109th CONGRESS
2d Session
S. 3987
To amend the Longshore and Harbor Workers' Compensation Act to
improve the compensation system, and for other purposes.
IN THE SENATE OF THE UNITED STATES
September 28, 2006
Mr. ISAKSON introduced the following bill; which was read twice and referred
to the Committee on Health, Education, Labor, and Pensions
A BILL
To amend the Longshore and Harbor Workers' Compensation Act to
improve the compensation system, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title- This Act may be cited as the `Longshore and Harbor Workers'
Compensation Act Amendments of 2006'.
(b) References- Except as otherwise expressly 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 Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 901 et seq.).
SEC. 2. INTENT OF CONGRESS; NEUTRAL INTERPRETATION.
The Act (33 U.S.C. 901 et seq.) is amended by inserting after section 1
the following:
`SEC. 1A. CONGRESSIONAL INTENT OF NEUTRAL INTERPRETATION.
`It is the intent of Congress that--
`(1) in a dispute concerning the facts in a claim brought under this Act,
the facts are not to be given a broad liberal construction in favor of
the employee or of the employer, and the laws pertaining to a claim brought
under this Act are to be construed in accordance with the basic principles
of statutory construction and not liberally in favor of either the employee
or employer;
`(2) the system established under this Act shall be an efficient and self-executing
system that is not an economic or administrative burden; and
`(3) the Department of Labor and the Benefits Review Board shall administer
this Act in a manner which facilitates the self-execution of the system
established under this Act and the process of ensuring a prompt and cost-effective
delivery of payments.'.
SEC. 3. DEFINITIONS.
Section 2 (33 U.S.C. 902) is amended--
(1) in paragraph (1), by striking `association.' and inserting `association,
but does not include the Secretary.';
(2) in paragraph (2), by adding after the period at the end the following:
`Physical or mental conditions caused in part or in whole by an employer's
personnel actions shall not be considered an injury or disease compensable
under this Act. Physical or mental conditions caused in part or in whole
by an employer's personnel action may only be compensable under applicable
State or Federal employment laws other than workers' compensation laws.';
(3) in paragraph (3)(A)--
(A) by striking `employed exclusively to perform' and inserting `primarily
performing'; and
(B) by inserting `on the day of the injury' before the semicolon at
the end;
(4) in paragraph (13), by inserting before the period at the end the following:
`, or an incentive or 1-time payment, severance pay, a settlement of an
employment law claim, a bonus that is not guaranteed, container royalties,
stock, or stock options';
(5) in paragraph (14), by striking `(19)' and inserting `(18)';
(6) by redesignating paragraphs (21) and (22) as paragraphs (26) and (27),
respectively; and
(7) by inserting after paragraph (20) the following:
`(21) The term `participating network' means a network of physicians and
other health care providers that has been designated by a carrier to provide
medical services to an employee under this Act.
`(22) The term `health care panel' means 3 or more physicians or other
health care providers in a common geographic region who practice in the
same or similar medical specialty, which panel is designated by a carrier
to provide medical services to an employee under this Act.
`(23) The term `nationally recognized evidence-based treatment standards'
means the treatment standards in the Occupational Medicine Practice Guidelines
published by the American College of Occupational and Environmental Medicine.
Any subsequent revision of these standards by the American College of
Occupational and Environmental Medicine shall be effective with respect
to all treatment decisions under this Act on the date that is 90 days
after the promulgation of the revision, unless the Secretary determines
that the revision is inconsistent with this Act's policy of ensuring treatment
pursuant to evidence-based standards.
`(24) The term `objective relevant medical findings' means those objective
findings that correlate to the subjective complaints of an injured employee
and are confirmed by physical examination findings or diagnostic testing.
`(25) The term `fraud' means the act of knowingly, and with intent to
defraud--
`(A) providing material false information that could result in the obtaining
or denying, in whole or in part, of compensation under this Act; or
`(B) failing to provide material information that could result in the
obtaining or denying, in whole or in part, of compensation under this
Act.
`(26) The term `major contributing cause', when used with respect to an
injury, means the cause constituting greater than 50 percent of the total
of all causes.
`(27) The term `standard premium' means the product of an employer's payroll
and the filed manual rate applicable to the employer multiplied by the
employer's current experience modification factor, if applicable. The
calculation may not include any deductible credit. For policies written
using retrospective rating, the standard premium must be calculated in
accordance with this definition regardless of the actual retrospective
premium calculation.
`(28) The term `filed manual rate' means the premium rate for each unit
of exposure, as a function of the applicable basis of premium, for the
occupational classes assigned to the employer's business, filed pursuant
to the insurance laws of the applicable jurisdiction.
`(29) The term `experience modification factor' means the adjustment to
a policyholder`s premium rate for a specific exposure period, resulting
from a rating procedure utilizing the past insurance experience of the
individual policyholder to forecast future losses by measuring the policyholder's
loss experience against the loss experience of policyholders in the same
classification to produce a prospective premium credit, debit, or unity
modification.'.
SEC. 4. COVERAGE.
Section 3 (20 U.S.C. 903) is amended--
(1) in subsection (c), by striking `solely';
(2) by redesignating subsection (e) as subsection (f);
(3) by inserting after subsection (d) the following:
`(e) Compensation Limitation- No compensation shall be payable to an employee
for dentures, eyeglasses, hearing aids, a prosthetic device, or an artificial
limb unless the dentures, eyeglasses, hearing aid, prosthetic device, or
artificial limb--
`(1) is part of the medical treatment for a disability compensated under
section 8; or
`(2) was damaged as part of, or in concert with, an accident that resulted
in a traumatic injury to the employee.'; and
(4) in subsection (f) (as redesignated by paragraph (2)), by inserting
`this Act,' after `pursuant to'.
