Longshore and Harbor Workers' Compensation Act of 1984

(Conference report filed in House, H. Rept. 98-1027)

Longshore and Harbor Workers' Compensation Act Amendments of 1984 - Amends the Longshoremen's and Harbor Workers' Compensation Act (the Act) to revise the defintion of "employee" to exclude persons employed: (1) exclusively to perform office clerical, secretarial, security, or data processing work; (2) by a club, camp, recreation operation, restaurant, museum, or retail outlet; (3) by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance); (4) by suppliers, transporters, or vendors, and persons temporarily doing business on the premises of specified employers and who are not engaged in work normally performed by employees of that employer under the Act; (5) as aquaculture workers; or (6) to build, repair, or dismantle any recreational vessel under 65 feet long. (Retains the current exclusion from coverage of a master or member of a crew of any vessel or any person engaged by the master to load or unload or repair any small vessel under 18 tons net.) Excludes such employees only if they are subject to coverage under a State workers' compensation law.

Revises the definition of "disability" to add a definition of such term to be used with respect to a case in which the occupational disease manifests itself subsequent to the claimant's date of retirement. Provides, in such cases, that "disability" shall mean permanent impairment as determined by American Medical Association guidelines.

Revises the definition of "wages" to exclude certain fringe benefits.

Revises coverage provisions to exempt from coverage under the Act employees employed by facilities engaged in the business of building, repairing, or dismantling exclusively small vessels under specified circumstances.

Provides that recoveries under other workers' compensation laws or under specified Federal law relating to recovery for injury to or death of seamen shall be credited against any liability imposed by the Act.

Revises provisions relating to liability for compensation. Provides that the obligation of the contractor to secure compensation for the employee of the subcontractor is contingent upon the failure of the subcontractor to secure compensation for its own employees. Provides that the contractor is not immune from suit by its subcontractors' employees in those instances where the subcontractor-employer has fulfilled its obligation to secure compensation for its employees. Provides that if the subcontractor defaults in securing compensation and the contractor fulfills its obligation to secure compensation, then the contractor is deemed an "employer" and is therefore entitled to immunity from suit by the subcontractor's employees. Provides that if the contractor uses certain insurance policies to provide coverage which satisfies the subcontractor's primary obligation to secure compensation, then the contractor is not immune from suit by the subcontractor's employees.

Provides that no person covered under the Act who is employed to provide shipbuilding, repairing, or breaking services may bring a negligence action against the employer in any capacity including as the vessel's owner, owner for this occasion, agent, operator, or character or against the employees of the employer.

Removes the current proscription under the Act with respect to mutual indemnity agreements between employers and vessels engaged in operations on the Outer Continental Shelf.

Provides that compensation for disability or death shall not exceed 200 percent of the applicable national average weekly wage.

Authorizes the Secretary of Labor to order a change of physicians or hospitals where the charges exceed those prevailing within the community for similar services.

Directs the Secretary to annually list those physicians and health care providers who are not authorized to provide care and receive payments under the Act. Sets forth grounds for inclusion on such list of those barred from providing services under the Act. Prohibits reimbursement for medical services provided by those on such list, except emergency services. Provides that any such debarment determination shall remain in effect for at least three years and until the Secretary finds and gives public notice that there is reasonable assurance that the basis for the determination will not reoccur.

Permits employee selection of any physician who is not on such list. Prohibits employees from changing their physician after their initial choice without prior consent of the employer, carrier, or deputy commissioner. Requires consent to be given in cases where the initial choice was not of a specialist whose services are appropriate and necessary. Permits such consent to be given, in all other cases, upon a showing of good cause for change.

Revises provisions for employee recovery of expenditures for medical or other treatment or services. Retains the requirement that the treating physician furnish to the employer and the deputy commissioner an injury and treatment report within ten days of first treatment. Authorizes an administrative law judge (as well as the Secretary) to suspend payment of compensation benefits to employees who unreasonably refuse to accept medical or surgical treatment or to submit to an examination by a consulting physician selected by the employer.

Authorizes the Secretary to make rules and regulations, and establish procedures, to carry out provisions relating to the listing of physicians and health care providers who are not authorized to render medical care or provide medical services under the Act, including the nature, extent, and methods of taking and furnishing proof and evidence. Requires that any such listing decision be based on specific findings of fact. Requires notice and opportunity for hearing. Provides for judicial review of such decisions.

Allows an injured or disabled employee to obtain treatment by prayer or spiritual means alone by an accredited practitioner of, and in accordance with the tenets of, a recognized church or religious denomination. Prohibits such an employee from losing any benefits under this Act because of such treatment. Requires such employee to take all required physical examinations. Provides that an employee shall not be considered to have unreasonably refused medical treatment or vocational rehabilitation if such refusal is in adherence to the tenets of a recognized church or religious denomination.

