Longshore and Harbor Workers' Compensation Act Amendments of 2011 - Amends the Longshore and Harbor Workers' Compensation Act to declare that it is the intent of Congress that: (1) in a claim brought under such Act, the facts are not to be given a broad liberal construction in favor of the employee or of the employer; (2) the laws pertaining to the claim are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either the employee or employer; and (3) the system established under the Act shall be efficient and self-executing, but not an economic or administrative burden.
Makes compensation under the Act payable regardless of fault as a cause of an injury (no-fault).
Specifies requirements for proportional payment of compensation, the last employer doctrine, intervening employment, and noncontributing employment exposure.
Prescribes criteria for the preemption of state law providing additional or alternative remedies for an injured employee, the employee's legal representative, spouse, next of kin, or anyone otherwise entitled to recover from an employer on account of an employee's injury or death.
Revises requirements for physician selection. Allows a carrier to designate one or more participating networks or one or more health care panels, or both, to provide medical services to employees.
Modifies the formula used to determine disability compensation, including for loss of hearing.
Increases allowed funeral expenses.
Revises requirements for: (1) determination of death compensation to survivors; (2) timing and recipients of a notice of such injury or death; (3) filing of claims; (4) date of payment of compensation; (5) assignment and exemption from the claims of creditors; (6) presumptions, burdens, and rules of evidence; (7) review of compensation orders; (8) modification of compensation awards for fraud or overpayment; (9) reports of fraud; and (10) payments into the special fund in the absence of an entitled survivor of an employee.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 669 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 669
To amend the Longshore and Harbor Workers' Compensation Act to improve
the compensation system, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 29, 2011
Mr. Isakson introduced the following bill; which was read twice and
referred to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend the Longshore and Harbor Workers' Compensation Act to improve
the compensation system, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.--This Act may be cited as the ``Longshore and
Harbor Workers' Compensation Act Amendments of 2011''.
(b) References.--Except as otherwise expressly provided, whenever
in this Act an amendment or repeal is expressed in terms of an
amendment to, or repeal of, a section or other provision, the reference
shall be considered to be made to a section or other provision of the
Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901 et seq.).
SEC. 2. INTENT OF CONGRESS; NEUTRAL INTERPRETATION.
The Act (33 U.S.C. 901 et seq.) is amended by inserting after
section 1 the following:
``SEC. 1A. CONGRESSIONAL INTENT OF NEUTRAL INTERPRETATION.
``It is the intent of Congress that--
``(1) in a dispute concerning the facts in a claim brought
under this Act, the facts are not to be given a broad liberal
construction in favor of the employee or of the employer, and
the laws pertaining to a claim brought under this Act are to be
construed in accordance with the basic principles of statutory
construction and not liberally in favor of either the employee
or employer;
``(2) the system established under this Act shall be an
efficient and self-executing system that is not an economic or
administrative burden; and
``(3) the Department of Labor and the Benefits Review Board
shall administer this Act in a manner which facilitates the
self-execution of the system established under this Act and the
process of ensuring a prompt and cost-effective delivery of
payments.''.
SEC. 3. DEFINITIONS.
Section 2 (33 U.S.C. 902) is amended--
(1) in paragraph (1), by striking ``association.'' and
inserting ``association, but does not include the Secretary.'';
(2) in paragraph (2), by adding after the period at the end
the following: ``Physical or mental conditions caused in part
or in whole by an employer's personnel actions shall not be
considered an injury or disease compensable under this Act.
Physical or mental conditions caused in part or in whole by an
employer's personnel action may only be compensable under
applicable State or Federal employment laws other than workers'
compensation laws.'';
(3) in paragraph (3)(A)--
(A) by striking ``employed exclusively to perform''
and inserting ``primarily performing''; and
(B) by inserting ``on the day of the injury''
before the semicolon at the end;
(4) in paragraph (13), by inserting before the period at
the end the following: ``, or an incentive or 1-time payment,
severance pay, a settlement of an employment law claim, a bonus
that is not guaranteed, container royalties, stock, or stock
options'';
(5) in paragraph (14), by striking ``(19)'' and inserting
``(18)'';
(6) by redesignating paragraphs (21) and (22) as paragraphs
(26) and (27), respectively; and
(7) by inserting after paragraph (20) the following:
``(21) The term `participating network' means a network of
physicians and other health care providers that has been designated by
a carrier to provide medical services to an employee under this Act.
``(22) The term `health care panel' means 3 or more physicians or
other health care providers in a common geographic region who practice
in the same or similar medical specialty, which panel is designated by
a carrier to provide medical services to an employee under this Act.
``(23) The term `nationally recognized evidence-based treatment
standards' means the treatment standards in the Occupational Medicine
Practice Guidelines published by the American College of Occupational
and Environmental Medicine. Any subsequent revision of these standards
by the American College of Occupational and Environmental Medicine
shall be effective with respect to all treatment decisions under this
Act on the date that is 90 days after the promulgation of the revision,
unless the Secretary determines that the revision is inconsistent with
this Act's policy of ensuring treatment pursuant to evidence-based
standards.
``(24) The term `objective relevant medical findings' means those
objective findings that correlate to the subjective complaints of an
injured employee and are confirmed by physical examination findings or
diagnostic testing.
``(25) The term `fraud' means the act of knowingly, and with intent
to defraud--
``(A) providing material false information that could
result in the obtaining or denying, in whole or in part, of
compensation under this Act; or
``(B) failing to provide material information that could
result in the obtaining or denying, in whole or in part, of
compensation under this Act.
``(26) The term `major contributing cause', when used with respect
to an injury, means the cause constituting greater than 50 percent of
the total of all causes.
``(27) The term `standard premium' means the product of an
employer's payroll and the filed manual rate applicable to the employer
multiplied by the employer's current experience modification factor, if
applicable. The calculation may not include any deductible credit. For
policies written using retrospective rating, the standard premium must
be calculated in accordance with this definition regardless of the
actual retrospective premium calculation.
``(28) The term `filed manual rate' means the premium rate for each
unit of exposure, as a function of the applicable basis of premium, for
the occupational classes assigned to the employer's business, filed
pursuant to the insurance laws of the applicable jurisdiction.
