Longshore Legislative Update

Feature Article

LONGSHORE LEGISLATIVE UPDATE

By: Christopher E. Schaffer, Esquire

Š 1997 Christopher E. Schaffer

"The inefficiency of the Benefits Review Board has been notorious. Finally, Congress has taken action ..."

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On April 25, 1996, Congress passed an Appropriation Bill with significant effect to the Longshore and Harbor Workers' Compensation Act. The Appropriations Bill not only dramatically changes appeals to the Benefits Review Board (BRB), but also disallows funding to the Department of Labor for involvement in appeals declared improper by the Supreme Court.

In the past, it has taken anywhere from three to six years to receive a decision from the BRB. On average it takes approximately five years. This has resulted in gross inequities to the Employer as well as come injustices to the Claimant. For example, take the case where the claimant is claiming Permanent Total Disability and the Employer is contesting jurisdiction. If the Administrative Law Judge incorrectly applies the law to find that Longshore jurisdiction exists, the Employer must begin Permanent Total Disability payments within ten days of the order regardless of an appeal to the BRB. The PTD payments must continue during the three to six years that it takes the BRB to address the issue. If the BRB reverses the administrative decision and finds jurisdiction not to exist, the Employer is left without a viable remedy to recoup its money paid out. It is easily seen how this result in drastic injustices to the Employer.

The April 25, 1996 Appropriations Bill helps limit these injustices. The Bill requires the BRB to issue decisions within one year of the filing of an appeal. If the BRB fails to do so, the ALJ decision is considered final and an appeal to the United States Court of Appeals must be filed within sixty days. For appeals pending with the BRB at the present time, the provision is effective on September 12, 1996, and an appeal must be made by November 12, 1996.

For appeals currently pending, the practical application of the Bill works as follows. On September 12, 1996, any case which has been pending for at least one year is considered final. At that point, either party may file an appeal to the United States Court of Appeals within sixty days (i.e. November 12, 1996). It is expected that there will be a number of appeals filed within that time period. Caution should be taken in determining what cases deserve application of the Appropriations Bill. This Bill is not an amendment to the Act. Therefore, upon the expiration of this Bill, the provision may or may not be continued. If the floodgates are unleashed on the Courts of Appeal, there may very well be a powerful judicial lobby against the continuation of this provision in future Appropriation Bills. Therefore, the provision should be carefully utilized.

There is one additional clause to the appeal provision. Beginning on September 13, 1996, if the BRB fails to issue a decision within one year, the petitioner has a choice. Thirty days before the one year date, the Petitioner can elect to provide the BRB with sixty additional days to decide on the matter. If the petitioner fails to elect this option, within one year of the filing of the appeal, the ALJ decision is affirmed and an appeal to the Court of Appeals must be filed within sixty days. If the Petitioner provides the BRB with sixty additional days and still fails to receive a decision, the case is affirmed and an appeal must be made within sixty days of the date one year and sixty days from the original date of filing.

The Appropriations Bill also limits the District Directors' ability to file appeals as a champion of the Claimant's cause.

Recently, the Supreme Court held that the District Director was not a "person adversely affected or aggrieved" within the meaning of the LHWCA. As a result, the District Director lacks standing to appeal a matter to the BRB. Director, Office of Workers' Compensation v. Newport News Shipbuilding and Dry Dock Company, et al., 115 S.Ct. 1278 (1995).

Despite their lack of standing, the District Directors of certain jurisdictions have continued to file appeals to the BRB as a demonstration of their disdain for the Supreme Court decision. The Appropriations Bill specifically states: "That no funds made available by this Act may be used by the Solicitor of Labor to participate in a review in any United States court of appeals of any decision made by the Benefits Review Board under Section 21 of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 921) where such participation is precluded by the decision of the United States Supreme Court in Director, Office of Workers' Compensation v. Newport News Shipbuilding and Dry Dock Company, et al., 115 S.Ct. 1278 (1995)." Hopefully, this will limit the filing of appeals by District Directors.

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