S 236 ISCommentsClose CommentsPermalink

To amend the Longshore and Harbor Workers’ Compensation Act to improve the compensation system, and for other purposes.CommentsClose CommentsPermalink

January 14, 2009CommentsClose CommentsPermalink

Mr. ISAKSON introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and PensionsCommentsClose CommentsPermalink

To amend the Longshore and Harbor Workers’ Compensation Act to improve the compensation system, and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE; REFERENCES.

(a) Short Title- This Act may be cited as the ‘Longshore and Harbor Workers’ Compensation Act Amendments of 2009’.CommentsClose CommentsPermalink





(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.).CommentsClose CommentsPermalink

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:CommentsClose CommentsPermalink

‘SEC. 1A. CONGRESSIONAL INTENT OF NEUTRAL INTERPRETATION.

‘It is the intent of Congress that--CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(2) the system established under this Act shall be an efficient and self-executing system that is not an economic or administrative burden; andCommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink

SEC. 3. DEFINITIONS.

Section 2 (33 U.S.C. 902) is amended--CommentsClose CommentsPermalink





(1) in paragraph (1), by striking ‘association.’ and inserting ‘association, but does not include the Secretary.’;CommentsClose CommentsPermalink





(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.’;CommentsClose CommentsPermalink





(3) in paragraph (3)(A)--CommentsClose CommentsPermalink





(A) by striking ‘employed exclusively to perform’ and inserting ‘primarily performing’; andCommentsClose CommentsPermalink





(B) by inserting ‘on the day of the injury’ before the semicolon at the end;CommentsClose CommentsPermalink





(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’;CommentsClose CommentsPermalink





(5) in paragraph (14), by striking ‘(19)’ and inserting ‘(18)’;CommentsClose CommentsPermalink





(6) by redesignating paragraphs (21) and (22) as paragraphs (26) and (27), respectively; andCommentsClose CommentsPermalink





(7) by inserting after paragraph (20) the following:CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(25) The term ‘fraud’ means the act of knowingly, and with intent to defraud--CommentsClose CommentsPermalink





‘(A) providing material false information that could result in the obtaining or denying, in whole or in part, of compensation under this Act; orCommentsClose CommentsPermalink





‘(B) failing to provide material information that could result in the obtaining or denying, in whole or in part, of compensation under this Act.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink

SEC. 4. COVERAGE.

Section 3 (33 U.S.C. 903) is amended--CommentsClose CommentsPermalink





(1) in subsection (c), by striking ‘solely’;CommentsClose CommentsPermalink





(2) by redesignating subsection (e) as subsection (f);CommentsClose CommentsPermalink





(3) by inserting after subsection (d) the following:CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(1) is part of the medical treatment for a disability compensated under section 8; orCommentsClose CommentsPermalink





‘(2) was damaged as part of, or in concert with, an accident that resulted in a traumatic injury to the employee.’; andCommentsClose CommentsPermalink





(4) in subsection (f) (as redesignated by paragraph (2))--CommentsClose CommentsPermalink





(A) by inserting ‘this Act,’ after ‘pursuant to’;CommentsClose CommentsPermalink





(B) by striking ‘law or section’ and inserting ‘law, or section’; andCommentsClose CommentsPermalink





(C) by inserting ‘)’ after ‘death of seamen’.CommentsClose CommentsPermalink

SEC. 5. LIABILITY FOR COMPENSATION.

Section 4 (33 U.S.C. 904) is amended to read as follows:CommentsClose CommentsPermalink

‘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.CommentsClose CommentsPermalink





‘(b) Payment Irrespective of Fault- Compensation shall be payable irrespective of fault as a cause for the injury.CommentsClose CommentsPermalink





‘(c) Proportional Payment-CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(A) the disability rating for a prior permanent injury; andCommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(d) Borrowed Employees-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(2) INDEMNIFICATION AGREEMENT- Nothing in paragraph (1) shall be construed to supercede an express contractual indemnification agreement between the borrowing and lending employer.CommentsClose CommentsPermalink





