AEU Longshore Blog ISSUE: Section 905(b)

Section 5(b) of the Longshore Act, 33 U.S.C. 905(b), allows an injured maritime worker to bring a third party tort lawsuit against a vessel owner for vessel negligence.

Section 5(b) states:

“In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 33 of this Act … If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel.  If such person was employed to provide ship building, repairing, or breaking services and such person’s employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly against the injured person’s employer … The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this Act.”

In the case of Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), the U.S. Supreme Court articulated the somewhat limited duties owed by a vessel owner under section 5(b).

There are three separate duties imposed.  The first, called the “turnover duty”, relates to the condition of the vessel upon the commencement of stevedoring operations.  The second, called the “active control duty”, provides that a vessel owner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the active control of the vessel. The third, called the “duty to intervene”, concerns the vessel owner’s obligation with regard to cargo operations in areas under the principal control of the stevedore.

The vessel owner’s duties are narrower than under ordinary tort principles, such as when a maritime worker is suing a negligent third party (but not a vessel) under section 33(a).  The rationale for this is that the primary responsibility for the safety of the longshoremen rests with the stevedore employer.

 

Turnover duty

It is the duty of the vessel owner to exercise ordinary care under the circumstances to turn over the vessel and its equipment in such condition that an experienced stevedore can carry on stevedoring operations with reasonable safety.  Also included is the duty of the vessel owner to warn the stevedore of latent or hidden dangers which are, or should be, known to the vessel owner.

The vessel owner’s duty to warn is limited because the vessel owner is not obligated to warn of dangers which are open and obvious or those which a competent stevedore should anticipate encountering and be able to deal with safely.  The duty to warn attaches only to latent hazards.

The vessel owner has the right to rely on the stevedore’s competence to safely conduct cargo operations.  Thus, the vessel owner is not required to turn over a vessel free from all hazards.  Rather, the vessel must be free of hazards which prevent an expert and experienced maritime employer from carrying on his operations in a reasonably safe manner.

To summarize, the vessel owner has the turnover duty to provide a reasonably safe vessel and to warn of hidden dangers, but not dangers that are open and obvious.  The vessel owner does not have an obligation to inspect and supervise cargo operations for the benefit of the longshoremen.  That is the stevedore employer’s job.

The turnover duty defines the vessel owner’s obligation before and at the commencement of cargo operations; the “active control duty” comes next.

 

The “active control duty”

The vessel’s active control duty defines the vessel owner’s obligation after cargo operations have begun, in those areas remaining under the control of the vessel owner.  Liability under this duty depends on whether the vessel owner negligently exposes a longshoreman to hazards – even avoidable, open or obvious ones – in areas controlled by the vessel owner during cargo operations.

It is a question of fact as to whether the vessel owner retains control over a particular area.  For example, courts will consider whether the area in question is within the stevedore’s work area, whether the work area in question has been turned over to the stevedore, and whether the vessel owner controls the methods and details of the stevedore’s work.

 

The “duty to intervene”

The narrowest of the vessel owner’s duties under section 5(b) is the “duty to intervene”. A vessel owner has the duty to intervene in cargo operations only when it has actual knowledge of a dangerous condition and actual knowledge that the stevedore, in the exercise of poor judgment, has failed to correct the dangerous condition.

To establish a breach of the duty to intervene, an injured worker must show that: 1) the vessel owner had actual knowledge that a condition or operation posed an unreasonable risk to safety, 2) the vessel owner had actual knowledge that it could not rely on the stevedore to protect its employees, and 3) if uncorrected, the condition posed a substantial risk of causing injuries.

The vessel owner only acquires a duty to intervene when the stevedore decides to continue working in the face of a dangerous condition.

NOTES:

The section 5(b) negligence remedy was added to the Longshore Act as part of the 1972 Amendments.  In 1946, the U.S. Supreme Court had (mistakenly) given longshoremen the right to sue a vessel for unseaworthiness under the general maritime law (Seas Shipping v. Sieracki, 328 U.S. 85 (1946)).  The 1972 Amendments corrected this mistake by removing vessel liability to longshore workers under the general maritime law and substituting section 5(b)’s federal maritime tort remedy.