``(29) The term `experience modification factor' means the
adjustment to a policyholder's premium rate for a specific exposure
period, resulting from a rating procedure utilizing the past insurance
experience of the individual policyholder to forecast future losses by
measuring the policyholder's loss experience against the loss
experience of policyholders in the same classification to produce a
prospective premium credit, debit, or unity modification.''.
SEC. 4. COVERAGE.
Section 3 (33 U.S.C. 903) is amended--
(1) in subsection (c), by striking ``solely'';
(2) by redesignating subsection (e) as subsection (f);
(3) by inserting after subsection (d) the following:
``(e) Compensation Limitation.--No compensation shall be payable to
an employee for dentures, eyeglasses, a hearing aid, a prosthetic
device, or an artificial limb unless the dentures, eyeglasses, hearing
aid, prosthetic device, or artificial limb--
``(1) is part of the medical treatment for a disability
compensated under section 8; or
``(2) was damaged as part of, or in concert with, an
accident that resulted in a traumatic injury to the
employee.''; and
(4) in subsection (f) (as redesignated by paragraph (2))--
(A) by inserting ``this Act,'' after ``pursuant
to'';
(B) by striking ``law or section'' and inserting
``law, or section''; and
(C) by inserting ``)'' after ``death of seamen''.
SEC. 5. LIABILITY FOR COMPENSATION.
Section 4 (33 U.S.C. 904) is amended to read as follows:
``SEC. 4. LIABILITY FOR COMPENSATION.
``(a) In General.--Every employer shall be liable for, and shall
secure the payment to the employer's employees of, the compensation
payable under sections 7, 8, and 9.
``(b) Payment Irrespective of Fault.--Compensation shall be payable
irrespective of fault as a cause for the injury.
``(c) Proportional Payment.--
``(1) In general.--Except as provided in subsection (e) and
section 8(a)(13), in making compensation determinations under
this Act, compensation shall be reduced by an amount
attributable to the percentage of--
``(A) the disability rating for a prior permanent
injury; and
``(B) the anatomical physical impairment that
resulted from nonoccupational factors (such as aging,
prior or subsequent anatomical physical impairment, or
personal habits, including smoking and alcohol use).
``(2) Limitation.--In no case shall compensation be
calculated under this Act by deducting the dollar amount of
compensation paid or payable for a prior injury described in
paragraph (1).
``(3) Determinations.--A determination under this
subsection shall be based upon the findings of the treating
physician upon a review of the available records. The treating
physician designated in section 7 shall make a determination
under this paragraph by finding what percentage of the
employee's disability was a result of an injury arising out of
and occurring in the course of the employment involved and what
percentage of such disability was the result of prior injury
and other nonoccupational factors.
``(d) Borrowed Employees.--
``(1) In general.--Subject to paragraph (2), in the case of
the injury or death of an employee who is working for another
employer at the direction of the employee's primary employer,
all employers of the employee at the time of the injury shall
be treated as a single employer for purposes of this Act,
including with respect to the obligation to pay compensation
under this section and the exclusiveness of the remedy under
section 5.
``(2) Indemnification agreement.--Nothing in paragraph (1)
shall be construed to supercede an express contractual
indemnification agreement between the borrowing and lending
employer.
``(e) Last Employer Doctrine; Intervening Nonmaritime Employment;
Noncontributing Exposure.--
``(1) Last employer doctrine.--
``(A) In general.--Except as provided in section
8(a)(13), if more than 1 employer or employment
exposure contributed to the injury or death of an
employee, the last employer to have contributed to the
injury or death of the employee shall be responsible
for benefits under this Act.
``(B) Rights and defenses.--The employer
responsible for the benefits under this section shall
retain all rights and defenses that any employer who
contributed to the injury or death would otherwise have
had. The employee shall retain all burdens of
production, burdens of persuasion, and presumptions
that the employee would otherwise have had.
``(2) Intervening employment.--If the last employment
exposure that contributed to an injury or death was the result
of employment that was not covered under this Act, no benefits
shall be payable under this Act for the injury or death.
``(3) Noncontributing employment exposure.--For purposes of
this Act, employment exposure did not contribute to the injury
or death of an employee if--
``(A) the medical condition that resulted in the
injury or death was diagnosed before employment
commenced; or
``(B) the employer did not expose the employee to
conditions capable of causing or contributing to the
injury or death.''.
SEC. 6. EXCLUSIVENESS OF LIABILITY.
Section 5 (33 U.S.C. 905) is amended--
(1) in subsection (a)--
(A) in the first sentence, by striking ``or in
admiralty'' each place the term occurs and inserting
``in admiralty, or otherwise,''; and
(B) by striking the third sentence; and
(2) by adding at the end the following:
``(d) Preemption.--
``(1) State law preemption.--Any State law that provides
additional or alternative remedies for an injured employee, the
employee's legal representative, husband or wife, parents,
dependents, or next of kin, or anyone otherwise entitled to
recover from such employer on account of such injury or death
against the employer, at law or in admiralty, or otherwise, is
expressly preempted when the carrier--
``(A) has voluntarily paid compensation under this
Act;
``(B) has settled a claim for compensation under
this Act;
``(C) is contesting a claim for compensation under
this Act;
``(D) is appealing an order under this Act;
``(E) is subject to an order under this Act; or
``(F) has notified the Secretary that a claim for
compensation should have been brought under this Act.
``(2) State jurisdiction preemption.--Any State proceeding
(including a judicial or administrative proceeding) involving
the claims of an injured employee, the employee's legal
representative, husband or wife, parents, dependents, or next
of kin, or anyone otherwise entitled to recover damages from
such employer at law or in admiralty, or otherwise, on account
of such injury or death, shall be preempted when the carrier
has taken an action described in subparagraphs (A) through (F)
of paragraph (1).
``(3) Administrative stay.--
``(A) Process for stay.--In order to effectuate
this subsection and protect the admiralty and maritime
jurisdiction of the Federal Government, an employer who
is party to a State proceeding may notify the Secretary
of the proceeding and any reason why this subsection
preempts the State proceeding. Within 10 days after
receiving the notification, the Secretary shall issue
an administrative stay order to the State that shall
remain in effect until a final determination has been
made by the Secretary that this subsection does not
preempt the State proceeding.
