TITLE 33 NAVIGATION AND NAVIGABLE WATERS
CHAPTER 18
LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT
Including 17 February 2009 Changes To 902(3)(F)
901. Short title
This Act may be cited as "Longshore and Harbor Workers' Compensation Act."
902. Definitions
When used in this Act--
(1) The term "person" means individual, partnership, corporation, or association.
(2) The term "injury" means accidental injury or death arising out of and in the
course of employment, and such occupational disease or infection as arises naturally
out of such employment or as naturally or unavoidably results from such accidental
injury, and includes an injury caused by the willful act of a third person directed
against an employee because of his employment.
(3) The term "employee" means any person engaged in maritime employment, including
any longshoreman or other person engaged in longshoring operations, and any harbor-worker
including a ship repairman, shipbuilder, and ship-breaker, but such term does not
include--
(A) individuals employed exclusively to perform office clerical, secretarial, security,
or data processing work;
(B) individuals employed by a club, camp, recreational operation, restaurant, museum,
or retail outlet;
(C) individuals employed by a marina and who are not engaged in construction, replacement,
or expansion of such marina (except for routine maintenance);
(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii)
are temporarily doing business on the premises of an employer described in paragraph
(4), and (iii) are not engaged in work normally performed by employees of that employer
under this Act;
(E) aquaculture workers;
(F) individuals employed to build, repair, or dismantle any recreational vessel
under sixty-five feet in length;
(F) individuals employed to build any recreational vessel under sixty-five feet
in length or individuals employed to repair any recreational vessel, or to dismantle
any part of a recreational vessel in connection with the repair of such vessel;
(G) a master or member of a crew of any vessel; or
(H) any person engaged by a master to load or unload or repair any small vessel
under eighteen tons net;
if individuals described in clauses (A) through (F) are subject to coverage under
a State workers' compensation law.
(4) The term "employer" means an employer any of whose employees are employed in
maritime employment, in whole or in part, upon the navigable waters of the United
States (including any adjoining pier, wharf, dry dock, terminal, building way, marine
railway, or other adjoining area customarily used by an employer in loading, unloading,
repairing, or building a vessel).
(5) The term "carrier" means any person or fund authorized under section 32 [33
USC 932] to insure under this Act and includes self-insurers.
(6) The term "Secretary" means the Secretary of Labor.
(7) The term "deputy commissioner" means the deputy commissioner having jurisdiction
in respect of an injury or death.
(8) The term "State" includes a Territory and the District of Columbia.
(9) The term "United States" when used in a geographical sense means the several
States and Territories and the District of Columbia, including the territorial waters
thereof.
(10) "Disability" means incapacity because of injury to earn the wages which the
employee was receiving at the time of injury in the same or any other employment;
but such term shall mean permanent impairment, determined (to the extent covered
thereby) under the guides to the evaluation of permanent impairment promulgated
and modified from time to time by the American Medical Association, in the case
of an individual whose claim is described in section 10(d)(2) [33 USC 910(d)(2)];
(11) "Death" as a basis for a right to compensation means only death resulting from
an injury.
(12) "Compensation" means the money allowance payable to an employee or to his dependents
as provided for in this Act, and includes funeral benefits provided therein.
(13) The term "wages" means the money rate at which the service rendered by an employee
is compensated by an employer under the contract of hiring in force at the time
of the injury, including the reasonable value of any advantage which is received
from the employer and included for purposes of any withholding of tax under subtitle
C of the Internal Revenue Code of 1954 [26 USC 3101 et seq.] (relating to employment
taxes). The term wages does not include fringe benefits, including (but not limited
to) employer payments for or contributions to a retirement, pension, health and
welfare, life insurance, training, social security or other employee or dependent
benefit plan for the employee's or dependent's benefit, or any other employee's
dependent entitlement.
(14) "child" shall include a posthumous child, a child legally adopted prior to
the injury of the employee, a child in relation to whom the deceased employee stood
in loco parentis for at least one year prior to the time of injury, and a stepchild
or acknowledged illegitimate child dependent upon the deceased, but does not include
married children unless wholly dependent on him. "Grandchild" means a child as above
defined of a child as above defined. "Brother" and "sister" include stepbrothers
and stepsisters, half brothers and half sisters, and brothers and sisters by adoption,
but does not include married brothers nor married sisters unless wholly dependent
on the employee. "Child", "grandchild", "brother", and "sister" include only a person
who is under eighteen years of age, or who, though eighteen years of age or over,
is (1) wholly dependent upon the employee and incapable of self-support by reason
of mental or physical disability, or (2) a student as defined in paragraph (19)
[(18)] of this section.
(15) The term "parent" includes step-parents and parents by adoption, parents-in-law,
and any person who for more than three years prior to the death of the deceased
employee stood in the place of a parent to him, if dependent on the injured employee.
(16) The terms "widow or widower" includes only the decedent's wife or husband living
with or dependent for support upon him or her at the time of his or her death; or
living apart for justifiable cause or by reason of his or her desertion at such
time.
(17) The terms "adoption" or "adopted" mean legal adoption prior to the time of
the injury.
(18) The term "student" means a person regularly pursuing a full-time course of
study or training at an institution which is--
(A) a school or college or university operated or directly supported by the United
States, or by any State or local government or political subdivision thereof,
(B) a school or college or university which has been accredited by a State or by
a State recognized or nationally recognized accrediting agency or body,
(C) a school or college or university not so accredited but whose credits are accepted,
on transfer, by not less than three institutions which are so accredited, for credit
on the same basis as if transferred from an institution so accredited, or
(D) an additional type of educational or training institution as defined by the
Secretary,
but not after he reaches the age of twenty-three or has completed four years of
education beyond the high school level, except that, where his twenty-third birthday
occurs during a semester or other enrollment period, he shall continue to be considered
a student until the end of such semester or other enrollment period. A child shall
not be deemed to have ceased to be a student during any interim between school years
if the interim does not exceed five months and if he shows to the satisfaction of
the Secretary that he has a bona fide intention of continuing to pursue a full-time
course of education or training during the semester or other enrollment period immediately
following the interim or during periods of reasonable duration during which, in
the judgment of the Secretary, he is prevented by factors beyond his control from
pursuing his education. A child shall not be deemed to be a student under this Act
during a period of service in the Armed Forces of the United States.
(19) The term "national average weekly wage" means the national average weekly earnings
of production or nonsupervisory workers on private nonagricultural payrolls.
(20) The term "Board" shall mean the Benefits Review Board.
(21) Unless the context requires otherwise, the term "vessel" means any vessel upon
which or in connection with which any person entitled to benefits under this Act
suffers injury or death arising out of or in the course of his employment, and said
vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer,
master, officer, or crew member.
(22) The singular includes the plural and the masculine includes the feminine and
neuter.
903. Coverage
(a) Except as otherwise provided in this section, compensation shall be payable
under this Act in respect of disability or death of an employee, but only if the
disability or death results from an injury occurring upon the navigable waters of
the United States (including any adjoining pier, wharf, dry dock, terminal, building
way, marine railway, or other adjoining area customarily used by an employer in
loading, unloading, repairing, dismantling, or building a vessel).
(b) No compensation shall be payable in respect of the disability or death of an
officer or employee of the United States, or any agency thereof, or of any State
or foreign government, or any subdivision thereof.
(c) No compensation shall be payable if the injury was occasioned solely by the
intoxication of the employee or by the willful intention of the employee to injure
or kill himself or another.
(d)(1) No compensation shall be payable to an employee employed at a facility of
an employer if, as certified by the Secretary, the facility is engaged in the business
of building, repairing, or dismantling exclusively small vessels (as defined in
paragraph (3) of this subsection), unless the injury occurs while upon the navigable
waters of the United States or while upon any adjoining pier, wharf, dock, facility
over land for launching vessels, or facility over land for hauling, lifting, or
drydocking vessels.
(2) Notwithstanding paragraph (1), compensation shall be payable to an employee--
(A) who is employed at a facility which is used in the business of building, repairing,
or dismantling small vessels if such facility receives Federal maritime subsidies;
or
(B) if the employee is not subject to coverage under a State workers' compensation
law.
(3) For purposes of this subsection, a small vessel means-- (A) a commercial barge
which is under 900 lightship displacement tons; or
(B) a commercial tugboat, towboat, crew boat, supply boat, fishing vessel, or other
work vessel which is under 1,600 tons gross.
(e) Notwithstanding any other provision of law, any amounts paid to an employee
for the same injury, disability, or death for which benefits are claimed under this
Act pursuant to any other workers' compensation law or section 20 of the Act of
March 4, 1915 (38 Stat. 1185, chapter 153; 46 U.S.C. 688) [46 USC Appx 688] (relating
to recovery for injury to or death of seamen) shall be credited against any liability
imposed by this Act.
904. Liability for compensation
(a) Every employer shall be liable for and shall secure the payment to his employees
of the compensation payable under sections 7, 8, and 9 [33 USC 907, 908, 909]. In
the case of an employer who is a subcontractor, only if such subcontractor fails
to secure the payment of compensation shall the contractor be liable for and be
required to secure the payment of compensation. A subcontractor shall not be deemed
to have failed to secure the payment of compensation if the contractor has provided
insurance for such compensation for the benefit of the subcontractor.
(b) Compensation shall be payable irrespective of fault as a cause for the injury.
905. Exclusiveness of liability
(a) The liability of an employer prescribed in section 4 [33 USC 904] shall be exclusive
and in place of all other liability of such employer to the employee, his legal
representative, husband or wife, parents, dependents, next of kin, and anyone otherwise
entitled to recover damages from such employer at law or in admiralty on account
of such injury or death, except that if an employer fails to secure payment of compensation
as required by this Act, an injured employee, or his legal representative in case
death results from the injury, may elect to claim compensation under the Act, or
to maintain an action at law or in admiralty for damages on account of such injury
or death. In such action the defendant may not plead as a defense that the injury
was caused by the negligence of a fellow servant, or that the employee assumed the
risk of his employment, or that the injury was due to the contributory negligence
of the employee. For purposes of this subsection, a contractor shall be deemed the
employer of a subcontractor's employees only if the subcontractor fails to secure
the payment of compensation as required by section 4 [33 USC 904]
(b) In the event of injury to a person covered under this Act caused by the negligence
of a vessel, then such person, or anyone otherwise entitled to recover damages by
reason thereof, may bring an action against such vessel as a third party in accordance
with the provisions of section 33 of this Act [33 USC 933], and the employer shall
not be liable to the vessel for such damages directly or indirectly and any agreements
or warranties to the contrary shall be void. If such person was employed by the
vessel to provide stevedoring services, no such action shall be permitted if the
injury was caused by the negligence of persons engaged in providing stevedoring
services to the vessel. If such person was employed to provide shipbuilding, repairing,
or breaking services and such person's employer was the owner, owner pro hac vice,
agent, operator, or charterer of the vessel, no such action shall be permitted,
in whole or in part or directly or indirectly, against the injured person's employer
(in any capacity, including as the vessel's owner, owner pro hac vice, agent, operator,
or charterer) or against the employees of the employer. The liability of the vessel
under this subsection shall not be based upon the warranty of seaworthiness or a
breach thereof at the time the injury occurred. The remedy provided in this subsection
shall be exclusive of all other remedies against the vessel except remedies available
under this Act.