The 1984 Amendments to the Longshore Act changed section 5(b) to protect shipbuilding employers who are also vessel owners.  Workers who provide shipbuilding, repairing, or breaking services cannot sue their vessel owner employers under section 5(b).

There is a “dual capacity” employment situation recognized under section 5(b) that provides a narrow solution to a specific problem that arises when a vessel owner directly employs longshoremen or other maritime workers (other than shipbuilders, ship repairers, and ship breakers).  In this instance, the employee has his right to workers’ compensation benefits from the employer in its capacity as a Longshore Act maritime employer, and he has his right to a negligence remedy against the employer in its capacity as vessel owner.

For “dual capacity” liability for vessel negligence, the negligence must occur as a result of vessel operations.

The section 5(b) negligence remedy is available not only to longshoremen; the standards are the same for any worker covered by the Longshore Act who is injured as a result of vessel negligence.

This post has been a very broad review of the section 5(b) remedy. In the coming weeks, we will expand on this information by reviewing some section 5(b) cases that apply these general principles in actual situations.

 

 

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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, Financial Management, and Assessments and 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.

AEU Longshore Blog ISSUE: Review of Fines and Penalties

The blog post from February 9, 2017 included a discussion of the U.S. Department of Labor’s Industry Notice No. 160, which announced the latest increase in the amounts of civil penalties under the Longshore Act.

Below is a more comprehensive, section-by-section review of the various civil penalty and criminal fine provisions in the Act.

Section 8(j) (added by the 1984 Amendments)

“(j)(1) The employer may inform a disabled employee of his obligation to report to the employer not less than semiannually any earnings from employment or self-employment, on such forms as the Secretary shall specify in regulations (Form LS-200).

(2) An employee who –

(A) fails to report the employee’s earnings under paragraph (1) when requested, or

(B) knowingly and willfully omits or understates any part of such earnings … forfeits his right to compensation with respect to any period during which the employee was required to file such report.”

Notes on Section 8(j):

  • “A disabled employee” is interpreted to mean one who is actually receiving compensation.
  • Any amounts forfeited under section 8(j) may only be recovered by offset against future compensation as determined by the District Director.

 

Section 14(e)

“(e) If any installment of compensation payable without an award is not paid within fourteen days after it becomes due, as provided in subdivision (b) of this section, there shall be added to such unpaid installment an amount equal to 10 per centum thereof, which shall be paid at the same time as, but in addition to, such installment … unless such nonpayment is excused by the deputy commissioner …”

Notes on Section 14(e):

  • The employer is not liable under section 14(e) if it timely controverts the claim under section 14(d).
  • “Deputy Commissioner” here as elsewhere in the Act means District Director.
  • Nonpayment may be excused by the District Director based on a showing by the employer of conditions beyond its control.

 

Section 14(f)

“(f) If any compensation, payable under the terms of an award, is not paid within ten days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 per centum thereof, which shall be paid at the same time as, but in addition to, such compensation, unless review of the compensation order making such award is had as provided in section 21 and an order staying payments has been issued by the Board or court.”

Notes on Section 14(f):

  • “…within ten days” outside the federal Fifth Circuit Court of Appeals means 10 calendar days. Within the Fifth Circuit (states of LA, MS, TX) it means 10 business days.
  • There is no defense, equitable or otherwise, to the 10 day requirement of money in the claimant’s hands.

 

Section 14(g)

“(g) Notice of payment; penalty.  Within sixteen days after final payment of compensation has been made, the employer shall send to the deputy commissioner a notice, in accordance with a form prescribed by the Secretary of Labor (Form LS-208), stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid.  If the employer fails to so notify the deputy commissioner within such time the Secretary of Labor shall assess against such employer a civil penalty in the amount of $100.”

