA District Office on September 1. The Norfolk office now has jurisdiction over Longshore cases and extensions arising in the states of Delaware, Maryland, Pennsylvania, Virginia, West Virginia and the District of Columbia.

The Norfolk office is located at:

U.S. Department of Labor, OWCP
Division of Longshore and Harbor Workers’ Compensation
Federal Building, Room 212
200 Granby Mall
Norfolk, VA 23510

In accordance with the previously issued Industry Notice No. 144 (November 14, 2013) all forms submitted for the creation of a new case should still be submitted to the central case create site at the New York District Office. Also pursuant to Industry Notice 144, following case create, mail should still be sent to the central mail receipt site at the Jacksonville District Office.

OSHA NOTE: Although not pertaining directly to the administration of the Longshore Act by the Office of Workers’ Compensation Programs, another U. S. Department of Labor agency, the Occupational Safety and Health Administration (OSHA), released an important updated record keeping rule regarding fatalities and severe injuries that goes into effect on January 1, 2015.

Under the new rule, effective January 1, 2015, employers will have to report the following to OSHA:

All work-related fatalities
All work related inpatient hospitalizations of one or more employees (formerly three or more)
All work related amputations (new)
All work related losses of an eye (new)

Employers have three options for reporting events to OSHA:

By telephone to the nearest OSHA Area Office during normal business hours
By telephone to the 24 hour OSHA hotline at 1-800-321-OSHA (6742
OSHA is developing a new means of reporting events electronically, which will be available soon at www.osha.gov.

For more information about the updated reporting requirements, visit OSHA’s webpage on the revised recordkeeping rule at www.osha.gov/recordkeeping2014.

Benefits Review Board NOTE:

The BRB has posted a NOTICE REGARDING AVAILABILITY OF ELECTRONIC FILING AND ELECTRONIC SERVICE:

“All parties to appeals before the Benefits Review Board (BRB) may now use the Board’s Electronic File and Service Request (EFSR) system. The EFSR portal allows parties to file new appeals electronically, receive electronic service of Board issuances, file briefs and motions electronically, and check the status of existing appeals via a web-based interface accessible 24 hours every day in lieu of paper documents.

The EFSR system is open to any party to an appeal before the Board. An e-Filer must register as a user and must be validated by the Board before e-filing any document. An e-Filer will complete an online registration form. A valid e-mail address is required to register as a e-Filer. Once registered, an e-Filer will be able to use the EFSR for electronic filing (eFile) ….”

Information regarding registration for access to the EFSR system, as well as a step by step user guide and FAQs can be found at: https://dol-appeals.entellitrak.com.

The Board can be contacted at Boards-EFSR-Help@dol.gov.

Next time, I’ll briefly discuss a few interesting Longshore and Jones Act cases that were decided during 2014.

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 and Financial Management, and the 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.

ISSUE: 2013, Part Two

Jack_crop 72dpiI’ll pick up where I left off last time, with a look at some more cases that made calendar year 2013 interesting in the Longshore context.  I’ll also mention some important administrative events at the U.S. Department of Labor.

New Orleans Depot Services, Inc. v. Director, Office of Workers’ Compensation Programs, et al. (Zepeda), (04/13) – a case in which the Fifth Circuit overruled its longstanding precedents on the issue of Longshore Act “situs”.

In reversing the decision of the Benefits Review Board that had awarded benefits to Mr. Zepeda and which had been affirmed by the Fifth Circuit’s appellate panel, the en banc Fifth Circuit reinterpreted language in section 903(a) of the Longshore Act.  “Adjoining” as in “… other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel” no longer means “neighboring” or “in the vicinity of” navigable waters in the Fifth Circuit.

Now in the Fifth Circuit, the interpretation of “adjoining” means “to lie next to” or “to be in contact with”.  The Fifth Circuit has adopted the “plain language of the statute” as it is interpreted by the Fourth Circuit.  This is a very significant decision.

A concurring opinion holding that the claimant in this case also did not meet “status”, contained intriguing language with regard to Longshore Act “status”.