SEC. 5. LIABILITY FOR COMPENSATION.
Section 4 (33 U.S.C. 904) is amended to read as follows:
`SEC. 4. LIABILITY FOR COMPENSATION.
`(a) In General- Every employer shall be liable for, and shall secure the
payment to the employer's employees of, the compensation payable under sections
7, 8, and 9.
`(b) Payment Irrespective of Fault- Compensation shall be payable irrespective
of fault as a cause for the injury.
`(c) Proportional Payment-
`(1) IN GENERAL- Except as provided in subsection (e) and section 8(a)(13),
in making compensation determinations under this Act, compensation shall
be reduced by an amount attributable to the percentage of--
`(A) the disability rating for a prior permanent injury; and
`(B) the anatomical physical impairment that resulted from nonoccupational
factors (such as aging, prior or subsequent anatomical physical impairment,
or personal habits, including smoking and alcohol use).
`(2) LIMITATION- In no case shall compensation be calculated under this
Act by deducting the dollar amount of compensation paid or payable for
a prior injury described in paragraph (1).
`(3) DETERMINATIONS- Determination under this subsection shall be based
upon the findings of the treating physician upon a review of the available
records. The treating physician designated in section 7 shall make a determination
under this paragraph by finding what percentage of the employee's disability
was a result of an injury arising out of and occurring in the course of
the employment involved and what percentage of such disability was the
result of prior injury and other nonoccupational factors.
`(1) IN GENERAL- Subject to paragraph (2), in the case of the injury or
death of an employee who is working for another employer at the direction
of the employee's primary employer, all employers of the employee at the
time of the injury shall be treated as a single employer for purposes
of this Act, including with respect to the obligation to pay compensation
under this section and the exclusiveness of the remedy under section 5.
`(2) INDEMNIFICATION AGREEMENT- Nothing in paragraph (1) shall be construed
to supercede an express contractual indemnification agreement between
the borrowing and lending employer.
`(e) Last Employer Doctrine; Intervening Nonmaritime Employment; Noncontributing
Exposure-
`(1) LAST EMPLOYER DOCTRINE-
`(A) IN GENERAL- Except as provided in section 8(a)(13), if more than
1 employer or employment exposure contributed to the injury or death
of an employee, the last employer to have contributed to the injury
or death of the employee shall be responsible for benefits under this
Act.
`(B) RIGHTS AND DEFENSES- The employer responsible for the benefits
under this section shall retain all rights and defenses that any employer
who contributed to the injury or death would otherwise have had. The
employee shall retain all burdens of production, burdens of persuasion,
and presumptions that the employee would otherwise have had.
`(2) INTERVENING EMPLOYMENT- If the last employment exposure that contributed
to an injury or death was the result of employment that was not covered
under this Act, no benefits shall be payable under this Act for the injury
or death.
`(3) NONCONTRIBUTING EMPLOYMENT EXPOSURE- For purposes of this Act, employment
exposure did not contribute to the injury or death of an employee if--
`(A) the medical condition that resulted in the injury or death was
diagnosed before employment commenced; or
`(B) the employer did not expose the employee to conditions capable
of causing or contributing to the injury or death.'.
SEC. 6. EXCLUSIVENESS OF LIABILITY.
Section 5 (33 U.S.C. 905) is amended--
(A) in the first sentence, by striking `or in admiralty' and inserting
`in admiralty, or otherwise,'; and
(B) by striking the third sentence; and
(2) by adding at the end the following:
`(1) STATE LAW PREEMPTION- Any State law that provides additional or alternative
remedies for an injured employee, the employee's legal representative,
the employee's husband or wife, parents, dependents, or next of kin, or
anyone otherwise entitled to recover from such employer on account of
such injury or death against the employer, at law or in admiralty, or
otherwise, is expressly preempted when the carrier--
`(A) has voluntarily paid compensation under this Act;
`(B) has settled a claim for compensation under this Act;
`(C) is contesting a claim for compensation under this Act;
`(D) is appealing an order under this Act;
`(E) is subject to an order under this Act; or
`(F) has notified the Secretary that a claim for compensation should
have been brought under this Act.
`(2) STATE JURISDICTION PREEMPTION- Any State proceeding (including a
judicial or administrative proceeding) involving the claims of an injured
employee, the employee's legal representative, husband or wife, parents,
dependents, or next of kin, or anyone otherwise entitled to recover damages
from such employer at law or in admiralty or otherwise on account of such
injury or death, shall be preempted when the carrier has taken an action
described in subparagraphs (A) through (F) of paragraph (1).
`(3) ADMINISTRATIVE STAY-
`(A) PROCESS FOR STAY- In order to effectuate this subsection and protect
the admiralty and maritime jurisdiction of the Federal Government, an
employer who is party to a State proceeding may notify the Secretary
of the proceeding and any reason why this subsection preempts the State
proceeding. Within 10 days after receiving the notification, the Secretary
shall issue an administrative stay order to the State that shall remain
in effect until a final determination has been made by the Secretary
that this subsection does not preempt the State proceeding.
`(B) INJUNCTION- If a State does not comply with a stay order issued
by the Secretary under subparagraph (A), within 10 days after the State's
refusal to comply, the Secretary shall seek, in a Federal district court,
an injunction against further State proceedings regarding the claim
that may be preempted by this subsection.
`(C) TIMELY RESPONSE- If the Secretary does not fulfill the Secretary's
obligations under this paragraph in a timely manner, the employer may
seek an order in a Federal district court compelling the Secretary to
so act.
`(e) Government Responsibility- The exclusive remedy for any person injured,
in whole or in part, by exposure to ionizing or nonionizing radiation from
equipment required to be used by Federal law or regulation or owned by a
Federal Government entity shall be found under the Federal Tort Claims Act,
and this Act shall not apply to any injury or death resulting from such
exposure.'.
