March 10, 2020
The Department of Labor administers and adjudicates claims brought under the Longshore and Harbor Workers’ Compensation Act (“the Longshore Act” or “LHWCA”) and its extensions, such as the Defense Base Act (“DBA”), the Nonappropriated Fund Instrumentalities Act (“NAFIA”), and the Outer Continental Shelf Lands Act (“OCSLA”). Below is a general rundown of the procedural path that a Longshore Act claim may take through the Department of Labor and some links from each Department of Labor tribunal.
The Office of Workers’ Compensation Programs
Longshore Act claims are originally filed with the Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”). The OWCP serves a variety of roles in Longshore Act claims. An OWCP district director may issue a legally enforceable order in some situations that involve medical care, calculations, or late payments. District directors are also empowered to approve stipulations and settlements, order some fines, and determine attorneys’ fees for work performed at the OWCP level.
The OWCP’s most prominent role in Longshore Act cases is to preside over the initial form of dispute resolution called an “informal conference.” Any party can request an informal conference if there is a disagreement. Common disputes include the entitlement to benefits, the amount of benefits, or what medical care is reasonable and necessary. A claims examiner or district director will schedule a conference and often asks parties in advance for documentation and sometimes position statements. During the conference, the parties are all given an opportunity to present their arguments. The OWCP then usually issues a written non-binding recommendation. If the parties are unable to agree after the informal conference, another may be held, or a party may file a Form LS-18 request for referral to the Office of Administrative Law Judges for a formal hearing.
Here are some links from the OWCP that may be helpful.
• The main OWCP Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) website: https://www.dol.gov/owcp/dlhwc/
• Hours and contact information: https://www.dol.gov/owcp/dlhwc/lscontac.htm
• The OWCP’s online library including its procedure manuals, frequently asked questions, and industry notices: https://www.dol.gov/owcp/dlhwc/reg-library.htm
• The OWCP’s Longshore Act forms: https://www.dol.gov/owcp/dlhwc/lsforms.htm
• Here is a list of which office has initial jurisdiction over a Defense Base Act claim, though for residents of the U.S., claims are typically transferred based upon home address: https://www.dol.gov/owcp/dlhwc/dbajurisdictions.htm
• The LS-201 form that is used to report an injury to an employer (notably, although it is not necessary to use this form, failure to timely report an injury can result in it being time-barred per 33 U.S.C. § 912): https://www.dol.gov/owcp/dlhwc/ls-201.pdf
• The LS-203 form that is used to file a claim (here, too, the form itself is not mandatory, but a claim must be timely filed per 33 U.S.C. § 913): https://www.dol.gov/owcp/dlhwc/ls-203.pdf
• The LS-18 form to seek a formal hearing and referral to the Office of Administrative Law Judges: https://www.dol.gov/owcp/dlhwc/ls-18.pdf
• The electronic filing website called SEAPortal where OWCP case documents can be uploaded instead of filing by mail: https://seaportal.dol-esa.gov/portal/?program_name=LS
• Instructions on how to file a new claim via SEAPortal: https://www.dol.gov/owcp/dlhwc/lsindustrynotices/industrynotice178.htm
• The Longshore Act: https://www.dol.gov/owcp/dlhwc/lhwca.htm
• The OWCP’s regulations: https://www.dol.gov/general/cfr/title_20
• The annual national average weekly wage valuation along with maximum compensation rates, minimum compensation rates, and cost of living adjustments: https://www.dol.gov/owcp/dlhwc/NAWWinfo.htm
The Office of Administrative Law Judges
If parties are unable to informally resolve their dispute, upon request, the OWCP will refer the case to the Office of Administrative Law Judges (“OALJ”) for a formal hearing (basically, a trial in front of a judge only rather than a judge and jury). Usually by this point, both parties have retained attorneys. The Chief Administrative Law Judge (“ALJ”) in Washington, D.C., will receive the physical file and sub-assign it to an office. Once a district office receives the file, that office’s District Chief ALJ will assign it to an ALJ. Parties conduct discovery pursuant to the ALJ’s Rules of Practice and Procedure, other applicable regulations and codes, as well as the orders from the particular presiding ALJ. See 29 C.F.R. Part 18, Subpart A; 20 C.F.R. § 702. Under normal circumstances—and with many exceptions—a hearing will go forward in four to eight months. If possible, the hearing will be set within 75 miles of the claimant’s residence, but given the realities of finding a usable courtroom and government budget limitations, this is often not the case, and for international claimants, it almost never happens. Parties sometimes stipulate to submitting a case on the briefs (in other words, without an in-person hearing), or to video or telephone testimony in lieu of in-person testimony. After a formal hearing, parties submit post-hearing briefs. The ALJ will then prepare a written decision. These decisions range dramatically in length, from a few pages to over a hundred pages. The typical wait for a decision ranges from couple of months to a couple of years. Unlike a claims examiner’s informal conference recommendation, an ALJ’s order is an official, enforceable document. If compensation benefits are awarded, the employer (or its insurance carrier) must comply or face steep penalties.
