1.
(a)This Act may be cited
as the Longshore and Harbor Workers'
Compensation Act Amendments of 2009
.
(b)Except as otherwise expressly provided,
whenever in this Act an amendment or repeal is expressed in terms of an
amendment to, or repeal of, a section or other provision, the reference shall
be considered to be made to a section or other provision of the Longshore and
Harbor Workers' Compensation Act (33 U.S.C. 901 et seq.).
2.Intent of
Congress; neutral interpretationThe Act (33 U.S.C. 901 et seq.) is amended
by inserting after section 1 the following:
1A.Congressional
intent of neutral interpretationIt is the intent of Congress that—
(1)in a dispute
concerning the facts in a claim brought under this Act, the facts are not to be
given a broad liberal construction in favor of the employee or of the employer,
and the laws pertaining to a claim brought under this Act are to be construed
in accordance with the basic principles of statutory construction and not
liberally in favor of either the employee or employer;
(2)the system
established under this Act shall be an efficient and self-executing system that
is not an economic or administrative burden; and
(3)the Department of
Labor and the Benefits Review Board shall administer this Act in a manner which
facilitates the self-execution of the system established under this Act and the
process of ensuring a prompt and cost-effective delivery of
payments.
.
3.Section 2 (33 U.S.C. 902) is amended—
(1)in paragraph (1),
by striking association.
and inserting association, but
does not include the Secretary.
;
(2)in paragraph (2),
by adding after the period at the end the following: Physical 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 this Act. Physical or
mental conditions caused in part or in whole by an employer's personnel action
may only be compensable under applicable State or Federal employment laws other
than workers' compensation laws.
;
(3)in paragraph
(3)(A)—
(A)by striking
employed exclusively to perform
and inserting primarily
performing
; and
(B)by inserting
on the day of the injury
before the semicolon at the end;
(4)in paragraph
(13), by inserting before the period at the end the following: , or an
incentive or 1-time payment, severance pay, a settlement of an employment law
claim, a bonus that is not guaranteed, container royalties, stock, or stock
options
;
(5)in paragraph
(14), by striking (19)
and inserting (18)
;
(6)by redesignating
paragraphs (21) and (22) as paragraphs (26) and (27), respectively; and
(7)by inserting
after paragraph (20) the following:
(21)The term participating
network means a network of physicians and other health care providers
that has been designated by a carrier to provide medical services to an
employee under this Act.
(22)The term health care
panel means 3 or more physicians or other health care providers in a
common geographic region who practice in the same or similar medical specialty,
which panel is designated by a carrier to provide medical services to an
employee under this Act.
(23)The term nationally recognized
evidence-based treatment standards means the treatment standards in the
Occupational Medicine Practice Guidelines published by the American College of
Occupational and Environmental Medicine. Any subsequent revision of these
standards by the American College of Occupational and Environmental Medicine
shall be effective with respect to all treatment decisions under this Act on
the date that is 90 days after the promulgation of the revision, unless the
Secretary determines that the revision is inconsistent with this Act's policy
of ensuring treatment pursuant to evidence-based standards.
(24)The term objective relevant
medical findings means those objective findings that correlate to the
subjective complaints of an injured employee and are confirmed by physical
examination findings or diagnostic testing.
(25)The term fraud means
the act of knowingly, and with intent to defraud—
(A)providing material false information
that could result in the obtaining or denying, in whole or in part, of
compensation under this Act; or
(B)failing to provide material
information that could result in the obtaining or denying, in whole or in part,
of compensation under this Act.
(26)The term major contributing
cause, when used with respect to an injury, means the cause constituting
greater than 50 percent of the total of all causes.
(27)The term standard
premium means the product of an employer's payroll and the filed manual
rate applicable to the employer multiplied by the employer's current experience
modification factor, if applicable. The calculation may not include any
deductible credit. For policies written using retrospective rating, the
standard premium must be calculated in accordance with this definition
regardless of the actual retrospective premium calculation.
(28)The term filed manual
rate means the premium rate for each unit of exposure, as a function of
the applicable basis of premium, for the occupational classes assigned to the
employer's business, filed pursuant to the insurance laws of the applicable
jurisdiction.
(29)The term experience
modification factor means the adjustment to a policyholder's premium
rate for a specific exposure period, resulting from a rating procedure
utilizing the past insurance experience of the individual policyholder to
forecast future losses by measuring the policyholder's loss experience against
the loss experience of policyholders in the same classification to produce a
prospective premium credit, debit, or unity
modification.
.
4.Section 3 (33 U.S.C. 903) is amended—
(1)in subsection
(c), by striking solely;
(2)by redesignating
subsection (e) as subsection (f);
(3)by inserting
after subsection (d) the following:
(e)No compensation shall be payable to an employee for
dentures, eyeglasses, a hearing aid, a prosthetic device, or an artificial limb
unless the dentures, eyeglasses, hearing aid, prosthetic device, or artificial
limb—
(1)is part of the
medical treatment for a disability compensated under section 8; or
(2)was damaged as
part of, or in concert with, an accident that resulted in a traumatic injury to
the employee.
;
and
(4)in subsection (f)
(as redesignated by paragraph (2))—
(A)by inserting
this Act,
after pursuant to
;
(B)by striking
law or section
and inserting law, or section
;
and
(C)by inserting
)
after death of seamen
.
5.Liability for
compensationSection 4 (33
U.S.C. 904) is amended to read as follows:
4.Liability for
compensation
(a)Every employer shall be liable for, and shall secure the
payment to the employer's employees of, the compensation payable under sections
7, 8, and 9.
