There is a lot going on in the Longshore and Defense Base Act community. Here is a run-down of new happenings at the Division of Longshore and Harbor Workers’ Compensation and the Office of Administrative Law Judges.
First, congratulations are in order for Kristina Hall, the newest District Director at the Division of Longshore and Harbor Workers’ Compensation (DLHWC) office in Jacksonville, FL. Director Hall is very knowledgeable about the Longshore and Defense Base Acts. The DLHWC most definitely made a great choice.
New Industry Notices:
On June 12, 2015, the DLHWC issued Industry Notice No. 152. Essentially, the Industry Notice provides that parties can fill out a form that waives service of compensation orders in favor of electronic service. The idea is that payments will be made faster if the parties receive the order via e-mail instead of regular mail.
The procedure for waiving service by mail can be found in Industry Notice No. 152. In short, Employers and insurance carriers can elect electronic service with the new LS-801. Claimants or their representatives, on the other hand, can elect electronic service with the new LS-802. Once the form is completed, it should be uploaded to the SEAPortal system or mailed to the DLHWC’s central mail receipt site in Jacksonville. This new electronic delivery system will come in very handy for employers and carriers fearful of owing Section 14(f) penalties for failing to timely pay an award.
Note: the DLHWC will not waive service by regular mail unless it receives the properly completed form.
On May 26, 2015, the DLHWC issued Industry Notice No. 151. Changes have been made to two important forms, the LS-207 and the LS-208. The Form LS-207 is the Notice of Controversion. It is the form that a litigant submits when they disagree that benefits or medical treatment are owed or disagree with a recommendation made by the DLHWC. The Form LS-208 is the Notice of Final Payment or Suspension of Compensation Payments. As the name implies, carriers file this when they cease paying indemnity or death benefits, including when benefits are paid in full. But perhaps the most important change to the form is item 15, where carriers must identify the inclusive periods for death benefits paid to a surviving beneficiary.
New OALJ Rules Go Into Effect Today:
Today the new OALJ Rules go into effect. The Office of Administrative Law Judges spent years preparing and tweaking their Rules of Practice and Procedure to more closely match the Federal Rules of Civil Procedure. Last month, I discussed the new Rules in a post on the Longshore & DBA Review. To reiterate those points and a few new ones:
- There are more sanctions to protect the integrity of the court and the administrative law process. The new Rules “have teeth.”
- The discovery process will take a different course than before. Now, litigants may not begin discovery until after they receive the Notice of Hearing and Prehearing Order. Of course, litigants should continue building their own case in the time period between referral to the OALJ and the issuance of the assigned judge’s Notice.
- Testifying experts must provide a wealth of information in addition to their expert report. Experts should start rounding out their CV now because, in the Federal Register, the OALJ puts the onus on experts.
- The rules of professional conduct governing each lawyer is the set of rules in place in the lawyer’s state of practice. This is nothing new. The Benefits Review Board has applied the law of the state of practice for over 25 years. See Baroumes v. Eagle Marine Servs., 23 BRBS 80 (1989).
- Sorry, no electronic filing yet for OALJ cases. Maybe if Congress would do the right thing and give the OALJ more funding…
- Privacy protection is important to the OALJ. Practitioners need to redact sensitive information (like Social Security Numbers) unless the parties waive that requirement.
- There is a 30-day notice period for physical and mental examinations unless the parties agree to a shorter notice period. When coupled with the shorter time period for discovery–i.e., beginning discovery upon receipt of the judge’s Notice instead of the district director’s referral letter–parties will likely begin the examination process very early in the litigation.
- Parties must file a Prehearing statement at least 21 days prior to the date set for hearing.
- There is now a rule pertaining to motions for reconsideration of a judge’s Decision and Order.
In addition to the new Rules, Acting Chief Administrative Law Judge Stephen R. Henley issued a technical clarification of some errors in the final rule. The clarification is minor in scope, affecting only 29 C.F.R. §§ 18.32(c), 18.51(d), 18.51(d)(3), and 18.53(b).
New Subpoena Forms:
The OALJ also has new subpoena forms which must be used starting today. The Acting Chief ALJ issued an Administrative Notice about the implementation of the new subpoena forms on May 29, 2015. The new forms include the:
- Subpoena to Appear and Testify at a Hearing
- Subpoena to Appear and Testify at a Deposition
- Subpoena to Produce Documents, Information or Objects, or to Permit Inspection of Premises
I suggest perusing the OALJ’s subpoena webpage because it includes detailed instructions for obtaining judge-signed subpoenas.
Photo courtesy of Wikipedia.