(c) In the event that the negligence of a vessel causes injury to a person entitled
to receive benefits under the Act by virtue of section 4 of the Outer Continental
Shelf Lands Act (43 U.S.C. 1333) [43 USC 1333], then such person, or anyone otherwise
entitled to recover damages by reason thereof, may bring an action against such
vessel in accordance with the provisions of subsection (b) of this section. Nothing
contained in subsection (b) of this section shall preclude the enforcement according
to its terms of any reciprocal indemnity provision whereby the employer of a person
entitled to receive benefits under this Act by virtue of section 4 of the Outer
Continental Shelf Lands Act (43 U.S.C. 1333) [43 USC 1333] and the vessel agree
to defend and indemnify the other for cost of defense and loss or liability for
damages arising out of or resulting from death or bodily injury to their employees.
906. Compensation
(a) Time for commencement. No compensation shall be allowed for the first three
days of the disability, except the benefits provided for in section 7 [33 USC 907]:
Provided, however, That in case the injury results in disability of more than Fourteen
days the compensation shall be allowed from the date of the disability.
(b) Maximum rate of compensation.
(1) Compensation for disability or death (other than compensation for death required
by this Act to be paid in a lump sum) shall not exceed an amount equal to 200 per
centum of the applicable national average weekly wage, as determined by the Secretary
under paragraph (3).
(2) Compensation for total disability shall not be less than 50 per centum of the
applicable national average weekly wage determined by the Secretary under paragraph
(3), except that if the employee's average weekly wages as computed under section
10 are less than 50 per centum of such national average weekly wage, he shall receive
his average weekly wages as compensation for total disability.
(3) As soon as practicable after June 30 of each year, and in any event prior to
October 1 of such year, the Secretary shall determine the national average weekly
wage for the three consecutive calendar quarters ending June 30. Such determination
shall be the applicable national average weekly wage for the period beginning with
October 1 of that year and ending with September 30 of the next year. The initial
determination under this paragraph shall be made as soon as practicable after the
enactment of this subsection.
(c) Applicability of determinations. Determinations under subsection (b)(3) with
respect to a period shall apply to employees or survivors currently receiving compensation
for permanent total disability or death benefits during such period, as well as
those newly awarded compensation during such period.
(d) [Redesignated]
907. Medical services and supplies
(a) General requirement. The employer shall furnish such medical, surgical, and
other attendance or treatment, nurse and hospital service, medicine, crutches, and
apparatus, for such period as the nature of the injury or the process of recovery
may require.
(b) Physician selection; administrative supervision; change of physicians and hospitals.
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 his physician
and the nature of the injury requires immediate medical treatment and care, the
employer shall select a physician for him. The Secretary shall actively supervise
the medical care rendered to injured employees, shall require periodic reports as
to the medical care being rendered to injured employees, shall have authority to
determine the necessity, character, and sufficiency of any medical aid furnished
or to be furnished, and may, on his own initiative or at the request of the employer,
order a change of physicians or hospitals when in his 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. Change of physicians at the request of employees shall be permitted in
accordance with regulations of the Secretary.
(c) List of unauthorized physicians and health care providers; posting; reasons
for inclusion.
(1) (A) The Secretary shall annually prepare a list of physicians and health care
providers in each compensation district who are not authorized to render medical
care or provide medical services under this Act. The names of physicians and health
care providers contained on the list required under this subparagraph shall be made
available to employees and employers in each compensation district through posting
and in such other forms as the Secretary may prescribe.
(B) Physicians and health care providers shall be included on the list of those
not authorized to provide medical care and medical services pursuant to subparagraph
(A) when the Secretary determines under this section, in accordance with the procedures
provided in subsection (j), that such physician or health care provider--
(i) has knowingly and willfully made, or caused to be made, any false statement
or misrepresentation of a material fact for use in a claim for compensation or claim
for reimbursement of medical expenses under this Act;
(ii) has knowingly and willfully submitted, or caused to be submitted, a bill or
request for payment under this Act containing a charge which the Secretary finds
to be substantially in excess of the charge for the service, appliance, or supply
prevailing within the community or in excess of the provider's customary charges,
unless the Secretary finds there is good cause for the bill or request containing
the charge;
(iii) has knowingly and willfully furnished a service, appliance, or supply which
is determined by the Secretary to be substantially in excess of the need of the
recipient thereof or to be of a quality which substantially fails to meet professionally
recognized standards;
(iv) has been convicted under any criminal statute (without regard to pending appeal
thereof) for fraudulent activities in connection with any Federal or State program
for which payments are made to physicians or providers of similar services, appliances,
or supplies; or
(v) has otherwise been excluded from participation in such program.
(C) Medical services provided by physicians or health care providers who are named
on the list published by the Secretary pursuant to subparagraph (A) of this section
shall not be reimbursable under this Act; except that the Secretary shall direct
the reimbursement of medical claims for services rendered by such physicians or
health care providers in cases where the services were rendered in an emergency.
(D) A determination under subparagraph (B) shall remain in effect for a period of
not less than three years and until the Secretary finds and gives notice to the
public that there is reasonable assurance that the basis for the determination will
not reoccur.
(E) A provider of a service, appliance, or supply shall provide to the Secretary
such information and certification as the Secretary may require to assure that this
subsection is enforced.
(2) Whenever the employer or carrier acquires knowledge of the employee's injury,
through written notice or otherwise as prescribed by the Act, the employer or carrier
shall forthwith authorize medical treatment and care from a physician selected by
an employee pursuant to subsection (b). An employee may not select a physician who
is on the list required by paragraph (1) of this subsection. An employee may not
change physicians after his initial choice unless the employer, carrier, or deputy
commissioner has given prior consent for such change. Such consent shall be given
in cases where an employee's initial choice was not of a specialist whose services
are necessary for and appropriate to the proper care and treatment of the compensable
injury or disease. In all other cases, consent may be given upon a showing of good
cause for change.
(d) Request of treatment or services prerequisite to recovery of expenses; formal
report of injury and treatment; suspension of compensation for refusal of treatment
or examination; justification.
(1) An employee shall not be entitled to recover any amount expended by him for
medical or other treatment or services unless--
(A) the employer shall have refused or neglected a request to furnish such services
and the employee has complied with subsections (b) and (c) and the applicable regulations;
or
(B) the nature of the injury required such treatment and services and the employer
or his superintendent or foreman having knowledge of such injury shall have neglected
to provide or authorize same.
(2) No claim for medical or surgical treatment shall be valid and enforceable against
such employer unless, within ten days following the first treatment, the physician
giving such treatment furnishes to the employer and the deputy commissioner a report
of such injury or treatment, on a form prescribed by the Secretary. The Secretary
may excuse the failure to furnish such report within the ten-day period whenever
he finds it to be in the interest of justice to do so.
(3) The Secretary may, upon application by a party in interest, make an award for
the reasonable value of such medical or surgical treatment so obtained by the employee.
(4) If at any time the employee unreasonably refuses to submit to medical or surgical
treatment, or to an examination by a physician selected by the employer, the Secretary
or administrative law judge may, by order, suspend the payment of further compensation
during such time as such refusal continues, and no compensation shall be paid at
any time during the period of such suspension, unless the circumstances justified
the refusal.
(e) Physical examination; medical questions; report of physical impairment; review
or reexamination; costs. In the event that medical questions are raised in any case,
the Secretary shall have the power to cause the employee to be examined by a physician
employed or selected by the Secretary and to obtain from such physician a report
containing his estimate of the employee's physical impairment and such other information
as may be appropriate. Any party who is dissatisfied with such report may request
a review or reexamination of the employee by one or more different physicians employed
or selected by the Secretary. The Secretary shall order such review or reexamination
unless he finds that it is clearly unwarranted. Such review or reexamination shall
be completed within two weeks from the date ordered unless the Secretary finds that
because of extraordinary circumstances a longer period is required. The Secretary
shall have the power in his discretion to charge the cost of examination or review
under this subsection to the employer, if he is a self-insurer, or to the insurance
company which is carrying the risk, in appropriate cases, or to the special fund
in section 44 [33 USC 944].
(f) Place of examination; exclusion of physicians other than examining physician
of Secretary; good cause for conclusions of other physicians respecting impairment;
examination by employer's physician; suspension of proceedings and compensation
for refusal of examination. An employee shall submit to a physical examination under
subsection (e) at such place as the Secretary may require. The place, or places,
shall be designated by the Secretary and shall be reasonably convenient for the
employee. No physician selected by the employer, carrier, or employee shall be present
at or participate in any manner in such examination, nor shall conclusions of such
physicians as to the nature or extent of impairment or the cause of impairment be
available to the examining physician unless otherwise ordered, for good cause, by
the Secretary. Such employer or carrier shall, upon request, be entitled to have
the employee examined immediately thereafter and upon the same premises by a qualified
physician or physicians in the presence of such physician as the employee may select,
if any. Proceedings shall be suspended and no compensation shall be payable for
any period during which the employee may refuse to submit to examination.
(g) Fees and charges for examinations, treatment, or service; limitation; regulations.
All fees and other charges for medical examinations, treatment, or service shall
be limited to such charges as prevail in the community for such treatment, and shall
be subject to regulation by the Secretary. The Secretary shall issue regulations
limiting the nature and extent of medical expenses chargeable against the employer
without authorization by the employer or the Secretary.
(h) Third party liability The liability of an employer for medical treatment as
herein provided shall not be affected by the fact that his employee was injured
through the fault or negligence of a third party not in the same employ, or that
suit has been brought against such third party. The employer shall, however, have
a cause of action against such third party to recover any amounts paid by him for
such medical treatment in like manner as provided in section 33(b) of this Act [33
USC 933(b)].
(i) Physicians' ineligibility for subsection (e) physical examinations and reviews
because of workmen's compensation claim employment or fee acceptance or participation.
Unless the parties to the claim agree, the Secretary shall not employ or select
any physician for the purpose of making examinations or reviews under subsection
(e) of this section who, during such employment, or during the period of two years
prior to such employment, has been employed by, or accepted or participated in any
fee relating to a workmen's compensation claim from any insurance carrier or any
self-insurer.
(j) Rules and regulations; notice of findings; hearing; judicial review.
(1) The Secretary shall have the authority to make rules and regulations and to
establish procedures, not inconsistent with the provisions of this Act, which are
necessary or appropriate to carry out the provisions of subsection (c), including
the nature and extent of the proof and evidence necessary for actions under this
section and the methods of taking and furnishing such proof and evidence.
(2) Any decision to take action with respect to a physician or health care provider
under this section shall be based on specific findings of fact by the Secretary.
The Secretary shall provide notice of these findings and an opportunity for a hearing
pursuant to section 556 of title 5, United States Code [5 USC 556], for a provider
who would be affected by a decision under this section. A request for a hearing
must be filed with the Secretary within thirty days after notice of the findings
is received by the provider making such request. If a hearing is held, the Secretary
shall, on the basis of evidence adduced at the hearing, affirm, modify, or reverse
the findings of fact and proposed action under this section.