Note on Section 14(g):

Effective January 13, 2017, the maximum penalty amount is $279.

 

Section 15(a)

“(a) No agreement by an employee to pay any portion of premium paid by his employer to a carrier or to contribute to a benefit fund or department maintained by such employer for the purpose of providing compensation or medical services and supplies as required by this Act shall be valid, and any employer who makes a deduction for such purpose from the pay of any employee entitled to the benefits of this Act shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than $1,000.”

 

Section 28(e) (added by the 1984 Amendments)

“(e) A person who receives a fee, gratuity, or other consideration on account of services rendered as a representative of a claimant, unless the consideration is approved by the deputy commissioner, administrative law judge, Board, or court, or who makes it a business to solicit employment for a lawyer, or for himself, with respect to a claim or award for compensation under this Act, shall, upon conviction thereof, for each offense be punished by a fine of not more than $1,000 or be imprisoned for not more than one year, or both.”

 

Section 30(e)

“(e) Any employer, insurance carrier, or self-insured employer who knowingly and willfully fails or refuses to send any report (Form LS-202) required by this section or knowingly or willfully makes a false statement or misrepresentation in any such report shall be subject to a civil penalty not to exceed $10,000 for each such failure, refusal, false statement, or misrepresentation.”

Notes on Section 30(e):

  • The blog post from February 9, 2017 contained a full discussion of Form LS-202.
  • Effective January 13, 2017, the penalty amount was increased again to a new maximum of $22,957.
  • The 1984 Amendments added the “knowingly and willfully” language.

 

Section 31(a)(1)

“(a)(1) Any claimant or representative of a claimant who knowingly and willfully makes a false statement or representation for the purpose of obtaining a benefit or payment under this Act shall be guilty of a felony, and on conviction thereof shall be punished by a fine not to exceed $10,000, by imprisonment not to exceed five years, or by both.”

Note on Section 31(a)(1):

This section was changed by the 1984 Amendments when a misdemeanor became a felony.

 

Section 31(c) (added by the 1984 Amendments)

“(c) A person including, but not limited to, an employer, his duly authorized agent, or an employee of an insurance carrier who knowingly and willfully makes a false statement or representation for the purpose of reducing, denying, or terminating benefits to an injured employee, or his dependents pursuant to section 9 if the injury results in death, shall be punished by a fine not to exceed $10,000, by imprisonment not to exceed five years, or by both.”

 

Section 37

“No stevedoring firm shall be employed in any compensation district by a vessel or by hull owners until it presents to such vessel or hull owners a certificate issued by a deputy commissioner assigned to such district that it has complied with the provisions of this Act requiring the securing of compensation to its employees.  Any person violating the provisions of this section shall be punished by a fine of not more than $1,000, or by imprisonment for not more than one year, or by both such fine and imprisonment.”

Note on Section 37:

This Certificate, Form LS-239, may be obtained by the employer by request to the District Director in the district where the covered operations will take place.

 

Section 38(a)

“(a) Any employer required to secure the payment of compensation under this Act who fails to secure such compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than one year or by both such fine and imprisonment; and in any case where such employer is a corporation, the president, secretary, and treasurer thereof shall be also severally liable to such fine or imprisonment as herein provided for the failure of such corporation to secure the payment of compensation;…“

Note on Section 38(a):

The amount of the fine was increased from $1,000 to $10,000 by the 1984 Amendments.

 

Section 38(b)

“(b) Any employer who knowingly transfers, sells, encumbers, assigns, or in any manner disposes of, conceals, secretes, or destroys any property belonging to such employer, after one of his employees has been injured within the purview of this Act, and with intent to avoid the payment of compensation under this Act to such employee or his dependents, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than one year, or by both such fine and imprisonment; and in any case where such employer is a corporation, the president, secretary, and treasurer thereof shall be also severally liable to such penalty or imprisonment as well as jointly liable with such corporation for such fine.”