‘(e) Last Employer Doctrine; Intervening Nonmaritime Employment; Noncontributing Exposure-CommentsClose CommentsPermalink





‘(1) LAST EMPLOYER DOCTRINE-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(3) NONCONTRIBUTING EMPLOYMENT EXPOSURE- For purposes of this Act, employment exposure did not contribute to the injury or death of an employee if--CommentsClose CommentsPermalink





‘(A) the medical condition that resulted in the injury or death was diagnosed before employment commenced; orCommentsClose CommentsPermalink





‘(B) the employer did not expose the employee to conditions capable of causing or contributing to the injury or death.’.CommentsClose CommentsPermalink

SEC. 6. EXCLUSIVENESS OF LIABILITY.

Section 5 (33 U.S.C. 905) is amended--CommentsClose CommentsPermalink





(1) in subsection (a)--CommentsClose CommentsPermalink





(A) in the first sentence, by striking ‘or in admiralty’ each place the term occurs and inserting ‘in admiralty, or otherwise,’; andCommentsClose CommentsPermalink





(B) by striking the third sentence; andCommentsClose CommentsPermalink





(2) by adding at the end the following:CommentsClose CommentsPermalink





‘(d) Preemption-CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(A) has voluntarily paid compensation under this Act;CommentsClose CommentsPermalink





‘(B) has settled a claim for compensation under this Act;CommentsClose CommentsPermalink





‘(C) is contesting a claim for compensation under this Act;CommentsClose CommentsPermalink





‘(D) is appealing an order under this Act;CommentsClose CommentsPermalink





‘(E) is subject to an order under this Act; orCommentsClose CommentsPermalink





‘(F) has notified the Secretary that a claim for compensation should have been brought under this Act.CommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(3) ADMINISTRATIVE STAY-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink

SEC. 7. MEDICAL SERVICES AND SUPPLIES.

Section 7 (33 U.S.C. 907) is amended--CommentsClose CommentsPermalink





(1) in subsection (a)--CommentsClose CommentsPermalink





(A) by striking ‘(a)’ and inserting ‘(a)(1)’;CommentsClose CommentsPermalink





(B) by striking ‘furnish such’ and inserting ‘furnish medical services and supplies, including’; andCommentsClose CommentsPermalink





(C) by adding at the end the following:CommentsClose CommentsPermalink





‘(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.’;CommentsClose CommentsPermalink





(2) by striking subsection (i);CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(4) by striking subsection (b) and inserting the following:CommentsClose CommentsPermalink





‘(b) Physician Selection-CommentsClose CommentsPermalink





‘(1) CARRIER USING PARTICIPATING NETWORKS OR HEALTH CARE PANELS-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(C) PARTICIPATING NETWORKS-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(c) Supervision and Change of Physicians- The Secretary, consistent with the nationally recognized evidence-based standards provided for under subsection (a)(2)--CommentsClose CommentsPermalink





‘(1) shall actively supervise the medical care rendered to injured employees;CommentsClose CommentsPermalink





‘(2) shall require periodic reports as to the medical care being rendered to injured employees;CommentsClose CommentsPermalink





‘(3) shall have authority to determine the necessity, character, and sufficiency of any medical aid furnished or to be furnished;CommentsClose CommentsPermalink





‘(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; andCommentsClose CommentsPermalink





‘(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).’;CommentsClose CommentsPermalink





(5) in subsection (d) (as redesignated by paragraph (3))--CommentsClose CommentsPermalink





(A) in paragraph (1)(B), by striking ‘(j)’ and inserting ‘(k)’; andCommentsClose CommentsPermalink





(B) in paragraph (2), by striking ‘by an employee’;CommentsClose CommentsPermalink





(6) in subsection (e)(4) (as redesignated by paragraph (3))--CommentsClose CommentsPermalink





(A) by striking ‘employer’ and inserting ‘employer or designated by the Secretary’; andCommentsClose CommentsPermalink





(B) by striking ‘may’ and inserting ‘shall’;CommentsClose CommentsPermalink





(7) in subsection (f) (as redesignated by paragraph (3)), by striking the third sentence;CommentsClose CommentsPermalink





(8) by inserting after subsection (f) (as redesignated by paragraph (3)) the following:CommentsClose CommentsPermalink





‘(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.’; andCommentsClose CommentsPermalink





(9) by adding at the end the following:CommentsClose CommentsPermalink





‘(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 2009. 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.’.CommentsClose CommentsPermalink

SEC. 8. COMPENSATION FOR DISABILITY.

