Longshore and Harbor Workers’ Compensation Act Amendments of 1984

PUBLIC LAW 98-426—SEPT. 28, 1984 98 STAT. 1639
Public Law 98-426
98th Congress
An Act
[S. 38]
Longshore and
Harbor Workers'
Compensation
Act
Amendments of
1984.
33 use 901 note.
33 use 901.
33 use 902. Entitled the "Longshore and Harbor Workers' Compensation Act Amendments of Sept. 28, 1984
1984".
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That (a) this Act
may be cited as the "Longshore and Harbor Workers' Compensation
Act Amendments of 1984".
(b) Except as otherwise specifically provided, whenever in this Act
an amendment or repeal is expressed in terms of an amendment to,
or repeal of, a section or other provision, the reference shall be
considered to be made to a section or other provision of the Long­
shoremen's and Harbor Workers' Compensation Act.
DEFINITIONS
SEC. 2. (a) Section 2(3) is amended to read as follows:
"(3) The term 'employee' means any person engaged in maritime
employment, including any longshoreman or other person engaged
in longshoring operations, and any harbor-worker including a ship
repairman, shipbuilder, and ship-breaker, but such term does not
include—
"(A) individuals employed exclusively to perform office cleri­
cal, secretarial, security, or data processing work;
"(B) individuals employed by a club, camp, recreational oper­
ation, restaurant, museum, or retail outlet;
"(C) individuals employed by a marina and who are not
engaged in construction, replacement, or expansion of such
marina (except for routine maintenance);
"(D) individuals who (i) are employed by suppliers, transport­
ers, or vendors, (ii) are temporarily doing business on the prem­
ises of an employer described in paragraph (4), and (iii) are not
engaged in work normally performed by employees of that
employer under this Act;
"(E) aquaculture workers;
"(F) individuals employed to build, repair, or dismantle any
recreational vessel under sixty-five feet in length;
"(G) a master or member of a crew of any vessel; or
"(H) any person engaged by a master to load or unload or
repair any small vessel under eighteen tons net;
if individuals described in clauses (A) through (F) are subject to
coverage under a State workers' compensation law.".
(b) Section 2(10) is amended by inserting before the period at the
end thereof the following: "; but such term shall mean permanent
impairment, determined (to the extent covered thereby) under the
guides to the evaluation of permanent impairment promulgated and
modified from time to time by the American Medical Association, in
the case of an individual whose claim is described in section
10(dX2)". Post, p. 1647.
(c) Section 2(13) is amended to read as follows: 98 STAT. 1640 PUBLIC LAW 98-426—SEPT. 28, 1984
"(13) The term 'wages' means the money rate at which the service
rendered by an employee is compensated by an employer under the
contract of hiring in force at the time of the injury, including the
reasonable value of any advantage which is received from the
employer and included for purposes of any withholding of tax under
26 use 3101. subtitle C of the Internal Revenue Code of 1954 (relating to employ­
ment taxes). The term wages does not include fringe benefits, includ­
ing (but not limited to) employer payments for or contributions to a
retirement, pension, health and welfare, life insurance, training,
social security or other employee or dependent benefit plan for the
employee's or dependent's benefit, or any other employee's depend­
ent entitlement.".
COVERAGE
33 use 903. SEC. 3. (a) Section 3 is amended to read as follows:
"COVERAGE
"SEC. 3. (a) Except as otherwise provided in this section, compensa­
tion shall be payable under this Act in respect of disability or death
of an employee, but only if the disability or death results from an
injury occurring upon the navigable waters of the United States
(including any adjoining pier, wharf, dry dock, terminal, building
way, marine railway, or other adjoining area customarily used by an
employer in loading, unloading, repairing, dismantling, or building
a vessel).
"(b) No compensation shall be payable in respect of the disability
or death of an officer or employee of the United States, or any
agency thereof, or of any State or foreign government, or any
subdivision thereof.
"(c) No compensation shall be payable if the injury was occasioned
solely by the intoxication of the employee or by the willful intention
of the employee to injure or kill himself or another.
"(d)(1) No compensation shall be payable to an employee employed
at a facility of an employer if, as certified by the Secretary, the
facility is engaged in the business of building, repairing, or disman­
tling exclusively small vessels (as defined in paragraph (3) of this
subsection), unless the injury occurs while upon the navigable
waters of the United States or while upon any adjoining pier, wharf,
dock, facility over land for launching vessels, or facility over land for
hauling, lifting, or drydocking vessels.
"(2) Notwithstanding paragraph (1), compensation shall be pay­
able to an employee—
"(A) who is employed at a facility which is used in the
business of building, repairing, or dismantling small vessels if
such facility receives Federal maritime subsidies; or
"(B) if the employee is not subject to coverage under a State
workers' compensation law.
"(3) For purposes of this subsection, a small vessel means—
"(A) a commercial barge which is under 900 lightship dis­
placement tons; or
"(B) a commercial tugboat, towboat, crew boat, supply boat,
fishing vessel, or other work vessel which is under 1,600 tons
gross.",
(b) Section 3 is further amended by adding at the end thereof the
following: PUBLIC LAW 98-426—SEPT. 28, 1984 98 STAT. 1641
"(e) Notwithstanding any other provision of law, any amounts
paid to an employee for the same injury, disability, or death for
which benefits are claimed under this Act pursuant to any other
workers' compensation law or section 20 of the Act of March 4, 1915
(38 Stat. 1185, chapter 153; 46 U.S.C. 688) (relating to recovery for
injury to or death of seamen) shall be credited against any liability
imposed by this Act.".
LIABILITY FOR COMPENSATION
SEC. 4. (a) Section 4(a) is amended to read as follows: 33 use 904.
