Civil Penalties - Going Up Again; Review of Fines and Penalties

The U.S. Department of Labor, Office of Workers’ Compensation Programs, which administers the Longshore and Harbor Workers’ Compensation Act, has released Industry Notice No. 160, dated January 25, 2017.

The purpose of Notice No. 160 is to announce the latest increase in civil monetary penalties effective as of January 13, 2017.

Subject: 2017 Increase of civil monetary penalties in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (sic).  This Act requires federal agencies to adjust the levels of civil monetary penalties for inflation.  These adjustments affect several provisions of the Longshore Act and its extensions, the Defense Base Act, the Outer Continental Shelf Lands Act, and the Nonappropriated Fund Instrumentalities Act.

Here is a brief summary of the changes.

1. Section 14(g) of the Longshore Act: Failure to Report Termination of Payments (Form LS-208).  The regulation at 20 C.F.R. 702.236 now states:
   

   “Any employer failing to notify the district director that the final payment of compensation has been made as required by section 702.235 shall be assessed a civil penalty in the amount of $279 for any violation for which penalties are assessed after January 13, 2017.”

   The amount is increased from the previous amount of $275, which had been effective August 1, 2016.


2. Section 30(e): Penalty for Late Report of Injury or Death (Form LS-202).  The regulation at 20 C.F.R. 702.204 now states:
   

   “Any employer, insurance carrier, or self-insured employer who knowingly and willfully fails or refuses to send any report required by section 702.201, or who knowingly or willfully makes a false statement or misrepresentation in any report, shall be subject to a civil penalty not to exceed $22,957 for each such failure, refusal, false statement, or misrepresentation for which penalties are assessed after January 13, 2017.”

   The amount is increased from the previous amount of $22,587, which had been effective August 1, 2016.  This is the maximum penalty amount.  There is a graduated penalty schedule beginning at $500 based on the facts of each case.


3. Section 49 (33 U.S.C. 948(a)): Discrimination Against Employees Who Bring Proceedings. The regulation at 20 C.F.R. 702.271(a) now states:
   

   “Any employer who violates this section, and has penalties assessed for such violation after January 13, 2017, shall be liable for a penalty of not less than $2,296 or more than $11,478 to be paid (by the employer alone, and not by a carrier) to the district director for deposit in the special fund described in section 44 of the Act, and shall restore the employee to his or her employment along with all wages lost due to the discrimination unless the employee has ceased to be qualified to perform the duties of employment.”

   The penalty range is increased from the previous range of $2,259 to $11,293.

• Employer’s First Report of Injury or Occupational Disease
  The DOL issued Industry Notice No. 144 on November 14, 2013.  It contained important new instructions for mailing injury reports, claims forms, and correspondence in Longshore cases effective December 2, 2013.  The New York Longshore District Office is designated the “Central Case Create” site.  All new reports of injury and claim forms are to be mailed to:  U.S. Department of Labor, OWCP, Division of Longshore and Harbor Workers’ Compensation, 201 Varick Street, Room 740, P. O. Box 249, New York, NY  10014-0249.
  
  After a case has been created, the Jacksonville, FL district office is designated as the “Central Mail Receipt” site.  All case-specific mail is to go to the following address:  U.S. Department of Labor, OWCP, Division of Longshore and Harbor Workers’ Compensation, 400 West Bay Street, Suite 63A, Box 28, Jacksonville, FL  32202.
  
  All checks (for deposit to the Special Fund or in response to penalties), as well as inquiries, forms, and other documents concerning self-insurance authorization, security deposits, and Special Fund assessments are to go to the following address:  U.S. Department of Labor, OWCP, Division of Longshore and Harbor Workers’ Compensation, Branch of Financial Management, Insurance, and Assessments, 200 Constitution Avenue, NW, Room C-4319, Washington, DC  20210.
• “Timely Reporting” of Injuries to the DOL
  This is from the Procedure Manual for Claims Examiners in the Division of Longshore and Harbor Workers’ Compensation, Office of Workers’ Compensation Programs.
  

  “Under Section 30(a) of the Act, an employer must, within ten days from the date of any injury which causes loss of one or more shifts of work, or death (or from the date that the employer has knowledge of a disease, or infection as a result of such injury), furnish an employer’s report of injury or death to the District Director in the appropriate District Office (this is now the New York District Office.  See the discussion of Industry Notice No. 144 above.).  In the event that the employer does not have immediate knowledge of the injury, the ten day period begins to run from the date that the employer obtains such knowledge.” 
  

  
  The timely reporting of injuries to the DOL by the employer is very important.  In some ways it’s to the advantage of the employer, and there are penalties attached to failure to comply with the 10 day requirement.
  
  On November 9, 2009, the DOL published Industry Notice No. 130:  “Subject:  Initiative to Improve Timeliness in Employer’s First Report of Injury and Initial Payment of Compensation.”  In this Notice, the DOL announced its intention to “scrutinize more closely” the “timeliness in filing first reports of injury.”
  
  This Notice did not add any new reporting requirements nor change in any way the Section 30(a) 10 day requirement.  Rather, it reflected the DOL’s intent to improve the industry’s compliance with the existing standard.  This initiative by DOL is in conformance with the requirements of the Government Performance and Results Act of 1993 (GPRA), which requires that agencies set goals and measure progress against those goals.
  
  So, what must the employer do under Section 30(a)?  It’s simple.  The employer must send Form LS-202 to the appropriate DOL district office (New York) within 10 days of a lost time injury, or 10 days from the date that it has knowledge of the injury.  The term “lost time injury” means time lost beyond the day or shift of the injury.  A report of injury should also be filed if no time is lost but it is anticipated that the incident will result in an impairment rating and a claim for a scheduled award under Section 8(c).  Note: The reports are timely so long as they are mailed within the 10 days as evidenced by the postmark.
  
  The report can be filed by regular mail, or it may be filed electronically once the employer has registered with DOL as an electronic filer.
  
  Keep in mind:
  • The report must be mailed within 10 days. Don’t wait to verify all of the information or to complete an investigation.  It is more important to report the injury timely. The Form LS-202 is not “evidence” of any fact stated in the report. The employer can describe reported events as “alleged” if it wishes, but it’s not necessary.
  • The statute of limitations for filing a claim does not begin to run until the employer files the Form LS-202. If the employer never files the Form LS-202, the claim filing time requirement never begins to run against the injured worker.
  • It is the employer’s obligation to file the Form LS-202, not the insurance carrier’s. If the employer sends the report to its insurance company within 10 days, and the insurance company then files it with the DOL too late, the employer has failed to comply with the requirement.
  • The information on the Form must be accurate. Incorrect statements can be inconvenient to explain later on, and there are harsh provisions in the Act to deal with intentional false statements.
  • The 1984 Amendments to the Longshore Act changed the basis for the assessment of penalties under section 30(a). The language of “failure or refusal to send any required report” was changed to “knowingly and willfully” failing or refusing to send a report.  “Knowingly” means that the employer knew or should have known of the requirement, and “willfully” means either intentionally disregarding the statute or being plainly indifferent to its requirements.