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CHAPTER 0-200 - AUTHORITY AND BACKGROUND OF THE LHWCA

1. Purpose and Scope. This Chapter presents a brief summary of the statutory authority for the compensation programs administered by DLHWC and briefly describes the LHWCA and its extensions.

2. Authority. The basic authority for all DLHWC compensation programs and their administration by agencies and persons within the Department of Labor is derived from the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. sections 901-950, its extensions and from the implementing rules and regulations issued by the Department, 20 C.F.R. Parts 701-704. Administration of the LHWCA was initially vested in an independent establishment known as the U.S. Employees' Compensation Commission. The Commission was abolished in 1946 and its functions transferred to the Federal Security Agency to be performed by a newly created Bureau of Employees' Compensation. In 1950, the Bureau was transferred to the Department of Labor (Reorganization Plan No. 19 of 1950). By Secretary's Order No. 13-71, the Assistant Secretary, Employment Standards Administration (ESA), established the Office of Workers' Compensation Programs (OWCP) within ESA and designated the Director thereof to administer the programs assigned to OWCP by the Assistant Secretary. See PM 0-400 for a discussion of the relationships and lines of authority within OWCP and between OWCP and ESA.

3. Basic Act. The Longshore and Harbor Workers' Compensation Act (LHWCA)(33 U.S.C. sections 901-950) was passed in 1927 to provide compensation payable by an employer to an employee, or the employee's dependents, for disability or death due to an injury occurring upon the navigable waters of the United States. The LHWCA provides payment for medical care required for the injury, disability compensation payments, and a maintenance allowance during rehabilitation training. In the event of death caused by injury, benefits include payment for reasonable funeral expenses and compensation payments to surviving dependents. The Act resolved a problem of worker coverage when the worker's activity was on the navigable waters of the United States. Before the enactment of the law, state workers' compensation programs applied to injuries occurring on land, and the Supreme Court had held that a state could not extend its workers' compensation remedy to cover longshoremen injured over the navigable waters of the United States (Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917)).

4. Amendments of 1972. The LHWCA Amendments of 1972 (Pub. L. No. 86-1251), enacted in October 1972, extended coverage to maritime workers employed in shoreside areas such as piers, wharves, drydocks, terminals, building ways, marine railways, or other adjoining areas customarily used by employees in loading, unloading, repairing, or building a vessel. Other changes included in the Amendments pertained to maximum and minimum benefit rates, student benefits, time for commencement of compensation, medical services, disfigurements, special fund, injury following previous impairment, death benefits, annual increases in compensation, time for notice and claims, fees for services, hearing procedure, a Benefits Review Board, representation of the Secretary of Labor by the Solicitor, claimant assistance, third party liability, prohibition against discrimination against certain employees, annual adjustment of benefit levels, and other miscellaneous provisions. Under the LHWCA, the employer must notify the DOL of all lost-time injuries as well as any action taken regarding the employee's claims, i.e., payment, medical treatment provided, or denial of the claim.

5. Amendments of 1984. The most recent changes to the Act were the LHWCA Amendments of 1984 (Pub. L. No. 98-426, 98 Stat. 1639), enacted September 28, 1984. The changes made by some of the major provisions of the 1984 Amendments include:

a. The Act's jurisdiction was clarified and limited by exclusion of certain groups of employees and facilities from LHWCA coverage, to the extent workers are covered under a state workers' compensation law.

b. Compensation for unrelated death was eliminated; a five percent ceiling was placed on annual increases under section 10 in compensation payable for permanent total disability and death; death cases are now subject to the maximum weekly benefit; and, for the purpose of calculating benefit rates, wages are defined to exclude fringe benefits.

c. To provide additional safeguards against fraudulent activities by employees to obtain benefits, and by employers or insurance carriers to deny, reduce or terminate benefits, fines and penalties for such actions were increased. In addition, provisions were added authorizing the Secretary to debar health care providers and claimant representatives for fraud or abuse.

d. A method for computing compensation for victims of latent disabilities due to occupational disease which do not become manifest until after the employee retires was established. Also, time of injury was redefined as occurring after the disease becomes manifest and the claimant is aware of the relationship between the disease, the resulting disability, and the employment. The time requirements for filing a notice of disease (injury) and a claim for compensation were extended.

e. Uninsured employers and carriers not authorized to write insurance under the Act are prohibited from receiving second injury (section 8(f)) relief; applications for second injury relief must now be filed by ECs with an OWCP DD prior to consideration of claims for permanent disability alleged to be more serious because of contribution from a manifest preexisting disability; and the formula for determining industry assessments was revised to include a factor for section 8(f) cases which are attributable to each employer and insurance carrier.

f. To expedite case processing activities under both the LHWCA and Black Lung Benefits Act, the permanent membership of the Benefits Review Board was increased from three to five members and the Secretary was authorized to appoint up to four administrative law judges as temporary members.

