Administrative Notice, In Re: Cases Involving Foreign Parties, Witnesses, and/or Evidence, 2021-MIS-00006 (Chief ALJ Henley Oct. 5, 2021)
Recreational Vessel Repair Workers
American Recovery and Reinvestment Act of 2009 Amendment the LHWCA
The American Recovery and Reinvestment Act of 2009, signed into law on February 17, 2009, amended Section 2(3)(F) of the Longshore & Harbor Workers' Compensation Act, 33 U.S.C. § 902(3)(F), by excluding from Longshore Act coverage all workers engaged in recreational vessel repair, provided they are subject to coverage under a state workers' compensation law. Previously the exclusion applied only to those workers who repaired recreational vessels under 65 feet in length and were subject to state workers' compensation coverage.
For more information, see Office of Workers' Compensation Program, Division of Longshore and Harbor Workers' Compensation, 2009 Amendment to the Longshore and Harbor Workers' Compensation Act.
Section 17 Lien Rights Must Be Resolved with Section 8(i) Settlement
In M.K. v. California United Terminals, BRB Nos. 08-0392, 08-0450, 08-0606 (BRB Feb. 12, 2009), the BRB ruled that ILWU-PMA’s Section 17 lien claims and claims for reimbursement of medical expenses under Section 7 must be resolved simultaneously with Section 8(i) settlement agreements entered into by claimants and their employers; a provision in a settlement application whereby Employer agrees to pay, adjust or litigate ILWU-PMA’s lien does not adequately address the resolution of the lien claims.
Remands Based on Section 8(i) Settlements and Stipulations
When judges remand Longshore and Harbor Workers Act cases to the District Directors for Section 8(i) settlement approval (See 33 U.S.C. 908(i); 20 C.F.R. § 702.241), or because the parties have indicated that all outstanding issues have been resolved, they will give the parties a specific date or time period to either submit the settlement papers or inform the District Director of the status of the matter. This will shorten the period in which it takes claimants to receive their settlements or benefits.
Settlement Judges and Mediation Services
OALJ continues to experience a high settlement rate of Longshore cases through OALJ-provided Settlement Judges or Mediators. Requests for Settlement Judge Appointments in Longshore cases should be addressed to the District Chief Judge at OALJ office to which the case is assigned. See the Alternative Dispute Resolution page for more information. While reasonable efforts will be made to accommodate requests for specific dates, there can be no guarantee that requests for specific judges will be granted.
Medicare Secondary Payer Act & § 8(i) settlements
Longshore practitioners are urged to familiarize themselves with the provisions of the Medicare Secondary Payer Act (MSP) found at 42 U.S.C. § 1395y(b)(2) and its implementing regulations at 42 C.F.R. § 411.
Medicare is not the primary payer for medical expenses covered by workers' compensation plans — including the Longshore Act (the Act). See 42 C.F.R. § 411.40(a). Parties submitting settlement agreements under Section 8(i) of the Act should be aware of the potential impact of the MSP on lump sum settlements as they relate to (1) future medical expenses and (2) reimbursement for conditional payments made by Medicare prior to settlement.
Settlements submitted to OALJ should reflect that the parties have considered Medicare requirements as they may pertain to the settlement. For additional information on Medicare's role in workers' compensation settlements, practitioners should refer to Centers for Medicare & Medicaid Services, Workers’ Compensation Medicare Set Aside Arrangements.
Claimant Names in Decisions
On October 27, 2009, the United States District Court for the District of Columbia enjoined the Department of Labor, Office of Administrative Law Judges, from implementing a policy of using initials rather than names of claimants in black lung and longshore decisions. National Association of Waterfront Employers v. Solis, No. 07-2250 (D.D.C. Oct. 27, 2009). Accordingly, the full name of the Claimant now appears in ALJ orders and decisions.
Timing of Website Posting
Decisions in LHWCA cases are transmitted to the OALJ website five business days after issuance by the ALJ. Links become available six business days after issuance by the ALJ.
Section 28(b) Attorney's Fees - Informal Conference Requirement
Informal conferences are required in most circuits in order to obtain an attorney fee under Section 28(b). With its decision in Davis v. Eller & Co., 41 BRBS 58 (June 4, 2007), arising out of the Eleventh Circuit, the Board realigned itself with the majority of circuits (Fourth, Fifth and Sixth), which hold that in order for a claimant to obtain an attorney fee under Section 28(b), there must have been an informal conference. Since the position of the Ninth Circuit (Claimant is entitled to a fee where the extent of liability is controverted and claimant successfully obtains increased compensation regardless of whether employer specifically rejected an administrative recommendation.) remains unchanged, the Board’s position is not applicable law in that circuit.