(b)Payment
irrespective of faultCompensation shall be payable irrespective
of fault as a cause for the injury.
(c)
(1)Except as provided in subsection (e) and section
8(a)(13), in making compensation determinations under this Act, compensation
shall be reduced by an amount attributable to the percentage of—
(A)the disability
rating for a prior permanent injury; and
(B)the anatomical
physical impairment that resulted from nonoccupational factors (such as aging,
prior or subsequent anatomical physical impairment, or personal habits,
including smoking and alcohol use).
(2)In
no case shall compensation be calculated under this Act by deducting the dollar
amount of compensation paid or payable for a prior injury described in
paragraph (1).
(3)A
determination under this subsection shall be based upon the findings of the
treating physician upon a review of the available records. The treating
physician designated in section 7 shall make a determination under this
paragraph by finding what percentage of the employee's disability was a result
of an injury arising out of and occurring in the course of the employment
involved and what percentage of such disability was the result of prior injury
and other nonoccupational factors.
(d)
(1)Subject to paragraph (2), in the case of the injury or
death of an employee who is working for another employer at the direction of
the employee's primary employer, all employers of the employee at the time of
the injury shall be treated as a single employer for purposes of this Act,
including with respect to the obligation to pay compensation under this section
and the exclusiveness of the remedy under section 5.
(2)Indemnification
agreementNothing in paragraph (1) shall be construed to
supercede an express contractual indemnification agreement between the
borrowing and lending employer.
(e)Last employer
doctrine; intervening nonmaritime employment; noncontributing exposure
(1)
(A)Except as provided in section 8(a)(13), if more than 1
employer or employment exposure contributed to the injury or death of an
employee, the last employer to have contributed to the injury or death of the
employee shall be responsible for benefits under this Act.
(B)The employer responsible for the benefits under this
section shall retain all rights and defenses that any employer who contributed
to the injury or death would otherwise have had. The employee shall retain all
burdens of production, burdens of persuasion, and presumptions that the
employee would otherwise have had.
(2)If the last employment exposure that contributed to an
injury or death was the result of employment that was not covered under this
Act, no benefits shall be payable under this Act for the injury or
death.
(3)Noncontributing
employment exposureFor purposes of this Act, employment exposure
did not contribute to the injury or death of an employee if—
(A)the medical
condition that resulted in the injury or death was diagnosed before employment
commenced; or
(B)the employer did
not expose the employee to conditions capable of causing or contributing to the
injury or
death.
.
6.Exclusiveness of
liabilitySection 5 (33 U.S.C.
905) is amended—
(1)in subsection
(a)—
(A)in the first
sentence, by striking or in admiralty
each place the term occurs
and inserting in admiralty, or otherwise,
; and
(B)by striking the
third sentence; and
(2)by adding at the
end the following:
(d)
(1)Any State law that provides additional or alternative
remedies for an injured employee, the employee's legal representative, husband
or wife, parents, dependents, or next of kin, or anyone otherwise entitled to
recover from such employer on account of such injury or death against the
employer, at law or in admiralty, or otherwise, is expressly preempted when the
carrier—
(A)has voluntarily
paid compensation under this Act;
(B)has settled a
claim for compensation under this Act;
(C)is contesting a
claim for compensation under this Act;
(D)is appealing an
order under this Act;
(E)is subject to an
order under this Act; or
(F)has notified the
Secretary that a claim for compensation should have been brought under this
Act.
(2)State
jurisdiction preemptionAny State proceeding (including a
judicial or administrative proceeding) involving the claims of an injured
employee, the employee's legal representative, husband or wife, parents,
dependents, or next of kin, or anyone otherwise entitled to recover damages
from such employer at law or in admiralty, or otherwise, on account of such
injury or death, shall be preempted when the carrier has taken an action
described in subparagraphs (A) through (F) of paragraph (1).
(3)
(A)In order to effectuate this subsection and protect the
admiralty and maritime jurisdiction of the Federal Government, an employer who
is party to a State proceeding may notify the Secretary of the proceeding and
any reason why this subsection preempts the State proceeding. Within 10 days
after receiving the notification, the Secretary shall issue an administrative
stay order to the State that shall remain in effect until a final determination
has been made by the Secretary that this subsection does not preempt the State
proceeding.
(B)If
a State does not comply with a stay order issued by the Secretary under
subparagraph (A), within 10 days after the State's refusal to comply, the
Secretary shall seek, in a Federal district court, an injunction against
further State proceedings regarding the claim that may be preempted by this
subsection.
(C)If the Secretary does not fulfill the Secretary’s
obligations under this paragraph in a timely manner, the employer may seek an
order in a Federal district court compelling the Secretary to so act.
(e)Government
responsibilityThe exclusive remedy for any person injured, in
whole or in part, by exposure to ionizing or nonionizing radiation from
equipment required to be used by Federal law or regulation or owned by a
Federal Government entity shall be found under the Federal Tort Claims Act, and
this Act shall not apply to any injury or death resulting from such
exposure.
.
7.Medical services
and suppliesSection 7 (33
U.S.C. 907) is amended—
(1)in subsection
(a)—
(A)by striking
(a)
and inserting (a)(1)
;
(B)by striking
furnish such
and inserting furnish medical services and
supplies, including
; and
(C)by adding at the
end the following:
(2)Notwithstanding any other provision
of this Act, in the case where nationally recognized evidence-based treatment
standards apply to the employee's medical condition, the medical treatment
shall include only the care provided pursuant to such treatment
standards.