(3) For the purpose of any hearing, investigation, or other proceeding authorized
or directed under this section, the provisions of section 9 and 10 (relating to
the attendance of witnesses and the production of books, papers, and documents)
of the Federal Trade Commission Act (15 U.S.C. 49, 50) [15 USC 49, 50] shall apply
to the jurisdiction, powers, and duties of the Secretary or any officer designated
by him.
(4) Any physician or health care provider, after any final decision of the Secretary
made after a hearing to which he was a party, irrespective of the amount in controversy,
may obtain a review of such decision by a civil action commenced within sixty days
after the mailing to him of notice of such decision, but the pendency of such review
shall not operate as a stay upon the effect of such decision. Such action shall
be brought in the court of appeals of the United States for the judicial circuit
in which the plaintiff resides or has his principal place of business, or the Court
of Appeals for the District of Columbia. As part of his answer, the Secretary shall
file a certified copy of the transcript of the record of the hearing, including
all evidence submitted in connection therewith. The findings of fact of the Secretary,
if based on substantial evidence in the record as a whole, shall be conclusive.
(k) No loss or 'Diminution of benefits for reliance on prayer or spiritual treatment;
physical examination not excepted.
(1) Nothing in this Act prevents an employee whose injury or disability has been
established under this Act from relying in good faith on treatment by prayer or
spiritual means alone, in accordance with the tenets and practice of a recognized
church or religious denomination, by an accredited practitioner of such recognized
church or religious denomination, and on nursing services rendered in accordance
with such tenets and practice, without suffering loss or 'Diminution of the compensation
or benefits under this Act. Nothing in this subsection shall be construed to except
an employee from all physical examinations required by this Act.
(2) If an employee refuses to submit to medical or surgical services solely because,
in adherence to the tenets and practice of a recognized church or religious denomination,
the employee relies upon prayer or spiritual means alone for healing, such employee
shall not be considered to have unreasonably refused medical or surgical treatment
under subsection (d).
908. Compensation for disability
Compensation for disability shall be paid to the employee as follows:
(a) Permanent total disability: In case of total disability adjudged to be permanent
66 2/3 per centum of the average weekly wages shall be paid to the employee during
the continuance of such total disability. Loss of both hands, or both arms, or both
feet, or both legs or both eyes, or of any two thereof shall, in the absence of
conclusive proof to the contrary, constitute permanent total disability. In all
other cases permanent total disability shall be determined in accordance with the
facts.
(b) Temporary total disability: In case of disability total in character but temporary
in quality 66 2/3 per centum of the average weekly wages shall be paid to the employee
during the continuance thereof.
(c) Permanent partial disability: In case of disability partial in character but
permanent in quality the compensation shall be 66 2/3 per centum of the average
weekly wages, which shall be in addition to compensation for temporary total disability
or temporary partial disability paid in accordance with subdivision (b) or subdivision
(e) of this section, respectively, and shall be paid to the employee, as follows:
(1) Arm lost, three hundred and twelve weeks' compensation.
(2) Leg lost, two hundred and eighty-eight weeks' compensation.
(3) Hand lost, two hundred and forty-four weeks' compensation.
(4) Foot lost, two hundred and five weeks' compensation.
(5) Eye lost, one hundred and sixty weeks' compensation.
(6) Thumb lost, seventy-five weeks' compensation.
(7) First finger lost, forty-six weeks' compensation.
(8) Great toe lost, thirty-eight weeks' compensation.
(9) Second finger lost, thirty weeks' compensation.
(10) Third finger lost, twenty-five weeks' compensation.
(11) Toe other than great toe lost, sixteen weeks' compensation.
(12) Fourth finger lost, fifteen weeks' compensation.
(13) Loss of hearing:
(A) Compensation for loss of hearing in one ear, fifty-two weeks.
(B) Compensation for loss of hearing in both ears, two-hundred weeks.
(C) An audiogram shall be presumptive evidence of the amount of hearing loss sustained
as of the date thereof, only if (i) such audiogram was administered by a licensed
or certified audiologist or a physician who is certified in otolaryngology, (ii)
such audiogram, with the report thereon, was provided to the employee at the time
it was administered, and (iii) no contrary audiogram made at that time is produced.
(D) The time for filing a notice of injury, under section 12 of this Act [33 USC
912], or a claim for compensation, under section 13 of this Act [33 USC 913], shall
not begin to run in connection with any claim for loss of hearing under this section,
until the employee has received an audiogram, with the accompanying report thereon,
which indicates that the employee has suffered a loss of hearing.
(E) 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.
(14) Phalanges: Compensation for loss of more than one phalange of a digit shall
be the same as for loss of the entire digit. Compensation for loss of the first
phalange shall be one-half of the compensation for loss of the entire digit.
(15) Amputated arm or leg: Compensation for an arm or a leg, if amputated at or
above the elbow or the knee, shall be the same as for a loss of the arm or leg;
but, if amputated between the elbow and the wrist or the knee and the ankle, shall
be the same as for loss of a hand or foot.
(16) Binocular vision or per centum of vision: Compensation for loss of binocular
vision or for 80 per centum or more of the vision of an eye shall be the same as
for loss of the eye.
(17) Two or more digits: Compensation for loss of two or more digits, or one or
more phalanges of two or more digits, of a hand or foot may be proportioned to the
loss of use of the hand or foot occasioned thereby, but shall not exceed the compensation
for loss of a hand or foot.
(18) Total loss of use: Compensation for permanent total loss of use of a member
shall be the same as for loss of the member.
(19) Partial loss or partial loss of use: Compensation for permanent partial loss
or loss of use of a member may be for proportionate loss or loss of use of the member.
(20) Disfigurement: Proper and equitable compensation not to exceed $ 7,500 shall
be awarded for serious disfigurement of the face, head, or neck or of other normally
exposed areas likely to handicap the employee in securing or maintaining employment.
(21) Other cases: In all other cases in the class of disability, the compensation
shall be 66 2/3 per centum of the difference between the average weekly wages of
the employee and the employee's wage-earning capacity thereafter in the same employment
or otherwise, payable during the continuance of partial disability.
(22) In any case in which there shall be a loss of, or loss of use of, more than
one member or parts of more than one member set forth in paragraphs (1) to (19)
of this subdivision, not amounting to permanent total disability, the award of compensation
shall be for the loss of, or loss of use of, each such member or part thereof, which
awards shall run consecutively, except that where the injury affects only two or
more digits of the same hand or foot, paragraph (17) of this subdivision shall apply.
(23) Notwithstanding paragraphs (1) through (22), with respect to a claim for permanent
partial disability for which the average weekly wages are determined under section
10(d)(2) [33 USC 910(d)(2)], the compensation shall be 66 2/3 per centum of such
average weekly wages multiplied by the percentage of permanent impairment, as determined
under the guides referred to in section 2(10) [33 USC 902(10)], payable during the
continuance of such impairment.
(d)(1) If an employee who is receiving compensation for permanent partial disability
pursuant to section 8(c)(1)--(20) [subsec. (c)(1)--(20) of this section] dies from
causes other than the injury, the total amount of the award unpaid at the time of
death shall be payable to or for the benefit of his survivors, as follows:
(A) if the employee is survived only by a widow or widower, such unpaid amount of
the award shall be payable to such widow or widower,
(B) if the employee is survived only by a child or children, such unpaid amount
of the award shall be paid to such child or children in equal shares,
(C) if the employee is survived by a widow or widower and a child or children, such
unpaid amount of the award shall be payable to such survivors in equal shares,
(D) if there be no widow or widower and no surviving child or children, such unpaid
amount of the award shall be paid to the survivors specified in section 9(d) [33
USC 909(d)] (other than a wife, husband, or child); and the amount to be paid each
such survivor shall be determined by multiplying such unpaid amount of the award
by the appropriate percentage specified in section 9(d) [33 USC 909(d)], but if
the aggregate amount to which all such survivors are entitled, as so determined,
is less than such unpaid amount of the award, the excess amount shall be divided
among such survivors pro rata according to the amount otherwise payable to each
under this subparagraph.
(2) Notwithstanding any other limitation in section 9 [33 USC 909], the total amount
of any award for permanent partial disability pursuant to section 8(c)(1)--(20)
of [subsec. (c)(1)--(20) of this section] unpaid at time of death shall be payable
in full in the appropriate distribution.
(3) An award for disability may be made after the death of the injured employee.
Except where compensation is payable under section 8(c)(21) [subsec.(c)(21) of this
section], if there be no survivors as prescribed in this section, then the compensation
payable under this subsection shall be paid to the special fund established under
section 44(a) of this Act [33 USC 944(a)].
(4) [Redesignated]
(e) Temporary partial disability: In case of temporary partial disability resulting
in decrease of earning capacity the compensation shall be two-thirds of the difference
between the injured employee's average weekly wages before the injury and his wage-earning
capacity 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 five
years.
(f) Injury increasing disability:
(1) In any case in which an employee having an existing permanent partial disability
suffers injury, the employer shall provide compensation for such disability as is
found to be attributable to that injury based upon the average weekly wages of the
employee at the time of the injury. If following an injury falling within the provisions
of section 8(c)(1)-(20) [subsec. (c)(1)-(20) of this section], the employee is totally
and permanently disabled, and the disability is found not to be due solely to that
injury, the employer shall provide compensation for the applicable prescribed period
of weeks provided for in that section for the subsequent injury, or for one hundred
and four weeks, whichever is the greater, except that, in the case of an injury
falling within the provisions of section 8(c)(13) [subsec. (c)(13) of this section],
the employer shall provide compensation for the lesser of such periods. In all other
cases of total permanent disability or of death, found not to be due solely to that
injury, of an employee having an existing permanent partial disability, the employer
shall provide in addition to compensation under paragraphs (b) and (e) of this section,
compensation payments or death benefits for one hundred and four weeks only. If
following an injury falling within the provisions of 8(c)(1)-(20) [subsec. (c)(1)-(20)
of this section], the employee has a permanent partial disability and the disability
is found not to be due solely to that injury, and such disability is materially
and substantially greater than that which would have resulted from the subsequent
injury alone, the employer shall provide compensation for the applicable period
of weeks provided for in that section for the subsequent injury, or for one hundred
and four weeks, whichever is the greater, except that, in the case of an injury
falling within the provisions of section 8(c)(13) [subsec. (c)(13) of this section],
the employer shall provide compensation for the lesser of such periods. In all other
cases in which the employee has a permanent partial disability, found not to be
due solely to that injury, and such disability is materially and substantially greater
than that which would have resulted from the subsequent injury alone, the employer
shall provide in addition to compensation under paragraphs (b) and (e) of this section,
compensation for one hundred and four weeks only.
(2)(A) After cessation of the payments for the period of weeks provided for herein,
the employee or his survivor entitled to benefits shall be paid the remainder of
the compensation that would be due out of the special fund established in section
44 [33 USC 944], except that the special fund shall not assume responsibility with
respect to such benefits (and such payments shall not be subject to cessation) in
the case of any employer who fails to comply with section 32(a) [33 USC 932(a)].