"SEC. 4. (a) Every employer shall be liable for and shall secure the
payment to his employees of the compensation payable under sec­
tions 7, 8, and 9. In the case of an employer who is a subcontractor, 33 USC 907-909.
only if such subcontractor fails to secure the payment of compensa­
tion shall the contractor be liable for and be required to secure the
payment of compensation. A subcontractor shall not be deemed to
have failed to secure the payment of compensation if the contractor
has provided insurance for such compensation for the benefit of the
subcontractor.".
(b) Section 5(a) is amended by adding at the end thereof the 33 USC 905.
following new sentence: "For purposes of this subsection, a contrac­
tor shall be deemed the employer of a subcontractor's employees
only if the subcontractor fails to secure the payment of compensa­
tion as required by section 4,".
THIRD PARTY LIABILITY
SEC. 5. (a)(1) The third sentence of section 5(b) is amended to read 33 use 905.
as follows: "If such person was employed to provide shipbuilding,
repairing, or breaking services and such person's employer was the
owner, owner pro hac vice, agent, operator, or charterer of the
vessel, no such action shall be permitted, in whole or in part or
directly or indirectly, against the injured person's employer (in any
capacity, including as the vessel's owner, owner pro hac vice, agent,
operator, or charterer) or against the employees of the employer.".
(2) Section 2(21) is amended by striking out "The" and inserting in 33 use 902.
lieu thereof "Unless the context requires otherwise, the".
(b) Section 5 is amended by adding at the end thereof the following Supra.
new subsection:
"(c) In the event that the negligence of a vessel causes injury to a
person entitled to receive benefits under this Act by virtue of section
4 of the Outer Continental Shelf Lands Act (43 U.S.C. 1333), then
such person, or anyone otherwise entitled to recover damages by
reason thereof, may bring an action against such vessel in accord­
ance with the provisions of subsection (b) of this section. Nothing
contained in subsection (b) of this section shall preclude the enforce­
ment according to its terms of any reciprocal indemnity provision
whereby the employer of a person entitled to receive benefits under
this Act by virtue of section 4 of the Outer Continental Shelf Lands
Act (43 U.S.C. 1333) and the vessel agree to defend and indemnify
the other for cost of defense and loss or liability for damages arising
out of or resulting from death or bodily injury to their employees.".
COMPENSATION
SEC. 6. (a) Section 6(b)(1) is amended to read as follows: 33 use 906.
31-194 – 0 – 86 – 16 : QL. 3 Part 2 98 STAT. 1642 PUBLIC LAW 98-426—SEPT. 28, 1984
"(b)(1) Compensation for disability or death (other than compensa­
tion for death required by this Act to be paid in a lump sum) shall
not exceed an amount equal to 200 per centum of the applicable
national average weekly wage, as determined by the Secretary
under paragraph (3).".
33 use 906. (b) Section 6 is amended—
(1) by striking out subsection (c) and redesignating subsection
(d) as subsection (c); and
(2) by striking out "under this subsection" in subsection (c) (as
redesignated) and inserting in lieu thereof "under subsection
(b)(3)".
MEDICAL SERVICES AND SUPPUES
33 use 907. SEC. 7. (a) The third sentence of section 7(b) is amended by
inserting before the period the following: "or where the charges
exceed those prevailing within the community for the same or
similar services or exceed the provider's customary charges",
(b) Section 7(c) is amended to read as follows:
"(cXl)(A) The Secretary shall annually prepare a list of physicians
and health care providers in each compensation district who are not
authorized to render medical care or provide medical services under
this Act. The names of physicians and health care providers con­
tained on the list required under this subparagraph shall be made
available to employees and employers in each compensation district
through posting and in such otner forms as the Secretary may
prescribe.
"(B) Physicians and health care providers shall be included on the
list of those not authorized to provide medical care and medical
services pursuant to subparagraph (A) when the Secretary deter­
mines under this section, in accordance with the procedures pro­
vided in subsection (j), that such physician or health care provider—
"(i) has knowingly and willfully made, or caused to be made,
any false statement or misrepresentation of a material fact for
use in a claim for compensation or claim for reimbursement of
medical expenses under this Act;
"(ii) has knowingly and willfully submitted, or caused to be
submitted, a bill or request for pa5mient under this Act contain­
ing a charge which the Secretary finds to be substantially in
excess of the charge for the service, appliance, or supply prevail­
ing within the community or in excess of the provider's custom­
ary charges, unless the Secretary finds there is good cause for
the bill or request containing the charge;
"(iii) has knowingly and willfully furnished a service, appli­
ance, or supply which is determined by the Secretary to be
substantially in excess of the need of the recipient thereof or to
be of a quality which substantially fails to meet professionally
recognized standards;
"(iv) has been convicted under any criminal statute (without
regard to pending appeal thereof) for fraudulent activities in
connection with any Federal or State program for which pay­
ments are made to physicians or providers of similar services,
appliances, or supplies; or
(v) has otherwise been excluded from participation in such
program.
"(C) Medical services provided by physicians or health care provid­
ers who are named on the list published by the Secretary pursuant
to subparagraph (A) of this section shall not be reimbursable under PUBLIC LAW 98-426—SEPT. 28, 1984 98 STAT. 1643
this Act; except that the Secretary shall direct the reimbursement of
medical claims for services rendered by such physicians or health
care providers in cases where the services were rendered in an
emergency.
"(D) A determination under subparagraph (B) shall remain in Public
effect for a period of not less than three years and until the information.
Secretary finds and gives notice to the public that there is reasona­
ble assurance that the basis for the determination will not reoccur.
"(E) A provider of a service, appliance, or supply shall provide to
the Secretary such information and certification as the Secretary
may require to assure that this subsection is enforced.