Makes an audiogram presumptive evidence, only under specified conditions, of the amount of hearing loss sustained. Provides that the time for filing a notice of injury, or a claim for compensation, shall not begin to run in connection with any claim for loss of hearing until the employee has been provided with an audiogram, and accompanying report, which indicates that the employee has suffered a loss of hearing. Requires that determinations of loss of hearing be made in accordance with American Medical Association guidelines.

Increases the maximum amount awardable for serious disfigurement from $3,500 to $7,500.

Repeals provisions for reconsideration of the degree of impairment by the deputy commissioner, for purposes of compensation of permanent partial disability.

Repeals provisions for death benefits for survivors of employees receiving compensation for permanent partial disability who die from causes other than the compensable injury.

Provides, for purposes of special fund provisions, that the employer be only responsible for the lesser of 104 weeks or the period of hearing loss for which the employer is directly responsible.

Maintains at 104 weeks the minimum period of the employer's payment responsibility.

Bars unauthorized insurers or uninsured employers from obtaining special fund relief.

Provides that, after the cessation of compensation payments by the employer or carrier, the employer or carrier shall remain a party to the claim, retain access to all records relating to the claim, and retain rights granted under the Act prior to cessation of such payments.

Requires that any request, filed after enactment of this Act, for apportionment of liability to the special fund established under the Act for the payment of compensation benefits, and a statement of the grounds for such request, be presented to the deputy commissioner prior to the consideration of the claim by the deputy commissioner, unless the employer could not reasonably anticipate the liability of the special fund.

Directs the deputy commissioner of administrative law judge to approve a settlement agreement within 30 days, unless it is found inadequate or procured under duress. Directs the deputy commissioner to issue a written statement within 30 days containing reasons for disapproval of any application for a settlement. Permits any party to the settlement to request a hearing before an administrative law judge to appeal such disapproval. Provides that approved settlements: (1) shall discharge the liability of the employer, carrier, or both; (2) may include future medical benefits; and (3) may be agreed upon at any stage of the proceeding including after entry of a final compensation order. Provides that the special fund shall not be liable for reimbursement of any sums paid or payable to an employee or any beneficiary under such settlement, or otherwise voluntarily paid prior to such settlement by the employer or carrier.

Authorizes employers to notify claimants of their obligation to report their earnings. Provides that employees forfeit their right to compensation if the deputy commissioner determines that they have failed to report or have omitted or understated earnings.

Repeals provisions for compensation for any death resulting from causes other than compensable injury.

Increases the maximum funeral expense reimbursement from $1,000 to $3,000.

Revises provisions for computation of death benefits.

Revises provisions for determination of pay.

Provides that, with respect to a claim for compensation for death or disability due to an occupational disease which does not immediately result in death or disability the time of injury shall be deemed to be the date on which the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability. Provides that, if such "time of inury" occurs: (1) within the first year after the employee retires, the average weekly wage shall be one fifty-second of the employee's annual earnings during the 52-week period preceding retirement; or (2) after the first year of retirement, the average annual wage shall be deemed to be the national average weekly wage applicable at such "time of injury."

Limits to five percent per year annual increases in amounts payable as adjustments for permanent total disability and death caused by a compensable injury.

Revises provisions for notice of inury or death. Require such notice within 30 days after the employee or beneficiary is aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the injury or death and the employment. Provides that such notice shall not be required in the case of any occupational disease which does not immediately result in a disability or death. Requires employers to: (1) designate those agents or other responsible officials to receive such notice, as its representatives, from among first line supervisors, local plant management, and personnel office officials; and (2) notify their employees of such designations in a manner prescribed by the Secretary in regulations. Permits exceptions on the ground that notice, while not given to the designated official, was given to an official of the employer or the employer's insurance carrier, and that the employer or carrier was not prejudiced due to the failure to provide notice to a designated official.

Provides that the time for filing a claim based on an occupational disease which does not immediately result in death or disability shall be timely if filed within the later of: (1) two years after the employee's disease either has impaired the employee's functional capacity or has resulted in a dimunition of wages and the employee or claimant becomes aware, or in the exercise of reasonable dilience or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability; or (2) one year of the date of the last payment of compensation.

Provides that the first compensation payment shall become due on the 14th day after the employer has been notified of, or has knowledge of, the injury or death.

Repeals provisions authorizing the discharge of all or part of the employer's liability for compensation by payment of a lump-sum computed at a four percent discount rate.

Requires (currently allows) the Secretary to authorize a lien on compensation in favor of a labor-management trust fund for the amount of disability benefits which an employee is legally obligated to repay to such fund by reason of the employee's entitlement to compensation under this Act.