(B) After cessation of payments for the period of weeks provided for in this subsection,
the employer or carrier responsible for payment of compensation shall remain a party
to the claim, retain access to all records relating to the claim, and in all other
respects retain all rights granted under this Act prior to cessation of such payments.
(3) Any request, filed after the date of enactment of the Longshore and Harbor Workers'
Compensation Amendments of 1984 [enacted Sept. 28, 1984], for apportionment of liability
to the special fund established under section 44 of this Act [33 USC 944] for the
payment of compensation benefits, and a statement of the grounds therefore, shall
be presented to the deputy commissioner prior to the consideration of the claim
by the deputy commissioner. Failure to present such request prior to such consideration
shall be an absolute defense to the special fund's liability for the payment of
any benefits in connection with such claim, unless the employer could not have reasonably
anticipated the liability of the special fund prior to the issuance of a compensation
order.
(g) Maintenance for employees undergoing vocational rehabilitation: An employee
who as a result of injury is or may be expected to be totally or partially incapacitated
for a remunerative occupation and who, under the direction of the Secretary as provided
by section 39(c) of this Act [33 USC 939(c)], is being rendered fit to engage in
a remunerative occupation, shall receive additional compensation necessary for his
maintenance, but such additional compensation shall not exceed $ 25 a week. The
expense shall be paid out of the special fund established in section 44 [33 USC
944].
(h) The wage-earning capacity of an injured employee in cases of partial disability
under subdivision (c)(21) of this section or under subdivision (e) of this section
shall be determined by his actual earnings if such actual earnings fairly and reasonably
represent his wage-earning capacity: Provided, however, That if the employee has
no actual earnings or his actual earnings do not fairly and reasonably represent
his wage-earning capacity, the deputy commissioner may, in the interest of justice,
fix such wage-earning capacity as shall be reasonable, having due regard to the
nature of his injury, the degree of physical impairment, his usual employment, and
any other factors or circumstances in the case which may affect his capacity to
earn wages in his disabled condition, including the effect of disability as it may
naturally extend into the future.
(i)(1) Whenever the parties to any claim for compensation under this Act, including
survivors benefits, agree to a settlement, the deputy commissioner or administrative
law judge shall approve the settlement within thirty days unless it is found to
be inadequate or procured by duress. Such settlement may include future medical
benefits if the parties so agree. No liability of any employer, carrier, or both
for medical, disability, or death benefits shall be discharged unless the application
for settlement is approved by the deputy commissioner or administrative law judge.
If the parties to the settlement are represented by counsel, then agreements shall
be deemed approved unless specifically disapproved within thirty days after submission
for approval.
(2) If the deputy commissioner disapproves an application for settlement under paragraph
(1), the deputy commissioner shall issue a written statement within thirty days
containing the reasons for disapproval. Any party to the settlement may request
a hearing before an administrative law judge in the manner prescribed by this Act.
Following such hearing, the administrative law judge shall enter an order approving
or rejecting the settlement.
(3) A settlement approved under this section shall discharge the liability of the
employer or carrier, or both. Settlements may be agreed upon at any stage of the
proceeding including after entry of a final compensation order.
(4) The special fund shall not be liable for reimbursement of any sums paid or payable
to an employee or any beneficiary under such settlement, or otherwise voluntarily
paid prior to such settlement by the employer or carrier, or both.
(j)(1) The employer may inform a disabled employee of his obligation to report to
the employer not less than semiannually any earnings from employment or self-employment,
on such forms as the Secretary shall specify in regulations.
(2) An employee who--
(A) fails to report the employee's earnings under paragraph (1) when requested,
or
(B) knowingly and willfully omits or understates any part of such earnings, and
who is determined by the deputy commissioner to have violated clause (A) or (B)
of this paragraph, forfeits his right to compensation with respect to any period
during which the employee was required to file such report.
(3) Compensation forfeited under this subsection, if already paid, shall be recovered
by a deduction from the compensation payable to the employee in any amount and on
such schedule as determined by the deputy commissioner.
909. Compensation for death
If the injury causes death, the compensation therefore shall be known as a death
benefit and shall be payable in the amount and to or for the benefit of the persons
following:
(a) Reasonable funeral expenses not exceeding $ 3,000.
(b) If there be a widow or widower and no child of the deceased, to such widow or
widower 50 per centum of the average wages of the deceased, during widowhood, or
dependent widowerhood, with two years' compensation in one sum upon remarriage;
and if there be a surviving child or children of the deceased, the additional amount
of 16 2/3 per centum of such wages for each such child; in case of the death or
remarriage of such widow or widower, if there be one surviving child of the deceased
employee, such child shall have his compensation increased to 50 per centum of such
wages, and if there be more than one surviving child of the deceased employee, to
such children, in equal parts, 50 per centum of such wages increased by 16 2/3 per
centum of such wages for each child in excess of one: Provided, That the total amount
payable shall in no case exceed 66 2/3 per centum of such wages. The deputy commissioner
having jurisdiction over the claim may, in his discretion, 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 purposes
shall not be necessary.
(c) If there be one surviving child of the deceased, but no widow or widower, then
for the support of such child 50 per centum of the wages of the deceased; and if
there be more than one surviving child of the deceased, but no widow or dependent
husband, then for the support of such children, in equal parts 50 per centum of
such wages increased by 16 2/3 per centum of such wages for each child in excess
of one: Provided, That the total amount payable shall in no case exceed 66 2/3 per
centum of such wages.
(d) If there be no widow or widower or child, or if the amount payable to a widow
or widower and to children shall be less in the aggregate than 66 2/3 per centum
of the average wages of the deceased; then for the support of grandchildren or brothers
and sisters, 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 [26 USC 152], but are not otherwise eligible under
this section, 20 per centum of such wages for the support of each such person during
such dependency and for the support of each parent, or grandparent, of the deceased
if dependent upon him at the time of the injury, 25 per centum of such wages during
such dependency. But in no case shall the aggregate amount payable under this subdivision
exceed the difference between 66 2/3 per centum of such wages and the amount payable
as hereinbefore provided to widow or widower and for the support of surviving child
or children.
(e) In computing death benefits, the average weekly wages of the deceased shall
not be less than the national average weekly wage as prescribed in section 6(b)
[33 USC 906(b)], but--
(1) the total weekly benefits shall not exceed the lesser of the average weekly
wages of the deceased or the benefit which the deceased employee would have been
eligible to receive under section 6(b)(1) [33 USC 906(b)(1)]; and
(2) in the case of a claim based on death due to an occupational disease for which
the time of injury (as determined under section 10(i) [33 USC 910(i)] occurs after
the employee has retired, the total weekly benefits shall not exceed one fifty-second
part of the employee's average annual earnings during the 52-week period preceding
retirement.
(f) All questions of dependency shall be determined as of the time of the injury.
(g) Aliens: Compensation under this chapter [this Act] to aliens not residents (or
about to become nonresidents) of the United States or Canada shall be the same in
amount as provided for residents, except that dependents in any foreign country
shall be limited to surviving wife and child or children, or if there be no surviving
wife or child or children, to surviving father or mother whom the employee has supported,
either wholly or in part, for the period of one year prior to the date of the injury,
and except that the commission [Secretary of Labor] may, at its option or upon the
application of the insurance carrier shall, commute all future installments of compensation
to be paid to such aliens by paying or causing to be paid to them one-half of the
commuted amount of such future installments of compensation as determined by the
commission [Secretary of Labor].
910. Determination of pay
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 his 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 in similar employment in the same or a 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 can not 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.
(d)(1) The average weekly wages of an employee shall be one fifty-second part of
his average annual earnings.
(2) Notwithstanding paragraph (1), 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 (i)) occurs--
(A) within the first year after the employee has retired, the average weekly wages
shall be one fifty-second part of his average annual earnings during the 52-week
period preceding retirement; or
(B) more than one 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) [33 USC 906(b)]) applicable at the time of the injury.
(e) If it be established that the injured employee was a minor when injured, and
that under normal conditions his wages should be expected to increase during the
period of disability the fact may be considered in arriving at his average weekly
wages.
(f) Effective October 1 of each year, the compensation or death benefits payable
for permanent total disability or death arising out of injuries subject to this
Act shall be increased by the lesser of--
(1) a percentage equal to the percentage (if any) by which the applicable national
weekly wage for the period beginning on such October 1, as determined under section
6(b) [33 USC 906(b)], exceeds the applicable national average weekly wage, as so
determined, for the period beginning with the preceding October 1; or
(2) 5 per centum.
(g) The weekly compensation after adjustment under subsection (f) shall be fixed
at the nearest dollar. No adjustment of less than $ 1 shall be made, but in no event
shall compensation or death benefits be reduced.
(h)(1) Not later than ninety days after the date of enactment of this subsection
[Oct. 27, 1972], the compensation to which an employee or his survivor is entitled
due to total permanent disability or death which commenced or occurred prior to
enactment of this subsection shall be adjusted. The amount of such adjustment shall
be determined in accordance with regulations of the Secretary by designating as
the employee's average weekly wage the applicable national average weekly wage determined
under section 6(b) [33 USC 906(b)] and (A) computing the compensation to which such
employee or survivor would be entitled if the disabling injury or death had occurred
on the day following such enactment date and (B) subtracting therefrom the compensation
to which such employee or survivor was entitled on such enactment date; except that
no such employee or survivor shall receive total compensation amounting to less
than that to which he was entitled on such enactment date. Notwithstanding the foregoing
sentence, where such an employee or his survivor was awarded compensation as the
result of death or permanent total disability at less than the maximum rate that
was provided in this Act at the time of the injury which resulted in the death or
disability, then his average weekly wage shall be determined by increasing his average
weekly wage at the time of such injury by the percentage which the applicable national
average weekly wage has increased between the year in which the injury occurred
and the first day of the first month following the enactment of this section [enacted
Oct. 27, 1972]. Where such injury occurred prior to 1947, the Secretary shall determine,
on the basis of such economic data as he deems relevant, the amount by which the
employee's average weekly wage shall be increased for the pre-1947 period.
(2) Fifty per centum of any additional compensation or death benefit paid as a result
of the adjustment required by paragraphs (1) and (3) of this subsection shall be
paid out of the special fund established under section 44 of this Act [33 USC 944],
and 50 per centum shall be paid from appropriations.
(3) For the purposes of subsections (f) and (g) an injury which resulted in permanent
total disability or death which occurred prior to the date of enactment of this
subsection shall be considered to have occurred on the day following such enactment
date.
(i) For purposes of this section with respect to a claim for compensation for death
or disability due to an occupational disease which does not immediately result in
death or disability, the time of injury shall be deemed to be the date on which
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 employment, the disease, and the death or disability.
911. Guardian for minor or incompetent
The deputy commissioner may require the appointment by a court of competent jurisdiction,
for any person who is mentally incompetent or a minor, of a guardian or other representative
to receive compensation payable to such person under this Act and to exercise the
powers granted to or to perform the duties required of such person under this Act.