"(2) Whenever the employer or carrier acquires knowledge of the
employee's injury, through written notice or otherwise as prescribed
by the Act, the employer or carrier shall forthwith authorize medi­
cal treatment and care from a physician selected by an employee
pursuant to subsection (b). An employee may not select a physician
who is on the list required by paragraph (1) of this subsection. An
employee may not change physicians after his initial choice unless
the employer, carrier, or deputy commissioner has given prior con­
sent for such change. Such consent shall be given in cases where an
employee's initial choice was not of a specialist whose services are
necessary for and appropriate to the proper care and treatment of
the compensable injury or disease. In all other cases, consent may be
given upon a showing of good cause for change.".
(c) Section 7(d) is amended to read as follows: 33 use 907.
"(d)(1) An employee shall not be entitled to recover any amount
expended by him for medical or other treatment or services unless—
"(A) the employer shall have refused or neglected a request to
furnish such services and the employee has complied with
subsections (b) and (c) and the applicable regulations; or
"(B) the nature of the injury required such treatment and
services and the employer or his superintendent or foreman
having knowledge of such injury shall have neglected to provide
or authorize same.
"(2) No claim for medical or surgical treatment shall be valid and Report.
enforceable against such employer unless, within ten days following
the first treatment, the physician giving such treatment furnishes to
the employer and the deputy commissioner a report of such injury
or treatment, on a form prescribed by the Secretary. The Secretary
may excuse the failure to furnish such report within the ten-day
period whenever he finds it to be in the interest of justice to do so.
"(3) The Secretary may, upon application by a party in interest,
make an award for the reasonable value of such medical or surgical
treatment so obtained by the employee.
"(4) If at any time the employee unreasonably refuses to submit to
medical or surgical treatment, or to an examination by a physician
selected by the employer, the Secretary or administrative law judge
may, by order, suspend the payment of further compensation during
such time as such refusal continues, and no compensation shall be
paid at any time during the period of such suspension, unless the
circumstances justified the refusal.".
(d) Section 7 is amended by adding at the end thereof the following
new subsection:
"OXD The Secretary shall have the authority to make rules and
regulations and to establish procedures, not inconsistent with the
provisions of this Act, which are necessary or appropriate to carry
out the provisions of subsection (c), including the nature and extent 98 STAT. 1644 PUBLIC LAW 98-426—SEPT. 28, 1984
of the proof and evidence necessary for actions under this section
and the methods of taking and furnishing such proof and evidence.
"(2) Any decision to take action with respect to a physician or
health care provider under this section shall be based on specific
findings of fact by the Secretary. The Secretary shall provide notice
of these findings and an opportunity for a hearing pursuant to
section 556 of title 5, United States Code, for a provider who would
be affected by a decision under this section. A request for a hearing
must be filed with the Secretary within thirty days after notice of
the findings is received by the provider making such request. If a
hearing is held, the Secretary shall, on the basis of evidence adduced
at the hearing, affirm, modify, or reverse the findings of fact and
proposed action under this section.
"(3) For the purpose of any hearing, investigation, or other pro­
ceeding authorized or directed under this section, the provisions of
section 9 and 10 (relating to the attendance of witnesses and the
production of books, papers, and documents) of the Federal Trade
Commission Act (15 U.S.C. 49, 50) shall apply to the jurisdiction,
powers, and duties of the Secretary or any officer designated by him.
"(4) Any physician or health care provider, after any final decision
of the Secretary made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review of
such decision by a civil action commenced within sixty days after
the mailing to him of notice of such decision, but the pendency of
such review shall not operate as a stay upon the effect of such
decision. Such action shall be brought in the court of appeals of the
United States for the judicial circuit in which the plaintiff resides or
has his principal place of business, or the Court of Appeals for the
District of Columbia. As part of his answer, the Secretary shall file a
certified copy of the transcript of the record of the hearing, includ­
ing all evidence submitted in connection therewith. The findings of
fact of the Secretary, if based on substantial evidence in the record
as a whole, shall be conclusive.".
Ante, p. 1643. (e) Section 7 is further amended by adding at the end thereof the
following new subsection:
"(k)(l) Nothing in this Act prevents an employee whose injury or
disability hsis been established under this Act from relying in good
faith on treatment by prayer or spiritual means alone, in accordance
with the tenets and practice of a recognized church or religious
denomination, by an accredited practitioner of such recognized
church or religious denomination, and on nursing services rendered
in accordance with such tenets and practice, without suffering loss
or diminution of the compensation or benefits under this Act.
Nothing in this subsection shall be construed to except an employee
from all physical examinations required by this Act.
"(2) If an employee refuses to submit to medical or surgical
services solely because, in adherence to the tenets and practice of a
recognized church or religious denomination, the employee relies
upon prayer or spiritual means alone for healing, such employee
shall not be considered to have unreasonably refused medical or
surgical treatment under subsection (d).".
COMPENSATION FOR DISABILITY
Claims. SEC. 8. (a) Section 8(c)(13) is amended to read as follows:
33 use 908. "(13) Loss of hearing: PUBLIC LAW 98-426—SEPT. 28, 1984 98 STAT. 1645
"(A) Compensation for loss of hearing in one ear, fifty-two
weeks.
"(B) Compensation for loss of hearing in both ears, two-
hundred weeks.
"(C) An audiogram shall be presumptive evidence of the
amount of hearing loss sustained as of the date thereof, only if
(i) such audiogram was administered by a licensed or certified
audiologist or a physician who is certified in otolaryngology, (ii)
such audiogram, with the report thereon, was provided to the
employee at the time it was administered, and (iii) no contrary
audiogram made at that time is produced.
"(D) The time for filing a notice of injury, under section 12 of Post, p. 1648.
this Act, or a claim for compensation, under section 13 of this 33 USC 913.
Act, shall not begin to run in connection with any claim for loss
of hearing under this section, until the employee has received
an audiogram, with the accompanying report thereon, which
indicates that the employee has suffered a loss of hearing.