The “determinative consideration” was whether the loading process could not continue in the absence of the worker’s activities.  As stated, “… the proper question when defining the status of an employee under the Longshore Act is whether the task that the employee engages in is the type of customary maritime work that a dockworker or longshoreman would have to perform in order to successfully transfer cargo between ship and land transportation.”  Unfortunately, the decision goes on to say, “This standard makes the capacity to interrupt ongoing longshoring activities paramount”.  We’ll have to see how the word “ongoing” will be interpreted in future cases.  To me, this statement suggests that a new status interpretation may require that the worker’s activity must be contemporaneous with the maritime activity it is essential to.

BPU Management, Inc./Sherwin Alumina Company; Liberty Mutual Insurance Company v. Director, Office of Workers’ Compensation Programs; and David Martin, (10/13) – an other  decision from the Fifth Circuit involving Longshore Act “situs”.

This case involved the “operational realities of a sophisticated multi-tier facility”, in this case an ore processing facility.  The Benefits Review Board had found that the entire facility was a covered situs since it was interconnected in the processes of unloading and storage of bauxite and the manufacture of alumina.

The claimant was injured underground shoveling spilled bauxite back on to the conveyor system.  At the point of injury, the claimant was four locations removed from dockside.

The Court found that the delivery of the bauxite into storage bins was the functional equivalent of the surrender of cargo for land transport.  Manufacturing processes beyond that point were not covered under the Longshore Act, since the necessary functional nexus with navigable waters was missing.

This was a sensible decision concerning a multi-use facility with distinct areas for loading/unloading and manufacturing.  Even though the site of the injury adjoined navigable waters, it was not an area customarily used for maritime activity.

U.S. Department of Labor

Under New Management

The Division of Longshore and Harbor Workers’ Compensation Act, Office of Workers’ Compensation Programs, U.S. Department of Labor, is under new management in Washington, DC.

As I discussed here on September 10, 2013, the new national Longshore management team consists of:

Antonio Rios, Director, Division of Longshore and Harbor Workers’ Compensation
Rich Stanton, Chief, Branch of Insurance, Financial Management, and Assessments
Jennifer Valdivielso, Chief, Branch of Policies, Procedures, and Regulations

Industry Notice No. 144, Dated November 14, 2013

This Notice contained important information regarding new mailing instructions for claim forms and correspondence in Longshore cases effective December 2, 2013.

   1.  The New York Longshore District Office is designated the “Central Case Create” site.
         Forms LS-202, LS-201, LS-203, and LS-262 are to be  submitted to the following address:

U.S. Department of Labor, OWCP
Division of Longshore and Harbor Workers’ Compensation
201 Varick Street, Room 740
P. O. Box 249 New York, NY  10014-0249
Fax:  646-264-3002 (for urgent or time sensitive situations)

    2.  After a case has been created the Jacksonville, FL District Office is designated as the “Central Mail Receipt” site. All case specific mail is  to go to the following address:

U.S. Department of Labor, OWCP
Division of Longshore and Harbor Workers’ Compensation
400 West Bay Street, Suite 63A, Box 28
Jacksonville, FL  32202
Fax:  904-357-4787 (for urgent or time sensitive situations)

   3.   All checks (for deposit to the Special Fund or in response to penalties), as well as inquiries, forms, and other documents concerning self-insurance authorization, security deposits, and Special Fund assessments are to go to the following address:

U.S. Department of Labor, OWCP
Division of Longshore and Harbor Workers’ Compensation

Branch of Financial Management, Insurance, and Assessments

200 Constitution Avenue, NW, Room C-4319
Washington, DC  20210

That’s about it for 2013.  Happy New Year.

ISSUE: U.S. Department of Labor – New

Part One – New National Average Weekly Wage (NAWW) Jack_crop 300dpi

Effective 10/01/13, the new NAWW is $673.34, a 1.62% increase over last year.  This means that the new maximum weekly compensation rate under the Longshore Act is $1,346.68 (twice the NAWW), and the new minimum weekly compensation rate is $336.67 (one-half the NAWW).