SEC. 7. MEDICAL SERVICES AND SUPPLIES.
Section 7 (33 U.S.C. 907) is amended--
(A) by striking `(a)' and inserting `(a)(1)';
(B) by striking `furnish such' and inserting `furnish medical services
and supplies, including'; and
(C) by adding at the end the following:
`(2) Notwithstanding any other provision of this Act, in the case where
nationally recognized evidence-based treatment standards apply to the employee's
medical condition, the medical treatment shall include only the care provided
pursuant to such treatment standards.';
(2) by striking subsection (i);
(3) by redesignating subsections (c) through (e), (f) through (h), (j),
and (k), as subsections (d) through (f), (h) through (j), (k), and (l),
respectively;
(4) by striking subsection (b) and inserting the following:
`(b) Physician Selection-
`(1) CARRIER USING PARTICIPATING NETWORKS OR HEALTH CARE PANELS-
`(A) IN GENERAL- A carrier may designate 1 or more participating networks
or 1 or more health care panels, or both, for purposes of providing
medical services to employees under this Act. An injured employee served
by a carrier that has designated an approved participating network under
subparagraph (C) or a health care panel under subparagraph (D) shall
not be entitled to recover any amount expended by the employee for medical
services and supplies unless the employee has secured such medical services
and supplies through a physician or other health care provider that
is a participant in such network or panel, respectively.
`(B) GEOGRAPHIC EXCEPTION- Subparagraph (A) shall not apply if the injured
employee can demonstrate that the carrier's participating network or
health care panel does not include a physician capable of treating the
employee within 100 miles of the employee's residence.
`(C) PARTICIPATING NETWORKS-
`(i) IN GENERAL- The Secretary shall establish a process for approving
participating networks, in accordance with clause (ii), that shall
include an automatic approval for a participating network that has
been authorized by a State workers' compensation program.
`(ii) QUALIFICATIONS- In order to be approved under clause (i), a
participating network shall establish an internal review process to
address any disputes with respect to the provision of medical care
or treatment to an employee. Such process shall conform to the utilization
review standards for workers' compensation described in subsection
(m).
`(D) DESIGNATION OF HEALTH CARE PANELS- To designate a health care panel
for purposes of this subsection, a carrier shall submit the names of
the health care panel participants to the Secretary.
`(2) CARRIER NOT USING PANELS OR NETWORKS- If a carrier has not provided
medical services or supplies in accordance with paragraph (1), the employee
shall have the right to choose an attending physician authorized by the
Secretary to provide medical care under this Act as hereinafter provided.
If, due to the nature of the injury, the employee is unable to select
a physician and the nature of the injury requires immediate medical treatment
and care, the employer shall select a physician for the employee.
`(c) Supervision and Change of Physicians- The Secretary, consistent with
the evidence-based standards provided for under subsection (a)(2)--
`(1) shall actively supervise the medical care rendered to injured employees;
`(2) shall require periodic reports as to the medical care being rendered
to injured employees;
`(3) shall have authority to determine the necessity, character, and sufficiency
of any medical aid furnished or to be furnished;
`(4) may, on the Secretary's own initiative or at the request of the employer,
order a change of physicians or hospitals when, in the Secretary's judgment,
such change is desirable or necessary in the interest of the employee
or where the charges exceed those prevailing within the community for
the same or similar services or exceed the provider's customary charges;
and
`(5) shall permit, in accordance with regulations promulgated by the Secretary,
the change of physicians at the request of an employee (such change may
be approved not more frequently than twice annually unless otherwise authorized
by the carrier).';
(5) in subsection (d) (as redesignated by paragraph (3))--
(A) in paragraph (1)(B), by striking `(j)' and inserting `(k)'; and
(B) in paragraph (2), by striking `by an employee';
(6) in subsection (e)(4) (as redesignated by paragraph (3))--
(A) by striking `employer' and inserting `employer or designated by
the Secretary'; and
(B) by striking `may' and inserting `shall';
(7) in subsection (f) (as redesignated by paragraph (3)), by striking
the third sentence;
(8) by inserting after subsection (f) (as redesignated by paragraph (3))
the following:
`(g) Use of Medical Records- When there is the need for any review, hearing,
investigation, or other proceeding authorized or directed under this section
relating to medical care or treatment, the finder of fact shall rely on
the medical record and the findings of qualified medical professionals that
are based on the medical record.'; and
(9) by adding at the end the following:
`(m) Applicability of Utilization Review Standards- Notwithstanding any
other provision of this Act, any utilization review, whether within a participating
network, health care panel, or otherwise, carried out under this Act shall
be conducted pursuant to the utilization review standards applicable to
workers' compensation promulgated by URAC, as such standards were in effect
on the date of enactment of the Longshore and Harbor Workers' Compensation
Act Amendments of 2006. Any subsequent revision of the standards shall be
effective, with respect to all utilization review determinations under this
Act, on the date that is 90 days after the promulgation of the revised standards,
unless the Secretary determines that the revised standards are inconsistent
with this Act's policy of ensuring utilization review in accordance with
nationally recognized standards.'.
SEC. 8. COMPENSATION FOR DISABILITY.
(a) Compensation for Disability- Section 8 (33 U.S.C. 908) is amended--
(1) in subsection (a), by striking `66 2/3 per centum of the average weekly
wages' and inserting `75 percent of the spendable earnings';
(2) in subsection (b), by striking `66 2/3 per centum of the average weekly
wages' and inserting `75 percent of the spendable earnings';
(A) in the matter preceding paragraph (1), by striking `66 2/3 per centum
of the average weekly wages' and inserting `75 percent of the spendable
earnings';
(B) by striking paragraph (13) and inserting the following:
`(i) TOTAL LOSS OF HEARING-
`(I) ONE EAR- The compensation for total loss of hearing in 1 ear
shall be 52 weeks.