"(E) Determinations of loss of hearing shall be made in
accordance with the guides for the evaluation of permanent
impairment as promulgated and modified from time to time by
the American Medical Association.",
(b) Section 8(c)(20) is amended by striking out "$3,500" and insert- 33 USC 908.
ing in lieu thereof "$7,500".
(c)(1) Section 8(c)(21) is amended to read as follows:
"(21) Other cases: In all other cases in the class of disability, the
compensation shall be 66% per centum of the difference between
the average weekly wages of the employee and the employee's wage-
earning capacity thereafter in the same employment or otherwise,
payable during the continuance of partial disability.".
(2) Section 8(c) is further amended by adding at the end thereof
the following new paragraph:
"(23) Notwithstanding paragraphs (1) through (22), with respect to
a claim for permanent partial disability for which the average
weekly wages are determined under section 10(d)(2), the compensa- Post, p. 1647.
tion shall be 66% per centum of such average weekly wages
multiplied by the percentage of permanent impairment, as deter­
mined under the guides referred to in section 2(10), payable during Ante, p. 1639.
the continuance of such impairment.".
(d) Section 8(d) is amended by striking out paragraph (3) and
redesignating paragraph (4) as paragraph (3).
(e) Section 8(f) is amended—
(1) by inserting before the period at the end of the second and
fourth sentences of paragraph (1) the following: ", except that,
in the case of an injury falling within the provisions of section
8(c)(13), the employer shall provide compensation for the lesser
of such periods ,
(2) by inserting "(A)" after "(2)" in paragraph (2);
(3) by inserting before the period at the end of such paragraph
the following: ", except that the special fund shall not assume
responsibility with respect to such benefits (and such payments
shall not be subject to cessation) in the case of any employer
who fails to comply with section 32(a)"; 33 USC 932.
(4) by adding at the end of paragraph (2) the following new
subparagraph:
"(B) After cessation of payments for the period of weeks provided
for in this subsection, the employer or carrier responsible for pay­
ment of compensation shall remain a party to the claim, retain 98 STAT. 1646 PUBLIC LAW 98-426—SEPT. 28, 1984
access to all records relating to the claim, and in all other respects
retain all rights granted under this Act prior to cessation of such
payments."; and
(5) by adding at the end thereof the following new paragraph:
"(3) Any request, filed after the date of enactment of the Long-
Ante, p. 1639. shore and Harbor Workers' Compensation Amendments of 1984, for
apportionment of liability to the special fund established under
33 use 944. section 44 of this Act for the payment of compensation benefits, and
a statement of the grounds therefore, shall be presented to the
deputy commissioner prior to the consideration of the claim by the
deputy commissioner. Failure to present such request prior to such
consideration shall be an absolute defense to the special fund's
liability for the payment of any benefits in connection with such
claim, unless the employer could not have reasonably anticipated
the liability of the special fund prior to the issuance of a compensa­
tion order.'.
33 use 908. (f) Subsection (i) of section 8 is amended to read as follows:
"(i)(l) Whenever the parties to any claim for compensation under
this Act, including survivors benefits, agree to a settlement, the
deputy commissioner or administrative law judge shall approve the
settlement within thirty days unless it is found to be inadequate or
procured by duress. Such settlement may include future medical
benefits if the parties so agree. No liability of any employer, carrier,
or both for medical, disability, or death benefits shall be discharged
unless the application for settlement is approved by the deputy
commissioner or administrative law judge. If the parties to the
settlement are represented by counsel, then agreements shall be
deemed approved unless specifically disapproved within thirty days
after submission for approval.
"(2) If the deputy commissioner disapproves an application for
settlement under paragraph (1), the deputy commissioner shall issue
a written statement within thirty days containing the reasons for
disapproval. Any party to the settlement may request a hearing
before an administrative law judge in the manner prescribed by this
Act. Following such hearing, the administrative law judge shall
enter an order approving or rejecting the settlement.
"(3) A settlement approved under this section shall discharge the
liability of the employer or carrier, or both. Settlements may be
agreed upon at any stage of the proceeding including after entry of a
final compensation order.".
(g) Such subsection (i) is further amended by adding at the end
thereof the following new paragraph:
"(4) The special fund shall not be liable for reimbursement of any
sums paid or payable to an employee or any beneficiary under such
settlement, or otherwise voluntarily paid prior to such settlement by
the employer or carrier, or both.".
(h) Section 8 is amended by adding at the end thereof the follow­
ing new subsection:
(jXD The employer may inform a disabled employee of his obliga­
tion to report to the employer not less than semiannually any
earnings from employment or self-employment, on such forms as the
Secretary shall specify in regulations.
"(2) An employee who—
"(A) fails to report the employee's earnings under paragraph
(1) when requested, or
"(B) knowingly and willfully omits or understates any part of
such earnings. PUBLIC LAW 98-426—SEPT. 28, 1984 98 STAT. 1647
and who is determined by the deputy commissioner to have violated
clause (A) or (B) of this paragraph, forfeits his right to compensation
with respect to any period during which the employee was required
to file such report.
"(3) Compensation forfeited under this subsection, if already paid,
shall be recovered by a deduction from the compensation payable to
the employee in any amount and on such schedule as determined by
the deputy commissioner.".
COMPENSATION FOR DEATH
SEC. 9. (a) The matter preceding subsection (a) of section 9 is 33 use 909.
amended to read as follows:
"SEC. 9. If the injury causes death, the compensation therefore
shall be known as a death benefit and shall be payable in the
amount and to or for the benefit of the persons following:".
(b) Section 9(a) is amended by striking out "$1,000" and inserting
in lieu thereof "$3,000".
(c) Section 9(e) is amended to read as follows:
"(e) In computing death benefits, the average weekly wages of the
deceased shall not be less than the national average weekly wage as
prescribed in section 6(b), but— 33 use 906.