``(B) Injunction.--If a State does not comply with
a stay order issued by the Secretary under subparagraph
(A), within 10 days after the State's refusal to
comply, the Secretary shall seek, in a Federal district
court, an injunction against further State proceedings
regarding the claim that may be preempted by this
subsection.
``(C) Timely response.--If the Secretary does not
fulfill the Secretary's obligations under this
paragraph in a timely manner, the employer may seek an
order in a Federal district court compelling the
Secretary to so act.
``(e) Government Responsibility.--The exclusive remedy for any
person injured, in whole or in part, by exposure to ionizing or
nonionizing radiation from equipment required to be used by Federal law
or regulation or owned by a Federal Government entity shall be found
under chapter 171 of title 28, United States Code (commonly known as
the `Federal Tort Claims Act'), and this Act shall not apply to any
injury or death resulting from such exposure.''.
SEC. 7. MEDICAL SERVICES AND SUPPLIES.
Section 7 (33 U.S.C. 907) is amended--
(1) in subsection (a)--
(A) by striking ``(a)'' and inserting ``(a)(1)'';
(B) by striking ``furnish such'' and inserting
``furnish medical services and supplies, including'';
and
(C) by adding at the end the following:
``(2) Notwithstanding any other provision of this Act, in the case
where nationally recognized evidence-based treatment standards apply to
the employee's medical condition, the medical treatment shall include
only the care provided pursuant to such treatment standards.'';
(2) by striking subsection (i);
(3) by redesignating subsections (c) through (e), (f)
through (h), (j), and (k), as subsections (d) through (f), (h)
through (j), (k), and (l), respectively;
(4) by striking subsection (b) and inserting the following:
``(b) Physician Selection.--
``(1) Carrier using participating networks or health care
panels.--
``(A) In general.--A carrier may designate 1 or
more participating networks or 1 or more health care
panels, or both, for purposes of providing medical
services to employees under this Act. An injured
employee served by a carrier that has designated an
approved participating network under subparagraph (C)
or a health care panel under subparagraph (D) shall not
be entitled to recover any amount expended by the
employee for medical services and supplies unless the
employee has secured such medical services and supplies
through a physician or other health care provider that
is a participant in such network or panel,
respectively.
``(B) Geographic exception.--Subparagraph (A) shall
not apply if the injured employee can demonstrate that
the carrier's participating network or health care
panel does not include a physician capable of treating
the employee within 100 miles of the employee's
residence.
``(C) Participating networks.--
``(i) In general.--The Secretary shall
establish a process for approving participating
networks, in accordance with clause (ii), that
shall include an automatic approval for a
participating network that has been authorized
by a State workers' compensation program.
``(ii) Qualifications.--In order to be
approved under clause (i), a participating
network shall establish an internal review
process to address any disputes with respect to
the provision of medical care or treatment to
an employee. Such process shall conform to the
utilization review standards for workers'
compensation described in subsection (m).
``(D) Designation of health care panels.--To
designate a health care panel for purposes of this
subsection, a carrier shall submit the names of the
health care panel participants to the Secretary.
``(2) Carrier not using panels or networks.--If a carrier
has not provided medical services or supplies in accordance
with paragraph (1), the employee shall have the right to choose
an attending physician authorized by the Secretary to provide
medical care under this Act as hereinafter provided. If, due to
the nature of the injury, the employee is unable to select a
physician and the nature of the injury requires immediate
medical treatment and care, the employer shall select a
physician for the employee.
``(c) Supervision and Change of Physicians.--The Secretary,
consistent with the nationally recognized evidence-based standards
provided for under subsection (a)(2)--
``(1) shall actively supervise the medical care rendered to
injured employees;
``(2) shall require periodic reports as to the medical care
being rendered to injured employees;
``(3) shall have authority to determine the necessity,
character, and sufficiency of any medical aid furnished or to
be furnished;
``(4) may, on the Secretary's own initiative or at the
request of the employer, order a change of physicians or
hospitals when, in the Secretary's judgment, such change is
desirable or necessary in the interest of the employee or where
the charges exceed those prevailing within the community for
the same or similar services or exceed the provider's customary
charges; and
``(5) shall permit, in accordance with regulations
promulgated by the Secretary, the change of physicians at the
request of an employee (except that such change may be approved
not more frequently than twice annually unless otherwise
authorized by the carrier).'';
(5) in subsection (d) (as redesignated by paragraph (3))--
(A) in paragraph (1)(B), by striking ``(j)'' and
inserting ``(k)''; and
(B) in paragraph (2), by striking ``by an
employee'';
(6) in subsection (e)(4) (as redesignated by paragraph
(3))--
(A) by striking ``employer'' and inserting
``employer or designated by the Secretary''; and
(B) by striking ``may'' and inserting ``shall'';
(7) in subsection (f) (as redesignated by paragraph (3)),
by striking the third sentence;
(8) by inserting after subsection (f) (as redesignated by
paragraph (3)) the following:
``(g) Use of Medical Records.--When there is the need for any
review, hearing, investigation, or other proceeding authorized or
directed under this section relating to medical care or treatment, the
finder of fact shall rely on the medical record and the findings of
qualified medical professionals that are based on the medical
record.''; and
(9) by adding at the end the following:
``(m) Applicability of Utilization Review Standards.--
Notwithstanding any other provision of this Act, any utilization
review, whether within a participating network, health care panel, or
otherwise, carried out under this Act shall be conducted pursuant to
the utilization review standards applicable to workers' compensation
promulgated by URAC, as such standards were in effect on the date of
enactment of the Longshore and Harbor Workers' Compensation Act
Amendments of 2011. Any subsequent revision of the standards shall be
effective, with respect to all utilization review determinations under
this Act, on the date that is 90 days after the promulgation of the
revised standards, unless the Secretary determines that the revised
standards are inconsistent with this Act's policy of ensuring
utilization review in accordance with nationally recognized
standards.''.
SEC. 8. COMPENSATION FOR DISABILITY.
(a) Compensation for Disability.--Section 8 (33 U.S.C. 908) is
amended--
(1) in subsection (a), by striking ``66\2/3\ per centum of
the average weekly wages'' and inserting ``75 percent of the
spendable earnings'';
(2) in subsection (b), by striking ``66\2/3\ per centum of
the average weekly wages'' and inserting ``75 percent of the
spendable earnings'';
(3) in subsection (c)--
(A) in the matter preceding paragraph (1), by
striking ``66\2/3\ per centum of the average weekly
wages'' and inserting ``75 percent of the spendable
earnings'';
(B) by striking paragraph (13) and inserting the
following:
``(13) Loss of hearing.--
``(A) Compensation.--
``(i) Total loss of hearing.--
``(I) One ear.--The compensation
for total loss of hearing in 1 ear
shall be 52 weeks.