`(II) BOTH EARS- The compensation for total loss of hearing in both
ears shall be 200 weeks.
`(ii) PARTIAL LOSS OF HEARING- For the partial loss of hearing in
1 or both ears, compensation shall be paid for a period proportionate
to the degree of the loss, in accordance with clause (i).
`(i) EMPLOYMENT-RELATED 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.
`(ii) DETERMINATION OF LOSS- Except as provided in clause (iii), 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.
`(iii) MEASUREMENT- The measurement of presbycusis shall be in accordance
with the methodology adopted in section 1910.95 of title 29, Code
of Federal Regulations, appendix F, applied to the applicable decibel
levels for hearing loss determinations as provided in clause (ii).
`(iv) AUDIOGRAM STANDARDS- In determining the amount of hearing loss
for purposes of this paragraph, an audiogram that is administered
by a licensed or certified technician, an audiologist who is certified,
or a physician who is certified in otolaryngology, and is interpreted
by an audiologist who is certified or a physician who is certified
in otolaryngology, shall prevail over an audiogram that is not performed
in accordance with these criteria.';
(4) by striking paragraph (21) and inserting the following:
`(21) In all other cases in the class of disability, the compensation
shall be 75 percent of the difference between the injured employee's spendable
earnings before the injury and the amount of spendable earnings the employee
is able to earn after the injury in the same or another employment, payable
during the continuance of partial disability.';
(A) by striking `66 2/3 per centum' and inserting `75 percent'; and
(B) by striking `average weekly wages' each place the term occurs and
inserting `spendable earnings';
(6) by striking subsection (e) and inserting the following:
`(e) Temporary Partial Disability- In the case of temporary partial disability
resulting in decrease of earning capacity, the compensation shall be 75
percent of the difference between the injured employee's spendable earnings
before the injury and the amount of spendable earnings the employee is able
to earn after the injury in the same or another employment, to be paid during
the continuance of such disability, but shall not be paid for a period exceeding
5 years.';
(7) in subsection (f), by adding at the end the following:
`(4) Limitation- After the date of enactment of the Longshore and Harbor
Workers' Compensation Act Amendments of 2006, no order for relief under
this subsection shall be entered except--
`(A) an order for modification of benefits for which an order has been
entered prior to such date of enactment; or
`(B) an order for relief, in respect of a survivor of an employee, being
paid from the special fund at the date of death.';
(8) in subsection (j)(1), by striking `a disabled employee' and inserting
`an employee'; and
(9) by adding at the end the following:
`(k) Multiple-Injury Maximum- Notwithstanding any other provision of this
Act, when an employee qualifies for compensation for disability caused by
2 or more injuries, in no case shall the amount of compensation payable
for all such injuries when combined exceed the lesser of--
`(1) 75 percent of spendable earnings at the time of the last injury;
or
`(2) the maximum rate of compensation, as determined under section 6(b),
at the time of the last injury.'.
(b) Nonapplicability Until Publication of Table- Not later than 90 days
after the date of enactment of this Act, the Secretary of Labor shall promulgate
regulations and publish a table of compensation implementing the amendments
made by this section. A carrier shall not be required to adjust payments
made by the carrier under the Longshore and Harbor Workers' Compensation
Act to comply with the amendments made by this section until such table
is published.
SEC. 9. COMPENSATION FOR DEATH.
(a) Compensation for Death- Section 9 (33 U.S.C. 909) is amended--
(1) in subsection (a), by striking `$3,000' and inserting `$7,500';
(2) by redesignating subsections (e) through (g) as subsections (f) through
(h), respectively;
(3) by striking subsections (b) through (d) and inserting the following:
`(b) Widow or Widower Without Children- If there be a widow or widower and
no surviving child of the deceased, the widow or widower shall receive 75
percent of the spendable earnings of the deceased during widowhood or widowerhood,
except that upon remarriage of the widow or widower, the widow or widower
shall receive 2 years' worth of such payments in a lump sum.
`(c) Widow or Widower With Children- If there be a widow or widower and
1 or more surviving children of the deceased--
`(1) the widow or widower shall receive 50 percent of the spendable earnings
of the deceased during widowhood or widowerhood, except that upon remarriage
of the widow or widower, the widow or widower shall receive 2 years' worth
of such payments in a lump sum; and
`(2) each child of the deceased shall receive a pro rata share of 25 percent
of the spendable earnings of the deceased.
`(d) Surviving Children- If there be 1 or more surviving children of the
deceased, but no widow or widower, then each child shall receive a pro rata
share of 75 percent of the spendable earnings of the deceased.
`(e) No Widow, Widower, or Surviving Child- If there be no widow or widower
or surviving child, then for the support of grandchildren, brothers and
sisters, parents, and grandparents, if dependent upon the deceased at the
time of the injury, and any other persons who satisfy the definition of
the term `dependent' in section 152 of title 26 of the United States Code,
but are not otherwise eligible under this section, 25 percent of spendable
earnings for the support of each such person during such dependency, but
in no case shall the aggregate amount payable under this subsection exceed
75 percent of the spendable earnings of the deceased.'; and
(4) by adding at the end the following:
`(i) Appointment of Guardian- The deputy commissioner having jurisdiction
over a claim for compensation under this section shall have discretion to
require the appointment of a guardian for the purpose of receiving the compensation
of a minor child. In the absence of such a requirement, the appointment
of a guardian for such purpose shall not be necessary.'.
(b) Nonapplicability Until Publication of Table- Not later than 90 days
after the date of enactment of this Act, the Secretary of Labor shall promulgate
regulations and publish a table of compensation implementing the amendments
made by this section. A carrier shall not be required to adjust payments
made under the Longshore and Harbor Workers' Compensation Act to comply
with the amendments made by this section until such table is published.
