ISSUE: U.S. Department of Labor – New

Part One – New National Average Weekly Wage (NAWW) Jack_crop 300dpi

Effective 10/01/13, the new NAWW is $673.34, a 1.62% increase over last year.  This means that the new maximum weekly compensation rate under the Longshore Act is $1,346.68 (twice the NAWW), and the new minimum weekly compensation rate is $336.67 (one-half the NAWW).

Part Two – Under New Management

There has been a complete turnover in the national management of the Division of Longshore and Harbor Workers’ Compensation (DLHWC) at the U.S. Department of Labor (DOL).

The DLHWC administers the Longshore and Harbor Workers’ Compensation Act within the Office of Workers’ Compensation Programs (OWCP).  The DLHWC Director, Miranda Chiu, along with the Chief, Branch of Financial Management, Insurance and Assessment Brandon Miller and the Chief, Branch of Policy, Regulations and Procedures Eric Richardson, have all left the Department within the past few months.

So here is your new DLHWC National Office management team.

Antonio Rios is Acting Director, DLHWC.  He reports to Gary Steinberg, Acting Director of the Office of Workers’ Compensation Programs, who in turn reports directly to the Secretary of Labor.  The Secretary, Thomas E. Perez, is also new as of July 23, 2013.

Richard Stanton is Chief of Financial Management, Insurance and Assessment.

Jennifer Valdivieso is Chief of Policy, Regulations and Procedures.

The National Office Policy Chief handles second injury fund applications, district office administration, regulatory drafting and interpretation, coordination of legal matters with the Office of the Solicitor, policy formulation, and procedural matters.  This is a partial list.

The Financial Management Chief administers the Special Fund, bills and collects the industry assessment, authorizes insurance carriers and self-insurers, collects and maintains collateral deposits, administers assessment reporting and reserve audits, administers insolvency cases, enforces the insurance provisions of the Longshore Act, and participates in policy formulation.  This is a partial list.

DLHWC district offices provide medical management, informal dispute resolution, education and outreach, and claims administration under the direction of District Directors.

Following is a list of Longshore district offices along with their respective state jurisdictions:

Boston – District Director David B. Groenveld – CT, ME, MA, NH, RI, VT, and DBA jurisdiction east of the 75th degree west longitude, Newfoundland, and Greenland.

New York – District Director Richard V. Robilotti – NY, NJ, Puerto Rico, Virgin Islands and DBA jurisdiction Mexico, Central and South America; areas east of the continents of North and South America to the 60th degree east longitude (including Iraq, Afghanistan, and Iran) and any other areas or locations not covered under any other district office.

Baltimore – District Director Theresa Magyar – DE, DC, MD, PA, WV.

Norfolk – Theresa Magyar – VA.

Jacksonville – District Director Charles Lee – AL, FL, GA, KY, NC, SC, TN

Houston – District Director David Widener – TX, OK, NM, IL, IN, IO, MI, MN, OH, WI, MO, NE, KS, and DBA jurisdiction Canada west of the 75th degree and east of the 110th degree west longitude.

New Orleans – District Director David A. Duhon – LA, AR, MS.

San Francisco – District Director R. Todd Bruininks – CA (north of the northern boundaries of the counties of San Luis Obispo, Kern, and San Bernardino), AZ, NV.

Long Beach – District Director Marco Adame – CA (south of the northern boundaries of the counties of San Luis Obispo, Kern, and San Bernardino).

Seattle – District Director R. Todd Bruininks – AK, OR, WA, CO, ID, MT, ND, SD, UT, WY and DBA jurisdiction Canada west of the 110th degree west longitude, and all areas in the Pacific Ocean north of the 45th degree north latitude.

Honolulu – District Director R. Todd Bruininks – HI, and DBA jurisdiction all areas west of the continents of North and South America to 60 degrees east longitude (excluding Iran, Iraq, and Afghanistan).

Claims issues that cannot be resolved at the District office level are referred for formal hearing to the Office of Administrative Law Judges (OALJ) within DOL.  Appeals from decisions at the OALJ go the DOL’s Benefits Review Board (BRB).  Appeals from the BRB go to the appropriate federal Circuit Court of Appeals (in some Circuits DBA appeals go to federal District Court), and ultimately to the U.S. Supreme Court.