912. Notice of injury or death
(a) Time limitation; to whom notice given. Notice of an injury or death in respect
of which compensation is payable under this Act shall be given within thirty days
after the date of such injury or death, or thirty days after the employee or beneficiary
is aware, or in the exercise of reasonable diligence or by reason of medical advice
should have been aware, of a relationship between the injury or death and the employment,
except that in the case of an occupational disease which does not immediately result
in a disability or death, such notice shall be given within one 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 employment,
the disease, and the death or disability. Notice shall be given (1) to the deputy
commissioner in the compensation district in which the injury or death occurred,
and (2) to the employer.
(b) Form and content. Such notice shall be in writing, shall contain the name and
address of the employee and a statement of the time, place, nature, and cause of
the injury or death, and shall be signed by the employee or by some person on his
behalf, or in case of death, by any person claiming to be entitled to compensation
for such death or by a person on his behalf.
(c) Delivery requirements; designation of agents. Notice shall be given to the deputy
commissioner by delivering it to him or sending it by mail addressed to his office,
and to the employer by delivering it to him or by sending it by mail addressed to
him at his last known place of business. If the employer is a partnership, such
notice may be given to any partner, or if a corporation, such notice may be given
to any agent or officer thereof upon whom legal process may be served or who is
in charge of the business in the place where the injury occurred. Each employer
shall designate those agents or other responsible officials to receive such notice,
except that the employer shall designate as its representatives individuals among
first line supervisors, local plant management, and personnel office officials.
Such designations shall be made in accordance with regulations prescribed by the
Secretary and the employer shall notify his employees and the Secretary of such
designation in a manner prescribed by the Secretary in regulations.
(d) Failure to give notice. Failure to give such notice shall not bar any claim
under this Act (1) if the employer (or his agent or agents or other responsible
official or officials designated by the employer pursuant to subsection (c)) or
the carrier had knowledge of the injury or death, (2) the deputy commissioner determines
that the employer or carrier has not been prejudiced by failure to give such notice,
or (3) if 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) of this section, was given to an official of the employer or the
employer's insurance carrier, and that 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; nor unless 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.
913. Filing of claims
(a) Time to file. Except as otherwise provided in this section, the right to compensation
for disability or death under this Act shall be barred unless a claim therefore
is filed within one year after the injury or death. If payment of compensation has
been made without an award on account of such injury or death, a claim may be filed
within one year 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. The time for filing a claim shall not begin to run until the employee
or beneficiary is aware, or by the exercise of reasonable diligence should have
been aware, of the relationship between the injury or death and the employment.
(b) Failure to file.
(1) Notwithstanding the provisions of subdivision (a) failure to file a claim within
the period prescribed in such subdivision shall not be a bar to such right unless
objection to such failure is made at the first hearing of such claim in which all
parties in interest are given reasonable notice and opportunity to be heard.
(2) Notwithstanding the provisions of subsection (a), a claim for compensation for
death or disability due to an occupational disease which does not immediately result
in such death or disability shall be timely if filed within two years 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 employment, the disease, and the death or disability, or within one year of
the date of the last payment of compensation, whichever is later.
(c) Effect on incompetents and minors. If a person who is entitled to compensation
under this Act is mentally incompetent or a minor, the provisions of subdivision
(a) shall not be applicable so long as such person has no guardian or other authorized
representative, but shall be applicable in the case of a person who is mentally
incompetent or a minor from the date of appointment of such guardian or other representative,
or in the case of a minor, if no guardian is appointed before he becomes of age,
from the date he becomes of age.
(d) Tolling provision. Where recovery is denied to any person, in a suit brought
at law or in admiralty to recover damages in respect of injury or death, on the
ground that such person was an employee and that the defendant was an employer within
the meaning of this Act and that such employer had secured compensation to such
employee under this Act the limitation of time prescribed in subdivision (a) shall
begin to run only from the date of termination of such suit.
914. Payment of compensation
(a) Manner of payment. Compensation under this Act shall be paid periodically, promptly,
and directly to the person entitled thereto, without an award, except where liability
to pay compensation is controverted by the employer.
(b) Period of installment payments. The first installment of compensation shall
become due on the fourteenth day after the employer has been notified pursuant to
section 12 [33 USC 912], or the employer has knowledge of the injury or death, on
which date all compensation then due shall be paid. Thereafter compensation shall
be paid in installments, semimonthly, except where the deputy commissioner determines
that payment in installments should be made monthly or at some other period.
(c) Notification of commencement or suspension of payment. Upon making the first
payment, and upon suspension of payment for any cause, the employer shall immediately
notify the deputy commissioner, in accordance with a form prescribed by the commission,
that payment of compensation has begun or has been suspended, as the case may be.
(d) Right to compensation controverted. If the employer controverts the right to
compensation he shall file with the deputy commissioner on or before the fourteenth
day after he has knowledge of the alleged injury or death, a notice, in accordance
with a form prescribed by the commission, stating that the right to compensation
is controverted, the name of the claimant, the name of the employer, the date of
the alleged injury or death, and the grounds upon which the right to compensation
is controverted.
(e) Additional compensation for overdue installment payments payable without award.
If any installment of compensation payable without an award is not paid within fourteen
days after it becomes due, as provided in subdivision (b) of this section, there
shall be added to such unpaid installment an amount equal to 10 per centum thereof,
which shall be paid at the same time as, but in addition to, such installment, unless
notice is filed under subdivision (d) of this section, or unless such nonpayment
is excused by the deputy commissioner after a showing by the employer that owing
to conditions over which he had no control such installment could not be paid within
the period prescribed for the payment.
(f) Additional compensation for overdue installment payments payable under terms
of award. If any compensation, payable under the terms of an award, is not paid
within ten days after it becomes due, there shall be added to such unpaid compensation
an amount equal to 20 per centum thereof, which shall be paid at the same time as,
but in addition to, such compensation, unless review of the compensation order making
such award is had as provided in section 21 [33 USC 921] and an order staying payment
has been issued by the Board or court.
(g) Notice of payment; penalty. Within sixteen days after final payment of compensation
has been made, the employer shall send to the deputy commissioner a notice, in accordance
with a form prescribed by the commission [Secretary of Labor], stating that such
final payment has been made, the total amount of compensation paid, the name of
the employee and of any other person to whom compensation has been paid, the date
of the injury or death, and the date to which compensation has been paid. If the
employer fails to so notify the deputy commissioner within such time the commission
[Secretary of Labor] shall assess against such employer a civil penalty in the amount
of $ 100.
(h) Investigations, examinations, and hearings for controverted, stopped or suspended
payments. The deputy commissioner (1) may upon his own initiative at any time in
a case in which payments are being made without an award, and (2) shall in any case
where right to compensation is controverted, or where payments of compensation have
been stopped or suspended, upon receipt of notice from any person entitled to compensation,
or from the employer, that the right to compensation is controverted, or that payments
of compensation have been stopped or suspended, make such investigations, cause
such medical examinations to be made, or hold such hearings, and take such further
action as he considers will properly protect the rights of all parties.
(i) Deposit by employer. Whenever the deputy commissioner deems it advisable he
may require any employer to make a deposit with the Treasury of the United States
to secure the prompt and convenient payment of such compensation, and payments therefrom
upon any awards shall be made upon order of the deputy commissioner.
(j) Reimbursement for advance payments. If the employer has made advance payments
of compensation, he shall be entitled to be reimbursed out of any unpaid installment
or installments of compensation due.
(k) Receipt for payment. An injured employee, or in case of death his dependents
or personal representative, shall give receipts for payment of compensation to the
employer paying the same and such employer shall produce the same for inspection
by the deputy commissioner, whenever required.
(l) [Redesignated]
915. Invalid agreements
(a) No agreement by an employee to pay any portion of premium paid by his employer
to a carrier or to contribute to a benefit fund or department maintained by such
employer for the purpose of providing compensation or medical services and supplies
as required by this Act shall be valid, and any employer who makes a deduction for
such purpose from the pay of any employee entitled to the benefits of this act shall
be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine
of not more than $ 1,000.
(b) No agreement by an employee to waive his right to compensation under this Act
shall be valid.
916. Assignment and exemption from claims of creditors
No assignment, release, or commutation of compensation or benefits due or payable
under this Act, except as provided by this Act, shall be valid, and such compensation
and benefits shall be exempt from all claims of creditors and from levy, execution,
and attachment or other remedy for recovery or collection of a debt, which exemption
may not be waived.
917. Compensation a lien against assets
Where a trust fund which complies with section 302(c) of the Labor-Management Relations
Act of 1947 (29 U.S.C. 186(c) [29 USC 186(c)]) established pursuant to a collective-bargaining
agreement in effect between an employer and an employee covered under this Act has
paid disability benefits to an employee which the employee is legally obligated
to repay by reason of his entitlement to compensation under this Act or under a
settlement, the Secretary shall authorize a lien on such compensation in favor of
the trust fund for the amount of such payments.
918. Collection of defaulted payments; special fund
(a) In case of default by the employer in the payment of compensation due under
any award of compensation for a period of thirty days after the compensation is
due and payable, the person to whom such compensation is payable may, within one
year after such default, make application to the deputy commissioner making the
compensation order or [for] a supplementary order declaring the amount of the default.
After investigation, notice, and hearing, as provided in section 19 [33 USC 919],
the deputy commissioner shall make a supplementary order, declaring the amount of
the default, which shall be filed in the same manner as the compensation order.
In case the payment in default is an installment of the award, the deputy commissioner
may, in his discretion, declare the whole of the award as the amount in default.
The applicant may file a certified copy of such supplementary order with the clerk
of the Federal district court for the judicial district in which the employer has
his principal place of business or maintains an office, or for the judicial district
in which the injury occurred. In case such principal place of business or office
or place where the injury occurred is in the District of Columbia, a copy of such
supplementary order may be filed with the clerk of the Supreme Court of the District
of Columbia [United States District Court for the District of Columbia]. Such supplementary
order of the deputy commissioner shall be final, and the court shall upon the filing
of the copy enter judgment for the amount declared in default by the supplementary
order if such supplementary order is in accordance with law. Review of the judgment
so entered may be had as in civil suits for damages at common law. Final proceedings
to execute the judgment may be had by writ of execution in the form used by the
court in suits at common law in actions of assumpsit. No fee shall be required for
filing the supplementary order nor for entry of judgment thereon, and the applicant
shall not be liable for costs in a proceeding for review of the judgment unless
the court shall otherwise direct. The court shall modify such judgment to conform
to any later compensation order upon presentation of a certified copy thereof to
the court.
(b) In cases where judgment cannot be satisfied by reason of the employer's insolvency
or other circumstances precluding payment, the Secretary of Labor may, in his discretion
and to the extent he shall determine advisable after consideration of current commitments
payable from the special fund established in section 44 [33 USC 944], make payment
from such fund upon any award made under this Act and in addition, provide any necessary
medical, surgical, and other treatment required by section 7 of the Act [33 USC
907] in any case of disability where there has been a default in furnishing medical
treatment by reason of the insolvency of the employer. Such an employer shall be
liable for payment into such fund of the amounts paid therefrom by the Secretary
of Labor under this subsection; and for the purpose of enforcing his liability,
the Secretary of Labor for the benefit of the fund shall be subrogated to all the
rights of the person receiving such payment or benefits as against the employer
and may by a proceeding in the name of the Secretary of Labor under section 18 [33
USC 918] or under subsection (c) of section 21 of this Act [33 USC 921(c)], or both,
seek to recover the amount of the default or so much thereof as in the judgment
of the Secretary is possible, or the Secretary may settle and compromise any such
claim.