SEC. 10. DETERMINATION OF PAY.
(a) Determination of Pay- Section 10 (33 U.S.C. 910) is amended--
(1) in the matter preceding subsection (a)--
(A) by striking `average weekly wage' and inserting `spendable earnings';
and
(B) by inserting `as provided in sections 8 and 9' after `compensation';
(2) by striking subsections (a) through (e) and inserting the following:
`(a) Average Weekly Wage Calculation-
`(1) IN GENERAL- If the injured employee was available to work, as determined
under paragraph (3), in 40 of the 52 weeks immediately preceding the injury,
or if the employee was employed in a seasonal position when the injury
occurred, the average weekly wage shall be calculated by dividing the
actual earnings of the employee for the previous 52 weeks by 52.
`(2) RULE FOR CERTAIN INDIVIDUALS- If the injured employee was available
for work, as determined under paragraph (3), in less than 40 of the 52
weeks immediately preceding the injury, the average weekly wage shall
be based on the average weekly wage of other employees in the same classification,
who worked in the same job, with the same seniority, and at the same location
for the 52 weeks immediately preceding the injury.
`(3) AVAILABILITY TO WORK- An injured employee shall be considered available
to work in a week if the injured employee--
`(A) actually worked not less than 1 day during the week;
`(B) voluntarily withdrew from the workforce for the week;
`(C) was not offered work during a week for reasons of seniority; or
`(D) was unable to work during a week for any reason other than a work-related
injury.
`(4) SPECIAL METHOD OF CALCULATION- If either of the methods of arriving
at the average weekly wages of the injured employee described in paragraphs
(1) and (2) cannot reasonably and fairly be applied, the average weekly
wages shall be such sum as, having regard to the previous earnings of
the injured employee in the employment in which the employee was working
at the time of the injury, and of other employees of the same or most
similar class working in the same or most similar employment in the same
or neighboring locality, or other employment of such employee, including
the reasonable value of the services of the employee if engaged in self-employment,
shall reasonably represent the annual earning capacity of the injured
employee, divided by 52.
`(5) MINOR EMPLOYEES- If it is established that the injured employee was
a minor when injured, and that under normal conditions the employee's
wages should be expected to increase during the period of disability,
the fact may be considered in arriving at the employee's average weekly
wages.
`(1) EMPLOYEES INJURED WITHIN THE FIRST YEAR OF RETIREMENT- 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 (g)) occurs
within the first year after the employee has retired, the average weekly
wage shall be calculated in accordance with subsection (a).
`(2) EMPLOYEES INJURED AFTER THE FIRST YEAR OF RETIREMENT- 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 (g)) occurs
more than 1 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 section 6(b)) applicable at the time of the
injury.
`(1) METHOD OF CALCULATION- The spendable earnings of an employee shall
be the average weekly wage, as calculated under subsection (a), reduced
by subtracting the Federal, State, and local taxes that would have been
withheld based on standard deductions and on the domicile of the employee
at the time of the injury, and reduced by subtracting the tax that would
have been withheld under section 3101 of the Internal Revenue Code of
1986.
`(2) ANNUAL TABLE- The Secretary shall annually publish a table for calculating
spendable earnings under this subsection.'; and
(3) by redesignating subsections (f) through (i) as subsections (d) through
(g), respectively.
(b) Nonapplicability Until Publication of Table- Not later than 90 days
after the date of enactment of this Act, the Secretary of Labor shall promulgate
regulations and publish a table of average weekly wages, and the associated
amount of spendable earnings, implementing the amendments made by this section.
A carrier shall not be required to adjust payments made under the Longshore
and Harbor Workers' Compensation Act to comply with the amendments made
by this section until such table is published.
SEC. 11. NOTICE OF INJURY OR DEATH.
Section 12 (33 U.S.C. 912) is amended--
(1) by striking subsection (a) and inserting the following:
`(a) Timing and Recipients of Notice-
`(1) TRAUMATIC INJURY OR DEATH- Notice of a traumatic injury or death
in respect of which compensation is payable under this Act shall be given
not later than 30 days after the date of the trauma, or 30 days after
the employee or beneficiary is aware that the trauma resulted in injury
or death (or in the exercise of reasonable diligence or by reason of medical
advice should have been aware) of a relationship among the trauma, the
injury or death, and the employment, but in no case shall the notice be
given more than 1 year after the trauma occurs.
`(2) NON-TRAUMATIC INJURY OR DEATH RESULTING FROM INJURY- Except as provided
in paragraph (3), in the case of a non-traumatic injury that does not
immediately result in a disability or death, and in the case of death
from a non-traumatic injury, such notice shall be given not later than
1 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 non-traumatic injury or death and
employment, provided that in no case shall the notice be given more than
1 year after the diagnosis of a non-traumatic injury or a death resulting
from such injury.
`(3) HEARING LOSS- Notice of hearing loss shall be given not later than
the date specified in paragraph (2) or 1 year after the last date of employment,
whichever occurs first.