;
(2)by striking
subsection (i);
(3)by redesignating
subsections (c) through (e), (f) through (h), (j), and (k), as subsections (d)
through (f), (h) through (j), (k), and (l), respectively;
(4)by striking
subsection (b) and inserting the following:
(b)
(1)Carrier using
participating networks or health care panels
(A)A carrier may designate 1 or more participating networks
or 1 or more health care panels, or both, for purposes of providing medical
services to employees under this Act. An injured employee served by a carrier
that has designated an approved participating network under subparagraph (C) or
a health care panel under subparagraph (D) shall not be entitled to recover any
amount expended by the employee for medical services and supplies unless the
employee has secured such medical services and supplies through a physician or
other health care provider that is a participant in such network or panel,
respectively.
(B)Subparagraph (A) shall not apply if the injured
employee can demonstrate that the carrier's participating network or health
care panel does not include a physician capable of treating the employee within
100 miles of the employee's residence.
(C)
(i)The Secretary shall establish a process for approving
participating networks, in accordance with clause (ii), that shall include an
automatic approval for a participating network that has been authorized by a
State workers’ compensation program.
(ii)In
order to be approved under clause (i), a participating network shall establish
an internal review process to address any disputes with respect to the
provision of medical care or treatment to an employee. Such process shall
conform to the utilization review standards for workers’ compensation described
in subsection (m).
(D)Designation of
health care panelsTo designate a health care panel for purposes
of this subsection, a carrier shall submit the names of the health care panel
participants to the Secretary.
(2)Carrier not
using panels or networksIf a carrier has not provided medical
services or supplies in accordance with paragraph (1), the employee shall have
the right to choose an attending physician authorized by the Secretary to
provide medical care under this Act as hereinafter provided. If, due to the
nature of the injury, the employee is unable to select a physician and the
nature of the injury requires immediate medical treatment and care, the
employer shall select a physician for the employee.
(c)Supervision and
change of physiciansThe Secretary, consistent with the
nationally recognized evidence-based standards provided for under subsection
(a)(2)—
(1)shall actively
supervise the medical care rendered to injured employees;
(2)shall require
periodic reports as to the medical care being rendered to injured
employees;
(3)shall have
authority to determine the necessity, character, and sufficiency of any medical
aid furnished or to be furnished;
(4)may, on the
Secretary's own initiative or at the request of the employer, order a change of
physicians or hospitals when, in the Secretary's judgment, such change is
desirable or necessary in the interest of the employee or where the charges
exceed those prevailing within the community for the same or similar services
or exceed the provider's customary charges; and
(5)shall permit, in
accordance with regulations promulgated by the Secretary, the change of
physicians at the request of an employee (except that such change may be
approved not more frequently than twice annually unless otherwise authorized by
the carrier).
;
(5)in subsection (d)
(as redesignated by paragraph (3))—
(A)in paragraph
(1)(B), by striking (j)
and inserting (k)
;
and
(B)in paragraph (2),
by striking by an employee
;
(6)in subsection
(e)(4) (as redesignated by paragraph (3))—
(A)by striking
employer
and inserting employer or designated by the
Secretary
; and
(B)by striking
may
and inserting shall
;
(7)in subsection (f)
(as redesignated by paragraph (3)), by striking the third sentence;
(8)by inserting
after subsection (f) (as redesignated by paragraph (3)) the following:
(g)When there is the need for any review, hearing,
investigation, or other proceeding authorized or directed under this section
relating to medical care or treatment, the finder of fact shall rely on the
medical record and the findings of qualified medical professionals that are
based on the medical record.
;
and
(9)by adding at the
end the following:
(m)Applicability
of utilization review standardsNotwithstanding any other
provision of this Act, any utilization review, whether within a participating
network, health care panel, or otherwise, carried out under this Act shall be
conducted pursuant to the utilization review standards applicable to workers'
compensation promulgated by URAC, as such standards were in effect on the date
of enactment of the Longshore and Harbor
Workers' Compensation Act Amendments of 2009. Any subsequent
revision of the standards shall be effective, with respect to all utilization
review determinations under this Act, on the date that is 90 days after the
promulgation of the revised standards, unless the Secretary determines that the
revised standards are inconsistent with this Act's policy of ensuring
utilization review in accordance with nationally recognized
standards.
.
8.Compensation for
disability
(a)Compensation
for disabilitySection 8 (33
U.S.C. 908) is amended—
(1)in subsection (a), by striking
662/3 per centum of the average weekly
wages
and inserting 75 percent of the spendable
earnings
;
(2)in subsection
(b), by striking 662/3 per centum of the average
weekly wages
and inserting 75 percent of the spendable
earnings
;
(3)in subsection
(c)—
(A)in the matter
preceding paragraph (1), by striking 662/3 per
centum of the average weekly wages
and inserting 75 percent of
the spendable earnings
;
(B)by striking
paragraph (13) and inserting the following:
(13)
(A)
(i)
(I)The compensation for total loss of hearing in 1 ear shall be
52 weeks.
(II)The compensation for total loss of hearing in both ears
shall be 200 weeks.
(ii)For the partial loss of hearing in 1 or both ears,
compensation shall be paid for a period proportionate to the degree of the
loss, in accordance with clause (i).
(B)
(i)The employer shall pay compensation only for any hearing
loss caused by an injury arising out of and in the course of employment with
such employer, and shall not be liable for that part of the employee's hearing
loss caused by presbycusis, nonoccupational causes, and documented
preemployment hearing loss. The percentage of loss caused by those conditions
shall be deducted from the percentage of the employee's hearing loss before
determining the employer's liability.