(a) Compensation for Disability- Section 8 (33 U.S.C. 908) is amended--CommentsClose CommentsPermalink





(1) in subsection (a), by striking ‘66 2/3 per centum of the average weekly wages’ and inserting ‘75 percent of the spendable earnings’;CommentsClose CommentsPermalink





(2) in subsection (b), by striking ‘66 2/3 per centum of the average weekly wages’ and inserting ‘75 percent of the spendable earnings’;CommentsClose CommentsPermalink





(3) in subsection (c)--CommentsClose CommentsPermalink





(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’;CommentsClose CommentsPermalink





(B) by striking paragraph (13) and inserting the following:CommentsClose CommentsPermalink





‘(13) LOSS OF HEARING-CommentsClose CommentsPermalink





‘(A) COMPENSATION-CommentsClose CommentsPermalink





‘(i) TOTAL LOSS OF HEARING-CommentsClose CommentsPermalink





‘(I) ONE EAR- The compensation for total loss of hearing in 1 ear shall be 52 weeks.CommentsClose CommentsPermalink





‘(II) BOTH EARS- The compensation for total loss of hearing in both ears shall be 200 weeks.CommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(B) MEASUREMENT-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(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.’;CommentsClose CommentsPermalink





(C) by striking paragraph (21) and inserting the following:CommentsClose CommentsPermalink





‘(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.’; andCommentsClose CommentsPermalink





(D) in paragraph (23)--CommentsClose CommentsPermalink





(i) by striking ‘66 2/3 per centum’ and inserting ‘75 percent’; andCommentsClose CommentsPermalink





(ii) by striking ‘average weekly wages’ each place the term occurs and inserting ‘spendable earnings’;CommentsClose CommentsPermalink





(4) by striking subsection (e) and inserting the following:CommentsClose CommentsPermalink





‘(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.’;CommentsClose CommentsPermalink





(5) in subsection (f), by adding at the end the following:CommentsClose CommentsPermalink





‘(4) Limitation- After the date of enactment of the Longshore and Harbor Workers’ Compensation Act Amendments of 2009, no order for relief under this subsection shall be entered except--CommentsClose CommentsPermalink





‘(A) an order for modification of benefits for which an order has been entered prior to such date of enactment; orCommentsClose CommentsPermalink





‘(B) an order for relief, in respect of a survivor of an employee, being paid from the special fund at the date of death.’;CommentsClose CommentsPermalink





(6) in subsection (j)(1), by striking ‘a disabled employee’ and inserting ‘an employee’; andCommentsClose CommentsPermalink





(7) by adding at the end the following:CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(1) 75 percent of spendable earnings at the time of the last injury; orCommentsClose CommentsPermalink





‘(2) the maximum rate of compensation, as determined under section 6(b), at the time of the last injury.’.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

SEC. 9. COMPENSATION FOR DEATH.

(a) Compensation for Death- Section 9 (33 U.S.C. 909) is amended--CommentsClose CommentsPermalink





(1) in subsection (a), by striking ‘$3,000’ and inserting ‘$7,500’;CommentsClose CommentsPermalink





(2) by redesignating subsections (e) through (g) as subsections (f) through (h), respectively;CommentsClose CommentsPermalink





(3) by striking subsections (b) through (d) and inserting the following:CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(c) Widow or Widower With Children- If there be a widow or widower and 1 or more surviving children of the deceased--CommentsClose CommentsPermalink





‘(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; andCommentsClose CommentsPermalink





‘(2) each child of the deceased shall receive a pro rata share of 25 percent of the spendable earnings of the deceased.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.’; andCommentsClose CommentsPermalink





(4) by adding at the end the following:CommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

SEC. 10. DETERMINATION OF PAY.