``(II) Both ears.--The compensation
for total loss of hearing in both ears
shall be 200 weeks.
``(ii) Partial loss of hearing.--For the
partial loss of hearing in 1 or both ears,
compensation shall be paid for a period
proportionate to the degree of the loss, in
accordance with clause (i).
``(B) Measurement.--
``(i) Employment-related loss.--The
employer shall pay compensation only for any
hearing loss caused by an injury arising out of
and in the course of employment with such
employer, and shall not be liable for that part
of the employee's hearing loss caused by
presbycusis, nonoccupational causes, and
documented preemployment hearing loss. The
percentage of loss caused by those conditions
shall be deducted from the percentage of the
employee's hearing loss before determining the
employer's liability.
``(ii) Determination of loss.--Except as
provided in clause (iii), determinations of
loss of hearing shall be made in accordance
with the guides for the evaluation of permanent
impairment, as promulgated and modified from
time to time by the American Medical
Association.
``(iii) Measurement.--The measurement of
presbycusis shall be in accordance with the
methodology adopted in section 1910.95 of title
29, Code of Federal Regulations, appendix F,
applied to the applicable decibel levels for
hearing loss determinations as provided in
clause (ii).
``(iv) Audiogram standards.--In determining
the amount of hearing loss for purposes of this
paragraph, an audiogram that is administered by
a licensed or certified technician, an
audiologist who is certified, or a physician
who is certified in otolaryngology, and is
interpreted by an audiologist who is certified
or a physician who is certified in
otolaryngology, shall prevail over an audiogram
that is not performed in accordance with these
criteria.'';
(C) by striking paragraph (21) and inserting the
following:
``(21) In all other cases in the class of disability, the
compensation shall be 75 percent of the difference between the
injured employee's spendable earnings before the injury and the
amount of spendable earnings the employee is able to earn after
the injury in the same or another employment, payable during
the continuance of partial disability.''; and
(D) in paragraph (23)--
(i) by striking ``66\2/3\ per centum'' and
inserting ``75 percent''; and
(ii) by striking ``average weekly wages''
each place the term occurs and inserting
``spendable earnings'';
(4) by striking subsection (e) and inserting the following:
``(e) Temporary Partial Disability.--In the case of temporary
partial disability resulting in decrease of earning capacity, the
compensation shall be 75 percent of the difference between the injured
employee's spendable earnings before the injury and the amount of
spendable earnings the employee is able to earn after the injury in the
same or another employment, to be paid during the continuance of such
disability, but shall not be paid for a period exceeding 5 years.'';
(5) in subsection (f), by adding at the end the following:
``(4) Limitation.--After the date of enactment of the Longshore and
Harbor Workers' Compensation Act Amendments of 2011, no order for
relief under this subsection shall be entered except--
``(A) an order for modification of benefits for which an
order has been entered prior to such date of enactment; or
``(B) an order for relief, in respect of a survivor of an
employee, being paid from the special fund at the date of
death.'';
(6) in subsection (j)(1), by striking ``a disabled
employee'' and inserting ``an employee''; and
(7) by adding at the end the following:
``(k) Multiple-Injury Maximum.--Notwithstanding any other provision
of this Act, when an employee qualifies for compensation for disability
caused by 2 or more injuries, in no case shall the amount of
compensation payable for all such injuries when combined exceed the
lesser of--
``(1) 75 percent of spendable earnings at the time of the
last injury; or
``(2) the maximum rate of compensation, as determined under
section 6(b), at the time of the last injury.''.
(b) Nonapplicability Until Publication of Table.--Not later than 90
days after the date of enactment of this Act, the Secretary of Labor
shall promulgate regulations and publish a table of compensation
implementing the amendments made by this section. A carrier shall not
be required to adjust payments made by the carrier under the Longshore
and Harbor Workers' Compensation Act to comply with the amendments made
by this section until such table is published.
SEC. 9. COMPENSATION FOR DEATH.
(a) Compensation for Death.--Section 9 (33 U.S.C. 909) is amended--
(1) in subsection (a), by striking ``$3,000'' and inserting
``$7,500'';
(2) by redesignating subsections (e) through (g) as
subsections (f) through (h), respectively;
(3) by striking subsections (b) through (d) and inserting
the following:
``(b) Widow or Widower Without Children.--If there be a widow or
widower and no surviving child of the deceased, the widow or widower
shall receive 75 percent of the spendable earnings of the deceased
during widowhood or widowerhood, except that upon remarriage of the
widow or widower, the widow or widower shall receive 2 years' worth of
such payments in a lump sum.
``(c) Widow or Widower With Children.--If there be a widow or
widower and 1 or more surviving children of the deceased--
``(1) the widow or widower shall receive 50 percent of the
spendable earnings of the deceased during widowhood or
widowerhood, except that upon remarriage of the widow or
widower, the widow or widower shall receive 2 years' worth of
such payments in a lump sum; and
``(2) each child of the deceased shall receive a pro rata
share of 25 percent of the spendable earnings of the deceased.
``(d) Surviving Children.--If there be 1 or more surviving children
of the deceased, but no widow or widower, then each child shall receive
a pro rata share of 75 percent of the spendable earnings of the
deceased.
``(e) No Widow, Widower, or Surviving Child.--If there be no widow
or widower or surviving child, then for the support of grandchildren,
brothers and sisters, parents, and grandparents, if dependent upon the
deceased at the time of the injury, and any other persons who satisfy
the definition of the term `dependent' in section 152 of the Internal
Revenue Code of 1986, but are not otherwise eligible under this
section, 25 percent of spendable earnings for the support of each such
person during such dependency, but in no case shall the aggregate
amount payable under this subsection exceed 75 percent of the spendable
earnings of the deceased.''; and
(4) by adding at the end the following:
``(i) Appointment of Guardian.--The deputy commissioner having
jurisdiction over a claim for compensation under this section shall
have discretion to require the appointment of a guardian for the
purpose of receiving the compensation of a minor child. In the absence
of such a requirement, the appointment of a guardian for such purpose
shall not be necessary.''.