6. Extensions. Since 1927, provisions of the Act have been extended to include additional groups of employees:

a. The District of Columbia Workmen's Compensation Act (DCCA) (36 D.C. Code section 501)(1973)) enacted in 1928 extended the provisions of the Longshore Act to injuries and deaths which arose out of employment with District of Columbia employers. In 1979 the District of Columbia government repealed the 1928 Act and enacted its own workers' compensation law, which became effective on July 26, 1982. Injuries to employees in the District of Columbia occurring prior to July 26, 1982 are covered by the DCCA, an extension of the Longshore Act. However, as the repeal of the 1928 Act had the effect of severing the application of the Longshore Act to the District of Columbia, the 1984 Amendments to the Longshore Act have no effect on and are not to be applied to claims for injuries sustained prior to July 26, 1982. The provisions of the Longshore Act, as they existed in 1982, are preserved for the benefit of employees whose claims are derived from injuries occurring prior to July 26, 1982. In July of 1988, the administration of claims filed under the DCCA was delegated to the District of Columbia Government, to be handled by the Department of Employment Services.

b. The Longshore Act, as extended by the Defense Base Act (DBA), 42 U.S.C. section 1651 et seq., enacted in 1941, provides workers' compensation coverage for workers engaged in employment on overseas defense bases, or under contracts with the United States, or an agency thereof, for public work to be performed outside of the continental United States. To be compensable under the Act, a claim must stem from employment either on a U.S. base overseas or under a "contract" for "public work" overseas, public work constituting government related construction projects, work connected with national defense, or employment under a service contract supporting either activity.

(1) History. When enacted in 1941 its main purpose was to extend coverage for civilians engaged in employment overseas at American Military Bases. The statute was adopted at the request of the Secretary of War in order to enable the U.S. Government and its defense contractors to avoid enormous expenses when securing workers' compensation insurance for overseas employees who had suffered industrial accidents that had taken place outside the United States. Subsequently, after World War II, the Defense Base Act's coverage was expanded to include civilians working on overseas construction projects for the United States. Employees covered under the Federal Employees' Compensation Act are excluded from coverage.

(2) Zone of Special Danger. The traditional concept of causal relationship does not normally apply to claims filed under the DBA. This is due to the advent of the "zone of special danger" doctrine. The zone of special danger doctrine (see Self v. Hanson, 305 F. 2d 699, 702 (9th Circuit 1962) is a judicially created legal concept. The U.S. Supreme Court, in a 1951 decision, first enunciated and defined the scope of compensability under the Defense Base Act in the following terms:

The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his/her employer. All that is required is that the "obligation or condition" of employment create the "zone of special danger" out of which the injury arose.

(3) Reasonable Recreation. Normally, a DBA claim arising out of an injury or death of an employee that takes place while the injured worker is on duty in most cases is found to be compensable. The difficult task under this Act is to determine compensability when the injury occurs while the employee was off duty and engaged in some form of recreational activity. In O'Keefe v. Pan American World Airways, Inc., 338 F. 2d 319, 322 (5th Cir. 1964), cert. Denied, 380 U.S. 951 (1965), the court recognized that these types of claims may be compensable:

Employees working under the DBA far away from their families and friends, in remote places where there are severely limited recreational and social activities, are in different circumstances from employees working at home. Personal activities of a social or recreational nature must be considered as incident to the overseas employment relationship.

That being said, the CE should keep in mind that not every claim arising out of an off duty injury or death is compensable. The issue then arises as to what types of recreational activities fall within the zone of special danger such that claims for injuries or deaths arising out of those activities are compensable. What constitutes reasonable recreation in a given case is considered a fact question as opposed to a question of law. This question is normally answered by the trier of fact based on a review of the evidence. Due to the absence of any case law precedent, defining the concept of reasonable recreation has compelled the courts to employ a case by case analysis of compensability.

c. The Outer Continental Shelf Lands Act (OCSLA) 43 U.S.C. section 1331 et sec.. This Act emerged out of Congressional recognition that the need to develop and explore the natural resources of the continental shelf would require governmental intervention and a new body of federal laws. Due to technological advances offshore, by 1937 offshore oil and gas exploration became more practical. This generated more interest at home and abroad in mineral resources. The OCSLA was enacted by Congress in 1953. The purpose was to "safeguard the U.S. interest in any international race for the vast wealth of the continental shelf," by providing an administrative and legal framework within which this wealth could be developed and exploited by the Federal Government.

Continental shelves have been defined as those slightly submerged portions of the continents that surround all the continental areas of the earth. They are a part of the same continental mass that forms the lands above water. They are part of the continent temporarily overlapped by oceans. The outer boundary of each shelf is marked by a sharp increase in the slope of the sea floor. It is the point where the continental mass drops off steeply toward the ocean depths. Typically, this abrupt drop occurs where the water reaches depths of 600 feet or greater. This depth is used as a gauge in defining the outer limits of the shelf. For example, the Atlantic coastal region from the shore to the outer edge of the shelf is approximately 250 miles, and the average distance is about 70 miles.

(1) Conditions of Coverage. The OCSLA provides workers' compensation coverage for the death or disability of an employee resulting from any injury occurring as a result of operations connected with the exploration, development, removal, and transportation of natural resources from the seabed and subsoil of the Outer Continental Shelf. The Act applies to all submerged lands (and artificial islands and fixed structures thereon) which lie beneath navigable waters seaward of state jurisdictional boundaries, and which are subject to the jurisdiction and control of the United States.

