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CHAPTER 2-201 - DISABILITY

1. Purpose and Scope. This Chapter contains the procedures for the initial review of a disability case file by the Claims Examiner (CE) or Claims Examiner Clerk (CEC).

2. Routine Cases. On receipt of a primary case with Form LS-202, Employer's First Report of Accident or Occupational Illness (Exhibit 16, PM 10-200), the CE or CEC checks the items listed in subparagraphs a to h, below, and recommends penalties or other action where necessary. Routine cases are closed or called-up. In some instances, only one review of a case, by an experienced CE, may be required. Such cases include those where lost time did not exceed three days and no permanent partial disability is indicated, or those in which the appropriate payment for a short period of temporary disability has been paid and reported at the time of review. (See also PM 2-300.) The initial review of routine cases includes all of the following:

a. Timeliness. The CE/CEC checks the LS-202 for completeness of information and timely submission of the report by the EC. The LS-202 should be received in the district office within ten days after the injury or the date the employer had knowledge of the injury/illness. If the injury/illness did not immediately result in disability the ten day period is measured from when disability commences. Action to be taken when a late report is received is described in subparagraph 3f, below.

b. Compensable Lost Time. The timely submission of Form LS-206, Payment of Compensation Without Award (Exhibit 19, PM 10-200) by the EC indicates that compensation is being paid for time lost from work. For the procedures pertaining to the imposition of penalties and interest please refer to Part 8 of the Procedure Manual.

c. Medical Report. There should be the timely submission of the first report of treatment by the attending physician, Form LS-1, Request for Examination and/or Treatment (Exhibit 1, PM 10-200). (See also PM 5-300.) The CE/CEC reviews the medical evidence and assesses the severity of the injury, to determine whether or not the injured employee needs the care of a specialist and how long the anticipated disability may continue.

d. Payment of Compensation Without Award. When the EC makes voluntary compensation payments in accordance with the entitlements set forth in PM 0-300, the EC notifies the DD by submitting Form LS-206, Payment of Compensation Without An Award (Exhibit 19, PM 10-200). If Form LS-206 is among the initial reports received, the CE checks the compensation rate for accuracy as prescribed below in paragraph 3b. The LS-206 should be submitted to the DO by the EC immediately after the first payment of compensation is made, and should reflect first payment within twenty-eight days of the injury or the date disability began (for late payment penalties, see PM Chapter 8-202).

e. Identification of Cases in Compensation Status. If Form LS-206 has been received, indicating that compensation payments are continuing, the CE should record this information in the LCMS (See Chapter 4, LCMS User's Manual.)

f. Review of Cases for Right to File Claim. Many routine cases require only one review. Such cases include those where time lost did not exceed three days and no permanent partial disability is reflected in the medical data, or those in which the appropriate payment for a short period of temporary disability has been paid and reported at the time of review. In the event no claim is received and the case is to be closed, but the CE considers the injury to be of a serious nature, a Form Ltr. LS-403, Letter to Employee on Right to File claim for Disability Compensation (Exhibit 38, PM 10-200) is sent to the employee apprising him or her of the right to file a claim. A call-up for thirty days is to be placed on the case after releasing Form LS-403. If no reply is received at the end of the thirty day period, the file is marked "closed", dated, initialed, and placed in the central files.

g. Separate the More Complicated Cases. The cases which require full, systematic, and thorough review should be separated from those which can be routinely closed or called up. For those cases (including claims) which require full review, consider each of the factors identified in paragraph 3, below.

h. Check for Return to Duty Date. Form LS-202 may not include the date that the claimant returned to duty. In such situations, the EC may file Form LS-210, Employer's Supplementary Report of Accident or Occupational Disease (Exhibit 23, PM 10-200). This Form may also be used where the injured employee has returned to duty and later becomes disabled again.

3. In-Depth Case Review. Cases involving serious injuries, occupational diseases, or other complications or other disputed issues, will require in-depth review. The CE must examine and resolve each issue which is or could become controversial. If these issues can be recognized and addressed at the time of the first review, it will simplify the later processing of the case. The file cannot be handled in a cursory manner.

a. Determine Eligibility. There are five basic requirements which must be met for an injured worker (or survivor in case of death) to be eligible for LHWCA coverage: timely filing of a claim, jurisdiction, fact of injury, course of employment and causal relationship. These issues are discussed in detail in PM Chapter 0-300.

(1) Timeliness. Claims regarding compensation for disability or death must be in writing and filed by or for the individual claiming benefits with the District Director (DD) of the compensation district in which the injury or death occurred. Eligibility requirements, time limitations, and exceptions are set forth in PM 0-300.4.