(b) Nonapplicability Until Publication of Table.--Not later than 90
days after the date of enactment of this Act, the Secretary of Labor
shall promulgate regulations and publish a table of compensation
implementing the amendments made by this section. A carrier shall not
be required to adjust payments made under the Longshore and Harbor
Workers' Compensation Act to comply with the amendments made by this
section until such table is published.
SEC. 10. DETERMINATION OF PAY.
(a) Determination of Pay.--Section 10 (33 U.S.C. 910) is amended--
(1) in the matter preceding subsection (a)--
(A) by striking ``average weekly wage'' and
inserting ``spendable earnings''; and
(B) by inserting ``as provided in sections 8 and
9'' after ``compensation'';
(2) by striking subsections (a) through (e) and inserting
the following:
``(a) Average Weekly Wage Calculation.--
``(1) In general.--If the injured employee was available to
work, as determined under paragraph (3), in 40 of the 52 weeks
immediately preceding the injury, or if the employee was
employed in a seasonal position when the injury occurred, the
average weekly wage shall be calculated by dividing the actual
earnings of the employee for the previous 52 weeks by 52.
``(2) Rule for certain individuals.--If the injured
employee was available for work, as determined under paragraph
(3), in less than 40 of the 52 weeks immediately preceding the
injury, the average weekly wage shall be based on the average
weekly wage of other employees in the same classification, who
worked in the same job, with the same seniority, and at the
same location for the 52 weeks immediately preceding the
injury.
``(3) Availability to work.--An injured employee shall be
considered available to work in a week if the injured
employee--
``(A) actually worked not less than 1 day during
the week;
``(B) voluntarily withdrew from the workforce for
the week;
``(C) was not offered work during a week for
reasons of seniority; or
``(D) was unable to work during a week for any
reason other than a work-related injury.
``(4) Special method of calculation.--If either of the
methods of arriving at the average weekly wages of the injured
employee described in paragraphs (1) and (2) cannot reasonably
and fairly be applied, the average weekly wages shall be such
sum as, having regard to the previous earnings of the injured
employee in the employment in which the employee was working at
the time of the injury, and of other employees of the same or
most similar class working in the same or most similar
employment in the same or neighboring locality, or other
employment of such employee, including the reasonable value of
the services of the employee if engaged in self-employment,
shall reasonably represent the annual earning capacity of the
injured employee, divided by 52.
``(5) Minor employees.--If it is established that the
injured employee was a minor when injured, and that under
normal conditions the employee's wages should be expected to
increase during the period of disability, the fact may be
considered in arriving at the employee's average weekly wages.
``(b) Retired Employees.--
``(1) Employees injured within the first year of
retirement.--With respect to any claim based on a death or
disability due to an occupational disease for which the time of
injury (as determined under subsection (g)) occurs within the
first year after the employee has retired, the average weekly
wage shall be calculated in accordance with subsection (a).
``(2) Employees injured after the first year of
retirement.--With respect to any claim based on a death or
disability due to an occupational disease for which the time of
injury (as determined under subsection (g)) occurs more than 1
year after the employee has retired, the average weekly wage
shall be deemed to be the national average weekly wage (as
determined by the Secretary pursuant to section 6(b))
applicable at the time of the injury.
``(c) Spendable Earnings.--
``(1) Method of calculation.--The spendable earnings of an
employee shall be the average weekly wage, as calculated under
subsection (a), reduced by subtracting the Federal, State, and
local taxes that would have been withheld based on standard
deductions and on the domicile of the employee at the time of
the injury, and reduced by subtracting the tax that would have
been withheld under section 3101 of the Internal Revenue Code
of 1986.
``(2) Annual table.--The Secretary shall annually publish a
table for calculating spendable earnings under this
subsection.''; and
(3) by redesignating subsections (f) through (i) as
subsections (d) through (g), respectively.
(b) Nonapplicability Until Publication of Table.--Not later than 90
days after the date of enactment of this Act, the Secretary of Labor
shall promulgate regulations and publish a table of average weekly
wages, and the associated amount of spendable earnings, implementing
the amendments made by this section. A carrier shall not be required to
adjust payments made under the Longshore and Harbor Workers'
Compensation Act to comply with the amendments made by this section
until such table is published.
SEC. 11. NOTICE OF INJURY OR DEATH.
Section 12 (33 U.S.C. 912) is amended--
(1) by striking subsection (a) and inserting the following:
``(a) Timing and Recipients of Notice.--
``(1) Traumatic injury or death.--Notice of a traumatic
injury or death in respect of which compensation is payable
under this Act shall be given not later than 30 days after the
date of the trauma, or 30 days after the employee or
beneficiary is aware that the trauma resulted in injury or
death (or in the exercise of reasonable diligence or by reason
of medical advice should have been aware) of a relationship
among the trauma, the injury or death, and the employment, but
in no case shall the notice be given more than 1 year after the
trauma occurs.
``(2) Non-traumatic injury or death resulting from
injury.--Except as provided in paragraph (3), in the case of a
non-traumatic injury that does not immediately result in a
disability or death, and in the case of death from a non-
traumatic injury, such notice shall be given not later than 1
year after the employee or claimant becomes aware (or in the
exercise of reasonable diligence or by reason of medical advice
should have been aware) of the relationship between the non-
traumatic injury or death and employment, provided that in no
case shall the notice be given more than 1 year after the
diagnosis of a non-traumatic injury or a death resulting from
such injury.
``(3) Hearing loss.--Notice of hearing loss shall be given
not later than the date specified in paragraph (2) or 1 year
after the last date of employment, whichever occurs first.
``(4) Individuals receiving notice.--Notice under this
subsection shall be given--
``(A) to the deputy commissioner in the
compensation district in which the injury or death
occurred; and
``(B) to the employer.'';
(2) in subsection (b), by adding at the end the following:
``In order to facilitate prompt settlement of cases, notice of
an injury shall also include an opportunity for the employer to
have the employee answer questions under oath, so that the
employer may determine if and how much compensation should be
paid. The opportunity for questioning shall occur at a
reasonable time and place that provides the employee with
sufficient opportunity to obtain legal counsel before such
questioning, should the employee so choose. Failure by an
employee to be available for such questioning (unless waived by
the employer in writing), or failure to fully and truthfully
answer material questions, shall be considered a failure to
give notice under this Act.''; and
(3) by striking subsection (d) and inserting the following:
``(d) Failure To Give Notice.--Failure to give timely notice in
accordance with this section shall not bar any claim for compensation
under this Act if--
``(1)(A) the employer (or the employer's agent or other
responsible official designated by the employer pursuant to
subsection (c)) or the carrier had knowledge of the injury or
death;
``(B) the deputy commissioner determines that the employer
or carrier has not been prejudiced by failure to give such
notice; or
``(C) the deputy commissioner excuses such failure on the
ground that--
``(i) notice, while not given to a responsible
official designated by the employer pursuant to
subsection (c), was given to an official of the
employer or the employer's insurance carrier, and the
employer or carrier was not prejudiced due to the
failure to provide notice to a responsible official
designated by the employer pursuant to subsection (c);
or
``(ii) for some satisfactory reason such notice
could not be given;
``(2) objection to such failure is raised before the deputy
commissioner at the first hearing of a claim for compensation
in respect of such injury or death; and
``(3) notice that meets the requirements of this section is
given not more than 1 year after the injury or death.''.
SEC. 12. FILING OF CLAIMS.
Section 13 (33 U.S.C. 913) is amended--
(1) by striking subsection (a) and inserting the following:
``(a) Time To File.--The right to compensation for disability or
death under this Act shall be barred unless a claim therefore is filed
not later than 90 days after providing notice under section 12. If
payment of compensation has been made without an award on account of
such injury or death, a claim may be filed not later than 90 days after
the date of the last payment. Such claim shall be filed with the deputy
commissioner in the compensation district in which such injury or death
occurred.'';
(2) by striking subsection (b);
(3) by redesignating subsections (c) and (d) as subsections
(b) and (c), respectively; and
(4) in subsection (c) (as redesignated by paragraph (3)),
by inserting ``, provided that such suit was filed in
accordance with subsection (a)'' before the period at the end.
SEC. 13. PAYMENT OF COMPENSATION.
Section 14(f) (33 U.S.C. 914(f)) is amended--
(1) by striking ``within ten days after it becomes due''
and inserting ``within 10 business days after receipt by the
employer or carrier of a priority mailing containing the
order''; and
(2) by adding at the end the following: ``For purposes of
this section, the date on which compensation is paid shall be
the earlier of the date on which the employer or carrier
actually delivers the compensation to the employee (or the
representative designated by the employee) or the postmark date
on which the compensation was mailed to such employee (or
representative).''.
SEC. 14. ASSIGNMENT AND EXEMPTION FROM CLAIMS OF CREDITORS.
Section 16 (33 U.S.C. 916) is amended--
(1) by striking ``No assignment'' and inserting the
following:
``(a) In General.--Except as provided in subsection (b), no
assignment''; and
(2) by adding at the end the following:
``(b) Limitation.--Benefits due or payable under this Act shall be
subject to withholding and any other legal process in the same form and
manner, and to the same extent, as withholding and other legal
processes apply under section 206 of the Employment Retirement Income
Security Act of 1974 (29 U.S.C. 1056).''.
SEC. 15. PRESUMPTIONS, BURDENS, AND RULES OF EVIDENCE.
Section 20 (33 U.S.C. 920) is amended to read as follows:
``SEC. 20. PRESUMPTIONS, BURDENS, AND RULES OF EVIDENCE.
``(a) Presumptions.--
``(1) Rebuttable presumptions.--In any proceeding for the
enforcement of a claim for compensation under this Act, it
shall be a rebuttable presumption--
``(A) that the claim comes within the provisions of
this Act;
``(B) that sufficient notice of such claim has been
given;
``(C) that the injury was not occasioned solely by
the intoxication of the injured employee; and
``(D) that the injury was not occasioned by the
willful intention of the injured employee to injure or
kill the employee or another.
``(2) Rebutting presumptions.--A presumption described in
paragraph (1) shall not be considered evidence once rebutted.
Once a presumption has been rebutted, the burden of production
of evidence and burden of persuasion shall be governed by
section 556(d) of title 5, United States Code.
``(3) Rebutting nonintoxication presumption.--The
presumption described in paragraph (1)(C) shall be rebutted by
evidence that the employee--
``(A) refused a drug or alcohol test;
``(B) did not make himself available for a drug or
alcohol test;
``(C) tested positive for illegal drugs; or
``(D) tested as having a blood alcohol
concentration level above the permitted driving limit
as established by the State where the injury occurred.
``(4) Exclusion of other presumptions.--No other
presumptions shall be authorized under this Act.
``(b) False Statements.--
``(1) Affirmative and complete defense.--It shall be an
affirmative and complete defense to any employee claim under
this Act that the employee or employee's agent knowingly made a
false statement that is material to obtaining a benefit or
payment.
``(2) Credibility.--If any individual knowingly makes a
false statement, whether in writing or under oath, such false
statement shall go to the credibility of the individual on all
other issues.
``(c) Rules of Evidence.--
``(1) Evidence of injury.--With respect to proof of injury
for any claim for compensation under this Act--
``(A) the injury, its occupational cause, and any
resulting manifestations or disability must be proven
to a reasonable degree of medical certainty, based on
objective relevant medical findings;
``(B) notwithstanding section 4(c) or section
8(c)(13)(B), the employment exposure or accident shall
be the major contributing cause of any injury;
``(C) a causal relationship between a compensable
accident or injury, and conditions that are not readily
observable, shall be by medical evidence only, as
proven by physical examination findings or diagnostic
testing;
``(D) the fact that the injury was the major
contributing cause shall be proven by medical evidence
only;
``(E) in cases involving occupational disease or
repetitive exposure, both causation and sufficient
exposure to support causation shall be proven by clear
and convincing evidence; and
``(F) pain or other subjective complaints alone, in
the absence of objective relevant medical findings, is
not compensable.
``(2) Junk science.--
``(A) Expert testimony.--With respect to a claim
under this Act, expert testimony shall not be
considered if it does not meet the requirements of Rule
702 of the Federal Rules of Evidence.
