primary U.S. Department of Labor complaint in longshore cases is the inability of the parties to draft an 8(i) agreement which complies with applicable statutes and regulations. It is the author's experience that between thirty and forty percent of 8(i) applications are initially rejected by the United States Department of Labor. A notice of deficiency generally issues when a proposed 8(i) agreement lacks an essential ingredient or contains an unacceptable "add-on" provision. A deficiency notice can be avoided by reference to the 8(i) checklists, the sample 8(i) agreement and the drafting examples contained in the following article. The main statutes and regulations regarding the settlement of claims are provided herewith for handy reference. Use of these materials will result in better 8(i) agreements and swifter approval.
Full Answer
What happens if there is a dispute with the longshore district?
If a dispute arises concerning the necessity of treatment, the frequency of treatment, the type of treatment provided, or the amount of fees billed, the Longshore District Director (or his/her designee, the Claims Examiner) will attempt to resolve the dispute informally.
How do I get more information about my Longshore claims?
You should contact your servicing Longshore Claims Examiner for more information. Be sure to provide the claims examiner with documentation of your earnings in the form of pay stubs, W-2 tax forms or earnings statements.
Who is in charge of the Longshore and Harbor Workers Compensation Act?
The Office of Workers' Compensation Programs (OWCP) is charged with oversight of four federal workers' compensation statutes, including the LHWCA, and its extensions. Within the OWCP, the Division of Longshore and Harbor Workers' Compensation (DLHWC) administers the LHWCA.
What happens if a Section 8(i) settlement is disapproved?
Where a Section 8(i) settlement application is disapproved by the deputy commissioner, any party to the settlement may request a hearing before an administrative law judge or submit an amended application to the deputy commissioner. 20 C.F.R. §702.243(c). Accordingly, this case was properly forwarded to the administrative law judge once the settlement was disapproved by the deputy commissioner. However, the administrative law judge erred in finding the settlement should have been deemed approved as the application did not comply with the regulations.. Although a claims adjuster for employer did sign the portion of the settlement application regarding the settlement of the disability claim, his failure to sign the portion of the settlement application which dealt with settlement of the medical benefits renders the entire settlement application incomplete; under 20 C.F.R. §702.243(e), if either portion of a combined compensation and medical benefit settlement is disapproved, the entire application is disapproved unless the parties indicate on the face of the application that they agree to settle each portion independently. McPherson v. Nat’l Steel & Shipbuilding Co., 24 BRBS 224 (1991), aff’d on recon. en banc, 26 BRBS 71 (1992).
What is Section 8(i)?
Section 8(i) provides the requirements for the settlement of claims under the Act. This provision was substantially amended by the 1984 Amendments, following which the Department of Labor promulgated new regulations, effective January 31, 1986. 20 C.F.R.
What to do if a settlement is disapproved?
If the proposed settlement is disapproved by the district director, the parties may either request a hearing before an administrative law judge or submit an amended settlement application. 20 C.F.R. §702.243(c). If the administrative law judge disapproves a settlement following a hearing, the parties have the option to submit a new application, file an appeal to the Board, or proceed with a hearing on the merits of the claim. Id. If the settlement is initially disapproved by the administrative law judge, the parties may either submit a new application or proceed with a hearing on the merits. Id. The district director or administrative law judge must explain the reasons for rejecting a settlement agreement with sufficient particularity so as to allow a proper review of his determination. Sablowski v. Gen. Dynamics Corp., 10 BRBS 1033 (1979); see 20 C.F.R. §702.243(c).
What is Section 14(f) in a settlement?
In a case where employer paid the 20 percent penalty under Section 14(f), giving the Board jurisdiction over the appeal, the Board held that the parties may negotiate claimant’s entitlement to or waiver of a Section 14(f) assessment in a Section 8(i) settlement, as the assessment is additional compensation and claimants may waive their rights to compensation through a Section 8(i) settlement. In this case, claimant and employer entered into a Section 8(i) settlement which provided for claimant’s waiver of the Section 14(f) assessment in the event he did not provide a “valid street address for purposes of delivery of the settlement proceeds.” Claimant supplied his correct street address but the USPS refused delivery because claimant did not have a mailbox at that address. Consequently, delivery of the proceeds was late. Because the district director did not address employer’s argument that claimant violated the settlement clause, the Board vacated the Section 14(f) assessment and remanded the case to the OALJ for fact-finding on this issue. D.G. [Graham] v. Cascade Gen., Inc., 42 BRBS 77 (2008).
Which court case referred to the authority of the deputy commissioner to approve settlements?
In Clefstad v. Perini North River Associates, 9 BRBS 217 (1978), the Board held that both deputy commissioners and administrative law judges had the authority to approve proposed settlements under the Section 8(i)(A) of the 1972 Act. The Fifth Circuit, however, held that administrative law judges were not authorized to approve such settlements, but could only recommend approval or disapproval and then remand the case to the deputy commissioner for ultimate approval. Ingalls Shipbuilding Div. Litton Sys., Inc. v. White, 681 F.2d 275, 14 BRBS 988 (5th Cir. 1982). The Board followed White only in cases arising in the Fifth Circuit. In Blake v. Hurlburt Field Billeting Fund, 17 BRBS 14 (1985), which arose in the Eleventh Circuit, the Board reaffirmed its holding that both deputy commissioners and administrative law judges may approve settlements and expressly refused to adopt the Fifth Circuit’s view in White. The Board noted that its determination was consistent with the 1984 Amendments.
Can a settlement agreement be conditioned?
settlement agreement may be conditioned and restricted, as long as it is in accordance with law. For example, the Board has held that a settlement agreement providing benefits for Section 8(c)(13) permanent partial disability could be made contingent on the end of total disability. Sablowski v. Gen. Dynamics Corp., 10 BRBS 1033 (1979).
Does a compromise and release form constitute an application for Section 8(i) settlement?
The filing of a compromise and release on a state form with the district director does not constitute an application for a Section 8(i) settlement where: 1) it does not satisfy the requirements of the regulations; 2) it is not submitted in accordance with Section 8(i); and
What is Section 8 settlement?
Section 8 (i) settlements may be in the form of a lump sum settlement or a structured settlement, i.e., one that provides for continuing periodic payments. [n13] In the broader workers’ compensation context, structured settlements are often funded by an annuity purchased from a life insurance company and held for the claimant’s benefit by employer/carrier. [n14] Alternatively, employer/carrier may wish to assign its periodic payment obligation under a structured settlement to a third party. [n15] If a “qualified assignment” is made in accordance with Section 130 of the Internal Revenue Code (IRC), all payments made to claimant are tax-exempt. [n16] The qualified assignment is achieved by the employer/carrier assigning its future payment obligation to a third party, typically an affiliate of a life insurance company, which, in turn, insures its risk by purchasing an annuity from its parent. It thus allows employer/carrier to eliminate a liability from its books. [n17] Qualification of the assignment is also important to assignment companies because without it the amount they receive to induce them to accept periodic payment obligations would be considered income for federal income tax purposes. [n18]
What is Section 8 (i)?
Section 8 (i) provides for the approval of settlements unless inadequate or procured by duress. 33 U.S.C.S. § 908 (i) (1); [n3] 20 C.F.R. § 702.243 (f), (g). The recent Board decision in Richardson v. Huntington Ingalls, Inc., 48 BRBS __ (May 26, 2014), affirming the ALJ’s approval of a settlement application over the objections of the Director for the Office of Workers’ Compensation Programs (OWCP), highlights the challenges attendant to the determination of “adequacy” and illuminates the standard to be applied in reviewing settlement applications.
What is Mitri v. Global Linguist Solutions?
Global Linguist Solutions, 2012-LDA-00578 (July 12, 2013 “Order Denying Director’s Motion for Reconsideration”), the OWCP Director requested reconsideration of an ALJ decision and order awarding TTD benefits based on the parties’ stipulations. As formulated by the ALJ, the issue on reconsideration was whether a judge can approve stipulations for the payment of ongoing TTD compensation that permit the employer and carrier unilaterally to terminate or reduce compensation upon:
Why did the ALJ reject the settlement?
The OWCP Director urged the ALJ to reject the settlement because the parties had failed to establish its adequacy.
What is the settlement agreement in McShane?
In McShane, the ALJ stated that: “ [t]he Settlement Agreement provides for the funding of an annuity which would relieve Respondents of any liability for payments to be paid by the annuity insurer. I advised the parties that that provision is unacceptable and that Respondents cannot be relieved of the liability for paying the annuity amounts in the event, though unlikely, that the annuity insurer fails to make the payment.” A revised settlement, which addressed the ALJ’s concerns, was ultimately approved in this case.
Which case cited the contract principles of Section 8 (i)?
11. The Director observed that the Board and the courts have recognized that contract principles apply to section 8 (i) settlement agreements in the absence of superseding provisions in the Act, citing Oceanic Butler, Inc. v. Nordahl, 842 F.2d 773, 780-781, 21 BRBS 33 (CRT) (5th Cir. 1988) (recognizing that where Act is silent on an employer's right to withdraw from an 8 (i) agreement, employer could have reserved right by means of a contractual provision).
Does the District Director have authority to require the parties to a section 8 settlement to obtain Medicare pre-approval?
6. The OWCP Procedure Manual states that: “ [t]he [District Director] has no authority to require the parties to a section 8 (i) settlement to obtain Medicare pre-approval, nor to deny the settlement as inadequate absent such pre-approval.” Available at: http://www.dol.gov/owcp/dlhwc/lsproman/proman.htm#03-0501-12. The Board adopted this position in Bomback v. Marine Terminals Corp., 44 BRBS 95 (2010) (stating that “even if Medicare is applicable, there is no requirement that the adjudicatory officer require the parties to obtain Medicare pre-approval nor can she deny the settlement as inadequate for failure to obtain such approval,” citing the OWCP Procedure Manual).
How long does it take to file a claim with the OWCP?
In addition to the Notice of Injury given to your employer, you should file a written claim with the OWCP within one (1) year after the date of injury; or, if the employer has been voluntarily paying compensation benefits, you should file a written claim within a year of the last payment of compensation.
Who pays for LHWCA?
These benefits are typically paid by the self-insured employer or by a private insurance company on the employer's behalf.
What is the OCSLA?
Outer Continental Shelf Lands Act (OCSLA) - The OCSLA covers employees working on the Outer Continental Shelf of the United States in the exploration and development of natural resources, for example, off-shore oil drilling rigs. To learn more about the OCSLA, please see the OCSLA section of our website.
How long do you have to give notice of injury?
You must give a written notice of injury to the employer within 30 days of the occurrence of the injury or within 30 days of when you become aware that you have an injury or disability related to the employment. You should use Form LS-201, Notice of Employee's Injury or Death, for this purpose.
Who is excluded from LHWCA?
The LHWCA also excludes the following individuals if they are covered by a state workers' compensation law: Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work; Individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
Does the LHWCA extend to other types of employment?
Congress extended the LHWCA to include other types of employment. Employees covered by these extensions are entitled to the same benefits, and their claims are handled in the same way as Longshore Act claims. The following are the extensions of the LHWCA:
What are some disputed issues in Longshore Act claims?
The more disputed issues that exist, the cheaper they can settle a claim. Some typical disputed issues in Longshore Act claims include average weekly wage, chronic medical issues, and the amount of benefits owed.
Who approves a settlement?
The good news is that your settlement will only be approved by the DLHWC or an Administrative Law Judge if your settlement is “reasonable.” Most settlements are reviewed by the DLHWC, which looks at a number of factors to determine if you are getting a reasonable settlement:
How Does the Longshore Act process work?
After you are injured, make sure that you seek timely medical treatment. An injured contractor’s health is the most important aspect of a Longshore and Harbor Workers’ Compensation Act claim. You are entitled to your choice of physician, meaning you get to choose a doctor or a specialist to treat you for your injury.
What if I Just Want to Settle My Claim?
Of course, there are alternatives to formal adjudication. Any time during the course of your claim, the parties may discuss settlement. Most cases settle. But it is important that you know how to settle your claim, and how to make sure that you are getting the best deal available. After all, it is your future at stake.
How to determine if a settlement is reasonable?
The good news is that your settlement will only be approved by the DLHWC or an Administrative Law Judge if your settlement is “reasonable.” Most settlements are reviewed by the DLHWC, which looks at a number of factors to determine if you are getting a reasonable settlement: 1 Medical records. The DLHWC needs to know whether you have reached “maximum medical improvement,” and whether you have any impairment ratings to any scheduled body parts. 2 Loss of wage earning capacity. The DLHWC needs to know whether you have returned to work or whether there is other employment that you can perform. 3 Disputed legal or factual issues. Employers and carriers tend to favor disputes. The more disputed issues that exist, the cheaper they can settle a claim. Some typical disputed issues in Longshore Act claims include average weekly wage, chronic medical issues, and the amount of benefits owed.
What does DLHWC want to hear?
The DLHWC will want to hear from your employer and carrier before making a recommendation. Typically, the parties participate in an informal conference and then the DLHWC issues a memorandum. Your attorney should represent you in this informal conference. If any party disagrees with the DLHWC’s memorandum, then that party files a Form LS-207 explaining their disagreement.
How long do you have to pay a settlement?
The employer and carrier have ten days to put the settlement money in your hands. If the employer and carrier fail to pay you within the ten day deadline, then they are on the hook for a stiff penalty equal to 20% of the amount of the outstanding sum.