(a) Determination of Pay- Section 10 (33 U.S.C. 910) is amended--CommentsClose CommentsPermalink





(1) in the matter preceding subsection (a)--CommentsClose CommentsPermalink





(A) by striking ‘average weekly wage’ and inserting ‘spendable earnings’; andCommentsClose CommentsPermalink





(B) by inserting ‘as provided in sections 8 and 9’ after ‘compensation’;CommentsClose CommentsPermalink





(2) by striking subsections (a) through (e) and inserting the following:CommentsClose CommentsPermalink





‘(a) Average Weekly Wage Calculation-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(3) AVAILABILITY TO WORK- An injured employee shall be considered available to work in a week if the injured employee--CommentsClose CommentsPermalink





‘(A) actually worked not less than 1 day during the week;CommentsClose CommentsPermalink





‘(B) voluntarily withdrew from the workforce for the week;CommentsClose CommentsPermalink





‘(C) was not offered work during a week for reasons of seniority; orCommentsClose CommentsPermalink





‘(D) was unable to work during a week for any reason other than a work-related injury.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(b) Retired Employees-CommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(c) Spendable Earnings-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(2) ANNUAL TABLE- The Secretary shall annually publish a table for calculating spendable earnings under this subsection.’; andCommentsClose CommentsPermalink





(3) by redesignating subsections (f) through (i) as subsections (d) through (g), respectively.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

SEC. 11. NOTICE OF INJURY OR DEATH.

Section 12 (33 U.S.C. 912) is amended--CommentsClose CommentsPermalink





(1) by striking subsection (a) and inserting the following:CommentsClose CommentsPermalink





‘(a) Timing and Recipients of Notice-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(4) INDIVIDUALS RECEIVING NOTICE- Notice under this subsection shall be given--CommentsClose CommentsPermalink





‘(A) to the deputy commissioner in the compensation district in which the injury or death occurred; andCommentsClose CommentsPermalink





‘(B) to the employer.’;CommentsClose CommentsPermalink





(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.’; andCommentsClose CommentsPermalink





(3) by striking subsection (d) and inserting the following:CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(B) the deputy commissioner determines that the employer or carrier has not been prejudiced by failure to give such notice; orCommentsClose CommentsPermalink





‘(C) the deputy commissioner excuses such failure on the ground that--CommentsClose CommentsPermalink





‘(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); orCommentsClose CommentsPermalink





‘(ii) for some satisfactory reason such notice could not be given;CommentsClose CommentsPermalink





‘(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; andCommentsClose CommentsPermalink





‘(3) notice that meets the requirements of this section is given not more than 1 year after the injury or death.’.CommentsClose CommentsPermalink

SEC. 12. FILING OF CLAIMS.

Section 13 (33 U.S.C. 913) is amended--CommentsClose CommentsPermalink





(1) by striking subsection (a) and inserting the following:CommentsClose CommentsPermalink





‘(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.’;CommentsClose CommentsPermalink





(2) by striking subsection (b);CommentsClose CommentsPermalink





(3) by redesignating subsections (c) and (d) as subsections (b) and (c), respectively; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

SEC. 13. PAYMENT OF COMPENSATION.

Section 14(f) (33 U.S.C. 914(f)) is amended--CommentsClose CommentsPermalink





(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’; andCommentsClose CommentsPermalink





(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).’.CommentsClose CommentsPermalink

SEC. 14. ASSIGNMENT AND EXEMPTION FROM CLAIMS OF CREDITORS.

Section 16 (33 U.S.C. 916) is amended--CommentsClose CommentsPermalink





(1) by striking ‘No assignment’ and inserting the following:CommentsClose CommentsPermalink





‘(a) In General- Except as provided in subsection (b), no assignment’; andCommentsClose CommentsPermalink





(2) by adding at the end the following:CommentsClose CommentsPermalink





‘(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).’.CommentsClose CommentsPermalink

SEC. 15. PRESUMPTIONS, BURDENS, AND RULES OF EVIDENCE.