Here are some links from and about the OALJ that may be useful:
• The OALJ website: https://www.oalj.dol.gov/
• The OALJ’s website has various search engines, and here is one that enables an easy search by the claimant’s name (last name, then a space, then the first name, with no commas—e.g., “Doe John”): https://www.oalj.dol.gov/OALJ_DMS_Search.html
• The OALJ’s “Information for Claimants” page: https://www.oalj.dol.gov/Information_for_Longshore_Claimants.htm
• The OALJ’s collection of Longshore Act documents including forms, subpoenas, newsletters, and other resources: https://www.oalj.dol.gov/LIBLHC.HTM
• How to contact the OALJ: https://www.oalj.dol.gov/ADDRESS.HTM
• The OALJ’s regulations: https://www.law.cornell.edu/cfr/text/29/part-18
The Benefits Review Board
If a party disagrees with a decision and wishes to appeal, the first level of appeal is usually the Benefits Review Board (“BRB”) (with some nuanced exceptions best interpreted by an attorney familiar with these particular procedural quirks). Appeals to the Board must be filed within 30 calendar days from when the decision being appealed is filed by the District Director at the OWCP (not from when a party receive the decision and not when the ALJ decides the case), again with some potentially dangerous exceptions. Deadlines to initiate an appeal must be complied with; they are jurisdictional, not discretionary. The Benefits Review Board allows both paper and electronic filing (link below), but you must register in advance to electronically file, so if you are filing on the day a document is due, ensure you are registered in advance. To initiate an appeal, a party should file a Notice of Appeal, including the information set out in the Board’s regulations. After the Benefits Review Board receives a Notice of Appeal, it will send out an Acknowledgement of Notice of Appeal, which triggers briefing deadlines and provides a BRB case number. Although I do not recommend appealing a case without counsel if it can be avoided, if a party is unrepresented, the Board will review the decision below based upon the record as a whole regardless of whether the unrepresented party files a brief. If, however, an attorney fails to file the Petition for Review or supporting brief, the Board will issue an Order to Show Cause and potentially dismiss the case. The Board has five members, and unless it is sitting en banc, a panel of three is assigned to each case. It sometimes, but rarely, holds oral argument. The Board generally decides cases within one year of the time the Notice of Appeal was filed.
Further appeals can be taken to the applicable federal court. Which federal court varies based upon what type of case it is, the location of injury, and the location of the district director who filed the decision being appealed.
Here are some links regarding the Board.
• The Board’s home page, with a link to register for its e-filing service: https://www.dol.gov/brb/welcome.html
• My personal favorite resource for beginning research is the Board’s Longshore Deskbook, available here: https://www.dol.gov/brb/References/Reference_works/lhca/lsdesk/
• Benefits Review Board decisions are available here: https://www.dol.gov/brb/decisions.htm
• Rules of Practice and Procedure before the Board: https://www.law.cornell.edu/cfr/text/20/part-802
• The Board’s Notice of Appeal Rights explaining the time line and locations to appeal the Board’s decision: https://www.dol.gov/brb/notice_of_appeal_rights.htm