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LONGSHORE & HARBOR WORKERS' COMPENSATION ACT
DEFENSE ISSUES

By: Lawrence P. Postol, Esquire
© 1997 Lawrence P. Postol
"A step by step procedural guide to the Longshore & Harbor Workers' Compensation Act. For beginners and defense experts alike. Find out if you are ready to controvert...."
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LONGSHORE & HARBOR WORKERS' COMPENSATION ACT
DEFENSE ISSUES
I HISTORY OF LONGSHORE ACT : Return to Top : Exit Article
 
A. 1927 Enactment - Coverage Where State Jurisdiction Did Not Go
B. 1972 Amendments - Employers Gave Away The Store To Avoid Indemnification Civil Lawsuits
C. 1984 Amendments - Primarily Employer Amendments, e.g. Eliminate Unrelated Death Benefits And COLA Cap, But 8(f) User Formula And Occupational Disease Coverage For Retirees Added
   
II CAUSATION : Return to Top : Exit Article
 
A. Arising Out Of And In The Course Of Employment
B. The Presumption And Rebutting It
 
1. Physical Or Mental Harm
2. Which Work Could Have Caused
3. Rebut Presumption By Evidence A Fact Finder Might Believe That Either No Harm, Or Work Did Not Cause It; Usually Doctor's Opinion Based On Correct Facts
4. Presumption Drops Out Of The Case After It Is Rebutted
5. No True Doubt Rule; If Rebut Presumption, Then Burden of Proof On Claimant
C. Aggravation Rule
 
1. Argue Aggravation Was Temporary
D. Occupational Diseases
 
1. Epidemiology
2. Diagnosis
3. Section 8(c)(23) - Coverage Of Retirees
4. Last Maritime (?) Employer Rule
E. Heart Attacks
 
1. Acute Physical or Emotional Stress Within Eight Hours Before Heart Attack
2. Good Experts Are Needed
3. Challenge When Heart Attack Occurred And Allegation Of Significant Physical or Emotional Stress. Physical Stress Is Not Significant If The Worker Was Used To It
F. Other Causes Of Traumatic Injuries; Look For
 
1. Car Accidents
2. Family Disputes
3. Late Notice
4. Examine All Medical and Insurance Records
5. Health Insurance Forms Marked Box 10 - Not Work-Related
G. Intervening Cause
 
III PROCEDURAL ISSUES : Return to Top : Exit Article
 
A. Jurisdiction
 
1. Situs - Washington Avenue Essentially The Dividing Line (Fourth Circuit Ruling Is Before The Supreme Court)
2. Status - Not Exclusively Clerical Or Security
3. Going And Coming Rule
4. Parking Lot Cases
B. Timeliness Of Claim
 
1. Workers' Knowledge Of Work Related Disability Starts The Limitations Period: 1 Year For Injuries And 2 Years For Occupational Diseases (Preserve Argument Injury Is The Key, Not Disability)
2. Misdiagnosis - Tolls Statute of Limitation
3. Misprognosis - Tolls Statute of Limitation
4. First Report Of Injury (Form LS-202) Must Have Been Filed If And Only When Employer Has Knowledge Of Work-Related Injury And There Is A Missed Work Shift
5. Medical Report Of Permanency May Be A Claim
6. Claimant May Need To Have Known Disability Is Permanent
7. OWCP Documentation Of Oral Claim Is Enough
8. Merger & Bar/Res Judicata Argument
C. Timeliness Of Notice
 
1. Written Notice Within 30 Days Of Injury And 1 Year of Disease Is Enough
2. Must Show Prejudice Due To Untimely Notice, e.g. Inability For Timely Investigation Or Timely Medical Examination
3. Oral Notice To Anyone, e.g. Foreman, Health Clinic May Be Sufficient Since It Makes It Very Difficult To Show Prejudice (Timely Medical Or Accident Evaluation Prevented)
D. Average Weekly Wage
 
1. 10(a) - Whole (Large Part Of) Year Worked
2. 10(b) - Comparable Employee
3. 10(c) - Whatever Is Reasonable; Only If 10(a) and 10(b) Unavailable
E. LS-200
 
1. Copy Both Sides And Direct Claimant To Read The Back Sides; Note 30 Day Due Date
2. Cover Time Period Back To Date Of Injury
3. Possibly Only Enforceable If Paying Compensation
F. Section 22 - Change Of Condition Or Mistake Of Fact
 