Section 20 (33 U.S.C. 920) is amended to read as follows:CommentsClose CommentsPermalink

‘SEC. 20. PRESUMPTIONS, BURDENS, AND RULES OF EVIDENCE.

‘(a) Presumptions-CommentsClose CommentsPermalink





‘(1) REBUTTABLE PRESUMPTIONS- In any proceeding for the enforcement of a claim for compensation under this Act, it shall be a rebuttable presumption--CommentsClose CommentsPermalink





‘(A) that the claim comes within the provisions of this Act;CommentsClose CommentsPermalink





‘(B) that sufficient notice of such claim has been given;CommentsClose CommentsPermalink





‘(C) that the injury was not occasioned solely by the intoxication of the injured employee; andCommentsClose CommentsPermalink





‘(D) that the injury was not occasioned by the willful intention of the injured employee to injure or kill the employee or another.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(3) REBUTTING NONINTOXICATION PRESUMPTION- The presumption described in paragraph (1)(C) shall be rebutted by evidence that the employee--CommentsClose CommentsPermalink





‘(A) refused a drug or alcohol test;CommentsClose CommentsPermalink





‘(B) did not make himself available for a drug or alcohol test;CommentsClose CommentsPermalink





‘(C) tested positive for illegal drugs; orCommentsClose CommentsPermalink





‘(D) tested as having a blood alcohol concentration level above the permitted driving limit as established by the State where the injury occurred.CommentsClose CommentsPermalink





‘(4) EXCLUSION OF OTHER PRESUMPTIONS- No other presumptions shall be authorized under this Act.CommentsClose CommentsPermalink





‘(b) False Statements-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(c) Rules of Evidence-CommentsClose CommentsPermalink





‘(1) EVIDENCE OF INJURY- With respect to proof of injury for any claim for compensation under this Act--CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(D) the fact that the injury was the major contributing cause shall be proven by medical evidence only;CommentsClose CommentsPermalink





‘(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; andCommentsClose CommentsPermalink





‘(F) pain or other subjective complaints alone, in the absence of objective relevant medical findings, is not compensable.CommentsClose CommentsPermalink





‘(2) JUNK SCIENCE-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(i) has been published in a major medical journal; andCommentsClose CommentsPermalink





‘(ii) is accepted by the majority of the scientific community.’.CommentsClose CommentsPermalink

SEC. 16. REVIEW OF COMPENSATION ORDERS.

Section 21 (33 U.S.C. 921) is amended--CommentsClose CommentsPermalink





(1) in subsection (b)--CommentsClose CommentsPermalink





(A) in paragraph (3)--CommentsClose CommentsPermalink





(i) in the fourth sentence, by striking ‘the amounts required by an award shall not’ and inserting ‘disputed amounts required by an award shall’; andCommentsClose CommentsPermalink





(ii) by striking the fifth sentence;CommentsClose CommentsPermalink





(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.’; andCommentsClose CommentsPermalink





(C) by adding at the end the following:CommentsClose CommentsPermalink





‘(6) Timing for Decisions-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.’; andCommentsClose CommentsPermalink





(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).’.CommentsClose CommentsPermalink

SEC. 17. MODIFICATION OF COMPENSATION CASES.

Section 22 (33 U.S.C. 922) is amended--CommentsClose CommentsPermalink





(1) by striking ‘22. Upon’ and inserting ‘22. (a) Modification of Awards- Upon’;CommentsClose CommentsPermalink





(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).’; andCommentsClose CommentsPermalink





(3) by adding at the end the following:CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(1) termination or suspension of all future payments; andCommentsClose CommentsPermalink





‘(2) full restitution of all amounts paid as a result of the fraud.CommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink

SEC. 18. PENALTY FOR MISREPRESENTATION.

Section 31 (33 U.S.C. 931) is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink

SEC. 19. SPECIAL FUND.

