Form Frenzy: Common Defense Base Act, and Longshore & Harbor Workers' Compensation Act Forms Explained

 
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One question I receive frequently from my clients is, "why are there so many different forms to fill out?" The short answer is that the Department of Labor requires the filing of such forms to ensure that their files comply with federal regulations. The long answer is that the Longshore & Harbor Workers' Compensation Act, as extended by the Defense Base Act, incorporated many provisions of the New York Workers' Compensation Law ("NYWCL"), a notorious formulaic workers' compensation framework. One can easily trace the Longshore forms' roots in the NYWCL, as almost all are similar in appearance, name and intent. For example, the NYWCL C-7 denial form, became the LS-207; the NYWCL C-3 claim form, became the LS-203; the NYWCL C-2 notice form, became the LS-202; and so on. 

Below, I address some of the more common forms used during a claim for benefits under the Defense Base Act, and Longshore & Harbor Workers' Compensation Act. In addition, I provide links to the PDF version of each form for ease of reference. 

LS-18

Pre-Hearing Statement. This form is filed by either the Claimant or insurance company to request a formal hearing before the Department of Labor's Office of Administrative Law Judges following the issuance of a Memorandum of Informal Conference. Once the OALJ receives this form from the OWCP's District Director, they will issue a Notice of Hearing and Pre-hearing Order formally placing a claim on the trial calendar. 

 

LS-200

Report of Earnings. This form is usually served upon a Claimant by an insurance company in order to obtain a record of the Claimant's earnings to justify the payment of ongoing disability compensation benefits. Failure to respond to the same in a timely manner may result in the forfeiture of compensation payments.

 

LS-202

Employer's First Report of Injury or Occupational Illness. This form must be completed by an Employer following an employee's work-related injury. Failure to properly file the same with the Office of Workers' Compensation Programs will result in harsh penalties, and will toll the statute of limitations for both traumatic and occupational injuries.

 

LS-203

Employee's Claim for Compensation. This form is filed by an injured employee with the US Department of Labor to formally request the payment of medical and/or compensation benefits following a work-related injury. The DBA and LHWCA provide strict timelines for the filing of a claim, so it is best to retain a knowledgeable attorney immediately following a work-related injury to preserve the right to seek disability compensation benefits.

 

LS-206

Payment of Compensation Without Award. This form is completed by the insurance adjuster assigned to a claim, and notifies the Department of Labor that the responsible insurance company is making voluntary payment of indemnity benefits to the injured employee.

 

LS-207

Notice of Controversion of Right to Compensation. This form is filed by an insurance company to deny a claim for benefits brought by an injured employee. Oftentimes, some insurance companies will automatically file this form out of an abundance of caution on all claims that require further investigation. Receipt of this notice should not deter you from pursuing a valid claim for disability benefits. Should you receive this form from your insurance company, immediately retain an attorney. 

 

LS-208

Notice of Final Payment or Suspension of Compensation Payments. This form is filed by an insurance company following the payment of all compensation benefits they believe are due to an injured employee. Failure to file the same in a timely manor results in a small fine charged against the responsible insurance company.

 

LS-262

Claim for Death Benefits. This form is filed with the Department of Labor by a statutorily defined dependent in order to obtain death benefits under the Defense Base Act, and Longshore and Harbor Workers' Compensation Act. This form must be filed within one year if the work-related death resulted from a traumatic incident, or two years if the death was an occupational death. More information about filing a claim for death benefits under the Defense Base Act can be found HERE.

 

LS-265

Certification of Funeral Expenses. An LS-265 is completed by a funeral director, or a deceased worker's estate, and is accepted as evidence supporting the payment of funeral expenses. This form is generally required to receive reimbursement of funeral expenses up to the statutory maximum amount of $3,000.00.

