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.Read more
Highlights of Proposed Longshore Amendments – Part One
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 injuryRead more
Senate Bill 669: Proposed Longshore Amendments
On March 29, 2011, Senator Johnny Isakson (R-GA) introduced Senate Bill 669, known as “A bill to amend the Longshore and Harbor Workers’ Compensation Act to improve the compensation system, and for other purposes.” The bill has been referred to the Committee on Health, Education, Labor and Pensions for consideration. The text of the bill was posted online this morning. Additional blog entries regarding the content of the bill will be posted soon. At the outset, it is important to note that Senator Isakson has previously sponsored bills that would amend the Longshore and Harbor Workers’ Compensation Act. In 2006, Senator Isakson sponsored Senate Bill 3987; in 2007, he sponsored Senate Bill 846; and in 2009, he sponsored Senate Bill 236. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Are Non-Resident Alien Siblings Entitled to LHWCA Death Benefits?
The Longshore and Harbor Workers Compensation Act (“LHWCA”), as well as its extensions, the Defense Base Act (“DBA”) and War Hazards Compensation Act (“WHCA”), exclude non-resident alien siblings from the receipt of death benefits. Section 9 of the LHWCA specifically restricts non-resident alien beneficiaries to spouses, children, and dependent parents. See 33 U.S.C. § 909(g) (2011). The relevant language of this exclusion states: “Compensation under this chapter to aliens…shall be the same in amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for that period of one year prior to the date of the injury…” Id. (emphasis added). Additionally, the statutory provisions of the DBA mimic the LHWCA statutes. Section 2 of theRead more
Direct Payment Under the War Hazards Compensation Act
A typical War Hazards Compensation Act (“WHCA”) case arises when a Defense Base Act (“DBA”) employee is injured by a “war-risk hazard,” as that term is defined by 42 U.S.C. § 1711. “War-risk hazards” can include the violent actions of a hostile force or person, or an aircraft or vessel mishap in a zone of hostilities. Id. Most WHCA claims involve insurance company reimbursement. Once a DBA claim has resolved, a carrier applies for reimbursement for the amounts paid. In certain circumstances, a request can be made for both the reimbursement of benefits previously paid and the “direct payment” of future benefits. If accepted, the Division of Federal Employees’ Compensation (“DFEC”) will assume payments in the place and stead of the insurance carrier. DFEC may pay future indemnity or death benefits and, where applicable, future medical benefits. 42 U.S.C. § 1704. The regulations promulgated for the direct payment of benefits provide a generalRead more
SCOTUS Addresses Agency Deference for Regulation Interpretation
Recently, the Supreme Court of the United States addressed the deference due to an agency when it is interpreting its own regulations. In Chase Bank USA, N.A. v. McCoy, the unanimous Court concluded inter alia that the Federal Reserve Board’s interpretation of a regulation dealing with the increase of interest rates for a delinquent or defaulting cardholder was reasonable. This decision could be cited for purposes of the Longshore and Harbor Workers’ Compensation Act because it addresses the deference owed to agencies like the Department of Labor. The Court based its holding on Auer v. Robbins, 519 U.S. 452 (1997) (involving the Secretary of Labor). The Court will defer to an agency’s interpretation of its own regulation, even when that interpretation is advanced in a legal brief. In Chase Bank, the Federal Reserve Board’s interpretation was contained in an amicus brief, but that was of no import because the interpretation wasRead more
What Are “War-Risk Hazards”?
One of the mandatory prerequisites for coverage or reimbursement under the War Hazards Compensation Act is the requirement that the contractor’s injury must have been caused by a “war-risk hazard.” Both the United States Code (42 U.S.C. § 1711(b)) and the Code of Federal Regulations (20 C.F.R. § 61.4(e)) defines a “war-risk hazard” to mean “any hazard arising during a war in which the Unites States is engaged; during an armed conflict in which the United States is engaged, whether or not war has been declared; or during a war or armed conflict between military forces of any origin, occurring within any country in which a person covered by this Act is serving; from– (1) the discharge of any missile (including liquids and gas) or the use of any weapon, explosive, or other noxious thing by a hostile force or person or in combating an attack or an imagined attachRead more
Federal Claims Court Discusses Differences Between FECA and LHWCA
The United States Court of Federal Claims recently addressed the difference between a Federal Employees Compensation Act (“FECA”) claim and a Longshore and Harbor Workers Compensation Act (“LHWCA”) claim. The matter came before the court following plaintiff’s allegation that the defendant failed to pay plaintiff, a former federal government employee, interest on retroactive compensation payments made pursuant to FECA. The plaintiff argued that because interest is available for LHWCA claimants, it should also be available for FECA claimants. In deciding that it lacked jurisdiction over the claim, the court addressed the differences between FECA and LHWCA: “FECA provides employment compensation for federal government employees. An employee under FECA is defined principally as ‘civil officers or employees in any branch of the Government of the United States.’ 5 U.S.C. § 8101(1)(A). The money to pay these claims comes from congressionally appropriated funds. Id. § 8147. In contrast, the LHWCA is aRead more
What is the War Hazards Compensation Act?
In modern warfare, military contractors play a large and vital role in support of the United States military. Based upon the greater presence of contractors, the War Hazards Compensation Act (“WHCA”) has become an important vehicle for insurance companies to secure reimbursement of amounts paid on account of “war-risk hazard” injuries. Since 1942, the WHCA has provided a compensation and reimbursement system whereby the United States government essentially self-insures the losses occasioned to employees working abroad, under contracts entered into by the United States. The WHCA applies to foreign local nationals (e.g., Iraqi or Afghanis), third country nationals (e.g., South Africans or Fijians), as well as citizens of the United States. The main requirement of the WHCA is that a “war-risk hazard,” as defined by the United States Code, caused the employee’s injury. A war-risk hazard includes any hazard arising from (1) the discharge of any missile, or the useRead more