(ii)Except as provided in clause (iii), determinations of
loss of hearing shall be made in accordance with the guides for the evaluation
of permanent impairment, as promulgated and modified from time to time by the
American Medical Association.
(iii)The
measurement of presbycusis shall be in accordance with the methodology adopted
in section 1910.95 of title 29, Code of Federal Regulations, appendix F,
applied to the applicable decibel levels for hearing loss determinations as
provided in clause (ii).
(iv)In determining the amount of hearing loss for purposes
of this paragraph, an audiogram that is administered by a licensed or certified
technician, an audiologist who is certified, or a physician who is certified in
otolaryngology, and is interpreted by an audiologist who is certified or a
physician who is certified in otolaryngology, shall prevail over an audiogram
that is not performed in accordance with these
criteria.
;
(C)by striking
paragraph (21) and inserting the following:
(21)In all other
cases in the class of disability, the compensation shall be 75 percent of the
difference between the injured employee's spendable earnings before the injury
and the amount of spendable earnings the employee is able to earn after the
injury in the same or another employment, payable during the continuance of
partial disability.
;
and
(D)in paragraph
(23)—
(i)by striking
662/3 per centum
and inserting 75
percent
; and
(ii)by striking
average weekly wages
each place the term occurs and inserting
spendable earnings
;
(4)by striking
subsection (e) and inserting the following:
(e)Temporary
partial disabilityIn the case of temporary partial disability
resulting in decrease of earning capacity, the compensation shall be 75 percent
of the difference between the injured employee's spendable earnings before the
injury and the amount of spendable earnings the employee is able to earn after
the injury in the same or another employment, to be paid during the continuance
of such disability, but shall not be paid for a period exceeding 5
years.
;
(5)in subsection
(f), by adding at the end the following:
(4)After the
date of enactment of the Longshore and Harbor
Workers' Compensation Act Amendments of 2009, 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.
;
(6)in subsection
(j)(1), by striking a disabled employee
and inserting an
employee
; and
(7)by adding at the
end the following:
(k)Notwithstanding any other provision of this Act, when an
employee qualifies for compensation for disability caused by 2 or more
injuries, in no case shall the amount of compensation payable for all such
injuries when combined exceed the lesser of—
(1)75 percent of
spendable earnings at the time of the last injury; or
(2)the maximum rate
of compensation, as determined under section 6(b), at the time of the last
injury.
.
(b)Nonapplicability
until publication of tableNot later than 90 days after the date
of enactment of this Act, the Secretary of Labor shall promulgate regulations
and publish a table of compensation implementing the amendments made by this
section. A carrier shall not be required to adjust payments made by the carrier
under the Longshore and Harbor Workers' Compensation Act to comply with the
amendments made by this section until such table is published.
9.
(a)Section 9 (33
U.S.C. 909) is amended—
(1)in subsection
(a), by striking $3,000
and inserting
$7,500
;
(2)by redesignating
subsections (e) through (g) as subsections (f) through (h),
respectively;
(3)by striking
subsections (b) through (d) and inserting the following:
(b)Widow or
widower without childrenIf there be a widow or widower and no
surviving child of the deceased, the widow or widower shall receive 75 percent
of the spendable earnings of the deceased during widowhood or widowerhood,
except that upon remarriage of the widow or widower, the widow or widower shall
receive 2 years' worth of such payments in a lump sum.
(c)Widow or
widower with childrenIf there be a widow or widower and 1 or
more surviving children of the deceased—
(1)the widow or
widower shall receive 50 percent of the spendable earnings of the deceased
during widowhood or widowerhood, except that upon remarriage of the widow or
widower, the widow or widower shall receive 2 years' worth of such payments in
a lump sum; and
(2)each child of the
deceased shall receive a pro rata share of 25 percent of the spendable earnings
of the deceased.
(d)If there be 1 or more surviving children of the
deceased, but no widow or widower, then each child shall receive a pro rata
share of 75 percent of the spendable earnings of the deceased.
(e)No widow,
widower, or surviving childIf there be no widow or widower or
surviving child, then for the support of grandchildren, brothers and sisters,
parents, and grandparents, if dependent upon the deceased at the time of the
injury, and any other persons who satisfy the definition of the term
dependent
in section 152 of title 26 of the United States Code,
but are not otherwise eligible under this section, 25 percent of spendable
earnings for the support of each such person during such dependency, but in no
case shall the aggregate amount payable under this subsection exceed 75 percent
of the spendable earnings of the
deceased.
;
and
(4)by adding at the
end the following:
(i)The deputy
commissioner having jurisdiction over a claim for compensation under this
section shall have discretion to require the appointment of a guardian for the
purpose of receiving the compensation of a minor child. In the absence of such
a requirement, the appointment of a guardian for such purpose shall not be
necessary.
.
(b)Nonapplicability
until publication of tableNot later than 90 days after the date
of enactment of this Act, the Secretary of Labor shall promulgate regulations
and publish a table of compensation implementing the amendments made by this
section. A carrier shall not be required to adjust payments made under the
Longshore and Harbor Workers' Compensation Act to comply with the amendments
made by this section until such table is published.
10.
(a)Section 10 (33 U.S.C.
910) is amended—
(1)in the matter preceding subsection
(a)—
(A)by striking average weekly
wage
and inserting spendable earnings
; and
(B)by inserting
as provided in sections 8 and 9
after
compensation
;
(2)by striking
subsections (a) through (e) and inserting the following:
(a)Average weekly
wage calculation
(1)If the injured employee was available to work, as
determined under paragraph (3), in 40 of the 52 weeks immediately preceding the
injury, or if the employee was employed in a seasonal position when the injury
occurred, the average weekly wage shall be calculated by dividing the actual
earnings of the employee for the previous 52 weeks by 52.