Note on Section 38(b):

The amount of the fine was increased from $1,000 to $10,000 by the 1984 Amendments.

 

Section 41(f)

“(f) Any employer who, willfully, violates or fails or refuses to comply with the provisions of subsection (a) of this section (furnish and maintain safe places of employment) … shall be guilty of an offense, and, upon conviction thereof, shall be punished for each offense by a fine of not less than $100 nor more than $3,000; and in any case where such employer is a corporation, the officer who willfully permits any such violation to occur shall be guilty of an offense, and, upon conviction thereof, shall be punished also for each offense by a fine or not less than $100 nor more than $3,000.”

 

Section 48(a) (as recodified; section 49 in printed versions of the Act)

“It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify in a proceeding under this Act … Any employer who violates this section shall be liable to a penalty of not less than $1,000 or more than $5,000…”

Notes on Section 48(a):

  • The 1984 Amendments raised the range from $100/$1,000 to $1,000/$5,000 and added the phrase, “The discharge or refusal to employ a person who has been adjudicated to have filed a fraudulent claim for compensation is not a violation of this section.”
  • Effective January 13, 2017, the minimum penalty amount is $2,296 and the maximum penalty amount is $11,478.

 

Final Note:  Fines and penalties assessed under the various provisions of the Act go into the Special Fund, but raising money for the Fund is not the purpose of the fine and penalty provisions.  An insignificant amount of Special Fund receipts in any given year are due to fines and penalties.  The fine and penalty provisions are intended solely to improve administration of the Act.

 

 

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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, Financial Management, and Assessments and 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.

AEU Longshore Blog ISSUE: Civil Penalties – Going Up Again; Review of Fines and Penalties

The U.S. Department of Labor, Office of Workers’ Compensation Programs, which administers the Longshore and Harbor Workers’ Compensation Act, has released Industry Notice No. 160, dated January 25, 2017.

The purpose of Notice No. 160 is to announce the latest increase in civil monetary penalties effective as of January 13, 2017.

Subject: 2017 Increase of civil monetary penalties in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (sic).  This Act requires federal agencies to adjust the levels of civil monetary penalties for inflation.  These adjustments affect several provisions of the Longshore Act and its extensions, the Defense Base Act, the Outer Continental Shelf Lands Act, and the Nonappropriated Fund Instrumentalities Act.

Here is a brief summary of the changes.

  1. Section 14(g) of the Longshore Act: Failure to Report Termination of Payments (Form LS-208).  The regulation at 20 C.F.R. 702.236 now states:

“Any employer failing to notify the district director that the final payment of compensation has been made as required by section 702.235 shall be assessed a civil penalty in the amount of $279 for any violation for which penalties are assessed after January 13, 2017.”

The amount is increased from the previous amount of $275, which had been effective August 1, 2016.

  1. Section 30(e): Penalty for Late Report of Injury or Death (Form LS-202).  The regulation at 20 C.F.R. 702.204 now states:

“Any employer, insurance carrier, or self-insured employer who knowingly and willfully fails or refuses to send any report required by section 702.201, or who knowingly or willfully makes a false statement or misrepresentation in any report, shall be subject to a civil penalty not to exceed $22,957 for each such failure, refusal, false statement, or misrepresentation for which penalties are assessed after January 13, 2017.”

The amount is increased from the previous amount of $22,587, which had been effective August 1, 2016.  This is the maximum penalty amount.  There is a graduated penalty schedule beginning at $500 based on the facts of each case.

  1. Section 49 (33 U.S.C. 948(a)): Discrimination Against Employees Who Bring Proceedings. The regulation at 20 C.F.R. 702.271(a) now states:

“Any employer who violates this section, and has penalties assessed for such violation after January 13, 2017, shall be liable for a penalty of not less than $2,296 or more than $11,478 to be paid (by the employer alone, and not by a carrier) to the district director for deposit in the special fund described in section 44 of the Act, and shall restore the employee to his or her employment along with all wages lost due to the discrimination unless the employee has ceased to be qualified to perform the duties of employment.”