Section 44 (33 U.S.C. 944) is amended--CommentsClose CommentsPermalink





(1) by redesignating subsections (d) through (j) as subsections (e) through (k), respectively;CommentsClose CommentsPermalink





(2) by striking subsection (c) and inserting the following:CommentsClose CommentsPermalink





‘(c) Payments Into Fund- Payments into such fund shall be made as follows:CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(3) Each self-insurer shall make payments into the fund on a prorated assessment by the Secretary determined by--CommentsClose CommentsPermalink





‘(A) computing the ratio (expressed as a percent) of--CommentsClose CommentsPermalink





‘(i) the self-insurer’s compensation payments under sections 8 and 9 during the preceding calendar year, toCommentsClose CommentsPermalink





‘(ii) the total of such payments by all carriers and self-insurers under such sections during the preceding calendar year;CommentsClose CommentsPermalink





‘(B) computing the ratio (expressed as a percent) of--CommentsClose CommentsPermalink





‘(i) the payments under section 8(f) of this Act during the preceding calendar year that are attributable to the self-insurer, toCommentsClose CommentsPermalink





‘(ii) the total of such payments during such year attributable to all carriers and self-insurers;CommentsClose CommentsPermalink





‘(C) dividing the sum of the percentages computed under subparagraphs (A) and (B) for the self-insurer by 2; andCommentsClose CommentsPermalink





‘(D) multiplying the percentage computed under subparagraph (C) by such probable expenses of the fund (as determined under paragraph (2)).CommentsClose CommentsPermalink





‘(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:CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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 2009, 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.’; andCommentsClose CommentsPermalink





(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)).’.CommentsClose CommentsPermalink

SEC. 20. CONFORMING AMENDMENTS.

(a) Section 7- The Act (33 U.S.C. 901 et seq.) is amended--CommentsClose CommentsPermalink





(1) in section 7--CommentsClose CommentsPermalink





(A) in subsection (e)(1)(A) (as redesignated by section 7(3)), by striking ‘and (c)’ and inserting ‘and (d)’;CommentsClose CommentsPermalink





(B) in subsection (h) (as redesignated by section 7(3)), by striking ‘(e)’ and inserting ‘(f)’;CommentsClose CommentsPermalink





(C) in subsection (k)(1) (as redesignated by section 7(3)), by striking ‘(c)’ and inserting ‘(d)’; andCommentsClose CommentsPermalink





(D) in subsection (l)(2) (as redesignated by section 7(3)), by striking ‘(d)’ and inserting ‘(e)’;CommentsClose CommentsPermalink





(2) in section 28(b), by striking ‘7(e)’ and inserting ‘7(f)’;CommentsClose CommentsPermalink





(3) in section 31(b)(2)(B), by striking ‘(j)’ and inserting ‘(k)’; andCommentsClose CommentsPermalink





(4) in section 44(j)(4) (as redesignated by section 19(1)), by striking ‘7(e)’ and inserting ‘7(f)’.CommentsClose CommentsPermalink





(b) Section 10- The Act (33 U.S.C. 901 et seq.) is amended--CommentsClose CommentsPermalink





(1) in section 10--CommentsClose CommentsPermalink





(A) in subsection (e) (as redesignated by section 10(a)(3)), by striking ‘(f)’ and inserting ‘(d)’; andCommentsClose CommentsPermalink





(B) in subsection (f)(3) (as redesignated by section 10(a)(3)), by striking ‘(f) and (g)’ and inserting ‘(d) and (e)’;CommentsClose CommentsPermalink





(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)’; andCommentsClose CommentsPermalink





(3) in section 9(f)(2) (as redesignated by section 9(a)(2)), by striking ‘10(i)’ and inserting ‘10(f)’.CommentsClose CommentsPermalink





(c) Section 44- The Act (33 U.S.C. 901 et seq.) is amended--CommentsClose CommentsPermalink





(1) in section 44(j)(3) (as redesignated by section 19(1)), by striking ‘(d)’ and inserting ‘(e)’; andCommentsClose CommentsPermalink





(2) in section 22(a) (as inserted by section 17(1)), by striking ‘(i)’ and inserting ‘(j)’.CommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink





(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--CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(3) in section 5(d) of the Act--CommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink