S 669
112th CONGRESS
1st Session
S. 669
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
March 29, 2011
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 2011'.
(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 (33 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, a hearing aid, 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))--
(A) by inserting `this Act,' after `pursuant to';
(B) by striking `law or section' and inserting `law, or section';
and
(C) by inserting `)' after `death of seamen'.
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- A 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' each place
the term occurs 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, 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 chapter
171 of title 28, United States Code (commonly known as 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 nationally recognized 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
(except that 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 2011. 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.';
(C) 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.';
and
(i) by striking `66 2/3 per centum' and inserting `75 percent';
and
(ii) by striking `average weekly wages' each place the term occurs
and inserting `spendable earnings';
(4) 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.';
(5) 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 2011, 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.';
(6) in subsection (j)(1), by striking `a disabled employee' and inserting
`an employee'; and
(7) 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 the Internal Revenue Code
of 1986, 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)' before the period at the end.
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) by striking `No assignment' and inserting the following:
`(a) In General- Except as provided in subsection (b), no assignment';
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 section 206 of 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. (a) 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. 931) 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 2011, 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 (29 U.S.C. 1002(40)(B)).'.
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(3)), by
striking `and (c)' and inserting `and (d)';
(B) in subsection (h) (as redesignated by section 7(3)), by striking
`(e)' and inserting `(f)';
(C) in subsection (k)(1) (as redesignated by section 7(3)), by striking
`(c)' and inserting `(d)'; and
(D) in subsection (l)(2) (as redesignated by section 7(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(j)(4) (as redesignated by section 19(1)), 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(a)(3)), by
striking `(f)' and inserting `(d)'; and
(B) in subsection (f)(3) (as redesignated by section 10(a)(3)),
by striking `(f) and (g)' and inserting `(d) and (e)';
(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)(2) (as redesignated by section 9(a)(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)), by striking
`(d)' and inserting `(e)'; and
(2) in section 22(a) (as inserted by section 17(1)), by striking `(i)'
and inserting `(j)'.
SEC. 21. EFFECTIVE DATES.
(a) References- A reference in subsection (b) to a provision of the
Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901 et seq.)
shall be considered to be a reference to such provision as added, amended,
or redesignated by this Act.
(b) 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 section 30104 of title 46, United States
Code, 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