919. Procedure in respect of claims
(a) Filing of claim. Subject to the provisions of section 13 [33 USC 913] a claim
for compensation may be filed with the deputy commissioner in accordance with regulations
prescribed by the commission [Secretary of Labor] at any time after the first seven
days of disability following any injury, or at any time after death, and the deputy
commissioner shall have full power and authority to hear and determine all questions
in respect of such claim.
(b) Notice of claim. Within ten days after such claim is filed the deputy commissioner,
in accordance with regulations prescribed by the commission [Secretary of Labor],
shall notify the employer and any other person (other than the claimant), whom the
deputy commissioner considers an interested party, that a claim has been filed.
Such notice may be served personally upon the employer or other person, or sent
to such employer or person by registered mail.
(c) Investigations; order for hearing; notice; rejection or award. The deputy commissioner
shall make or cause to be made such investigations as he considers necessary in
respect of the claim, and upon application of any interested party shall order a
hearing thereon. If a hearing on such claim is ordered the deputy commissioner shall
give the claimant and other interested parties at least ten days' notice of such
hearing, served personally upon the claimant and other interested parties or sent
to such claimant and other interested parties by registered mail or by certified
mail, and shall within twenty days after such hearing is had, by order, reject the
claim or make an award in respect of the claim. If no hearing is ordered within
twenty days after notice if given as provided in subdivision (b), the deputy commissioner
shall, by order, reject the claim or make an award in respect of the claim.
(d) Provisions governing conduct of hearing; hearing examiners. Notwithstanding
any other provisions of this Act, any hearing held under this Act shall be conducted
in accordance with the provisions of section 554 of title 5 of the United States
Code [5 USC 554]. Any such hearing shall be conducted by a [an] administrative law
judge qualified under section 3105 of that title [5 USC 3105]. All powers, duties,
and responsibilities vested by this Act, on the date of enactment of the Longshoremen's
and Harbor Workers' Compensation Act Amendments of 1972 [enacted Oct. 27, 1972],
in the deputy commissioners with respect to such hearings shall be vested in such
administrative law judges.
(e) Filing and mailing of order rejecting claim or making award. The order rejecting
the claim or making the award (referred to in this Act as a compensation order)
shall be filed in the office of the deputy commissioner, and a copy thereof shall
be sent by registered mail or by certified mail to the claimant and to the employer
at the last known address of each.
(f) Awards after death of employee. An award of compensation for disability may
be made after the death of an injured employee.
(g) Transfer of case. At any time after a claim has been filed with him, the deputy
commissioner may, with the approval of the Commission [Secretary of Labor], transfer
such case to any other deputy commissioner for the purpose of making investigation,
taking testimony, making physical examinations or taking such other necessary action
therein as may be directed.
(h) Physical examination of injured employee. An injured employee claiming or entitled
to compensation shall submit to such physical examination by a medical officer of
the United States or by a duly qualified physician designated or approved by the
commission [Secretary of Labor] as the deputy commissioner may require. The place
or places shall be reasonably convenient for the employee. Such physician or physicians
as the employee, employer, or carrier may select and pay for may participate in
an examination if the employee, employer, or carrier so requests. Proceedings shall
be suspended and no compensation be payable for any period during which the employee
may refuse to submit to examination.
920. Presumptions
In any proceeding for the enforcement of a claim for compensation under this Act
it shall be presumed, in the absence of substantial evidence to the contrary--
(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.
(d) That the injury was not occasioned by the willful intention of the injured employee
to injure or kill himself or another.
921. Review of compensation orders
(a) Effectiveness and finality of order. A compensation order shall become effective
when filed in the office of the deputy commissioner as provided in section 19 [33
USC 919], and, unless proceedings for the suspension or setting aside of such order
are instituted as provided in subdivision (b) of this section, shall become final
at the expiration of the thirtieth day thereafter.
(b) Benefits Review Board; establishment; members; chairman; quorum; voting; questions
reviewable; record; conclusiveness of findings; stay of payments; remand.
(1) There is hereby established a Benefits Review Board which shall be composed
of five members appointed by the Secretary from among individuals who are especially
qualified to serve on such Board. The Secretary shall designate one of the members
of the Board to serve as chairman. The Chairman shall have the authority, as delegated
by the Secretary, to exercise all administrative functions necessary to operate
the Board.
(2) For the purpose of carrying out its functions under this Act, three members
of the Board shall constitute a quorum and official action can be taken only on
the affirmative vote of at least three members.
(3) The Board shall be authorized to hear and determine appeals raising a substantial
question of law or fact taken by any party in interest from decisions with respect
to claims of employees under this Act and the extensions thereof. The Board's orders
shall be based upon the hearing record. The findings of fact in the decision under
review by the Board shall be conclusive if supported by substantial evidence in
the record considered as a whole. The payment of the amounts required by an award
shall not be stayed pending final decision in any such proceeding unless ordered
by the Board. No stay shall be issued unless irreparable injury would otherwise
ensue to the employer or carrier.
(4) The Board may, on its own motion or at the request of the Secretary, remand
a case to the administrative law judge for further appropriate action. The consent
of the parties in interest shall not be a prerequisite to a remand by the Board.
(5) Notwithstanding paragraphs (1) through (4), upon application of the Chairman
of the Board, the Secretary may designate up to four Department of Labor administrative
law judges to serve on the Board temporarily, for not more than one year. The Board
is authorized to delegate to panels of three members any or all of the powers which
the Board may exercise. Each such panel shall have no more than one temporary member.
Two members shall constitute a quorum of a panel. Official adjudicative action may
be taken only on the affirmative vote of at least two members of a panel. Any party
aggrieved by a decision of a panel of the Board may, within thirty days after the
date of entry of the decision, petition the entire permanent Board for review of
the panel's decision. Upon affirmative vote of the majority of the permanent members
of the Board, the petition shall be granted. The Board shall amend its Rules of
Practice to conform with this paragraph. Temporary members, while serving as members
of the Board, shall be compensated at the same rate of compensation as regular members.
(c) Court of appeals; jurisdiction; persons entitled to review; petition; record;
determination and enforcement; service of process; stay of payments. Any person
adversely affected or aggrieved by a final order of the Board may obtain a review
of that order in the United States court of appeals for the circuit in which the
injury occurred, by filing in such court within sixty days following the issuance
of such Board order a written petition praying that the order be modified or set
aside. A copy of such petition shall be forthwith transmitted by the clerk of the
court, to the Board, and to the other parties, and thereupon the Board shall file
in the court the record in the proceedings as provided in section 2112 of title
28, United States Code [28 USC 2112]. Upon such filing, the court shall have jurisdiction
of the proceeding and shall have the power to give a decree affirming, modifying,
or setting aside, in whole or in part, the order of the Board and enforcing same
to the extent that such order is affirmed or modified. The orders, writs, and processes
of the court in such proceedings may run, be served, and be returnable anywhere
in the United States. The payment of the amounts required by an award shall not
be stayed pending final decision in any such proceeding unless ordered by the court.
No stay shall be issued unless irreparable injury would otherwise ensue to the employer
or carrier. The order of the court allowing any stay shall contain a specific finding,
based upon evidence submitted to the court and identified by reference thereto,
that irreparable damage would result to the employer, and specifying the nature
of the damage.
(d) District Court; jurisdiction; enforcement of orders; application of beneficiaries
of awards or deputy commissioner; process for compliance with orders. If any employer
or his officers or agents fails to comply with a compensation order making an award,
that has become final, any beneficiary of such award or the deputy commissioner
making the order, may apply for the enforcement of the order to the Federal district
court for the judicial district in which the injury occurred (or to the United States
District Court for the District of Columbia if the injury occurred in the District).
If the court determines that the order was made and served in accordance with law,
and that such employer or his officers or agents have failed to comply therewith,
the court shall enforce obedience to the order by writ of injunction or by other
proper process, mandatory or otherwise, to enjoin upon such person and his officers
and agents compliance with the order.
(e) Institution of proceedings for suspension, setting aside, or enforcement of
compensation orders. Proceedings for suspending, setting aside, or enforcing a compensation
order, whether rejecting a claim or making an award, shall not be instituted otherwise
than as provided in this section and section 18 [33 USC 918].
922. Modification of awards
Upon his own initiative, or upon the application of any party in interest (including
an employer or carrier which has been granted relief under section 8(f) [33 USC
908(f)]), on the ground of a change in conditions or because of a mistake in a determination
of fact by the deputy commissioner, the deputy commissioner may, at any time prior
to one year after the date of the last payment of compensation, whether or not a
compensation order has been issued, or at any time prior to one year after the rejection
of a claim, review a compensation case (including a case under which payments are
made pursuant to section 44(i) [33 USC 944(i)]) in accordance with the procedure
prescribed in respect of claims in section 19 [33 USC 919], and in accordance with
such section issue a new compensation order which may terminate, continue, reinstate,
increase, or decrease such compensation, or award compensation. Such new order shall
not affect any compensation previously paid, except that an award increasing the
compensation rate may be made effective from the date of the injury, and if any
part of the compensation due or to become due is unpaid, an award decreasing the
compensation rate may be made effective from the date of the injury, and any payment
made prior thereto in excess of such decreased rate shall be deducted from any unpaid
compensation, in such manner and by such method as may be determined by the deputy
commissioner with the approval of the Secretary. This section does not authorize
the modification of settlements.
923. Procedure before deputy commissioner or Board
(a) In making an investigation or inquiry or conducting a hearing the deputy commissioner
or Board shall not be bound by common law or statutory rules of evidence or by technical
or formal rules of procedure, except as provided by this Act [33 USC 901 et seq.];
but may make such investigation or inquiry or conduct such hearing in such manner
as to best ascertain the rights of the parties. Declarations of a deceased employee
concerning the injury in respect of which the investigation or inquiry is being
made or the hearing conducted shall be received in evidence and shall, if corroborated
by other evidence, be sufficient to establish the injury.
(b) Hearings before a deputy commissioner or Board shall be open to the public and
shall be stenographically reported, and the deputy commissioners or Board, subject
to the approval of the Secretary, are authorized to contract for the reporting of
such hearings. The Secretary shall by regulation provide for the preparation of
a record of the hearings and other proceedings before the deputy commissioners or
Board.
924. Witnesses
No person shall be required to attend as a witness in any proceeding before a deputy
commissioner at a place outside of the State of his residence and more than one
hundred miles from his place of residence unless his lawful mileage and fee for
one day's attendance shall be first paid or tendered to him; but the testimony of
any witness may be taken by deposition or interrogatories according to the rules
of practice of the Federal district court for the judicial district in which the
case is pending (or of the Supreme Court of the District of Columbia [United States
District Court for the District of Columbia] if the case is pending in the District).
925. Witness fees
Witnesses summoned in a proceeding before a deputy commissioner or whose depositions
are taken shall receive the same fees and mileage as witnesses in courts of the
United States.