``(B) Medical opinion.--In order to be considered
with respect to a claim under this Act, a medical
opinion shall be based on not less than 1 peer-reviewed
study that--
``(i) has been published in a major medical
journal; and
``(ii) is accepted by the majority of the
scientific community.''.
SEC. 16. REVIEW OF COMPENSATION ORDERS.
Section 21 (33 U.S.C. 921) is amended--
(1) in subsection (b)--
(A) in paragraph (3)--
(i) in the fourth sentence, by striking
``the amounts required by an award shall not''
and inserting ``disputed amounts required by an
award shall''; and
(ii) by striking the fifth sentence;
(B) in paragraph (4), by adding at the end the
following: ``An employee may request that the Board
hold an expedited hearing with respect to an appeal
under this subsection.''; and
(C) by adding at the end the following:
``(6) Timing for Decisions.--
``(A) One-year appeal period.--If the Board fails to
resolve an appeal during the 1-year period following the date
on which the appeal was filed, the decision that was the basis
of the appeal is automatically affirmed and such affirmation
shall be considered a final order by the Board.
``(B) Ninety-day motion to reconsider period.--If the Board
issues a decision on an appeal during the 1-year period
following the date on which the appeal was filed and a timely
motion for reconsideration is filed, the Board may consider the
motion for reconsideration. If the Board fails to rule upon the
motion for reconsideration during the 90-day period following
the filing of such motion, the motion for reconsideration shall
be deemed denied.''; and
(2) in subsection (c), by adding at the end the following:
``A litigating position of the Secretary shall not be entitled
to any deference, unless such position has been expressly
adopted by the Secretary as a rule made on the record after
opportunity for an agency hearing (pursuant to sections 556 and
557 of title 5, United States Code).''.
SEC. 17. MODIFICATION OF COMPENSATION CASES.
Section 22 (33 U.S.C. 922) is amended--
(1) by striking ``22. Upon'' and inserting ``22. (a)
Modification of Awards.--Upon'';
(2) in the last sentence of subsection (a) (as inserted by
paragraph (1)), by striking ``modification of settlements.''
and inserting ``modification of settlements, except as provided
in subsection (b) or (c).''; and
(3) by adding at the end the following:
``(b) Fraud.--Notwithstanding subsection (a), if any payment of
compensation has been made as a result of fraud, a carrier may at any
time seek an order for immediate--
``(1) termination or suspension of all future payments; and
``(2) full restitution of all amounts paid as a result of
the fraud.
``(c) Overpayment.--If a carrier makes a payment under this Act to
a person in amounts in excess of the amounts owed, the carrier may seek
an order for repayment by such person, including a credit against any
future payment due under this Act or wages paid to the employee. This
subsection shall apply regardless of whether such excess amounts
resulted from voluntary payments, a settlement, or an order.''.
SEC. 18. PENALTY FOR MISREPRESENTATION.
Section 31 (33 U.S.C. 931) is amended by adding at the end the
following:
``(d) Reports of Fraud.--A carrier shall report credible incidents
of fraud to the Secretary for investigation. The Secretary shall report
any credible incident of fraud involving more than $10,000 to the
appropriate United States Attorney. In the absence of a finding by the
Secretary that a report of fraud under this subsection was made with
knowledge that the information was false or was disclosed in reckless
disregard of whether it was false, no person reporting fraud under this
subsection shall be subject to civil liability for libel, slander, or
any other cause of action arising from such report.''.
SEC. 19. SPECIAL FUND.
Section 44 (33 U.S.C. 944) is amended--
(1) by redesignating subsections (d) through (j) as
subsections (e) through (k), respectively;
(2) by striking subsection (c) and inserting the following:
``(c) Payments Into Fund.--Payments into such fund shall be made as
follows:
``(1) Whenever the Secretary determines that there is no
person entitled under this Act to compensation for the death of
an employee that would otherwise be compensable under this Act,
the appropriate employer shall pay $5,000 as compensation for
the death of such an employee.
``(2) At the beginning of each calendar year, the Secretary
shall estimate the probable expenses of the fund during that
calendar year and the amount of payments required (and the
schedule therefore) to maintain adequate reserves in the fund.
``(3) Each self-insurer shall make payments into the fund
on a prorated assessment by the Secretary determined by--
``(A) computing the ratio (expressed as a percent)
of--
``(i) the self-insurer's compensation
payments under sections 8 and 9 during the
preceding calendar year, to
``(ii) the total of such payments by all
carriers and self-insurers under such sections
during the preceding calendar year;
``(B) computing the ratio (expressed as a percent)
of--
``(i) the payments under section 8(f) of
this Act during the preceding calendar year
that are attributable to the self-insurer, to
``(ii) the total of such payments during
such year attributable to all carriers and
self-insurers;
``(C) dividing the sum of the percentages computed
under subparagraphs (A) and (B) for the self-insurer by
2; and
``(D) multiplying the percentage computed under
subparagraph (C) by such probable expenses of the fund
(as determined under paragraph (2)).
``(4) Each employer who is not self-insured shall make
payments into the fund through a surcharge based on the
standard premium, to be computed and collected as follows:
``(A) Carriers that are not self-insurers shall
report the amount of all standard premiums for
insurance for the payment of compensation under this
Act to the Secretary by April 1 of each year.
``(B) The Secretary shall compute an amount for
each carrier that is not a self-insurer, using the
methodology described in subparagraph (3) for self-
insurers.
``(C) The Secretary shall determine the ratio
(expressed as a percent) of the total of the
assessments computed for all such carriers under
subparagraph (B), to the total amount of the standard
premiums for insurance for the payment of compensation
under this Act for all carriers during the preceding
calendar year. This ratio shall be the premium
surcharge rate.
``(D) Each such carrier shall collect a share of
the assessment from each employer insured by the
carrier through a premium surcharge equal to the
product of the premium surcharge rate multiplied by the
standard premium for the insured employer. The premium
surcharge is the amount payable by each insured
employer to satisfy its obligation to the fund.