"(1) the total weekly benefits shall not exceed the lesser of the
average weekly wages of the deceased or the benefit which the
deceased employee would have been eligible to receive under
section 6(b)(1); and Ante, p. 1641.
"(2) in the case of a claim based on death due to an occupa­
tional disease for which the time of injury (as determined under
section 10(i)) occurs after the employee has retired, the total Infra.
weekly benefits shall not exceed one fifty-second part of the
employee's average annual earnings during the 52-week period
preceding retirement.".
DETERMINATION OF PAY
SEC. 10. (a)(1) Section 10(d) is amended by inserting "(1)" after 33 use 9io.
"(d)" and by adding at the end thereof the following:
"(2) Notwithstanding paragraph (1), with respect to any claim
based on a death or disability due to an occupational disease for
which the time of injury (as determined under subsection (i))
occurs—
"(A) within the first year after the employee has retired, the
average weekly wages shall be one fifty-second part of his
average annual earnings during the 52-week period preceding
retirement; or
"(B) more than one year after the employee has retired, the
average weekly wage shall be deemed to be the national average
weekly wage (as determined by the Secretary pursuant to sec­
tion 6(b)) applicable at the time of the injury.". 33 use 906.
(2) Section 10 is further amended by adding at the end thereof the
following new subsection:
"(i) For purposes of this section with respect to a claim for
compensation for death or disability due to an occupational disease
which does not immediately result in death or disability, the time of
injury shall be deemed to be the date on which the employee or
claimant becomes aware, or in the exercise of reasonable diligence
or by reason of medical advice should have been aware, of the 98 STAT. 1648 PUBLIC LAW 98-426—SEPT. 28, 1984
relationship between the employment, the disease, and the death or
disability.".
33 use 910. (b) Section 10(f) is amended to read as follows:
Effective date. "(f) Effective October 1 of each year, the compensation or death
benefits payable for permanent total disability or death arising out
of injuries subject to this Act shall be increased by the lesser of^
"(1) a percentage equal to the percentage (if any) by which the
applicable national weekly wage for the period beginning on
33 use 906. such October 1, as determined under section 6(b), exceeds the
applicable national average weekly wage, as so determined, for
the period beginning with the preceding October 1; or
"(2) 5 per centum.".
NOTICE OF INJURY OR DEATH
33 use 912. SEC. 11. (a) Section 12(a) is amended to read as follows:
"SEC. 12. (a) Notice of an injury or death in respect of which
compensation is payable under this Act shall be given within thirty
days after the date of such injury or death, or thirty days after the
employee or beneficiary is aware, or in the exercise of reasonable
diligence or by reason of medical advice should have been aware, of
a relationship between the injury or death and the employment,
except that in the case of an occupational disease which does not
immediately result in a disability or death, such notice shall be
given within one year after the employee or claimant becomes
aware, or in the exercise of reasonable diligence or by reason of
medical advice should have been aware, of the relationship between
the employment, the disease, and the death or disability. Notice
shall be given (1) to the deputy commissioner in the compensation
district in which the injury or death occurred, and (2) to the
employer.".
(b) Section 12(c) is amended by adding at the end thereof the
following: "Each employer shall designate those agents or other
responsible officials to receive such notice, except that the employer
shall designate as its representatives individuals among first line
supervisors, local plant management, and personnel office officials.
Such designations shall be made in accordance with regulations
prescribed by the Secretary and the employer shall notify his
employees and the Secretary of such designation in a manner
prescribed by the Secretary in regulations.".
(c) Section 12(d) is amended—
(1) by striking out "(or his agent in charge of the business in
the place where the injury occurred)" and inserting in lieu
thereof the following: "(or his agent or agents or other responsi­
ble official or officials designated by the employer pursuant to
subsection (c))";
(2) by striking out "injury or death and" and inserting in lieu
thereof "injury or death, (2)";
(3) by striking out "or (2)" and inserting in lieu thereof "or
(3)"; and
(4) by inserting after "the ground that" in the clause redesig­
nated as clause (3) (by paragraph (3) of this subsection) the
following: "(i) notice, while not given to a responsible official
designated by the employer pursuant to subsection (c) of this
section, was given to an official of the employer or the employ­
er's insurance carrier, and that the employer or carrier was not
prejudiced due to the failure to provide notice to a responsible PUBLIC LAW 98-426—SEPT. 28, 1984 98 STAT. 1649
official designated by the employer pursuant to subsection (c), or
(ii)".
TIME FOR FILING CLAIM BASED ON OCCUPATIONAL DISEASE
SEC. 12. Section 13(b) is amended by inserting "(1)" after "(b)" and 33 use 913.
adding at the end thereof the following:
"(2) Notwithstanding the provisions of subsection (a), a claim for
compensation for death or disability due to an occupational disease
which does not immediately result in such death or disability shall
be timely if filed within two years after the employee or claimant
becomes aware, or in the exercise of reasonable diligence or by
reason of medical advice should have been aware, of the relationship
between the employment, the disease, and the death or disability, or
within one year of the date of the last payment of compensation,
whichever is later.".
PAYMENT OF COMPENSATION
SEC. 13. (a) Section 14(b) is amended by striking out "employer" 33 use 914.
and inserting in lieu thereof "employer has been notified pursuant
to section 12, or the employer",
(b) Section 14 is amended by striking out subsection (j) and by
redesignating subsections (k) and (1) as subsections (j) arid (k),
respectively.
UENS ON COMPENSATION
SEC. 14. Section 17 is amended— 33 use 917.
(1) by striking out "(b)";
(2) by striking out "entitled to compensation under this Act"
and inserting in lieu thereof "covered under this Act"; and
(3) by striking out "this Act, the Secretary may authorize"
and inserting in lieu thereof "this Act or under a settlement,
the Secretary shall authorize".