Part Two – Under New Management

There has been a complete turnover in the national management of the Division of Longshore and Harbor Workers’ Compensation (DLHWC) at the U.S. Department of Labor (DOL).

The DLHWC administers the Longshore and Harbor Workers’ Compensation Act within the Office of Workers’ Compensation Programs (OWCP).  The DLHWC Director, Miranda Chiu, along with the Chief, Branch of Financial Management, Insurance and Assessment Brandon Miller and the Chief, Branch of Policy, Regulations and Procedures Eric Richardson, have all left the Department within the past few months.

So here is your new DLHWC National Office management team.

Antonio Rios is Acting Director, DLHWC.  He reports to Gary Steinberg, Acting Director of the Office of Workers’ Compensation Programs, who in turn reports directly to the Secretary of Labor.  The Secretary, Thomas E. Perez, is also new as of July 23, 2013.

Richard Stanton is Chief of Financial Management, Insurance and Assessment.

Jennifer Valdivieso is Chief of Policy, Regulations and Procedures.

The National Office Policy Chief handles second injury fund applications, district office administration, regulatory drafting and interpretation, coordination of legal matters with the Office of the Solicitor, policy formulation, and procedural matters.  This is a partial list.

The Financial Management Chief administers the Special Fund, bills and collects the industry assessment, authorizes insurance carriers and self-insurers, collects and maintains collateral deposits, administers assessment reporting and reserve audits, administers insolvency cases, enforces the insurance provisions of the Longshore Act, and participates in policy formulation.  This is a partial list.

DLHWC district offices provide medical management, informal dispute resolution, education and outreach, and claims administration under the direction of District Directors.

Following is a list of Longshore district offices along with their respective state jurisdictions:

Boston – District Director David B. Groenveld – CT, ME, MA, NH, RI, VT, and DBA jurisdiction east of the 75th degree west longitude, Newfoundland, and Greenland.

New York – District Director Richard V. Robilotti – NY, NJ, Puerto Rico, Virgin Islands and DBA jurisdiction Mexico, Central and South America; areas east of the continents of North and South America to the 60th degree east longitude (including Iraq, Afghanistan, and Iran) and any other areas or locations not covered under any other district office.

Baltimore – District Director Theresa Magyar – DE, DC, MD, PA, WV.

Norfolk – Theresa Magyar – VA.

Jacksonville – District Director Charles Lee – AL, FL, GA, KY, NC, SC, TN

Houston – District Director David Widener – TX, OK, NM, IL, IN, IO, MI, MN, OH, WI, MO, NE, KS, and DBA jurisdiction Canada west of the 75th degree and east of the 110th degree west longitude.

New Orleans – District Director David A. Duhon – LA, AR, MS.

San Francisco – District Director R. Todd Bruininks – CA (north of the northern boundaries of the counties of San Luis Obispo, Kern, and San Bernardino), AZ, NV.

Long Beach – District Director Marco Adame – CA (south of the northern boundaries of the counties of San Luis Obispo, Kern, and San Bernardino).

Seattle – District Director R. Todd Bruininks – AK, OR, WA, CO, ID, MT, ND, SD, UT, WY and DBA jurisdiction Canada west of the 110th degree west longitude, and all areas in the Pacific Ocean north of the 45th degree north latitude.

Honolulu – District Director R. Todd Bruininks – HI, and DBA jurisdiction all areas west of the continents of North and South America to 60 degrees east longitude (excluding Iran, Iraq, and Afghanistan).

Claims issues that cannot be resolved at the District office level are referred for formal hearing to the Office of Administrative Law Judges (OALJ) within DOL.  Appeals from decisions at the OALJ go the DOL’s Benefits Review Board (BRB).  Appeals from the BRB go to the appropriate federal Circuit Court of Appeals (in some Circuits DBA appeals go to federal District Court), and ultimately to the U.S. Supreme Court.

 

ISSUE: U.S. Department of Labor

Jack_crop 72dpiThe Longshore Act is administered by the Division of Longshore and Harbor Workers’ Compensation (DLHWC), Office of Workers’ Compensation Programs (OWCP), in the U.S. Department of Labor (DOL).