`(4) INDIVIDUALS RECEIVING NOTICE- Notice under this subsection shall
be given--
`(A) to the deputy commissioner in the compensation district in which
the injury or death occurred; and
(2) in subsection (b), by adding at the end the following: `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, so that the employer may determine if and how much compensation
should be paid. The opportunity for questioning shall occur at a reasonable
time and place that provides the employee with sufficient opportunity
to obtain legal counsel before such questioning, should the employee so
choose. 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.'; and
(3) by striking subsection (d) and inserting the following:
`(d) Failure To Give Notice- Failure to give timely notice in accordance
with this section shall not bar any claim for compensation under this Act
if--
`(1)(A) the employer (or the employer's agent or other responsible official
designated by the employer pursuant to subsection (c)) or the carrier
had knowledge of the injury or death;
`(B) the deputy commissioner determines that the employer or carrier has
not been prejudiced by failure to give such notice; or
`(C) the deputy commissioner excuses such failure on the ground that--
`(i) notice, while not given to a responsible official designated by
the employer pursuant to subsection (c), was given to an official of
the employer or the employer's insurance carrier, and the employer or
carrier was not prejudiced due to the failure to provide notice to a
responsible official designated by the employer pursuant to subsection
(c); or
`(ii) for some satisfactory reason such notice could not be given;
`(2) objection to such failure is raised before the deputy commissioner
at the first hearing of a claim for compensation in respect of such injury
or death; and
`(3) notice that meets the requirements of this section is given not more
than 1 year after the injury or death.'.
SEC. 12. FILING OF CLAIMS.
Section 13 (33 U.S.C. 913) is amended--
(1) by striking subsection (a) and inserting the following:
`(a) Time To File- 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.
Such claim shall be filed with the deputy commissioner in the compensation
district in which such injury or death occurred.';
(2) by striking subsection (b);
(3) by redesignating subsections (c) and (d) as subsections (b) and (c),
respectively; and
(4) in subsection (c) (as redesignated by paragraph (3)), by inserting
`, provided that such suit was filed in accordance with subsection (a).'.
SEC. 13. PAYMENT OF COMPENSATION.
Section 14(f) (33 U.S.C. 914(f)) is amended--
(1) by striking `within ten days after it becomes due' and inserting `within
10 business days after receipt by the employer or carrier of a priority
mailing containing the order'; and
(2) by adding at the end the following: `For purposes of this section,
the date on which compensation is paid shall be the earlier of the date
on which the employer or carrier actually delivers the compensation to
the employee (or the representative designated by the employee) or the
postmark date on which the compensation was mailed to such employee (or
representative).'.
SEC. 14. ASSIGNMENT AND EXEMPTION FROM CLAIMS OF CREDITORS.
Section 16 (33 U.S.C. 916) is amended--
(1) in subsection (a), by striking `No assignment' and inserting `In General-
Except as provided in subsection (b),'; and
(2) by adding at the end the following:
`(b) Limitation- Benefits due or payable under this Act shall be subject
to withholding and any other legal process in the same form and manner,
and to the same extent, as withholding and other legal processes apply under
the Employment Retirement Income Security Act of 1974 (29 U.S.C. 1056).'.
SEC. 15. PRESUMPTIONS, BURDENS, AND RULES OF EVIDENCE.
Section 20 (33 U.S.C. 920) is amended to read as follows:
`SEC. 20. PRESUMPTIONS, BURDENS, AND RULES OF EVIDENCE.
`(1) REBUTTABLE PRESUMPTIONS- In any proceeding for the enforcement of
a claim for compensation under this Act, it shall be a rebuttable presumption--
`(A) that the claim comes within the provisions of this Act;
`(B) that sufficient notice of such claim has been given;
`(C) that the injury was not occasioned solely by the intoxication of
the injured employee; and
`(D) that the injury was not occasioned by the willful intention of
the injured employee to injure or kill the employee or another.
`(2) REBUTTING PRESUMPTIONS- A presumption described in paragraph (1)
shall not be considered evidence once rebutted. Once a presumption has
been rebutted, the burden of production of evidence and burden of persuasion
shall be governed by section 556(d) of title 5, United States Code.
`(3) REBUTTING NONINTOXICATION PRESUMPTION- The presumption described
in paragraph (1)(C) shall be rebutted by evidence that the employee--
`(A) refused a drug or alcohol test;
`(B) did not make himself available for a drug or alcohol test;
`(C) tested positive for illegal drugs; or
`(D) tested as having a blood alcohol concentration level above the
permitted driving limit as established by the State where the injury
occurred.
`(4) EXCLUSION OF OTHER PRESUMPTIONS- No other presumptions shall be authorized
under this Act.
`(1) AFFIRMATIVE AND COMPLETE DEFENSE- It shall be an affirmative and
complete defense to any employee claim under this Act that the employee
or employee's agent, knowingly made a false statement that is material
to obtaining a benefit or payment.
`(2) CREDIBILITY- If any individual knowingly makes a false statement,
whether in writing or under oath, such false statement shall go to the
credibility of the individual on all other issues.
`(1) EVIDENCE OF INJURY- With respect to proof of injury for any claim
for compensation under this Act--
`(A) the injury, its occupational cause, and any resulting manifestations
or disability must be proven to a reasonable degree of medical certainty,
based on objective relevant medical findings;
`(B) notwithstanding section 4(c) or section 8(c)(13)(B), the employment
exposure or accident shall be the major contributing cause of any injury;
`(C) a causal relationship between a compensable accident or injury,
and conditions that are not readily observable, shall be by medical
evidence only, as proven by physical examination findings or diagnostic
testing;
`(D) the fact that the injury was the major contributing cause shall
be proven by medical evidence only;
`(E) in cases involving occupational disease or repetitive exposure,
both causation and sufficient exposure to support causation shall be
proven by clear and convincing evidence; and
`(F) pain or other subjective complaints alone, in the absence of objective
relevant medical findings, is not compensable.
`(A) EXPERT TESTIMONY- With respect to a claim under this Act, expert
testimony shall not be considered if it does not meet the requirements
of Rule 702 of the Federal Rules of Evidence.
`(B) MEDICAL OPINION- In order to be considered with respect to a claim
under this Act, a medical opinion shall be based on not less than 1
peer-reviewed study that--
`(i) has been published in a major medical journal; and
`(ii) is accepted by the majority of the scientific community.'.
SEC. 16. REVIEW OF COMPENSATION ORDERS.
