Proposed Amendments of 2011, Part II

Proposed Amendments of 2011, Part II
Part Two

This is a continuation of a summary of the most significant proposed changes contained in pending Bill S. 669 (112th Congress) to amend the Longshore Act. 

Eleven – Section 907 – Medical Services and Supplies – is extensively amended.

The most important change is to Section 907(b)(1), which provides that a carrier may designate one or more participating networks or one or more health care panels, or both, (refer to the new definitions in Section 902) that would be the obligatory source for medical services and supplies for injured workers.  This replaces the key provision in the current law granting injured workers their choice of treating physician.

Twelve – Section 908 changes the compensation rate by replacing “66 2/3 per cent of the average weekly wage” with “75 percent of the spendable earnings”.   This change applies in all sections where the current rate is set at 66 2/3 per cent of the average weekly wage.  The proposed amendments in Section 910(e) define “spendable earnings” basically as take home pay.

Thirteen – We noted in Part One that amended Section 904(c) adds language that attempts to remove the effects of lifestyle and aging from the award of workers’ compensation benefits.  The proposed change to Section 908(c)(13) specifically provides that, with regard to hearing loss, “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.”

Fourteen – Proposed Section 908(f) effectively ends the second injury provision.  The amendments state that no new order granting section 908(f) relief shall be granted except for cases of modification in existing 8(f) cases, or for survivor’s claims related to existing 8(f) cases.   Section 908(f) presently accounts for about 89% of Special Fund annual disbursements.

Fifteen – Sections 910(a) through (e) are entirely replaced.  The new wording seeks to change the way that the average weekly wage is calculated.  Essentially, if the injured worker works 40 out of the 52 weeks in the year preceding the injury then his average weekly wage equals actual earnings divided by 52.  If he has not worked 40 of the previous 52 weeks, then his average weekly wage should be based on workers in his same classification who did work those weeks.  This change seeks to overturn judicial interpretations in which the courts inflate the worker’s average weekly wage under the present Section 910.

Sixteen – New Section 912(a) seeks to put an outside limit on the “Notice of injury or death” requirement.  Basically it is proposed that in the event of a traumatic injury, “in no case shall the notice be given more than one year after the trauma occurs”.  In the case of a non-traumatic injury, “in no case shall the notice be given more than one year after the diagnosis of a non-traumatic injury or a death resulting from such injury”.

Seventeen – New language in Section 912(b) provides that, “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 ….  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”.

Eighteen – New Section 913(a) seeks to put an outside time limit on the filing of claims.  It provides that, “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”.

Nineteen – Section 914(f) (the 20 percent penalty provision) is changed by striking “within ten days after it becomes due” and inserting instead “within 10 business days after receipt by the employer or carrier of a priority mailing containing the order.”  This wording provides a much more equitable provision for the employer.

I’m going to stop here for now, so I can pick up significant proposed change Number Twenty with the Section 920 presumptions.    


John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.

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