The penalty range is increased from the previous range of $2,259 to $11,293.

Following is additional information with regard to filing Form LS-202.

  • Employer’s First Report of Injury or Occupational Disease

The DOL issued Industry Notice No. 144 on November 14, 2013.  It contained important new instructions for mailing injury reports, claims forms, and correspondence in Longshore cases effective December 2, 2013.  The New York Longshore District Office is designated the “Central Case Create” site.  All new reports of injury and claim forms are to be mailed to:  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.

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.

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.

  • “Timely Reporting” of Injuries to the DOL

This is from the Procedure Manual for Claims Examiners in the Division of Longshore and Harbor Workers’ Compensation, Office of Workers’ Compensation Programs.

“Under Section 30(a) of the Act, an employer must, within ten days from the date of any injury which causes loss of one or more shifts of work, or death (or from the date that the employer has knowledge of a disease, or infection as a result of such injury), furnish an employer’s report of injury or death to the District Director in the appropriate District Office (this is now the New York District Office.  See the discussion of Industry Notice No. 144 above.).  In the event that the employer does not have immediate knowledge of the injury, the ten day period begins to run from the date that the employer obtains such knowledge.” 

The timely reporting of injuries to the DOL by the employer is very important.  In some ways it’s to the advantage of the employer, and there are penalties attached to failure to comply with the 10 day requirement.

On November 9, 2009, the DOL published Industry Notice No. 130:  “Subject:  Initiative to Improve Timeliness in Employer’s First Report of Injury and Initial Payment of Compensation.”  In this Notice, the DOL announced its intention to “scrutinize more closely” the “timeliness in filing first reports of injury.”

This Notice did not add any new reporting requirements nor change in any way the Section 30(a) 10 day requirement.  Rather, it reflected the DOL’s intent to improve the industry’s compliance with the existing standard.  This initiative by DOL is in conformance with the requirements of the Government Performance and Results Act of 1993 (GPRA), which requires that agencies set goals and measure progress against those goals.

So, what must the employer do under Section 30(a)?  It’s simple.  The employer must send Form LS-202 to the appropriate DOL district office (New York) within 10 days of a lost time injury, or 10 days from the date that it has knowledge of the injury.  The term “lost time injury” means time lost beyond the day or shift of the injury.  A report of injury should also be filed if no time is lost but it is anticipated that the incident will result in an impairment rating and a claim for a scheduled award under Section 8(c).  Note: The reports are timely so long as they are mailed within the 10 days as evidenced by the postmark.

The report can be filed by regular mail, or it may be filed electronically once the employer has registered with DOL as an electronic filer.

Keep in mind:

– The report must be mailed within 10 days. Don’t wait to verify all of the information or to complete an investigation.  It is more important to report the injury timely.The Form LS-202 is not “evidence” of any fact stated in the report. The employer can describe reported events as “alleged” if it wishes, but it’s not necessary.

– The statute of limitations for filing a claim does not begin to run until the employer files the Form LS-202. If the employer never files the Form LS-202, the claim filing time requirement never begins to run against the injured worker.

-It is the employer’s obligation to file the Form LS-202, not the insurance carrier’s. If the employer sends the report to its insurance company within 10 days, and the insurance company then files it with the DOL too late, the employer has failed to comply with the requirement.

-The information on the Form must be accurate. Incorrect statements can be inconvenient to explain later on, and there are harsh provisions in the Act to deal with intentional false statements.

-The 1984 Amendments to the Longshore Act changed the basis for the assessment of penalties under section 30(a). The language of “failure or refusal to send any required report” was changed to “knowingly and willfully” failing or refusing to send a report.  “Knowingly” means that the employer knew or should have known of the requirement, and “willfully” means either intentionally disregarding the statute or being plainly indifferent to its requirements.

Our next post will provide a more detailed outline of the various civil and criminal fine and penalty provisions of the Act.