(2)Rule for
certain individualsIf the injured employee was available for
work, as determined under paragraph (3), in less than 40 of the 52 weeks
immediately preceding the injury, the average weekly wage shall be based on the
average weekly wage of other employees in the same classification, who worked
in the same job, with the same seniority, and at the same location for the 52
weeks immediately preceding the injury.
(3)An injured employee shall be considered available to work in
a week if the injured employee—
(A)actually worked
not less than 1 day during the week;
(B)voluntarily
withdrew from the workforce for the week;
(C)was not offered
work during a week for reasons of seniority; or
(D)was unable to
work during a week for any reason other than a work-related injury.
(4)Special method
of calculationIf either of the methods of arriving at the
average weekly wages of the injured employee described in paragraphs (1) and
(2) cannot reasonably and fairly be applied, the average weekly wages shall be
such sum as, having regard to the previous earnings of the injured employee in
the employment in which the employee was working at the time of the injury, and
of other employees of the same or most similar class working in the same or
most similar employment in the same or neighboring locality, or other
employment of such employee, including the reasonable value of the services of
the employee if engaged in self-employment, shall reasonably represent the
annual earning capacity of the injured employee, divided by 52.
(5)If it is established that the injured employee was a
minor when injured, and that under normal conditions the employee's wages
should be expected to increase during the period of disability, the fact may be
considered in arriving at the employee's average weekly wages.
(b)
(1)Employees
injured within the first year of retirementWith respect to any
claim based on a death or disability due to an occupational disease for which
the time of injury (as determined under subsection (g)) occurs within the first
year after the employee has retired, the average weekly wage shall be
calculated in accordance with subsection (a).
(2)Employees
injured after the first year of retirementWith respect to any
claim based on a death or disability due to an occupational disease for which
the time of injury (as determined under subsection (g)) occurs more than 1 year
after the employee has retired, the average weekly wage shall be deemed to be
the national average weekly wage (as determined by the Secretary pursuant to
section 6(b)) applicable at the time of the injury.
(c)
(1)The spendable
earnings of an employee shall be the average weekly wage, as calculated under
subsection (a), reduced by subtracting the Federal, State, and local taxes that
would have been withheld based on standard deductions and on the domicile of
the employee at the time of the injury, and reduced by subtracting the tax that
would have been withheld under section 3101 of the Internal Revenue Code of
1986.
(2)The Secretary shall
annually publish a table for calculating spendable earnings under this
subsection.
;
and
(3)by redesignating
subsections (f) through (i) as subsections (d) through (g),
respectively.
(b)Nonapplicability
until publication of tableNot later than 90 days after the date
of enactment of this Act, the Secretary of Labor shall promulgate regulations
and publish a table of average weekly wages, and the associated amount of
spendable earnings, implementing the amendments made by this section. A carrier
shall not be required to adjust payments made under the Longshore and Harbor
Workers' Compensation Act to comply with the amendments made by this section
until such table is published.
11.Notice of
injury or deathSection 12 (33
U.S.C. 912) is amended—
(1)by striking subsection (a) and inserting
the following:
(a)Timing and
recipients of notice
(1)Traumatic
injury or deathNotice of a traumatic injury or death in respect
of which compensation is payable under this Act shall be given not later than
30 days after the date of the trauma, or 30 days after the employee or
beneficiary is aware that the trauma resulted in injury or death (or in the
exercise of reasonable diligence or by reason of medical advice should have
been aware) of a relationship among the trauma, the injury or death, and the
employment, but in no case shall the notice be given more than 1 year after the
trauma occurs.
(2)Non-traumatic
Injury or Death Resulting from InjuryExcept as provided in
paragraph (3), in the case of a non-traumatic injury that does not immediately
result in a disability or death, and in the case of death from a non-traumatic
injury, such notice shall be given not later than 1 year after 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
non-traumatic injury or death and employment, provided that in no case shall
the notice be given more than 1 year after the diagnosis of a non-traumatic
injury or a death resulting from such injury.
(3)Notice of hearing loss shall be given not later than the
date specified in paragraph (2) or 1 year after the last date of employment,
whichever occurs first.
(4)Individuals
receiving noticeNotice under this subsection shall be
given—
(A)to the deputy
commissioner in the compensation district in which the injury or death
occurred; and
(B)to the
employer.
;
(2)in subsection
(b), by adding at the end the following: In order to facilitate prompt
settlement of cases, notice of an injury shall also include an opportunity for
the employer to have the employee answer questions under oath, so that the
employer may determine if and how much compensation should be paid. The
opportunity for questioning shall occur at a reasonable time and place that
provides the employee with sufficient opportunity to obtain legal counsel
before such questioning, should the employee so choose. Failure by an employee
to be available for such questioning (unless waived by the employer in
writing), or failure to fully and truthfully answer material questions, shall
be considered a failure to give notice under this Act.
; and
(3)by striking
subsection (d) and inserting the following:
(d)Failure to give timely notice in accordance with this
section shall not bar any claim for compensation under this Act if—
(1)(A)the employer (or the
employer's agent or other responsible official designated by the employer
pursuant to subsection (c)) or the carrier had knowledge of the injury or
death;
(B)the deputy commissioner determines
that the employer or carrier has not been prejudiced by failure to give such
notice; or
(C)the deputy commissioner excuses such
failure on the ground that—
(i)notice, while not given to a
responsible official designated by the employer pursuant to subsection (c), was
given to an official of the employer or the employer's insurance carrier, and
the employer or carrier was not prejudiced due to the failure to provide notice
to a responsible official designated by the employer pursuant to subsection
(c); or
(ii)for some satisfactory reason such
notice could not be given;
(2)objection to such
failure is raised before the deputy commissioner at the first hearing of a
claim for compensation in respect of such injury or death; and
(3)notice that meets
the requirements of this section is given not more than 1 year after the injury
or
death.