Increases the permanent membership of the Benefits Review Board from three to five members. Grants the Chairman the authority, as delegated by the Secretary, to exercise all administrative functions necessary to operate the Board. Authorizes the Secretary, upon application of the Chairman, to designate four administrative law judges of the Department of Labor to serve temporarily on the Board for terms of up to one year. Authorizes the Board to delegate any or all of its powers to panels of three members (of whom at least two are permanent). Permits any party aggrieved by a panel decision to petition the entire Board for a rehearing en banc. Sets forth procedures relating to such petitions and rehearings.

Revises provisions relating to modification of awards to include specific parties in interest and specified compensation cases. Delcares that such provisions do not authorize modification of settlements.

Revises provisions for penalties for unapproved receipt of consideration of solicitation of employment with respect to claims or awards under the Act.

Requires employers to report only those injuries which would cause loss of one or more shifts of work, but to keep a record of each and every injury.

Requires that failure or refusal to send a required report by an employer, insurance carrier, or self-insured employer be willful before civil penalties may be imposed. Raises the maximum limit on such penalties from $500 to $10,000 for each such failure or refusal.

Increases the criminal penalties for willful false statements or representations to obtain benefits or payments. Makes such false statements or representations felonies punishable by up to a $10,000 fine and/or up to five years imprisonment. (Removes such penalties for misleading statements or representations.)

Directs the U.S. attorney for the district in which the injury is alleged to have occurred to make every reasonable effort to promptly investigate each complaint of such false statements or representations.

Prohibits approval of any representation fee if the claimant's representative is on a list of those disqualified from representing claimants under the Act. Directs the Secretary to annually prepare such a list for posting in each compensation district. Sets forth the grounds and procedures for such debarment and inclusion on such list. Provides that any such debarment listing determination shall remain in effect for at least three years and until the Secretary finds and gives notice that there is reasonable assurance that the basis for the determination will not reoccur.

Penalizes, by up to a $10,000 fine and/or up to five years imprisonment, any person who knowingly and willfully makes a false statement or representation to reduce, deny, or terminate benefits to injured employees or their dependents.

Authorizes the Secretary to take into account the employer's financial condition and previous record of payments, and other relevant factors in establishing collateral requirements for employers seeking authorization to make direct payment of compensation.

Revises provisions for compensation of injuries where third persons are liable.

Assigns to the employer the right to recover damages against such third person unless the person entitled to the compensation commences an action against such third person within six months after acceptance of compensation under an award in a compensation order filed by the deputy commissioner, an administrative law judge, or the Board. Provides that the right to bring such action shall revert to the person entitled to the compensation if the employer does not commence an action within 90 days after the cause of action is so assigned. Defines "award" with respect to such compensation orders as a formal award issued by the deputy commissioner, an administrative law judge, or the Board.

Deletes provisions which allow the employer to retain one-fifth of specified excess sums in recovery actions against third parties.

Provides that reasonable litigation expenses, including reasonable attorneys' fees, shall be subtracted from the total amount of the recovery of an employee from a third party for purposes of the compensation lien on the distribution proceeds of the net recovery.

Requires that all rights to compensation or medical benefits be terminated if a third-party action is settled without the formal written approval of the employer and the employer's carrier.

Provides that all payments made by a special fund to or on behalf of a person entitled to compensation or other benefits shall be a lien on the proceeds of any settlement obtained from or judgment rendered against a third person. Makes such fund's lien subject to a priority lien of a labor-management trust fund which is owed repayment of employee disability benefits.

Increases the penalty for failure to secure compensation payment from $1,000 to $10,000.

Directs the Secretary to report to Congress, at the beginning of each regular session, commencing at the beginning of the second regular session after enactment of this Act, on the administration of the Act for the preceding fiscal year.

Revises provisions relating to the special fund to repeal specified provisions and to make other technical and conforming amendments.

Requires that the special fund be audited annually and the results of such audit included in the annual report of the Secretary.

Repeals specified provisions relating to: (1) an appropriation to an administration fund for the Act; and (2) the availability of appropriations for expenses incurred by the U.S. Employees' Compensation Committee in the administration of the Act and other specified Federal law.

Declares that 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 prohibitions against discrimination against employees who bring proceedings under the Act. Raises the minimum penalty for a violation of such prohibitions from $100 to $1,000, and the maximum penalty from $1,000 to $5,000.

Makes conforming amendments.

Renames the Act as "the Longshore and Harbor Workers' Compensation Act."

Sets forth the effective date for specified provisions of this Act. Provides that amendments made by this Act relating to the modification of awards shall not apply to compensation payments under the Black Lung Benefits Act.