926. Costs in proceedings brought without reasonable grounds
If the court having jurisdiction of proceedings in respect of any claim or compensation
order determines that the proceedings in respect of such claim or order have been
instituted or continued without reasonable ground, the costs of such proceedings
shall be assessed against the party who has so instituted or continued such proceedings.
927. Powers of deputy commissioners or Board
(a) The deputy commissioner or Board shall have power to preserve and enforce order
during any such proceedings; to issue subpoenas for, to administer oaths to, and
to compel the attendance and testimony of witnesses, or the production of books,
papers, documents, and other evidence, or the taking of depositions before any designated
individual competent to administer oaths; to examine witnesses; and to do all things
conformable to law which may be necessary to enable him effectively to discharge
the duties of his office.
(b) If any person in proceedings before a deputy commissioner or Board disobeys
or resists any lawful order or process, or misbehaves during a hearing or so near
the place thereof as to obstruct the same, or neglects to produce, after having
been ordered to do so, any pertinent book, paper, or document, or refuses to appear
after having been subpoenaed, or upon appearing refuses to take the oath as a witness,
or after having taken the oath refuses to be examined according to law, the deputy
commissioner or Board shall certify the facts to the district court having jurisdiction
in the place in which he is sitting (or to the Supreme Court of the District of
Columbia [United States District Court for the District of Columbia] if he is sitting
in such District) which shall thereupon in a summary manner hear the evidence as
to the acts complained of, and, if the evidence so warrants, punish such person
in the same manner and to the same extent as for a contempt committed before the
court, or commit such person upon the same conditions as if the doing of the forbidden
act had occurred with reference to the process of or in the presence of the court.
928. Fees for services
(a) Attorney's fee; successful prosecution of case. If the employer or carrier declines
to pay any compensation on or before the thirtieth day after receiving written notice
of a claim for compensation having been filed from the deputy commissioner, on the
ground that there is no liability for compensation within the provisions of this
Act, and the person seeking benefits shall thereafter have utilized the services
of an attorney at law in the successful prosecution of his claim, there shall be
awarded, in addition to the award of compensation, in a compensation order, a reasonable
attorney's fee against the employer or carrier in an amount approved by the deputy
commissioner, Board, or court, as the case may be, which shall be paid directly
by the employer or carrier to the attorney for the claimant in a lump sum after
the compensation order becomes final.
(b) Attorney's fee; successful prosecution for additional compensation; independent
medical evaluation of disability controversy; restriction of other assessments.
If the employer or carrier pays or tenders payment of compensation without an award
pursuant to section 14(a) and (b) of this Act [33 USC 914(a), (b)], and thereafter
a controversy develops over the amount of additional compensation, if any, to which
the employee may be entitled, the deputy commissioner or Board shall set the matter
for an informal conference and following such conference the deputy commissioner
or Board shall recommend in writing a disposition of the controversy. If the employer
or carrier refuse to accept such written recommendation, within fourteen days after
its receipt by them, they shall pay or tender to the employee in writing the additional
compensation, if any, to which they believe the employee is entitled. If the employee
refuses to accept such payment or tender of compensation, and thereafter utilizes
the services of an attorney at law, and if the compensation thereafter awarded is
greater than the amount paid or tendered by the employer or carrier, a reasonable
attorney's fee based solely upon the difference between the amount awarded and the
amount tendered or paid shall be awarded in addition to the amount of compensation.
The foregoing sentence shall not apply if the controversy relates to degree or length
of disability, and if the employer or carrier offers to submit the case for evaluation
by physicians employed or selected by the Secretary, as authorized in section 7(e)
[33 USC 907(e)] and offers to tender an amount of compensation based upon the degree
or length of disability found by the independent medical report at such time as
an evaluation of disability can be made. If the claimant is successful in review
proceedings before the Board or court in any such case an award may be made in favor
of the claimant and against the employer or carrier for a reasonable attorney's
fee for claimant's counsel in accord with the above provisions. In all other cases
any claim for legal services shall not be assessed against the employer or carrier.
(c) Approval; payment; lien. In all cases fees for attorneys representing the claimant
shall be approved in the manner herein provided. If any proceedings are had before
the Board or any court for review of any action, award, order, or decision, the
Board or court may approve an attorney's fee for the work done before it by the
attorney for the claimant. An approved attorney's fee, in cases in which the obligation
to pay the fee is upon the claimant, may be made a lien upon the compensation due
under an award; and the deputy commissioner, Board, or court shall fix in the award
approving the fee, such lien and manner of payment.
(d) Costs; witnesses' fees and mileage; prohibition against 'Diminution of compensation
to claimant. In cases where an attorney's fee is awarded against an employer or
carrier there may be further assessed against such employer or carrier as costs,
fees and mileage for necessary witnesses attending the hearing at the instance of
claimant. Both the necessity for the witness and the reasonableness of the fees
of expert witnesses must be approved by the hearing officer, the Board, or the court,
as the case may be. The amounts awarded against an employer or carrier as attorney's
fees, costs, fees and mileage for witnesses shall not in any respect affect or 'Diminish
the compensation payable under this Act.
(e) Unapproved fees; solicitation; penalty. A person who receives a fee, gratuity,
or other consideration on account of services rendered as a representative of a
claimant, unless the consideration is approved by the deputy commissioner, administrative
law judge, Board, or court, or who makes it a business to solicit employment for
a lawyer, or for himself, with respect to a claim or award for compensation under
this Act, shall, upon conviction thereof, for each offense be punished by a fine
of not more than $ 1,000 or be imprisoned for not more than one year, or both.
929. Record of injury or death
Every employer shall keep a record in respect of any injury to an employee. Such
record shall contain such information of disease, other disability, or death in
respect of such injury as the Secretary may be regulation require, and shall be
available to inspection by the Secretary or by any State authority at such times
and under such conditions as the Secretary may by regulation prescribe.
930. Reports to Secretary
(a) Time for sending; contents; copy to deputy commissioner. Within ten days from
the date of any injury, which causes loss of one or more shifts of work, or death
or from the date that the employer has knowledge of a disease or infection in respect
of such injury, the employer shall send to the Secretary a report setting forth
(1) the name, address, and business of the employer; (2) the name, address, and
occupation of the employee; (3) the cause and nature of the injury or death; (4)
the year, month, day, and hour when and the particular locality where the injury
or death occurred; and (5) such other information as the Secretary may require.
A copy of such report shall be sent at the same time to the deputy commissioner
in the compensation district in which the injury occurred. Notwithstanding the requirements
of this subsection, each employer shall keep a record of each and every injury regardless
of whether such injury results in the loss of one or more shifts of work.
(b) Additional reports. Additional reports in respect of such injury and of the
condition of such employee shall be sent by the employer to the Secretary and to
such deputy commissioner at such times and in such manner as the Secretary may prescribe.
(c) Use as evidence. Any report provided for in subdivision (a) or (b) shall not
be evidence of any fact stated in such report in any proceeding in respect of such
injury or death on account of which the report is made.
(d) Compliance by mailing. The mailing of any such report and copy in a stamped
envelope, within the time prescribed in subdivisions (a) or (b), to the Secretary
and deputy commissioner, respectively, shall be a compliance with this section.
(e) Penalty for failure or refusal to send report. Any employer, insurance carrier,
or self-insured employer who knowingly and willfully fails or refuses to send any
report required by this section or knowingly or willfully makes a false statement
or misrepresentation in any such report shall be subject to a civil penalty not
to exceed $ 10,000 for each such failure, refusal, false statement, or misrepresentation.
(f) Tolling provision. Where the employer or the carrier has been given notice,
or the employer (or his agent in charge of the business in the place where the injury
occurred) or the carrier has knowledge, of any injury or death of an employee and
fails, neglects, or refuses to file report thereof as required by the provisions
of subdivision (a) of this section, the limitations in subdivision (a) of section
13 of this Act [33 USC 913(a)] shall not begin to run against the claim of the injured
employee or his dependents entitled to compensation, or in favor of either the employer
or the carrier, until such report shall have been furnished as required by the provisions
of subdivision (a) of this section.
931. Penalty for misrepresentation; prosecution of claims
(a)(1) Any claimant or representative of a claimant who knowingly and willfully
makes a false statement or representation for the purpose of obtaining a benefit
or payment under this Act shall be guilty of a felony, and on conviction thereof
shall be punished by a fine not to exceed $ 10,000, by imprisonment not to exceed
five years, or by both.
(2) The United States attorney for the district in which the injury is alleged to
have occurred shall make every reasonable effort to promptly investigate each complaint
made under this subsection.
(b)(1) No representation fee of a claimant's representative shall be approved by
the deputy commissioner, an administrative law judge, the Board, or a court pursuant
to section 28 of this Act [33 USC 928], if the claimant's representative is on the
list of individuals who are disqualified from representing claimants under this
Act maintained by the Secretary pursuant to paragraph (2) of this subsection.
(2)(A) The Secretary shall annually prepare a list of those individuals in each
compensation district who have represented claimants for a fee in cases under this
Act and who are not authorized to represent claimants. The names of individuals
contained on the list required under this subparagraph shall be made available to
employees and employers in each compensation district through posting and in such
other forms as the Secretary may prescribe.
(B) Individuals shall be included on the list of those not authorized to represent
claimants under this Act if the Secretary determines under this section, in accordance
with the procedure provided in subsection (j) of section 7 of this Act [33 USC 907(j)],
that such individual--
(i) has been convicted (without regard to pending appeal) of any crime in connection
with the representation of a claimant under this Act or any workers' compensation
statute;
(ii) has engaged in fraud in connection with the presentation of a claim under this
or any workers' compensation statute, including, but not limited to, knowingly making
false representations, concealing or attempting to conceal material facts with respect
to a claim, or soliciting or otherwise procuring false testimony;
(iii) has been prohibited from representing claimants before any other workers'
compensation agency for reasons of professional misconduct which are similar in
nature to those which would be grounds for disqualification under this paragraph;
or
(iv) has accepted fees for representing claimants under this Act which were not
approved, or which were in excess of the amount approved pursuant to section 28
[33 USC 928].
(C) Notwithstanding subparagraph (B), no individual who is on the list required
to be maintained by the Secretary pursuant to this section shall be prohibited from
presenting his or her own claim or from representing without fee, a claimant who
is a spouse, mother, father, sister, brother, or child of such individual.
(D) A determination under subparagraph (A) shall remain in effect for a period of
not less than three years and until the Secretary finds and gives notice to the
public that there is reasonable assurance that the basis for the determination will
not reoccur.
(3) No employee shall be liable to pay a representation fee to any representative
whose fee has been disallowed by reason of the operation of this paragraph.
(4) The Secretary shall issue such rules and regulations as are necessary to carry
out this section.
(c) A person including, but not limited to, an employer, his duly authorized agent,
or an employee of an insurance carrier who knowingly and willfully makes a false
statement or representation for the purpose of reducing, denying, or terminating
benefits to an injured employee, or his dependents pursuant to section 9 [33 USC
909]if the injury results in death, shall be punished by a fine not to exceed $
10,000, by imprisonment not to exceed five years, or by both.