.
12.Section 13 (33 U.S.C.
913) is amended—
(1)by striking subsection (a) and inserting
the following:
(a)The right to compensation for disability or death under this
Act shall be barred unless a claim therefore is filed not later than 90 days
after providing notice under section 12. If payment of compensation has been
made without an award on account of such injury or death, a claim may be filed
not later than 90 days after the date of the last payment. Such claim shall be
filed with the deputy commissioner in the compensation district in which such
injury or death
occurred.
;
(2)by striking
subsection (b);
(3)by redesignating
subsections (c) and (d) as subsections (b) and (c), respectively; and
(4)in subsection (c)
(as redesignated by paragraph (3)), by inserting , provided that such
suit was filed in accordance with subsection (a)
before the period at
the end.
13.Section 14(f) (33
U.S.C. 914(f)) is amended—
(1)by striking within ten days after it
becomes due
and inserting within 10 business days after receipt
by the employer or carrier of a priority mailing containing the order
;
and
(2)by adding at the
end the following: For purposes of this section, the date on which
compensation is paid shall be the earlier of the date on which the employer or
carrier actually delivers the compensation to the employee (or the
representative designated by the employee) or the postmark date on which the
compensation was mailed to such employee (or representative).
.
14.Assignment and
exemption from claims of creditorsSection 16 (33 U.S.C. 916) is
amended—
(1)by striking No assignment
and inserting the following:
(a)In general.—Except as provided in subsection (b),
no assignment
;
and
(2)by adding at the
end the following:
(b)Benefits
due or payable under this Act shall be subject to withholding and any other
legal process in the same form and manner, and to the same extent, as
withholding and other legal processes apply under section 206 of the Employment
Retirement Income Security Act of 1974 (29 U.S.C.
1056).
.
15.Presumptions,
burdens, and rules of evidenceSection 20 (33 U.S.C. 920) is amended to
read as follows:
20.Presumptions,
burdens, and rules of evidence
(a)
(1)In any proceeding for the enforcement of a claim for
compensation under this Act, it shall be a rebuttable presumption—
(A)that the claim
comes within the provisions of this Act;
(B)that sufficient
notice of such claim has been given;
(C)that the injury
was not occasioned solely by the intoxication of the injured employee;
and
(D)that the injury
was not occasioned by the willful intention of the injured employee to injure
or kill the employee or another.
(2)A presumption described in paragraph (1) shall not
be considered evidence once rebutted. Once a presumption has been rebutted, the
burden of production of evidence and burden of persuasion shall be governed by
section 556(d) of title 5, United States Code.
(3)Rebutting
nonintoxication presumptionThe presumption described in
paragraph (1)(C) shall be rebutted by evidence that the employee—
(A)refused a drug or
alcohol test;
(B)did not make
himself available for a drug or alcohol test;
(C)tested positive
for illegal drugs; or
(D)tested as having
a blood alcohol concentration level above the permitted driving limit as
established by the State where the injury occurred.
(4)Exclusion of
other presumptionsNo other presumptions shall be authorized
under this Act.
(b)
(1)Affirmative and
complete defenseIt shall be an affirmative and complete defense
to any employee claim under this Act that the employee or employee’s agent
knowingly made a false statement that is material to obtaining a benefit or
payment.
(2)If
any individual knowingly makes a false statement, whether in writing or under
oath, such false statement shall go to the credibility of the individual on all
other issues.
(c)
(1)With respect to proof of injury for any claim for
compensation under this Act—
(A)the injury, its
occupational cause, and any resulting manifestations or disability must be
proven to a reasonable degree of medical certainty, based on objective relevant
medical findings;
(B)notwithstanding
section 4(c) or section 8(c)(13)(B), the employment exposure or accident shall
be the major contributing cause of any injury;
(C)a causal
relationship between a compensable accident or injury, and conditions that are
not readily observable, shall be by medical evidence only, as proven by
physical examination findings or diagnostic testing;
(D)the fact that the
injury was the major contributing cause shall be proven by medical evidence
only;
(E)in cases
involving occupational disease or repetitive exposure, both causation and
sufficient exposure to support causation shall be proven by clear and
convincing evidence; and
(F)pain or other
subjective complaints alone, in the absence of objective relevant medical
findings, is not compensable.
(2)
(A)With respect to a claim under this Act, expert
testimony shall not be considered if it does not meet the requirements of Rule
702 of the Federal Rules of Evidence.
(B)In order to be considered with respect to a claim under
this Act, a medical opinion shall be based on not less than 1 peer-reviewed
study that—
(i)has been
published in a major medical journal; and
(ii)is accepted by
the majority of the scientific
community.
.
16.Review of
compensation ordersSection 21
(33 U.S.C. 921) is amended—
(1)in subsection (b)—
(A)in paragraph (3)—
(i)in the fourth sentence, by striking
the amounts required by an award shall not
and inserting
disputed amounts required by an award shall
; and
(ii)by striking the
fifth sentence;
(B)in paragraph (4),
by adding at the end the following: An employee may request that the
Board hold an expedited hearing with respect to an appeal under this
subsection.