REVIEW OF COMPENSATION ORDER
SEC 15. Section 21(b) is amended— 33 use 921.
(1) by striking out "three" in paragraph (1) and inserting in
lieu thereof "five";
(2) by adding the following sentence at the end of paragraph
(1): "The Chairman shall have the authority, as delegated by the
Secretary, to exercise all administrative functions necessary to
operate the Board.";
(3) by striking out "two" each place it appears in paragraph
(2) and inserting in lieu thereof "three"; and
(4) by adding the following new paragraph at the end thereof:
"(5) Notwithstanding paragraphs (1) through (4), upon application
of the Chairman of the Board, the Secretary may designate up to
four Department of Labor administrative law judges to serve on the
Board temporarily, for not more than one year. The Board is
authorized to delegate to panels of three members any or all of the
powers which the Board may exercise. Each such panel shall have
no more than one temporary member. Two members shall consti­
tute a quorum of a panel. Official adjudicative action may be taken
only on the affirmative vote of at least two members of a panel. Any
party aggrieved by a decision of a panel of the Board may, within
thirty days after the date of entry of the decision, petition the entire 98 STAT. 1650 PUBLIC LAW 98-426—SEPT. 28, 1984
permanent Board for review of the panel's decision. Upon affirma­
tive vote of the majority of the permanent members of the Board,
the petition shall be granted. The Board shall amend its Rules of
Practice to conform with this paragraph. Temporary members,
while serving as members of the Board, shall be compensated at the
same rate of compensation as regular members.".
MODIFICATIONS OF AWARDS
33 use 922. SEC. 16. Section 22 is amended—
(1) by inserting "(including an employer or carrier which has
been granted relief under section 8(f))" after "party in interest";
(2) by inserting "(including a case under which payments are
made pursuant to section 44(i))" after "review a compensation
case"; and
(3) by adding at the end thereof the following new sentence:
"This section does not authorize the modification of
settlements.".
FEES FOR SERVICES
33 use 928. SEC. 17. Section 28(e) is amended to read as follows:
Penalties. "(e) A person who receives a fee, gratuity, or other consideration
on account of services rendered as a representative of a claimant,
unless the consideration is approved by the deputy commissioner,
administrative law judge, Board, or court, or who makes it a busi­
ness to solicit employment for a lawyer, or for himself, with respect
to a claim or award for compensation under this Act, shall, upon
conviction thereof, for each offense be punished by a fine of not
more than $1,000 or be imprisoned for not more than one year, or
both.".
REPORTS
33 use 930. SEC. 18. (a) Section 30(a) is amended—
(1) by inserting after "injury" the first place it appears a
comma and the following: "which causes loss of one or more
shifts of work,"; and
(2) by adding at the end thereof the following new sentence:
"Notwithstanding the requirements of this subsection, each
employer shall keep a record of each and every injury regard­
less of whether such injury results in the loss of one or more
shifts of work.".
Ot)) Section 30(e) is amended to read as follows:
Penalty. "(e) Any employer, insurance carrier, or self-insured employer
who knowingly and willfully fails or refuses to send any report
required by this section or knowingly or willfully makes a false
statement or misrepresentation in any such report shall be subject
to a civil penalty not to exceed $10,000 for each such failure, refusal,
false statement, or misrepresentation.".
PENALTY FOR MISREPRESENTATION—PROSECUTION OF CLAIMS
33 use 931. SEC 19. Section 31 is amended to read as follows:
"PENALTY FOR MISREPRESENTATION—PROSECUTION OF CLAIMS
"SEC. 31. (a)(1) Any claimant or representative of a claimant who
knowingly and willfully makes a false statement or representation
for the purpose of obtaining a benefit or payment under this Act PUBLIC LAW 98-426—SEPT. 28, 1984 98 STAT. 1651
shall be guilty of a felony, and on conviction thereof shall be
punished by a fine not to exceed $10,000, by imprisonment not to
exceed five years, or by both.
"(2) The United States attorney for the district in which the injury
is alleged to have occurred shall make every reasonable effort to
promptly investigate each complaint made under this subsection.
"(b)(1) No representation fee of a claimant's representative shall
be approved by the deputy commissioner, an administrative law
judge, the Board, or a court pursuant to section 28 of this Act, if the 33 use 928.
claimant's representative is on the list of individuals who are dis­
qualified from representing claimants under this Act maintained by
the Secretary pursuant to paragraph (2) of this subsection.
"(2)(A) The Secretary shall annually prepare a list of those indi­
viduals in each compensation district who have represented claim­
ants for a fee in cases under this Act and who are not authorized to
represent claimants. The names of individuals contained on the list
required under this subparagraph shall be made available to
employees and employers in each compensation district through
posting and in such other forms as the Secretary may prescribe.
"(B) Individuals shall be included on the list of those not author­
ized to represent claimants under this Act if the Secretary deter­
mines under this section, in accordance with the procedure provided
in subsection (j) of section 7 of this Act, that such individual— Post, p. 1643.
"(i) has been convicted (without regard to pending appeal) of
any crime in connection with the representation of a claimant
under this Act or any workers' compensation statute;
"(ii) has engaged in fraud in connection with the presentation
of a claim under this or any workers' compensation statute,
including, but not limited to, knowingly making false represen­
tations, concealing or attempting to conceal material facts with
respect to a claim, or soliciting or otherwise procuring false
testimony;
"(iii) has been prohibited from representing claimants before
any other workers' compensation agency for reasons of profes­
sional misconduct which are similar in nature to those which
would be grounds for disqualification under this paragraph; or
"(iv) has accepted fees for representing claimants under this
Act which were not approved, or which were in excess of the
amount approved pursuant to section 28. 33 USC 928.