``(E) Assessments collected as a premium surcharge
under this paragraph shall not constitute an element of
loss for the purpose of establishing rates for workers'
compensation insurance but, for the purpose of
collection, shall be treated as separate costs imposed
upon insured employers. The total of the assessment
imposed by this paragraph shall be stated as a separate
cost on an insured employer's policy (or on a separate
document submitted to the insured employer) and shall
be identified as the `workers' compensation
policyholder surcharge'. Each such assessment shall be
shown as a percentage of the total workers'
compensation policyholder premium. The premium
surcharge shall be collected at the same time and in
the same manner that the premium for the coverage is
collected. The premium surcharge shall not be
considered as part of the premium, but an insurer may
cancel a policy for coverage under this Act for the
nonpayment of the premium surcharge in accordance with
the procedures applicable to the nonpayment of the
premium.
``(F) Each such carrier shall report and remit
premium surcharges to the Secretary semiannually on
January 1 and July 1 of the calendar year following the
year in which the assessment is based, and such
surcharges shall be final except for adjustments made
as a result of an audit by the Secretary.
``(d) Notification of Payment Rates.--The Secretary shall notify
carriers of the premium surcharge rate to be effective for policies
written or renewed on or after the date of enactment of the Longshore
and Harbor Workers' Compensation Act Amendments of 2011, and annually
thereafter. At the same time as such notification to carriers, the
Secretary shall notify each self-insured employer of the amount to be
assessed against such employer under this section for the following
calendar year.''; and
(3) in subsection (i) (as redesignated by paragraph (1)),
by adding at the end the following: ``Such civil suit for
collections shall be brought against the control group of the
employer, as such term is defined under section 3(40)(B) of the
Employee Retirement Income Security Act of 1974 (29 U.S.C.
1002(40)(B)).''.
SEC. 20. CONFORMING AMENDMENTS.
(a) Section 7.--The Act (33 U.S.C. 901 et seq.) is amended--
(1) in section 7--
(A) in subsection (e)(1)(A) (as redesignated by
section 7(3)), by striking ``and (c)'' and inserting
``and (d)'';
(B) in subsection (h) (as redesignated by section
7(3)), by striking ``(e)'' and inserting ``(f)'';
(C) in subsection (k)(1) (as redesignated by
section 7(3)), by striking ``(c)'' and inserting
``(d)''; and
(D) in subsection (l)(2) (as redesignated by
section 7(3)), by striking ``(d)'' and inserting
``(e)'';
(2) in section 28(b), by striking ``7(e)'' and inserting
``7(f)'';
(3) in section 31(b)(2)(B), by striking ``(j)'' and
inserting ``(k)''; and
(4) in section 44(j)(4) (as redesignated by section 19(1)),
by striking ``7(e)'' and inserting ``7(f)''.
(b) Section 10.--The Act (33 U.S.C. 901 et seq.) is amended--
(1) in section 10--
(A) in subsection (e) (as redesignated by section
10(a)(3)), by striking ``(f)'' and inserting ``(d)'';
and
(B) in subsection (f)(3) (as redesignated by
section 10(a)(3)), by striking ``(f) and (g)'' and
inserting ``(d) and (e)'';
(2) in section 2(10) and section 8(c)(23), by striking
``(10)(d)(2)'' each place the term appears and inserting
``10(b)(2)''; and
(3) in section 9(f)(2) (as redesignated by section
9(a)(2)), by striking ``10(i)'' and inserting ``10(f)''.
(c) Section 44.--The Act (33 U.S.C. 901 et seq.) is amended--
(1) in section 44(j)(3) (as redesignated by section 19(1)),
by striking ``(d)'' and inserting ``(e)''; and
(2) in section 22(a) (as inserted by section 17(1)), by
striking ``(i)'' and inserting ``(j)''.
SEC. 21. EFFECTIVE DATES.
(a) References.--A reference in subsection (b) to a provision of
the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901 et
seq.) shall be considered to be a reference to such provision as added,
amended, or redesignated by this Act.
(b) Effective Dates.--The amendments made to the Longshore and
Harbor Workers' Compensation Act (referred to in this section as ``the
Act'') (33 U.S.C. 901 et seq.) by this Act shall take effect on the
date of enactment of this Act, except that--
(1) the amendments made to paragraphs (3)(A) and (13) of
section 2, subsections (c) and (e) of section 3, subsections
(c), (d), and (e) of section 4, subsections (a) and (e) of
section 5, section 7(g), section 13, and subsections (b) and
(c) of section 20 of the Act shall apply with respect to any
claim under the Act filed on or after the date of enactment of
this Act;
(2) the amendments made to section 2(25) of the Act shall
take effect on the date of enactment of this Act, and shall
apply regardless of the date that the fraudulent act occurred;
(3) in section 5(d) of the Act--
(A) the amendments made to paragraph (1) shall
apply with respect to any claim under a Federal or
State workers' compensation law filed on or after the
date of enactment of this Act; and
(B) the amendments made to paragraphs (2) and (3)
shall apply with respect to any claim under a Federal
or State workers' compensation law, and any action
under section 30104 of title 46, United States Code, or
in tort, filed on or after the date of enactment of
this Act;
(4) the amendments made to section 7 (not including
subsection (g)) of the Act shall apply with respect to any
medical care delivered, or examination conducted, under the Act
on or after the date of enactment of this Act;
(5) the amendments made to sections 8, 9, and 10 of the Act
shall apply with respect to any claim under the Act filed on or
after the date of enactment of this Act, subject to sections
8(b), 9(b), and 10(b) of this Act;
(6) the amendments made to section 11 (not including
subsection (a)) of the Act shall apply with respect to any
claim under the Act filed on or after the date of enactment of
this Act;
(7) the amendments made to section 14 of the Act shall
apply with respect to any claim for compensation under the Act
for which the carrier receives notice of the claim for
compensation on or after the date of enactment of this Act;
(8) the amendments made to section 20(a)(3) of the Act
shall apply with respect to any injury covered under the Act
that occurs on or after the date of enactment of this Act;
(9) the amendments made to section 21(b)(3) of the Act
shall apply to any proceeding conducted under the Act on or
after the date of enactment of this Act;
(10) the amendments made to section 22 of the Act shall
apply with respect to any payment of compensation under the Act
on or after the date of enactment of this Act;
(11) the amendments made to section 31 of the Act shall
apply with respect to any instance of known or suspected fraud
involving a claim under the Act that is detected on or after
the date of enactment of this Act; and
(12) the amendments made to section 44 of the Act shall
take effect on the January 1st following the date of enactment
of this Act.
<all>
Introduced in Senate
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
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