; and
(C)by adding at the
end the following:
(6)
(A)If the Board fails to resolve an appeal during the 1-year
period following the date on which the appeal was filed, the decision that was
the basis of the appeal is automatically affirmed and such affirmation shall be
considered a final order by the Board.
(B)Ninety-day motion to reconsider
periodIf the Board issues a decision on an appeal during the
1-year period following the date on which the appeal was filed and a timely
motion for reconsideration is filed, the Board may consider the motion for
reconsideration. If the Board fails to rule upon the motion for reconsideration
during the 90-day period following the filing of such motion, the motion for
reconsideration shall be deemed denied.
;
and
(2)in subsection
(c), by adding at the end the following: A litigating position of the
Secretary shall not be entitled to any deference, unless such position has been
expressly adopted by the Secretary as a rule made on the record after
opportunity for an agency hearing (pursuant to sections 556 and 557 of title 5,
United States Code).
.
17.Modification of
compensation casesSection 22
(33 U.S.C. 922) is amended—
(1)by striking
22. Upon
and inserting 22. (a)
Modification of
awards.—Upon
;
(2)in the last
sentence of subsection (a) (as inserted by paragraph (1)), by striking
modification of settlements.
and inserting modification
of settlements, except as provided in subsection (b) or (c).
;
and
(3)by adding at the
end the following:
(b)Notwithstanding
subsection (a), if any payment of compensation has been made as a result of
fraud, a carrier may at any time seek an order for immediate—
(1)termination or
suspension of all future payments; and
(2)full restitution
of all amounts paid as a result of the fraud.
(c)If
a carrier makes a payment under this Act to a person in amounts in excess of
the amounts owed, the carrier may seek an order for repayment by such person,
including a credit against any future payment due under this Act or wages paid
to the employee. This subsection shall apply regardless of whether such excess
amounts resulted from voluntary payments, a settlement, or an
order.
.
18.Penalty for
misrepresentationSection 31
(33 U.S.C. 931) is amended by adding at the end the following:
(d)A carrier shall report credible incidents of fraud to the
Secretary for investigation. The Secretary shall report any credible incident
of fraud involving more than $10,000 to the appropriate United States Attorney.
In the absence of a finding by the Secretary that a report of fraud under this
subsection was made with knowledge that the information was false or was
disclosed in reckless disregard of whether it was false, no person reporting
fraud under this subsection shall be subject to civil liability for libel,
slander, or any other cause of action arising from such
report.
.
19.Section 44 (33 U.S.C.
944) is amended—
(1)by redesignating
subsections (d) through (j) as subsections (e) through (k),
respectively;
(2)by striking
subsection (c) and inserting the following:
(c)Payments into such fund shall be made as follows:
(1)Whenever the
Secretary determines that there is no person entitled under this Act to
compensation for the death of an employee that would otherwise be compensable
under this Act, the appropriate employer shall pay $5,000 as compensation for
the death of such an employee.
(2)At the beginning
of each calendar year, the Secretary shall estimate the probable expenses of
the fund during that calendar year and the amount of payments required (and the
schedule therefore) to maintain adequate reserves in the fund.
(3)Each self-insurer
shall make payments into the fund on a prorated assessment by the Secretary
determined by—
(A)computing the
ratio (expressed as a percent) of—
(i)the
self-insurer's compensation payments under sections 8 and 9 during the
preceding calendar year, to
(ii)the total of
such payments by all carriers and self-insurers under such sections during the
preceding calendar year;
(B)computing the
ratio (expressed as a percent) of—
(i)the payments
under section 8(f) of this Act during the preceding calendar year that are
attributable to the self-insurer, to
(ii)the total of
such payments during such year attributable to all carriers and
self-insurers;
(C)dividing the sum
of the percentages computed under subparagraphs (A) and (B) for the
self-insurer by 2; and
(D)multiplying the
percentage computed under subparagraph (C) by such probable expenses of the
fund (as determined under paragraph (2)).
(4)Each employer who
is not self-insured shall make payments into the fund through a surcharge based
on the standard premium, to be computed and collected as follows:
(A)Carriers that are
not self-insurers shall report the amount of all standard premiums for
insurance for the payment of compensation under this Act to the Secretary by
April 1 of each year.
(B)The Secretary
shall compute an amount for each carrier that is not a self-insurer, using the
methodology described in subparagraph (3) for self-insurers.
(C)The Secretary
shall determine the ratio (expressed as a percent) of the total of the
assessments computed for all such carriers under subparagraph (B), to the total
amount of the standard premiums for insurance for the payment of compensation
under this Act for all carriers during the preceding calendar year. This ratio
shall be the premium surcharge rate.
(D)Each such carrier
shall collect a share of the assessment from each employer insured by the
carrier through a premium surcharge equal to the product of the premium
surcharge rate multiplied by the standard premium for the insured employer. The
premium surcharge is the amount payable by each insured employer to satisfy its
obligation to the fund.
(E)Assessments
collected as a premium surcharge under this paragraph shall not constitute an
element of loss for the purpose of establishing rates for workers' compensation
insurance but, for the purpose of collection, shall be treated as separate
costs imposed upon insured employers. The total of the assessment imposed by
this paragraph shall be stated as a separate cost on an insured employer's
policy (or on a separate document submitted to the insured employer) and shall
be identified as the workers' compensation policyholder
surcharge
. Each such assessment shall be shown as a percentage of the
total workers' compensation policyholder premium. The premium surcharge shall
be collected at the same time and in the same manner that the premium for the
coverage is collected. The premium surcharge shall not be considered as part of
the premium, but an insurer may cancel a policy for coverage under this Act for
the nonpayment of the premium surcharge in accordance with the procedures
applicable to the nonpayment of the premium.