"(C) Notwithstanding subparagraph (B), no individual who is on
the list required to be maintained by the Secretary pursuant to this
section shall be prohibited from presenting his or her own claim or
from representing without fee, a claimant who is a spouse, mother,
father, sister, brother, or child of such individual.
"(D) A determination under subparagraph (A) shall remain in
effect for a period of not less than three years and until the
Secretary finds and gives notice to the public that there is reasona­
ble assurance that the basis for the determination will not reoccur.
"(3) No employee shall be liable to pay a representation fee to any
representative whose fee has been disallowed by reason of the
operation of this paragraph.
"(4) The Secretary shall issue such rules and regulations as are Regulations.
necessary to carry out this section.
"(c) A person including, but not limited to, an employer, his duly
authorized agent, or an employee of an insurance carrier who
knowingly and willfully makes a false statement or representation
for the purpose of reducing, denying, or terminating benefits to an 98 STAT. 1652 PUBLIC LAW 98-426—SEPT. 28, 1984
33 use 909. injured employee, or his dependents pursuant to section 9 if the
injury results in death, shall be punished by a fine not to exceed
$10,000, by imprisonment not to exceed five years, or by both.".
SECURITY FOR COMPENSATION
33 use 932. SEC. 20. Section 32(a)(2) is amended by inserting "based on the
employer's financial condition, the employer's previous record of
payments, and other relevant factors," after "in an amount deter­
mined by the commission,".
COMPENSATION FOR INJURIES WHERE THIRD PERSONS ARE LIABLE
33 use 933. SEC. 21. (a) Section 33(b) is amended to read as follows:
"(b) Acceptance of compensation under an award in a compensa­
tion order filed by the deputy commissioner, an administrative law
judge, or the Board shall operate as an assignment to the employer
of all rights of the person entitled to compensation to recover
damages against such third person unless such person shall com­
mence an action against such third person within six months after
such acceptance. If the employer fails to commence an action
against such third person within ninety days after the cause of
action is assigned under this section, the right to bring such action
shall revert to the person entitled to compensation. For the purpose
of this subsection, the term 'award' with respect to a compensation
order means a formal order issued by the deputy commissioner, an
administrative law judge, or Board.".
(b) Section 33(e)(2) is amended by striking out ", less one-fifth of
such excess which shall belong to the employer".
(c) Section 33(f) is amended—
(1) by inserting "net" before "amount recovered"; and
(2) by adding at the end thereof the following: "Such net
amount shall be equal to the actual amount recovered less the
expenses reasonably incurred by such person in respect to such
proceedings (including reasonable attorneys' fees).".
(d) Section 33(g) is amended to read as follows:
"(g)(1) If the person entitled to compensation (or the person's
representative) enters into a settlement with a third person referred
to in subsection (a) for an amount less than the compensation to
which the person (or the person's representative) would be entitled
under this Act, the employer shall be liable for compensation as
determined under subsection (f) only if written approval of the
settlement is obtained from the employer and the employer's
carrier, before the settlement is executed, and by the person entitled
to compensation (or the person's representative). The approval shall
be made on a form provided by the Secretary and shall be filed in
the office of the deputy commissioner within thirty days after the
settlement is entered into.
"(2) If no written approval of the settlement is obtained and filed
as required by paragraph (1), or if the employee fails to notify the
employer of any settlement obtained from or judgment rendered
against a third person, all rights to compensation and medical
benefits under this Act shall be terminated, regardless of whether
the employer or the employer's insurer has made payments or
acknowledged entitlement to benefits under this Act.
"(3) Any payments by the special fund established under section
33 use 944. 44 shall be a lien upon the proceeds of any settlement obtained from PUBLIC LAW 98-426—SEPT. 28, 1984 98 STAT. 1653
or judgment rendered against a third person referred to under
subsection (a). Notwithstanding any other provision of law, such lien
shall be enforceable against such proceeds, regardless of whether
the Secretary on behalf of the special fund has agreed to or has
received actual notice of the settlement or judgment.
"(4) Any payments by a trust fund described in section 17 shall be 33 use 917.
a lien upon the proceeds of any settlement obtained from or judg­
ment recorded against a third person referred to under subsection
(a). Such lien shall have priority over a lien under paragraph (3) of
this subsection.".
PENALTY FOR FAILURE TO SECURE PAYMENT
SEC. 22. Section 38 is amended by striking out "$1,000" each place 33 use 938.
it appears in subsections (a) and (b) and inserting in lieu thereof
"$10,000".
ANNUAL REPORT
SEC. 23. The Act is amended by inserting the following new section
after section 41:
"ANNUAL REPORT
"SEC. 42. The Secretary shall make to Congress at the beginning 33 use 942.
of each regular session, commencing at the beginning of the second
regular session after the enactment of the Longshore and Harbor
Workers' Compensation Act Amendments of 1984, a report of the Ante, p. 1639.
administration of this Act for the preceding fiscal year, including a
detailed statement of receipts of and expenditures from the fund
established in section 44, together with such recommendations as 33 use 944.
the Secretary deems advisable.".
SPECIAL FUND
SEC. 24. (a) Section 44(c)(2) is amended to read as follows: 33 use 944.
"(2) At the beginning of each calendar year the Secretary shall
estimate the probable expenses of the fund during that calendar
year and the amount of payments required (and the schedule there­
for) to maintain adequate reserves in the fund. Each carrier and
self-insurer shall make payments into the fund on a prorated assess­
ment by the Secretary determined by—
"(A) computing the ratio (expressed as a percent) of (i) the
carrier's or self-insured's workers' compensation payments
under this Act during the preceding calendar year, to (ii) the
total of such payments by all carriers and self-insureds under
this Act during such year;
"(B) computing the ratio (expressed as a percent) of (i) the
payments under section 8(f) of this Act during the preceding Ante, p. 1645.
calendar year which are attributable to the carrier or self-
insured, to (ii) the total of such payments during such year
attributable to all carriers and self-insureds;
"(C) dividing the sum of the percentages computed under
subparagraphs (A) and (B) for the carrier or self-insured by two;
and
"(D) multiplying the percent computed under subparagraph
(C) by such probable expenses of the fund (as determined under
the first sentence of this paragraph).". 98 STAT. 1654 PUBLIC LAW 98-426—SEPT. 28, 1984
33 use 944. (b) Section 44 is further amended by striking out subsection (e)
and by redesignating subsections (f) through (k) as subsections (e)
through (j), respectively.