(2) Employee (Jurisdiction Situs and Status). The situs/status factors influencing the coverage accorded maritime workers under the Act are explained in PM 0-300.5 and Program Memorandum No. 58, August 10, 1977. Please also refer to the Longshore Desk Book (Note, however, that the decisions therein do not necessarily comport with the Director’s administrative construction).

(3) Fact of Injury. There must be evidence of injury to an employee in a "covered" situation in order to establish eligibility for compensation. See PM 0-300.6.

(4) Course of Employment. To be eligible for benefits, the covered employee must have sustained an injury which occurred in the course and scope of his/her employment, section 2(2) of the Act. Also, please refer to the Longshore Desk Book for a discussion of this issue (Note, however, that the decisions therein do not necessarily comport with the Director’s administrative construction).

(5) Causal Relationship. In addition to occurring in the course and scope of employment, to be compensable, an injury must arise out of the employment, section 2(2) of the Act. The section 20 presumption aids the claimant in establishing that the injury arose out of and in the course of the employment. See PM 0-300.3 and the Longshore Desk Book for a further discussion of this issue (Note, however, that the decisions therein do not necessarily comport with the Director’s administrative construction).

(6) The phrase "arising in the course of employment" relates to elements of time, place and work activity. To occur in the course of employment, an injury must occur at a time when the employee may reasonably be said to be engaged in the employer's business, at a place where the employee may reasonably be expected to be in connection with the employment, and while the employee was reasonably fulfilling the duties of his or her employment or engaged in doing something incidental thereto. This alone is not sufficient to establish entitlement to compensation. The concurrent requirement of an injury "arising out of the employment" must be shown. The phrase "arising out of employment" relates to the element of causal connection, the requirement being that a factor of employment caused the injury.

b. Verify Compensation Rate (Wage Rates, AWW). If Form LS-206 is among the initial reports received, the CE checks the compensation rate for accuracy.

(1) Partial Earnings Rate. If the compensation rate appears low or otherwise indicates that all income may not have been considered, the CE should send Form Ltr. LS-557 (Notice of Compensation Rate, Exhibit 51, PM 10-200) for the period in which the injury occurred if this Form has not previously been sent.

(2) Tentative Rate. The CE should send Form LS-426 (Request to Employee for Earnings Information Data on Employee's Earnings, Exhibit 39, PM 10-200) to the employee, requesting wage data.

(3) Minimum/Maximum Rates. The CE should check for the applicability of minimum/maximum rates payable pursuant to section 6(b) (Exhibit 26, PM 10-300).

(4) Accurate Rate. If the compensation rate appears to be accurate, the CE may place a call-up on the case file, (see Chapter 3, LCMS User's Manual), and await supplemental medical reports and Form LS-208 (Notice of Final Payment, Exhibit 21, PM 10-200).

c. Consider Third Party Involvement. Under section 33, a claimant may receive compensation or a death benefit under the Act while pursuing a civil action against a third party (not the employer) who, the claimant feels, caused the injury or death through negligence. For further information please refer to PM 3-600.

d. Consider Controversion of Entitlement. If the EC controverts the employee's or survivor's right to compensation, there must be filed with the DD a Form LS-207, Notice of Controversion of Right to Compensation (Exhibit 20, PM 10-200) on or before the fourteenth day after the EC had knowledge of the alleged injury or death. This form is a notice that the right to compensation is controverted, listing the name of the claimant, the name of the employer, the date of the alleged injury or death, and the basis upon which the right to compensation is controverted. The form is submitted in duplicate to the DO and the CE sends a copy of the form to the claimant within ten days of receipt of the form in the DO. The Form LS-209, Request for Employee's Reply (Exhibit 22, PM 10-200) is used to transmit the LS-207. However, the LS-207 may be replaced with a cover letter prepared by a district office and tailored to accommodate local conditions and needs. For further guidance on the development of the case (e.g., arranging for informal conference, assessing penalties, etc.), see PM 3-301, 4-200 and Part 8.

e. Consider Medical Evidence. The LS-1, Request for Examination or Treatment and Attending Physician's Report of Injury and Treatment (Exhibit 1, PM 10-200) should be received in the DO within ten days of the examination or treatment. However, the initial medical report need not be on the LS-1, and frequently consists of a narrative report or a LS-204, Attending Physician's Supplementary Report, (Exhibit 18, PM 10-200). After reviewing the initial medical report the CE/CEC should be able to determine the severity of the injury, whether the injured employee needs the care of a specialist, and estimate how long the disability may last. The CE/CEC should also consider the availability and sufficiency of medical care based upon the medical reports in the primary case. For further information regarding medical issues please review Part 5 of the Procedure Manual.

f. Consider Late Reports (Employer).