(F)Each such carrier
shall report and remit premium surcharges to the Secretary semiannually on
January 1 and July 1 of the calendar year following the year in which the
assessment is based, and such surcharges shall be final except for adjustments
made as a result of an audit by the Secretary.
(d)Notification of
payment ratesThe Secretary shall notify carriers of the premium
surcharge rate to be effective for policies written or renewed on or after the
date of enactment of the Longshore and Harbor
Workers' Compensation Act Amendments of 2009, and annually
thereafter. At the same time as such notification to carriers, the Secretary
shall notify each self-insured employer of the amount to be assessed against
such employer under this section for the following calendar
year.
;
and
(3)in subsection (i)
(as redesignated by paragraph (1)), by adding at the end the following:
Such civil suit for collections shall be brought against the control
group of the employer, as such term is defined under section 3(40)(B) of the
Employee Retirement Income Security Act of 1974 (29 U.S.C.
1002(40(B)).
.
20.
(a)The Act (33 U.S.C. 901 et seq.) is amended—
(1)in section
7—
(A)in subsection
(e)(1)(A) (as redesignated by section 7(3)), by striking and (c)
and inserting and (d)
;
(B)in subsection (h)
(as redesignated by section 7(3)), by striking (e)
and inserting
(f)
;
(C)in subsection
(k)(1) (as redesignated by section 7(3)), by striking (c)
and
inserting (d)
; and
(D)in subsection
(l)(2) (as redesignated by section 7(3)), by striking (d)
and
inserting (e)
;
(2)in section 28(b),
by striking 7(e)
and inserting 7(f)
;
(3)in section
31(b)(2)(B), by striking (j)
and inserting (k)
;
and
(4)in section
44(j)(4) (as redesignated by section 19(1)), by striking 7(e)
and inserting 7(f)
.
(b)The Act (33 U.S.C. 901 et seq.) is amended—
(1)in section
10—
(A)in subsection (e)
(as redesignated by section 10(a)(3)), by striking (f)
and
inserting (d)
; and
(B)in subsection
(f)(3) (as redesignated by section 10(a)(3)), by striking (f) and
(g)
and inserting (d) and (e)
;
(2)in section 2(10)
and section 8(c)(23), by striking (10)(d)(2)
each place the term
appears and inserting 10(b)(2)
; and
(3)in section
9(f)(2) (as redesignated by section 9(a)(2)), by striking 10(i)
and inserting 10(f)
.
(c)The Act (33 U.S.C. 901 et seq.) is amended—
(1)in section
44(j)(3) (as redesignated by section 19(1)), by striking (d)
and
inserting (e)
; and
(2)in section 22(a)
(as inserted by section 17(1)), by striking (i)
and inserting
(j)
.
21.
(a)A reference in subsection (b) to a
provision of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901
et seq.) shall be considered to be a reference to such provision as added,
amended, or redesignated by this Act.
(b)The amendments made to
the Longshore and Harbor Workers' Compensation Act (referred to in this section
as the Act) (33 U.S.C. 901 et seq.) by this Act shall take effect
on the date of enactment of this Act, except that—
(1)the amendments made to paragraphs (3)(A)
and (13) of section 2, subsections (c) and (e) of section 3, subsections (c),
(d), and (e) of section 4, subsections (a) and (e) of section 5, section 7(g),
section 13, and subsections (b) and (c) of section 20 of the Act shall apply
with respect to any claim under the Act filed on or after the date of enactment
of this Act;
(2)the amendments
made to section 2(25) of the Act shall take effect on the date of enactment of
this Act, and shall apply regardless of the date that the fraudulent act
occurred;
(3)in section 5(d)
of the Act—
(A)the amendments
made to paragraph (1) shall apply with respect to any claim under a Federal or
State workers' compensation law filed on or after the date of enactment of this
Act; and
(B)the amendments
made to paragraphs (2) and (3) shall apply with respect to any claim under a
Federal or State workers' compensation law, and any action under the Merchant
Marine Act, 1920 (commonly referred to as the Jones Act) (46
U.S.C. App.) or in tort, filed on or after the date of enactment of this
Act;
(4)the amendments
made to section 7 (not including subsection (g)) of the Act shall apply with
respect to any medical care delivered, or examination conducted, under the Act
on or after the date of enactment of this Act;
(5)the amendments
made to sections 8, 9, and 10 of the Act shall apply with respect to any claim
under the Act filed on or after the date of enactment of this Act, subject to
sections 8(b), 9(b), and 10(b) of this Act;
(6)the amendments
made to section 11 (not including subsection (a)) of the Act shall apply with
respect to any claim under the Act filed on or after the date of enactment of
this Act;
(7)the amendments
made to section 14 of the Act shall apply with respect to any claim for
compensation under the Act for which the carrier receives notice of the claim
for compensation on or after the date of enactment of this Act;
(8)the amendments
made to section 20(a)(3) of the Act shall apply with respect to any injury
covered under the Act that occurs on or after the date of enactment of this
Act;
(9)the amendments
made to section 21(b)(3) of the Act shall apply to any proceeding conducted
under the Act on or after the date of enactment of this Act;
(10)the amendments
made to section 22 of the Act shall apply with respect to any payment of
compensation under the Act on or after the date of enactment of this
Act;
(11)the amendments
made to section 31 of the Act shall apply with respect to any instance of known
or suspected fraud involving a claim under the Act that is detected on or after
the date of enactment of this Act; and
(12)the amendments
made to section 44 of the Act shall take effect on the January 1st following
the date of enactment of this Act.