(c) Section 44(h) (as redesignated pursuant to subsection (b)) is
amended by inserting "and unpaid assessments" after "civil penal­
ties".
(d) Section 44(i) (as redesignated pursuant to subsection (b)) is
amended—
(1) in paragraph (1), by striking out "and 11", by inserting
"certain" before "initial", and by striking out "which occurred
prior to the effective date of this subsection"; and
(2) in paragraph (4), by inserting "(e)" after "section 7".
(e) Section 44(j) (as redesignated pursuant to subsection (b)) is
amended to read as follows:
Audit. "(j) The fund shall be audited annually and the results of such
Ante, p. 1653. audit shall be included in the annual report required by section 42.".
REPEALS
33 use 945-947. SEC. 25, Sections 45, 46, and 47 are repealed.
DISCRIMINATION AGAINST EMPLOYEES WHO BRING PROCEEDINGS
33 use 948a. SEC. 26. (a) Section 49 is amended by inserting after the first
sentence the following new sentence: "The discharge or refusal to
employ a person who has been adjudicated to have filed a fraudulent
claim for compensation is not a violation of this section.",
(b) The second sentence of section 49 is amended—
(1) by striking out "$100" and inserting in lieu thereof
"$1,000"; and
(2) by striking out "$1,000" and inserting in lieu thereof
"$5,000".
CONFORMING AMENDMENTS
SEC. 27. (a) The Longshoremen's and Harbor Workers' Compensa-
33 use 901. tion Act is further amended—
33 use 902. (1) striking out paragraph (6) of section 2 and inserting in lieu
thereof the following:
"(6) The term 'Secretary' means the Secretary of Labor.";
33 use 901 et (2) by striking out "commission" each place it appears and
s«9- inserting in lieu thereof "Secretary"; and
(3) by striking out "commission's" and inserting in lieu there­
of "Secretary's".
33 use 918. (b) Section 18(b) is amended by striking out ", including the right
of lien and priority provided for by section 17 of this Act,".
33 use 939. (c) Section 39(a) is amended by striking out "United States
Employees' Compensation Commission" and inserting in lieu there­
of "Secretary".
33 use 901. (d)(1) Section 1 is amended by striking out "Longshoremen's" and
inserting in lieu thereof "Longshore".
33 use 901 note. (2) Reference in any other statute, regulation, order, or other
document to the Longshoremen's and Harbor Workers' Compensa­
tion Act shall be deemed to refer to the Longshore and Harbor
Workers' Compensation Act. PUBLIC LAW 98-426—SEPT. 28, 1984 98 STAT. 1655
EFFECTIVE DATE
SEC. 28. (a) Except as otherwise provided in this section, the 33 use 90i note.
amendments made by this Act shall be effective on the date of
enactment of this Act and shall apply both with respect to claims
filed after such date and to claims pending on such date.
(b) The amendments made by sections 7(a), 7(e), 8(f), 11(b), 11(c),
and 13 shall be effective 90 days after the date of enactment of this
Act and shall apply both with respect to claims filed after such 90th
day and to claims pending on such 90th day.
(c) The amendments made by sections 2(a), 3(a), 5, and 8(b) shall
apply with respect to any injury after the date of enactment of this
Act.
(d) The amendments made by sections 6(a), 8(d), and 9 shall apply
with respect to any death after the date of enactment of this Act.
(eXD The amendments made by sections 2(c), 8(cXl), 8(e)(4), 8(e)(5),
8(g), 10(b), 15 through 20, and 22 through 27 shall be effective on the
date of enactment of this Act.
(2) The amendments made by sections 7(b), 7(c), 7(d), and 8(h) shall
be effective 90 days after the date of enactment of this Act.
(f) The amendments made by section 6(b) shall apply with respect
to any injury, disability, or death after the date of enactment of this
Act.
(g) For the purpose of this section—
(1) in the case of an occupational disease which does not
immediately result in a disability or death, an injury shall be
deemed to arise on the date on which the employee or claimant
becomes aware, or in the exercise of reasonable diligence or by
reason of medical advice should have been aware, of the disease;
and
(2) the term "disability" has the meaning given such term by
section 2(10) of the Act as amended by this Act. Ante, p. 1639.
(h)(1) The amendments made by section 7 of this Act shall not 33 use 907 note.
apply to claims filed under the Black Lung Benefits Act (30 U.S.C.
901 et seq.).
(2) Section 422(a) of the Black Lung Benefits Act is amended by 30 use 932.
striking out "During" and inserting in lieu thereof "Subject to
section 28(h)(1) of the Longshore and Harbor Workers' Compensa­
tion Act Amendments of 1984, during".
Approved September 28, 1984.
LEGISLATIVE HISTORY—S. 38:
HOUSE REPORTS: No. 98-570 and Part 2 (Comm. on Education and Labor) and
No. 98-1027 (Oomm. of Oonference).
SENATE REPORT No. 98-81 (eomm. on Labor and Human Resources).
CONGRESSIONAL RECORD:
Vol. 129 (1983): June 16, considered and passed Senate.
Vol. 130 (1984): Apr. 9, 10, considered and passed House, amended.
Sept. 18, House agreed to conference report.
Sept. 20, Senate agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 20, No. 39 (1984):
Sept. 28, Presidential statement.