 

ISSUE: Annual Increase

The U.S. Department of Labor has announced the new National Average Weekly Wage (NAWW) effective October 1, 2012, and consequently the new maximum and minimum rates for weekly benefits derived from the NAWW under Section 910(f) of the Longshore and Harbor Workers’ Compensation Act.

The new NAWW effective October 1, 2012, is $662.59.  This represents a 2.31% increase over October 1, 2011.  All beneficiaries receiving permanent total disability or related death benefits as of September 30, 2012, will receive a 2.31% increase in their weekly rate.

The new NAWW provides the new maximum and minimum weekly rates.  Effective October 1, 2012, the maximum weekly rate under the Longshore Act is 200% of the NAWW, so the new maximum rate is $1,325.18.  The minimum weekly rate is 50% of the NAWW, so the new minimum rate is $331.30.

A Note on weekly benefits:  The weekly rate for permanent total disability and temporary total disability and for permanent partial disability based on the schedule in Section 908(c) is two thirds of the Average Weekly Wage (AWW).  The weekly rate for permanent partial disability based on a loss of wage earning capacity is two thirds of the difference between the AWW and the post injury wage earning capacity.  The weekly rate for a widow is fifty percent of the AWW.  The AWW is established as of the date of the injury.

Another Note on the new NAWW and maximum rate and the timing of their application under Section 906(c):

Section 906(c):  Applicability of determinations.  Determinations under subsection (b)(3) (new NAWW) with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period as well as those newly awarded compensation during such period.

Earlier this year the U.S. Supreme Court decided the case of Roberts v. Sea-Land Services, Inc., et al., interpreting the language in Section 6(c).  The issue in the case was, “What maximum weekly rate applies to compensation for disability under the Longshore and Harbor Workers’ Compensation Act?”  Is it the maximum in effect as of the date of first entitlement to permanent total disability, or is it the higher, later maximum rate as of the date of the Administrative Law Judge’s Compensation Order?

The weekly rate is capped at 200% of the applicable NAWW.  Since there is a new NAWW each October 1, weekly benefits are increased each October 1 for employees or survivors “currently receiving” compensation for permanent total disability (PTD) or related death benefits during such period as of September 30, as well as those “newly awarded compensation” during such period based on the change in the NAWW.

The Roberts decision, and this issue, has been discussed here previously on December 21, 2011, January 11, 2012, and March 22, 2012.  The then current NAWW and maximum rate is effective when an employee is “newly awarded compensation”, which is when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.

So, once again, the new NAWW and weekly maximum rate effective October 1, 2012, applies to those receiving benefits for permanent total disability or related death on September 30, 2012, as well as those who first become entitled to permanent total disability or related death benefits between October 1, 2012, and September 30, 2013.

One more thing:  The weekly rates for temporary total disability and permanent partial disability are subject to the maximum rate on the date of injury.  These benefits are not increased annually.  

 

Issue: Annual Increase

Please pardon the interruption.  Just a brief note that the U.S. Department of Labor has announced the annual rate increase effective October 1, 2010, applicable to permanent total disability and related death benefits.

Section 910(f) of the Longshore Act states, “Effective October 1 of each year, the compensation or death benefits payable for permanent total disability or death arising out of injuries subject to this Act shall be increased by the lesser of –

(1)    a percentage equal to the percentage (if any) by which the applicable national average weekly wage for the period beginning on such October 1, as determined under section 6(b) exceeds the applicable national average weekly wage, as so determined, for the  period beginning with the preceding October 1, or

(2)    5 per centum

Section 906(b) states, “Maximum rate of compensation.

(1)    compensation for disability or death shall not exceed an amount equal to 200 per centum of the applicable national average weekly wage, as determined by the Secretary….

(2)    compensation for total disability shall not be less than 50 per centum of the national average weekly wage….”

The National Average Weekly Wage (NAWW) effective October 1, 2009 was $612.33.  The Department of Labor has announced a 2.63% increase in the NAWW effective October 1, 2010, so the new NAWW is $628.42.

Since the new National Average Weekly Wage effective October 1, 2010, is $628.42, in accordance with section 906(b), the new weekly Longshore Act maximum rate is 200 per cent of the NAWW or $1,256.84.  The minimum is 50% or $314.21.

Beneficiaries receiving permanent total disability or related death benefits as of September 30, 2010, receive a 2.63 per cent increase in their weekly rate.  The current rate is multiplied by 2.63% and rounded to the nearest dollar for the new rate.