(1) Form LS-202. If the envelope, in which the Form LS-202 is submitted has a postmark date in excess of ten days beyond the injury date, Form Ltr. LS-548, Request to Employer for Explanation of Late Filing of Form LS-202 (Exhibit 48, PM 10-200) should be released within ten working days to the employer after determining that the report is late. See PM 3-301.3f and 8-302.

(2) Forms/Documents Other Than LS-202. If the primary case is received with a form or document other than Form LS-202 (e.g., Form LS-201 or LS-203), the CE releases Form LS-512, Request to Employer for LS-202 and Explanation for Failure to File (Exhibit 41, PM 10-200). The original form LS-201 or LS-203 (or other document) is kept in the file because it constitutes a notice of the injury or a claim. A copy is sent to the employer/carrier with a request for Forms LS-202 and LS-1. Unless a Form LS-203 is received, which would require a response from the EC, requests for other forms may be deferred at the initial handling of the file. The CE may place a thirty day call-up on the file to allow time for the submission of subsequent reports. If the EC's report has not been received at the time the file is reviewed on the call-up, Form Ltr. LS-512 should be released, advising the EC of the penalty provisions for late filing or failure or refusal to file a report of injury. See PM 8-302.

Patterns of such late reporting by an individual or self-insured and any refusal to file a report, should be reported to the DD and in turn, to the National Office.

g. Consider Rehabilitation Potential. Upon receipt of a claim where the probability of return to work exceeds two months, the LCMS institutes a call-up for ten weeks to ensure the receipt of Form LS-222, Carrier's or Self-Insurer's Report on Rehabilitation (Exhibit 26, PM 10-200). For further details regarding the handling of potential rehabilitation cases, see PM 3-301.3g and OWCP Rehabilitation PM 3-300.

h. Consider Adequacy of Report Forms.

(1) Requirements for Additional Reports. During the initial review of the case, the CE should send to the carrier/employer Form LS-216, Request for Additional Reports (Exhibit 25, PM 10-200), requesting an adequate medical report, if not included, and the submission of Form LS-206, if not included, showing that appropriate compensation has been voluntarily instituted. At this stage of the case development, Form LS-203 should be sent to the claimant only upon request or in cases where (in the opinion of the CE) they are necessary (e.g., to process a claim for occupational disease).

(2) Call-Up. A thirty day call-up should be placed in the file, awaiting a reply to Form LS-216 and receipt of Forms LS-206, LS-208, and LS-1. This completes action on the case as a primary one and such case will thereafter be regarded as a secondary case. (See paragraph 5, below).

4. Formal Claims. Not all primary cases originate with the receipt of routine injury reports but on rare occasions the DD may process the claim without the pertinent data.

a. Preparation and Submission of Claim. Form LS-203, Employee's Claim for Compensation (Exhibit 17, PM 10-200), has been provided to serve as a formal written claim. However, no particular form is required to meet the time limitation provisions of the Act, and the completion and submission of Form LS-201 Notice of Employee's Injury (Exhibit 15, PM 10-200) will serve as a written claim to toll the statute. Any letter or other document containing words of claim will suffice as a claim. A written memorandum, prepared by a CE based on an oral communication with the claimant expressing an intention or desire to file a claim, has been held to be sufficient to toll the statute. (See PM 3-301.)

b. Notification to Employer of Filing by Employee. Within ten days after the filing of a claim for compensation for injury or death under the Act, the CE sends a copy of the claim to the EC. The claim is served personally or by mail. Form Ltr. LS-215a, Notice to Employer and Insurance Carrier That Claim Has Been Filed (Exhibit 24, PM 10-200) is used to transmit three copies of Form LS-207 for the response to the claim, if the claim is not to be approved. The LS-207 should be returned to the DO in triplicate. While awaiting the response, the CE shall proceed to develop and evaluate the claim.

5. Call-Up. As soon as a case is created, it is assigned a case status of "Primary" and a call-up date thirty days in the future. However, after the CE/CEC has completed the primary case review, the length of future call-ups is left to the discretion of the claims examiner depending on the circumstances of the case, and awaiting a reply to receipt of any forms or information which have been specifically requested. This completes action on the case as a primary one and such case will thereafter be regarded as a secondary case.

6. Case Closing. When the CE/CEC determines, after careful review that no further action is needed and the case is in posture to be closed, the following steps will be undertaken by the CE/CEC: Top document will be marked closed, dated and initialed by the CE.

Once the three steps listed above have been completed, the appropriate case closing date is also entered into the LCMS and the case is forwarded to the file room.