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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, Financial Management, and Assessments and 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.

AEU Longshore Blog ISSUE: Concurrent Benefits

Under what circumstances can an injured worker receive weekly workers’ compensation benefits concurrently for multiple injuries/multiple claims?

For example, can an injured worker receive permanent partial disability benefits for a scheduled award concurrently with receiving benefits for permanent total disability resulting from a different injury?  Or for another example, can an injured worker receive permanent partial disability benefits based on a loss of wage earning capacity concurrently with receiving benefits for a scheduled award resulting from a different injury?

This issue is not addressed in the statute, so it is necessary to review what general principles have been established in the case law.

What are the benefit types?

A. Disability Compensation Benefits

1. Temporary Total Disability (TTD) Section 908(b) – compensation is paid until the worker is able to return to work or is declared to be medically stable.  TTD applies if an employee’s injury prevents him from working for a period of time, but he is expected to return to work at a later date; he may be under active medical care or the medical condition is expected to improve.  The rate is 66 2/3 percent of the injured worker’s pre-injury average weekly wage, subject to the weekly maximum and minimum rates.  No compensation is paid for the first three days of disability.  If disability lasts more than 14 days, then compensation is paid from the first day.

2. Temporary Partial Disability (TPD) Section 908(e) – compensation is paid during a period of reduced earnings which is not expected to be permanent.  The rate is 66 2/3 percent of the wage loss or loss of wage earning capacity (the difference between wages prior to the injury and wage earning capacity after the injury, subject to the weekly maximum). Compensation is paid for the duration of the disability but limited to five years.

3. Permanent Total Disability (PTD) Section 908(a) – awarded where the worker can not return to his pre-injury employment and there is no evidence in the record of suitable alternate employment that he can perform.  Compensation is paid indefinitely for the continuance of the disability.  The rate is 66 2/3 percent of the worker’s average weekly wage, subject to the weekly maximum and minimum.  The rate is adjusted annually each October 1 based on changes in the National Average Weekly Wage.

4. Permanent Partial Disability (PPD) Section 908(c) –

a) Scheduled Compensation – The Act contains a schedule, rating various types of permanent partial impairments.  The percentage of impairment is converted into the number of weeks of compensation payable at the rate of 66 2/3 percent of the average weekly wage.  The schedule covers the loss or loss of use of extremities, loss of hearing, and loss of vision.  Partial loss, or loss of use of a part of the body listed in the schedule, is compensated on a pro rata basis.  For example, a worker with 10 percent loss of use of an arm receives 31.2 weeks of compensation based on 312 weeks for 100 percent loss of use.  It is not necessary to show actual wage loss for scheduled injuries.  For the rest of this post, I will refer to a permanent partial scheduled award as PPS.

b) Non-Scheduled Compensation – where the injury is not confined to the schedule (e.g., injuries to the back, shoulder, neck), compensation is paid at the rate of 66 2/3 percent of loss of wages, i.e., 66 2/3 percent of the difference between the pre-injury average weekly wage and the post injury wage earning capacity.  For the rest of this post, I will refer to a permanent partial disability based on a loss of wage earning capacity as PPL.

B. Disfigurement
Compensation is paid for disfigurement of the face, head, neck or other normally exposed area likely to prejudice the injured worker’s ability to secure employment.  Disfigurement awards are set by the District Director and cannot exceed $7,500.

What is the “schedule”?

Section 8(c):

(1) Arm lost = 312 weeks

(2) Leg lost = 288 weeks

(3) Hand lost = 244 weeks

(4) Foot lost = 205 weeks

(5) Eye lost = 160 weeks

(6) Thumb lost = 75 weeks

(7) First finger lost = 46 weeks

(8) Great toe lost = 38 weeks

(9) Second finger lost = 30 weeks

(10) Third finger lost = 25 weeks

(11) Toe other than great toe lost = 16 weeks

(12) Fourth finger lost = 15 weeks

(13) Loss of Hearing = one ear = 52 weeks, both ears = 200 weeks

(14) Phalanges – loss of more than one phalange of a digit shall be the same as for loss of the entire digit.  Loss of the first phalange = one-half of loss of entire digit.

