The second entry addressing the proposed Longshore and Harbor Workers’ Compensation Act Amendments of 2011 (Senate Bill 669) highlights the changes proposed to Sections 12, 13, 14, 16, 20, 21, 22, 31, and 44 of the LHWCA.
The proposed Amendments would:
1. Cap the late notice of an injury at one year after the event or knowledge that the trauma resulted in injury or disability. Notice of an occupational disease shall not be given more than one year after the diagnosis of an occupational injury or death resulting from the injury.
2. Shorten the time to file a claim from one year to ninety days after notice or ninety days after the date of last payment.
3. Replace the ten day time limit in section 14(f) (33 U.S.C. § 914) with a time limit based on either physical delivery or a postmark date.
4. Allow assignment for Section 206 of ERISA.
5. Amend Section 20 (33 U.S.C. § 920) in its entirety. Section 20 would not only include a provision for a rebuttable presumption, but it would also institute an affirmative and complete defense for false statements. Further, the proposed amendments would incorporate the Federal Rules of Evidence and the Daubert standards for the admission of expert testimony.
6. Change the time limits in the Benefits Review Board’s appeal procedure. First, an employee would be able to request an expedited hearing. Second, if the BRB does not issue a decision within one year, then the decision below is automatically affirmed. Finally, the position of the Secretary of Labor would not be entitled to deference unless the position was made into a rule on the record after opportunity for an agency hearing.
7. Add strict penalties to modification proceedings to provide carriers with a remedy for fraudulent claims. The remedy could include termination or suspension of benefits and restitution of the amounts paid for the fraudulent claim. Additionally, in the event of an overpayment, a carrier could seek repayment or a future credit.
8. Impose a significant penalty against claimants making fraudulent claims. Section 31 (33 U.S.C. § 931) would be amended to require the carrier to report fraud to the Secretary for investigation. If there is a credible instance of fraud involving more than $10,000.00, the Secretary would be required to report the fraud to the appropriate United States Attorney.
9. Revamp the Special Fund provisions dealing with carrier assessments.
Supplement: A reader brought to our attention that a supplement was required to complete an abstract of the LHWCA Amendments of 2011. As he correctly noted, one of the effects of the proposed amendments is the abolition of the second injury fund in Section 8(f). Pursuant to the Amendments, Section 8(f) would provide the following express limitation: “After the date of enactment of the Longshore and Harbor Workers’ Compensation Act Amendments of 2011, no order for relief under this subsection shall be entered except–(A) an order for modification of benefits for which an order has been entered prior to such date of enactment; or (B) an order for relief, in respect of a survivor of an employee, being paid from the special fund at the date of death.”
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