Section 21 (33 U.S.C. 921) is amended--
(i) in the fourth sentence, by striking `the amounts required by an
award shall not' and inserting `disputed amounts required by an award
shall'; and
(ii) by striking the fifth sentence;
(B) in paragraph (4), by adding at the end the following: `An employee
may request that the Board hold an expedited hearing with respect to
an appeal under this subsection.'; and
(C) by adding at the end the following:
`(6) TIMING FOR DECISIONS-
`(A) ONE-YEAR APPEAL PERIOD- If the Board fails to resolve an appeal
during the 1-year period following the date on which the appeal was
filed, the decision that was the basis of the appeal is automatically
affirmed and such affirmation shall be considered a final order by the
Board.
`(B) NINETY-DAY MOTION TO RECONSIDER PERIOD- If the Board issues a decision
on an appeal during the 1-year period following the date on which the
appeal was filed and a timely motion for reconsideration is filed, the
Board may consider the motion for reconsideration. If the Board fails
to rule upon the motion for reconsideration during the 90-day period
following the filing of such motion, the motion for reconsideration
shall be deemed denied.'; and
(2) in subsection (c), by adding at the end the following: `A litigating
position of the Secretary shall not be entitled to any deference, unless
such position has been expressly adopted by the Secretary as a rule made
on the record after opportunity for an agency hearing (pursuant to sections
556 and 557 of title 5, United States Code).'.
SEC. 17. MODIFICATION OF COMPENSATION CASES.
Section 22 (33 U.S.C. 922) is amended--
(1) by striking `22. Upon' and inserting `22. Modification of Awards--Upon';
(2) in the last sentence of subsection (a) (as inserted by paragraph (1)),
by striking `modification of settlements.'and inserting `modification
of settlements, except as provided in subsection (b) or (c).'; and
(3) by adding at the end the following:
`(b) Fraud- Notwithstanding subsection (a), if any payment of compensation
has been made as a result of fraud, a carrier may at any time seek an order
for immediate--
`(1) termination or suspension of all future payments; and
`(2) full restitution of all amounts paid as a result of the fraud.
`(c) Overpayment- If a carrier makes a payment under this Act to a person
in amounts in excess of the amounts owed, the carrier may seek an order
for repayment by such person, including a credit against any future payment
due under this Act or wages paid to the employee. This subsection shall
apply regardless of whether such excess amounts resulted from voluntary
payments, a settlement, or an order.'.
SEC. 18. PENALTY FOR MISREPRESENTATION.
Section 31 (33 U.S.C. 31) is amended by adding at the end the following:
`(d) Reports of Fraud- A carrier shall report credible incidents of fraud
to the Secretary for investigation. The Secretary shall report any credible
incident of fraud involving more than $10,000 to the appropriate United
States Attorney. In the absence of a finding by the Secretary that a report
of fraud under this subsection was made with knowledge that the information
was false or was disclosed in reckless disregard of whether it was false,
no person reporting fraud under this subsection shall be subject to civil
liability for libel, slander, or any other cause of action arising from
such report.'.
SEC. 19. SPECIAL FUND.
Section 44 (33 U.S.C. 944) is amended--
(1) by redesignating subsections (d) through (j) as subsections (e) through
(k), respectively;
(2) by striking subsection (c) and inserting the following:
`(c) Payments Into Fund- Payments into such fund shall be made as follows:
`(1) Whenever the Secretary determines that there is no person entitled
under this Act to compensation for the death of an employee that would
otherwise be compensable under this Act, the appropriate employer shall
pay $5,000 as compensation for the death of such an employee.
`(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 therefore) to maintain adequate
reserves in the fund.
`(3) Each self-insurer shall make payments into the fund on a prorated
assessment by the Secretary determined by--
`(A) computing the ratio (expressed as a percent) of--
`(i) the self-insurer's compensation payments under sections 8 and
9 during the preceding calendar year, to
`(ii) the total of such payments by all carriers and self-insurers
under such sections during the preceding calendar year;
`(B) computing the ratio (expressed as a percent) of--
`(i) the payments under section 8(f) of this Act during the preceding
calendar year that are attributable to the self-insurer, to
`(ii) the total of such payments during such year attributable to
all carriers and self-insurers;
`(C) dividing the sum of the percentages computed under subparagraphs
(A) and (B) for the self-insurer by 2; and
`(D) multiplying the percentage computed under subparagraph (C) by such
probable expenses of the fund (as determined under paragraph (2)).
`(4) Each employer who is not self-insured shall make payments into the
fund through a surcharge based on the standard premium, to be computed
and collected as follows:
`(A) Carriers that are not self-insurers shall report the amount of
all standard premiums for insurance for the payment of compensation
under this Act to the Secretary by April 1 of each year.
`(B) The Secretary shall compute an amount for each carrier that is
not a self-insurer, using the methodology described in subparagraph
(3) for self-insurers.
`(C) The Secretary shall determine the ratio (expressed as a percent)
of the total of the assessments computed for all such carriers under
subparagraph (B), to the total amount of the standard premiums for insurance
for the payment of compensation under this Act for all carriers during
the preceding calendar year. This ratio shall be the premium surcharge
rate.
`(D) Each such carrier shall collect a share of the assessment from
each employer insured by the carrier through a premium surcharge equal
to the product of the premium surcharge rate multiplied by the standard
premium for the insured employer. The premium surcharge is the amount
payable by each insured employer to satisfy its obligation to the fund.