1. Physical/Mental Or Economic Change
2. Mistake Of Fact; Modification Must Be In The Interests Of Justice
3. May Not Apply To Economic Layoff
G. Section 33
 
1. Veto Right Over Settlement
2. Lien And Credit (Subrogation Right)
3. Employer Can Sue Six Months After Compensation Order, For 90 Days
H. Sections 26 and 31
 
1. Frivolous Claims
2. Misrepresentations
   
IV EXTENT OF DISABILITY : Return to Top : Exit Article
 
A. Scheduled Disabilities
 
1. Use IME To Test Rating From Treating Physician
2. Use OWCP IME (Selected By District Director) To Resolve Dispute
3. Agree To Be Bound By IME Selected By District Director To Avoid Attorney Fees (Argue Mere Offer Is Enough)
B. Nonscheduled Partial Disabilities
 
1. Reduction In Hours Worked Or Pay Rate With Employer Due To Restrictions Or Job Change Due To Restrictions
2. Residual Wage Earning Capacity Based On Labor Market Survey
 
a. Obtain Medical Opinions As To Work Restrictions
b. Utilize Vocational Expert For Labor Market Survey
c. Geographic Area For Labor Market Survey: Where Claimant Lives And Can Reasonably Travel To, Subject To Work Restrictions
C. Vocational Evidence
 
1. Identify Work Restrictions. Use Alternative Restrictions If Needed -- Two Labor Market Surveys
2. Counselor Should Interview And Test Worker
3. Ask Treating Physician To Approve Accurate Job Descriptions
4. Contact Prospective Employers And Accurately Describe Claimant Age, Work History, Injury, Work Restrictions (What Claimant Says vs. What Judge Believes). Ask If Claimant Is A Suitable Candidate. If Possible, Visit Job Site
5. Identify Many Openings (5 Each) For Several Different Job Types (At Least 4), Including Self-Service Gas Station Cashier
6. Can Go Back In Time -- Old Newspaper Classified. Current Advertisers -- Ask When Hired In Past. Create A Credit; Something For The Claimant To Lose By Going To Trial
7. Discovery
 
INTERROGATORY NO. 1:
Please identify your education, whether you can read and write, and whether you can count and make change. Please identify any non-physical reason which would prevent you from working as a motel desk clerk, security guard, cashier, or telephone sales.
INTERROGATORY NO. 2:
Please identify any efforts you have made to find other employment since you last worked at the Employer and identify all supporting documentation. Please list all employment you considered apply for, or did apply for, the wages, hours (full-time vs. part-time), job title, job duties, whether you were physically qualified for the job, whether you were vocationally qualified for the job, and what the employer told you in response to any inquiry or job application.
8. Deposition Of Claimant
 
a. Did He Look Through Want Ads. Use Yesterday's Ads As Example Of Available Jobs.
b. Can He Do Jobs Vocational Expert Identified, And If Not, Why Not.
c. Beware Of Claimant Applying With Employers Who Are Not Advertising Job Openings.
d. Locate Five Jobs Day Before Trial
9. Claimant's Evidence Of Vigorous Job Search
 
a. Call Employers
b. Look For Sabotage
c. Possibly Offer Vocational Expert's Assistance And Have Him Attend Interviews
10. Total Disability While Undergoing DOL Vocational Rehabilitation Training
 
a. Compare Abbott v. Louisiana Ins. Guaranty Assoc., 27 B.R.B.S. 192 (1993) with Anderson v. Lockheed Shipbuilding and Const. Co., 28 B.R.B.S. 290, 295 (1995)
b. Use of Section 8(i) Agreement With Weekly Payments.
11. Watch Out For Transportation Problems - Argue For Use Of Buses And Cabs
D. Total Disabilities - Not Working (Or Working In Excruciating Pain Or Sheltered Employment) And No Jobs Available Which The Claimant Can Perform. Not If,
 
