Previously, this blog reported that Senator Johnny Isakson introduced the Longshore and Harbor Workers Compensation Act Amendments of 2011. The text of the Senate Bill 669 is available here.
The following list provides highlights of the first half of the proposed amendments. The Amendments would:
1. Provide a statement of Congressional intent to demonstrate that there shall not be a broad liberal construction in favor of the employee or employer.
2. Incorporate new definitions which, among other things, expressly states that “[p]hysical 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 the Act.”
3. State that compensation shall not be payable for dentures, eyeglasses, hearing aids, prosthetic devices, or artificial limbs unless those items are part of the medical treatment for a disability, or those items were damaged in the accident that resulted in a traumatic injury to the employee.
4. Amend Section 4 (33 U.S.C. § 904) in its entirety. The proposed amendments would: (a) allow for a reduction in benefits based upon a disability rating for a prior injury, aging, or personal habits; (b) hold that borrowing and lending employers shall be treated as a single employer unless an indemnification agreement exists; (c) codify the last responsible employer doctrine with an intervening employment exception for an exposure injury resulting from employment not covered under the Act.
5. Add a federal preemption statement to Section 5 (33 U.S.C. § 905).
6. Allow a carrier to designate one or more participating medical networks or health care panels for providing medical care. An employee would not be entitled to reimbursement for medical expenses unless he sought treatment within the designated network or panel, or unless he lived 100 miles away from the closest physician working in the network or panel. Further, the amendments to Section 7 (33 U.S.C. § 907) would permit a change in the employee’s choice of physician when requested by the employee or when the change is desirable or necessary in the interest of the employee.
7. Overhaul Section 8 (33 U.S.C. § 908) to change payable compensation from 66 2/3 per centum of the average weekly wages to “75 percent of the spendable earnings.” The Secretary of Labor is supposed to implement regulations and publish a table of compensation to implement this change.
8. Increase funeral benefits from $3,000 to $7,500.
9. Adjust Section 9 (33 U.S.C. § 909) to provide compensation based upon the “75 percent of the spendable earnings” scheme.
10. Change Section 10’s (33 U.S.C. § 910) manner of calculating an average weekly wage. If an employee worked at least 40 of the 52 weeks immediately preceding the injury, or if the employee was employed in a seasonal position, then the employee’s actual earnings will be divided by 52. If the employee worked less than 40 weeks, then the AWW will be based on a similarly situated employee’s wages. Further, the AWW for retired workers would be based upon the length of time that passed between retirement and the onset of the disability. Finally, the method for calculating spendable earnings is provided—and it requires a knowledge of tax law.
Please note that this is the first of a two-part blog entry. The second entry, which will address the second half of the proposed Amendments, will be posted later this week.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