(a) Coverage under the OCSLA is not based on the same requirements as coverage requirements under the LHWCA. One of the main differences is that work activities covered under the OCSLA is not considered maritime employment. See Herb's Welding v. Gray, 470 U.S. 414 (1985).

(b) Each State has a claim over the area off their shores. For most States, the claim occurs within the three-mile radius or limit. The area within three miles falls under State jurisdiction. The area beyond is called the Outer Continental Shelf and is subject to the Federal OCSLA.

(c) The OCSLA is unique because most offshore employees stay on the platform for their full tour of duty, which is normally a 7 or 14 day shift, 12 hours of "work duties" per day at which point they return to shore for 7 days "off". Since the employees are on the platform 24 hours per day at the convenience of the employer and they are housed and fed by the employer, OCSLA workers are considered to be "in the course and scope of their employment" for their entire shift, 24 hours per day.

d. The Nonappropriated Funds Instrumentalities Act (NFIA), was enacted in 1952 by Congress to define the status of civilian employees working under the Nonappropriated Fund at various U.S. military bases. Nonappropriated Funds are funds that are not appropriated by the Congressional Budget or the Defense Budget. The NAFIA includes the various military branch exchanges and other activities that provide entertainment, recreation and housing to military employees on military bases in the U.S. and overseas. NAF civilian employees are not classified as Federal Government employees and, therefore, are not covered under the Federal Employees compensation Act. Although their jobs are tailored more towards the private sector, their industrial work related claims do not fall under the state workers' compensation system. NAF employees are compensated from revenue earned by business operations. All funds are maintained in a Federal Reserve Bank as required by federal statute.

e. The War Hazards Compensation Act, (WHA), 42 U.S.C., section 1701 et seq., enacted in 1942, applies the benefit structure of the LHWCA to certain employees of contractors engaged in work outside the continental United Sates and exposed to war risks. These cases are normally adjudicated under the Defense Base Act until a compensation order is issued at which point the employer/carrier applies to the Division of Federal Employees' Compensation, Branch of Special Claims, for reimbursement from the FECA Compensation Fund under the provisions of the War Hazards Compensation Act. The regulations at 20 C.F.R. 61.101(a) provide that applications for reimbursement are to be sent to the U.S. Department of Labor, Office of Workers' Compensation Programs, Branch of Special Claims, P.O. Box 37117, Washington, DC 20013-7117. Employers/carriers should not be instructed to send the applications to the Longshore district office servicing the Defense Base Act claim. If a Longshore district office should receive such an application, it should be forwarded directly to the Branch of Special Claims.

If an employer/carrier inquires as to the documentation needed in support of an application for reimbursement, they should be made aware of the provisions of 20 C.F.R. 61.101(b) and (c).

20 C.F.R. 61.101 provides as follows:

Sec. 61.101 Filing a request for reimbursement.

(a) A carrier or employer may file a request for reimbursement. The request shall be submitted to the U.S. Department of Labor, Office of Workers' Compensation Programs, Branch of Special Claims, P.O. Box 37117, Washington, DC 20013-7117;

(b) Each request for reimbursement shall include documentation itemizing the payments for which reimbursement is claimed. The documentation shall be sufficient to establish the purpose of the payment, the name of the payee, the date(s) for which payment was made, and the amount of the payment. Copies of any medical reports and bills related to medical examination or treatment for which reimbursement is claimed shall also be submitted. If the carrier cannot provide copies of the payment drafts or receipts, the Office may accept a certified listing of payments which includes payee name, description of services rendered, date of services rendered, amount paid, date paid check or draft number, and signature of certifier.

(c) When filing an initial request for reimbursement under the Act, the carrier shall submit copies of all available documents related to the workers' compensation case, including-- (1) Notice and claim forms; (2) Statements of the employee or employer; (3) Medical reports; (4) Compensation orders; and (5) Proof of liability (e.g., insurance policy or other documentation).

(1) History. As a result of the Pearl Harbor Attack during World War II, military demands required contractors to extend their operations into areas not covered under the Defense Base Act; in which case a number of interim arrangements were entered into by contractors to provide a standard of compensation for their employees. These arrangements mainly provided voluntary workers' compensation coverages of no set pattern and various guarantees of payments for disability or death. Due to danger that these employees were faced with, each successive group of employees leaving the country sought out their employer's guarantees. These informal arrangements provided neither consistency nor equality. As a result, the Act of December 2, 1942, commonly known as the War Compensation Act was passed.

(2) Definition. A "war risk hazard" is a hazard arising during a war in which the United States is engaged during an armed conflict whether or not war has been declared; or during a war or armed conflict between military forces of any origin, occurring within any country in which a covered individual is serving.

(3) The DBA provides a reimbursement system through the Federal Employees' Compensation Program to self-insured employer and insurers for losses that they may have paid under the Defense Base Act, once the claim has been declared a war risk hazard.