There are significant changes underway in the management of the Longshore Division.

Miranda Chiu has retired as Director, DLHWC. The Acting Longshore Director, effective March 15th, is Antonio Rios, formerly the Deputy Director, Division of Federal Employees Compensation.

Brandon Miller has left as Chief, Branch of Insurance and Financial Management, and has been replaced, effective March 25th, by Rich Stanton, formerly with Maher Terminals.

So, currently, who, what, and where is the DOL that administers the Longshore Act?

The DLHWC consists of a National Office in Washington, DC and eleven District Offices located around the country.

The National Office management staff consists of the Acting Director, Tony Rios, and the two Branch Chiefs, Eric Richardson and Rich Stanton, along with their respective staffs. Eric’s staff handles second injury fund applications, district office administration, regulatory drafting and interpretation, coordination of legal matters with the Office of the Solicitor, policy formulation, and procedural matters. Rich’s staff administers the Special Fund, bills and collects the industry assessment, authorizes insurance carriers and self-insurers, collects and maintains collateral deposits, administers assessment reporting and reserve audits, administers insolvency cases, enforces the insurance provisions of the Longshore Act, and participates in policy formulation. These are partial lists.

District offices provide medical management, informal dispute resolution, education and outreach, and claims administration services under the direction of District Directors.

Following is a list of Longshore district offices along with their respective state jurisdictions:

Boston – District Director David B. Groeneveld, States of CT, ME, MA, NH, RI, VT, and DBA jurisdiction – east of the 75th degree west longitude, Newfoundland, and Greenland.

New York – District Director Richard V. Robilotti, States (and Territories) of NY, NJ, Puerto Rico, Virgin Islands and DBA – Mexico, Central and South America; areas east of the continents of North and South America to the 60th degree east longitude (including Iraq Afghanistan and Iran) and any other areas or locations not covered under any other district office

Baltimore – District Director Theresa Magyar, States of DE, DC, MD, PA, WV

Norfolk – District Director Theresa Magyar, State of VA

Jacksonville – District Director Charles Lee, States of AL, FL, GA, KY, NC, SC, TN

Houston – District Director David Widener, States of TX, OK, NM, IL, IN, IO, MI, MN, OH, WI, MO, NE, KS and DBA – Canada, west of the 75th degree and east of the 110th degree west longitude

New Orleans – District Director David A. Duhon, States of LA, AR, MS

San Francisco – District Director R. Todd Bruininks, States of CA (north of the northern boundaries of the counties of San Luis Obispo, Kern, and San Bernardino), AZ, NV

Honolulu – District Director R. Todd Bruininks, State of HI, and DBA – all areas west of the continents of North and South America to 60 degrees east longitude (excluding Iran, Iraq, and Afghanistan)

Long Beach – District Director Marco Adame, State of CA (South of the northern boundaries of the counties of San Luis Obispo, Kern, and San Bernardino)

Seattle – District Director R. Todd Bruininks, States of AK, OR, WA, CO, ID, MT, ND, SD, UT, WY and DBA – Canada west of the 110th degree west longitude, and all areas in the Pacific Ocean north of the 45th degree north latitude

As you can see, National Office management is largely new, and there are several District Directors managing more than one office, so DOL is spread pretty thin right now.

Claims issues that cannot be resolved at the District Office level are referred for formal hearing to the Office of Administrative Law Judges (OALJ) within DOL. Appeals from decisions at the OALJ go to the DOL’s Benefits Review Board (BRB).

The DLHWC management is evaluated and measured by how quickly the Program resolves claim disputes, and by how effectively it enforces key reporting and entitlement elements of claims, such as initial reporting of injuries by employers and timeliness of payments to injured workers.

For further information please visit the DLHWC website at www.dol.gov/owcp/dlhwc. There you will find a lot of useful information, such as Forms, FAQs, Procedure Guides, Benefit Guides, texts of the laws, as well as links to the OALJ and BRB websites.