1. Jobs With Employer Offered To Claimant
2. Labor Market Survey Show Jobs
E. Second Injury Fund Relief
 
1. Need Timely Application When Permanency Becomes An Issue
2. Pre-Existing Permanent Disability
 
a. Cautious Employer Would Not Hire Employee
b. Includes Chronic Conditions
c. Pre-existing Permanent Disability Need Not Be Formally Diagnosed
3. Judicially Created Manifestation Requirement (Not For Occupational Disease Retirees)
4. Pre-existing Disability Must Substantially Contribute To Disability Or Death, Or Hasten Same
5. Aggravation As Second Injury (Check AWW Effect)
6. Consider That You Select Evidence, And Solicitor May Not Submit Evidence
7. May Need Vocational Expert Report For Partial Disabilities
8. Effect Of User Formula
F. Section 49 - Retaliation (Click here for a Related Article on Section 49)
 
1. Discriminatory Treatment: Claimant Must Be Treated Worse Than Someone With Nonwork-Related Medical Condition, i.e., A Personal Injury Or Illness
2. Animus Is Required (Because of Workers' Compensation Claim) - Can Be Inferred
3. Holliman, Hunt, Brooks Fourth Circuit Cases
   
V WINNING CASES: FACTUAL ISSUES : Return to Top : Exit Article
 
A. What Is Fair And Just?
 
1. Make The Judge Want To Rule In Your Favor
2. Give The Judge The Tools (Evidence and Law) To Rule In Your Favor
B. Credibility
 
1. Claimant
 
a. Deposition To Lock Him In and Impeach Him On Everything And Anything
b. Interrogatories To Uncover All Facts And Records. Subpoena All Medicals And Recent Prior Employers
2. Employer - Foreman And Co-Workers Must Be Candid And Honest
3. Lawyer
C. Weight Of Medical Evidence
 
1. Number of Doctors
2. Independence
3. Expertise - Board Certified And Medical School Affiliation
4. Completeness Of Information Which Doctor Relied Upon: All Records, Test Results And Medical Literature
5. Physicians' Reasoning Should Be Explained
6. Write Treating Doctors With All Medical Records, Surveillance Film, And Your Doctor's Opinion - Possibly Send Video Of Job Duties
7. Minimum Wage Jobs Are Sufficient In PEPCO Cases
8. Attack Claimant's Expert's Opinion If He Relied Upon Subjective Complaints And Claimant Is Discredited
D. Surveillance
 
1. Yes, Yes, Yes
E. Attorney Fees
 
1. None Before Claim And Notice Of Controversion Or 30 Days
2. Possibly None If District Director Recommendation Is Accepted
3. Offer To Be Bound By IME Selected By District Director
4. Written Offer Of Settlement Terminates Fees If Claimant Does No Better At Hearing: Armor Offer
5. No Fee For Time Spent On Issues Claimant Lost
6. Fee Not Payable During Appeal; But Hourly Rate May Increase
   
VI SPECIFIC CASES : Return to Top : Exit Article
 
A. PEPCO Cases - Hands, Arms, Legs, Feet, Knees (Not Shoulders)
 
1. Show Any Jobs After Permanency Reached; Wage Irrelevant Except For State Claim
2. No State Claims For Repetitive Trauma
3. Ten Year Limit For State Claims
4. Duty To Market Wage Earning Capacity Under State Act
B. Back
 
1. Get The Claimant Back To Work At Employer's Facility If At All Possible
2. Use IME And Surveillance
C. Psychological Claims
 
1. Surveillance: Observation - Consistency
2. Interview Neighbors
3. IME Early And Often
D. Multiple Injuries
 
1. Treat Each Injury On Its Own
2. Employer Should Request Section 22 On Earlier Injury
E. MMI - Maximum Medical Improvement
 
1. Time For Complete File Review And Medical Evaluation
   
VII MEDICAL CARE : Return to Top : Exit Article
 
A. Medical Care
 
1. Claimant Is Entitled To One Free Choice Of Physician
2. You Can Doctor Steer
3. District Director Can And Usually Will Authorize Second Opinion (Press For Reasonable Doctor)
4. Employer Can Select CAT, MRI, Physical Therapy, Etc. Providers
5. Employer Has A Right To IME
6. Can Ask District Director To Select His Own IME
7. District Director Supervises Medical Care
B. Questionable Surgery
 
1. IME Before Surgery
2. Involve District Director
C. Chiropractors Limited To Manipulation Of Spine To Correct Subluxation
D. Pain Clinics - Get Treating Doctor To Absolutely Agree To Maximum Number Of Visits Needed, Before You Authorize Care
   

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Last updated on Monday Nov 01, 1999 at 10:55 PM Relax!