(15) Amputated arm or leg – if amputated at or above the elbow or the knee = loss of arm or leg; if amputated between the elbow and the wrist or the knee and the ankle = loss of hand or foot.

(16) Binocular vision or per centum of vision:  for loss of binocular vision or for 80 per centum or more of the vision of an eye shall be the same as for loss of the eye.

(17) Two or more digits: loss of two or more digits or one or more phalanges of two or more digits of a hand or foot may be proportioned to the loss of use of the hand or foot occasioned thereby, but shall not exceed the compensation for loss of a hand or foot.

(18) Total loss of use:  compensation for permanent total loss of use of a member shall be the same as for loss of the member.

(19) Partial loss or partial loss of use:  compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.

(20) Disfigurement

(21) Covers permanently injured employees who are not totally disabled or retired and whose injuries are not covered by the Schedule.  An award is based on wage earning capacity lost as a result of the injury.

What are the general principles of concurrent benefits?

1. Scheduled Award and Scheduled Award (PPS and PPS)

a. You can receive two (or more) separate scheduled awards for two (or more) separate injuries based on the same accident or for separate injuries in separate accidents.  The awards run consecutively.

b. There are no concurrent awards where the scheduled injury is to a greater member resulting in impairment to a smaller member. The schedule accounts for impairments necessarily caused to smaller members as a result of injuries to larger, connected members.

c. The minimum weekly compensation rate does not apply to scheduled awards.

2. Scheduled Award and Permanent Partial Disability based on a loss of wage earning capacity (PPS and PPL)

a. You can receive concurrent awards for a scheduled injury and for loss of wage earning capacity. The combined rate can be paid up to two-thirds of the worker’s average weekly wage in accordance with section 908(a), even if this exceeds the maximum compensation rate for the fiscal year for a single injury.

b. The section 906(b)(1) maximum does apply to each separate injury.

c. The number of weeks for the scheduled award may be increased and the weekly amount reduced to provide that the schedule is paid in full.  The ALJs have wide discretion here in fashioning awards to make sure that all compensation is paid.

3. Two Permanent Partial Disability awards based on loss of wage earning capacity (PPL and PPL)

a. You can receive concurrent awards for two separate loss of wage earning capacities.  The same maximum combined rate limit applies as for the concurrent schedule and loss of wage earning capacity awards summarized above.  The combined rate for multiple awards can exceed the section 906(b)(1) maximum but not the section 908(a) maximum entitlement of two thirds of the worker’s average weekly wage.

4. Permanent Total Disability and Permanent Partial Disability based on loss of wage earning capacity (PTD and PPL)

a. You can receive concurrent awards for permanent partial disability based on loss of wage earning capacity and for permanent total disability resulting from a later injury. The assumption is that the later PTD average weekly wage is lower because of the existing PPL.

b. In this case the employer is free to seek modification of the PPL award under section 22 if the loss of wage earning capacity is not as severe as had been anticipated at the time of the award.

5. Permanent Partial scheduled award and Permanent Total Disability (PPS and PTD)

a. Generally you cannot receive a scheduled award and PTD (and probably TTD) benefits concurrently.  You can only be 100% disabled.

b. If the scheduled award comes first, you will receive the schedule until the beginning of the total disability payments, at which time the scheduled award will lapse.

c. If the total disability payments cease for any reason the schedule will resume.

d. Concurrent PPS and PTD are not treated the same as concurrent PPL and PTD.

6. Disfigurement

a. You can receive a disfigurement award of up to $7,500 concurrently with any other award.

NOTE:  This has been a very broad summary of concurrent benefits.  As noted above, there are no statutory provisions governing this.  It is likely that we have not seen the end of the possible variations and interpretations in this area.

 

 

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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, Financial Management, and Assessments and 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.