`(E) Assessments collected as a premium surcharge under this paragraph
shall not constitute an element of loss for the purpose of establishing
rates for workers' compensation insurance but, for the purpose of collection,
shall be treated as separate costs imposed upon insured employers. The
total of the assessment imposed by this paragraph shall be stated as
a separate cost on an insured employer's policy (or on a separate document
submitted to the insured employer) and shall be identified as the `workers'
compensation policyholder surcharge'. Each such assessment shall be
shown as a percentage of the total workers' compensation policyholder
premium. The premium surcharge shall be collected at the same time and
in the same manner that the premium for the coverage is collected. The
premium surcharge shall not be considered as part of the premium, but
an insurer may cancel a policy for coverage under this Act for the nonpayment
of the premium surcharge in accordance with the procedures applicable
to the nonpayment of the premium.
`(F) Each such carrier shall report and remit premium surcharges to
the Secretary semiannually on January 1 and July 1 of the calendar year
following the year in which the assessment is based, and such surcharges
shall be final except for adjustments made as a result of an audit by
the Secretary.
`(d) Notification of Payment Rates- The Secretary shall notify carriers
of the premium surcharge rate to be effective for policies written or renewed
on or after the date of enactment of the Longshore and Harbor Workers' Compensation
Act Amendments of 2006, and annually thereafter. At the same time as such
notification to carriers, the Secretary shall notify each self-insured employer
of the amount to be assessed against such employer under this section for
the following calendar year.'; and
(3) in subsection (i) (as redesignated by paragraph (1)), by adding at
the end the following: `Such civil suit for collections shall be brought
against the control group of the employer, as such term is defined under
section 3(40)(B) of the Employee Retirement Income Security Act of 1974.'.
SEC. 20. CONFORMING AMENDMENTS.
(a) Section 7- The Act (33 U.S.C. 901 et seq.) is amended--
(A) in subsection (e)(1)(A) (as redesignated by section 7(a)(3)), by
striking `and (c)' and inserting `and (d)';
(B) in subsection (h) (as redesignated by section 7(a)(3)), by striking
`(e)' and inserting `(f)';
(C) in subsection (k)(1) (as redesignated by section 7(a)(3)), by striking
`(c)' and inserting `(d)'; and
(D) in subsection (l)(2) (as redesignated by section 7(a)(3)), by striking
`(d)' and inserting `(e)';
(2) in section 28(b), by striking `7(e)' and inserting `7(f)';
(3) in section 31(b)(2)(B), by striking `(j)' and inserting `(k)'; and
(4) in section 44(i)(4), by striking `7(e)' and inserting `7(f)'.
(b) Section 10- The Act (33 U.S.C. 901 et seq.) is amended--
(A) in subsection (e) (as redesignated by section 10(3)), by striking
`(f)' and inserting `(d)'; and
(B) in subsection (f)(3), by striking `(f) and (g)' and inserting `(c)
and (d)';
(2) in section 2(10) and section 8(c)(23), by striking `(10)(d)(2)' each
place the term appears and inserting `10(b)(2)'; and
(3) in section 9(f) (as redesignated by section 9(2)), by striking `10(i)'
and inserting `10(f)'.
(c) Section 44- The Act (33 U.S.C. 901 et seq.) is amended--
(1) in section 44(j)(3) (as redesignated by section 19(1)) + B , by striking
`(d)' and inserting `(e)'; and
(2) in section 22, by striking `(i)' and inserting `(j)'.
SEC. 21. EFFECTIVE DATES.
The amendments made to the Longshore and Harbor Workers' Compensation Act
(referred to in this section as `the Act') (33 U.S.C. 901 et seq.) by this
Act shall take effect on the date of enactment of this Act, except that--
(1) the amendments made to paragraphs (3)(A) and (13) of section 2, subsections
(c) and (e) of section 3, subsections (c), (d), and (e) of section 4,
subsections (a) and (e) of section 5, section 7(g), section 13, and subsections
(b) and (c) of section 20 of the Act shall apply with respect to any claim
under the Act filed on or after the date of enactment of this Act;
(2) the amendments made to section 2(25) of the Act shall take effect
on the date of enactment of this Act, and shall apply regardless of the
date that the fraudulent act occurred;
(3) in section 5(d) of the Act--
(A) the amendments made to paragraph (1) shall apply with respect to
any claim under a Federal or State workers' compensation law filed on
or after the date of enactment of this Act; and
(B) the amendments made to paragraphs (2) and (3) shall apply with respect
to any claim under a Federal or State workers' compensation law, and
any action under the Merchant Marine Act, 1920 (commonly referred to
as the `Jones Act') (46 U.S.C. App.) or in tort, filed on or after the
date of enactment of this Act;
(4) the amendments made to section 7 (not including subsection (g)) of
the Act shall apply with respect to any medical care delivered, or examination
conducted, under the Act on or after the date of enactment of this Act;
(5) the amendments made to sections 8, 9, and 10 of the Act shall apply
with respect to any claim under the Act filed on or after the date of
enactment of this Act, subject to sections 8(b), 9(b), and 10(b) of this
Act;
(6) the amendments made to section 11 (not including subsection (a)) of
the Act shall apply with respect to any claim under the Act filed on or
after the date of enactment of this Act;
(7) the amendments made to section 14 of the Act shall apply with respect
to any claim for compensation under the Act for which the carrier receives
notice of the claim for compensation on or after the date of enactment
of this Act;
(8) the amendments made to section 20(a)(3) of the Act shall apply with
respect to any injury covered under the Act that occurs on or after the
date of enactment of this Act;
(9) the amendments made to section 21(b)(3) of the Act shall apply to
any proceeding conducted under the Act on or after the date of enactment
of this Act;
(10) the amendments made to section 22 of the Act shall apply with respect
to any payment of compensation under the Act on or after the date of enactment
of this Act;
(11) the amendments made to section 31 of the Act shall apply with respect
to any instance of known or suspected fraud involving a claim under the
Act that is detected on or after the date of enactment of this Act; and
(12) the amendments made to section 44 of the Act shall take effect on
the January 1st following the date of enactment of this Act.
END