 

LS-266

Application for Continuation of Death Benefit for Student. Under the DBA and LHWCA, a deceased employee's children, who are over the age of 18, must be enrolled in school to continue receiving death benefits through the age of 23. Form LS-266 is completed by the relevant school's registrar, and is accepted as evidence supporting the payment of ongoing death benefits during enrollment. Generally speaking, the responsible insurance company will request this form to be completed biannually to rule out a possible overpayment of compensation benefits.

 

LS-801

Waiver of Service by Registered or Certified Mail for Employers and/or Insurance Carriers. This form allows all compensation orders to be served upon an insurance carrier via email, to ensure prompt payment of benefits. 

 

LS-802

Waiver of Service by Registered or Certified Mail for Claimants and Authorized Representatives. This form allows all compensation orders to be served upon a Claimant via email, to ensure prompt payment of benefits. 

 

OWCP-5a

Work Capacity Evaluation. Oftentimes, a treating physician will have no knowledge of the legal requirements of the Defense Base Act, or Longshore and Harbor Workers' Compensation Act. Accordingly, their written reports may fall short of what the Department of Labor requires to substantiate a disability claim. Accordingly, oftentimes the DOL will ask a physician to complete this form, along with a narrative report, to clarify their findings.

 

 
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Located at 1 World Trade Center in New York, New York, Diamond Law Practice, PLLC was established to help injured workers recover under the Defense Base Act, Longshore & Harbor Workers' Compensation Act, and New York Workers' Compensation Law. 

If you have a question about a potential claim, please do not hesitate to drop me a line at JDiamond@DiamondLawPractice.com. I am here to help. 

www.DiamondLawPractice.com

 

 

 

 

 

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Located on the 85th Floor of One World Trade Center, Diamond Law Practice is dedicated to helping injured workers recover all benefits available to them under the Defense Base Act, Longshore & Harbor Workers’ Compensation Act, and New York Workers’ Compensation Law. Please visit www.DiamondLawPractice.com or call (212) 220–7134 for a free claim consultation.

Calculating Your Average Weekly Wage Under the Defense Base Act, and Longshore & Harbor Workers’ Compensation Act.

The most critical factor influencing the prospective value of your claim for compensation benefits under the DBA/LHWCA is the manner in which you calculate your Average Weekly Wage (“AWW”). Establishing a fair and accurate AWW at the outset of your claim will ensure that you maximize your entitlement to all available compensation under the law.

By way of example, below you will see a chart showing the value of a claim for death benefits brought by a widow under the DBA/LHWCA based upon four different AWW calculations. As you can see, even a small difference in the AWW calculation will result in a very significant change in the claim’s overall value. Hence, it is critical to retain an attorney early in your claim to ensure that you are receiving all available benefits by establishing a fair AWW.

 

A Sample Death Claim's Un-discounted Present Value By AWW Amount

Example includes a death claim brought by a 26 year American old widow, and is un-discounted.
 

Section 10 of the LHWCA, as extended by the DBA, establishes three methods for determining your average annual earnings, which are then divided by 52 to arrive at an AWW. This section states in pertinent part:

Except as otherwise provided in this Act, the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows:  (a) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding the injury, his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed. (b) If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings, if a six-day worker, shall consist of three hundred times the average daily wage or salary, and, if a five-day worker, two hundred and sixty times the average daily wage or salary, which an employee of the same class working substantially the whole of such immediately preceding year in the same or similar employment in the same or neighboring place shall have earned in such employment during the days when so employed. (c) If either of the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such average annual earnings shall be such sum as, having regard to the previous earnings of the injured employee in the employment in which he 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.

33 U.S.C. §910(a)-(c). 

To summarize, Section 10(a) examines your actual wages to determine your AWW. This provision applies only if you worked substantially the whole year leading up to the date of your injury at the same job. By way of example, if you earned $68,000.00 in the year preceding your injury, your average weekly wage will be approximately $1,307.69 ($68,000.00 / 52 weeks). Your resultant weekly compensation rate is then calculated by taking 2/3'rds of your AWW. In the above example, your compensation rate would be $871.79 per week.

In the event that Section 10(a) cannot be applied because you did not work in the same or similar employment during substantially the whole of the year preceding your injury, then an analysis must be performed under Section 10(b).  As a practical matter, the application of Section 10(b) usually involves examining the wages of your co-workers and colleagues who perform the same or similar job as you. Section 10(b) does not take into account individual performance or accolades that may affect your rate of compensation. Therefore, Section 10(b) is only useful in determining a worker's wages when their salary is rigidly set by a government or union mandated pay scale. 

Under circumstances where there is insufficient evidence in the record to make a determination of your average daily wage under Section 10(a) or Section 10(b), the courts will look at Section 10(c) as a potential method of calculating your AWW.  Insurance companies oftentimes utilize Section 10(c) as a tactic to depreciate your earning potential, reduce your AWW, and maximize their profits. Don’t fall into this trap. Retain an attorney now who will advocate on your behalf to obtain the highest AWW afforded by law.

DBA workers challenge the classic framework established in the LHWCA, as they are compensated at a much higher rate due to the dangers inherent in their employment. With great risk, comes great reward. Factored into the high profits of selling DBA insurance policies to employers operating in a warzone is a fundamental understanding that overall claim costs will be higher. Attempting to argue that Section 10(c) of the LHWCA should apply in any DBA matter is an attempt to pervert the intent of the law, and discount the sacrifice and risks taken by the average defense contractor. Nonetheless, the courts have been more open to the application of Section 10(c) since the issuance of the Hamidzada decision, and the United States District Court for the Southern District of Texas' holding that the Benefits Review Board abused their discretion in vacated Judge Kennington's ruling in K.S. v. Service Employees International, Inc. 43 BRBS 18 (2009).

Please feel free to contact Diamond Law Practice, PLLC now to discuss the calculation of your AWW under the Defense Base Act, or Longshore & Harbor Workers’ Compensation Act.

New October 1, 2015 Section 10(f) Cost of Living Adjustment ("COLA") for Longshore and Defense Base Act Claimants

 
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If you are receiving Permanent Total Disability ("PTD") compensation benefits, or death benefits under the federal Longshore and Harbor Workers' Compensation Act or Defense Base Act, you are entitled to annual increases in your benefit rate each October 1st. Starting Thursday, October 1, 2015, the applicable Section 10(f) COLA will increase your compensation rate by 2.1%. For example, if you are receiving compensation benefits at the rate of $980.00 per week, your new benefit rate will increase to $1,000.00, and will payable through September 30, 2016. Thereafter, you will be entitled to annual increases in your benefit rate every October 1st for the remainder of your claim. 

If you have not received an increase in your compensation rate, call us immediately and we will recover these unpaid benefits retroactive to the date of injury inclusive of all potential penalties and interest. This occurence is all too common as some inexperienced insurance adjusters simply forget to apply the statutorily mandated rate increases, or cannot adjust each claim in their enormous case list in a timely fashion.  

Section 10(f) COLA by Year

Maximum Comp Rate Per Year DBA/LHWCA

In addition, effective October 1, 2015, the maximum benefit rate increases to an all time high of $1,406.00 per week. In order to improve your chances of obtaining benefits at the maximum rate, please consult with an attorney now.

As a former defense attorney, I know the tactics insurance companies use to decrease your benefit rate, deny you benefits, and cut costs in the long run. Some basic tactics include:

  1. Perverting your average weekly wage by factoring in earnings from previous jobs,
  2. Forcing alternative calculations to compute the rate of permanent disability payments, and
  3. Arguing suitable alternative employment that does not exist. 

Diamond Law Practice, PLLC can offer you and your family a free consultation regarding all Section 10(f) COLA questions under the Defense Bast Act, and Longshore & Harbor Workers' Compensation Act. 

Diamond Law Practice, PLLC, One World Trade Center, Suite 8500, 85th Floor, New York, New York 10007

Office: (212) 220-7134

Cell: (518) 269-9233

Fax: (646) 304-6009

Email: JDiamond@DiamondLawPractice.com