932. Security for compensation
(a) Every employer shall secure the payment of compensation under this Act--
(1) By insuring and keeping insured the payment of such compensation with any stock
company or mutual company or association, or with any other person or fund, while
such person or fund is authorized (A) under the laws of the United States or of
any State, to insure workmen's compensation, and (B) by the Secretary, to insure
payment of compensation under this Act; or
(2) By furnishing satisfactory proof to the Secretary of his financial ability to
pay such compensation and receiving an authorization from the Secretary to pay such
compensation directly. The Secretary may, as a condition to such authorization,
require such employer to deposit in a depository designated by the Secretary either
an indemnity bond or securities (at the option of the employer) of a kind and in
an amount determined by the Secretary, based on the employer's financial condition,
the employer's previous record of payments, and other relevant factors, and subject
to such conditions as the Secretary may prescribe, which shall include authorization
to the Secretary in case of default to sell any such securities sufficient to pay
compensation awards or to bring suit upon such bonds, to procure prompt payment
of compensation under this Act. Any employer securing compensation in accordance
with the provisions of this paragraph shall be known as a self-insurer.
(b) In granting authorization to any carrier to insure payment of compensation under
this Act, the Secretary may take into consideration the recommendation of any State
authority having supervision over carriers or over workmen's compensation, and may
authorize any carrier to insure the payment of compensation under this Act in a
limited territory. Any marine protection and indemnity mutual insurance corporation
or association, authorized to write insurance against liability for loss or damage
from personal injury and death, and for other losses and damages, incidental to
or in respect of the ownership, operation, or chartering of vessels on a mutual
assessment plan, shall be deemed a qualified carrier to insure compensation under
this Act. The Secretary may suspend or revoke any such authorization for good cause
shown after a hearing at which the carrier shall be entitled to be heard in person
or by counsel and to present evidence. No suspension or revocation shall affect
the liability of any carrier already incurred.
933. Compensation for injuries where third persons are liable
(a) Election of remedies. If on account of a disability or death for which compensation
is payable under this Act, the person entitled to such compensation determines that
some person other than the employer or a person or persons in his employ is liable
in damages, he need not elect whether to receive such compensation or to recover
damages against such third person.
(b) Acceptance of compensation acting as assignment. Acceptance of compensation
under an award in a compensation order filed by the deputy commissioner, an administrative
law judge, or the Board shall operate as an assignment to the employer of all rights
of the person entitled to compensation to recover damages against such third person
unless such person shall commence an action against such third person within six
months after such acceptance. If the employer fails to commence an action against
such third person within ninety days after the cause of action is assigned under
this section, the right to bring such action shall revert to the person entitled
to compensation. For the purpose of this subsection, the term "award" with respect
to a compensation order means a formal order issued by the deputy commissioner,
an administrative law judge, or Board.
(c) Payment into section 944 fund operating as assignment. The payment of such compensation
into the fund established in section 44 [33 USC 944] shall operate as an assignment
to the employer of all right of the legal representative of the deceased (hereinafter
referred to as "representative") to recover damages against such third person.
(d) Institution of proceedings or compromise by assignee. Such employer on account
of such assignment may either institute proceedings for the recovery of such damages
or may compromise with such third person either without or after instituting such
proceeding.
(e) Recoveries by assignee. Any amount recovered by such employer on account of
such assignment, whether or not as the result of a compromise, shall be distributed
as follows:
(1) The employer shall retain an amount equal to--
(A) the expenses incurred by him in respect to such proceedings or compromise (including
a reasonable attorney's fee as determined by the deputy commissioner or Board);
(B) the cost of all benefits actually furnished by him to the employee under section
7 [33 USC 907];
(C) all amounts paid as compensation;
(D) the present value of all amounts thereafter payable as compensation, such present
value to be computed in accordance with a schedule prepared by the Secretary, and
the present value of the cost of all benefits thereafter to be furnished under section
7 [33 USC 907], to be estimated by the deputy commissioner, and the amounts so computed
and estimated to be retained by the employer as a trust fund to pay such compensation
and the cost of such benefits as they become due, and to pay any sum finally remaining
in excess thereof to the person entitled to compensation or to the representative;
and
(2) The employer shall pay any excess to the person entitled to compensation or
to the representative.
(f) Institution of proceedings by person entitled to compensation. If the person
entitled to compensation institutes proceedings within the period prescribed in
section 33(b) [subsec. (b) of this section] the employer shall be required to pay
as compensation under this Act, a sum equal to the excess of the amount which the
Secretary determines is payable on account of such injury or death over the net
amount recovered against such third person. Such net amount shall be equal to the
actual amount recovered less the expenses reasonably incurred by such person in
respect to such proceedings (including reasonable attorneys' fees).
(g) Settlement with third person.
(1) If the person entitled to compensation (or the person's representative) enters
into a settlement with a third person referred to in subsection (a) for an amount
less than the compensation to which the person (or the person's representative)
would be entitled under this Act, the employer shall be liable for compensation
as determined under subsection (f) only if written approval of the settlement is
obtained from the employer and the employer's carrier, before the settlement is
executed, and by the person entitled to compensation (or the person's representative).
The approval shall be made on a form provided by the Secretary and shall be filed
in the office of the deputy commissioner within thirty days after the settlement
is entered into.
(2) If no written approval of the settlement is obtained and filed as required by
paragraph (1), or if the employee fails to notify the employer of any settlement
obtained from or judgment rendered against a third person, all rights to compensation
and medical benefits under this Act shall be terminated, regardless of whether the
employer or the employer's insurer has made payments or acknowledged entitlement
to benefits under this Act.
(3) Any payments by the special fund established under section 44 [33 USC 944] shall
be a lien upon the proceeds of any settlement obtained from or judgment rendered
against a third person referred to under subsection (a). Notwithstanding any other
provision of law, such lien shall be enforceable against such proceeds, regardless
of whether the Secretary on behalf of the special fund has agreed to or has received
actual notice of the settlement or judgment.
(4) Any payments by a trust fund described in section 17 [33 USC 917] shall be a
lien upon the proceeds of any settlement obtained from or judgment recorded against
a third person referred to under subsection (a). Such lien shall have priority over
a lien under paragraph (3) of this subsection.
(h) Subrogation. Where the employer is insured and the insurance carrier has assumed
the payment of the compensation, the insurance carrier shall be subrogated to all
the rights of the employer under this section.
(i) Right to compensation as exclusive remedy. The right to compensation or benefits
under this Act shall be the exclusive remedy to an employee when he is injured,
or to his eligible survivors or legal representatives if he is killed, by the negligence
or wrong of any other person or persons in the same employ: Provided, That this
provision shall not affect the liability of a person other than an officer or employee
of the employer.
934. Compensation notice
Every employer who has secured compensation under the provisions of this Act shall
keep posted in a conspicuous place or places in and about his place or places of
business typewritten or printed notices, in accordance with a form prescribed by
the Secretary, stating that such employer has secured the payment of compensation
in accordance with the provisions of this Act. Such notices shall contain the name
and address of the carrier, if any, with whom the employer has secured payment of
compensation and the date of the expiration of the policy.
935. Substitution of carrier for employer
In any case where the employer is not a self-insurer, in order that the liability
for compensation imposed by this Act may be most effectively discharged by the employer,
and in order that the administration of this Act in respect of such liability may
be facilitated, the Secretary shall by regulation provide for the discharge, by
the carrier for such employer, of such obligations and duties of the employer in
respect of such liability, imposed by this Act upon the employer, as it considers
proper in order to effectuate the provisions of this Act. For such purposes (1)
notice to or knowledge of an employer of the occurrence of the injury shall be notice
to or knowledge of the carrier, (2) jurisdiction of the employer by a deputy commissioner,
the Board, or the Secretary, or any court under this Act shall be jurisdiction of
the carrier, and (3) any requirement by a deputy commissioner, the Board, or the
Secretary, or any court under any compensation order, finding, or decision shall
be binding upon the carrier in the same manner and to the same extent as upon the
employer.
936. Insurance policies
(a) Every policy or contract of insurance issued under authority of this Act shall
contain (1) a provision to carry out the provisions of section 35 [33 USC 935],
and (2) a provision that insolvency or bankruptcy of the employer and/or discharge
therein shall not relieve the carrier from payment of compensation for disability
or death sustained by an employee during the life of such policy or contract.
(b) No contract or policy of insurance issued by a carrier under this Act shall
be canceled prior to the date specified in such contract or policy for its expiration
until at least thirty days have elapsed after a notice of cancellation has been
sent to the deputy commissioner and to the employer in accordance with the provisions
of subdivision (c) of section 12 [33 USC 912(c).]
937. Certificate of compliance with this Act
No stevedoring firm shall be employed in any compensation district by a vessel or
by hull owners until it presents to such vessel or hull owners a certificate issued
by a deputy commissioner assigned to such district that it has complied with the
provisions of this Act [33 USC 901 et seq.] requiring the securing of compensation
to its employees. Any person violating the provisions of this section shall be punished
by a fine of not more than $ 1,000, or by imprisonment for not more than one year,
or by both such fine and imprisonment.
938. Penalty for failure to secure payment of compensation
(a) Failure to secure payment of compensation. Any employer required to secure the
payment of compensation under this Act who fails to secure such compensation shall
be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a
fine of not more than $ 10,000, or by imprisonment for not more than one year, or
by both such fine and imprisonment; and in any case where such employer is a corporation,
the president, secretary, and treasurer thereof shall be also severally liable to
such fine or imprisonment as herein provided for the failure of such corporation
to secure the payment of compensation; and such president, secretary, and treasurer
shall be severally personally liable, jointly with such corporation, for any compensation
or other benefit which may accrue under the said Act in respect to any injury which
may occur to any employee of such corporation while it shall so fail to secure the
payment of compensation as required by section 32 of this Act [33 USC 932].
(b) Avoiding payment of compensation. Any employer who knowingly transfers, sells,
encumbers, assigns, or in any manner disposes of, conceals, secretes, or destroys
any property belonging to such employer, after one of his employees has been injured
within the purview of this Act, and with intent to avoid the payment of compensation
under this Act to such employee or his dependents, shall be guilty of a misdemeanor
and, upon conviction thereof, shall be punished by a fine of not more than $ 10,000,
or by imprisonment for not more than one year, or by both such fine and imprisonment;
and in any case where such employer is a corporation, the president, secretary,
and treasurer thereof shall be also severally liable to such penalty of imprisonment
as well as jointly liable with such corporation for such fine.
(c) Effect on other liability of employer. This section shall not affect any other
liability of the employer under this Act.
939. Administration by Secretary
(a) Prescribing rules and regulations; appointing and fixing compensation of employees;
making expenditures. Except as otherwise specifically provided, the Secretary shall
administer the provisions of this Act, and for such purpose the Secretary is authorized
(1) to make such rules and regulations; (2) to appoint and fix the compensation
of such temporary technical assistants and medical advisers, and, subject to the
provisions of the civil service laws, to appoint, and, in accordance with the Classification
Act of 1923, to fix the compensation of such deputy commissioners (except deputy
commissioners appointed under subdivision (a) of section 40 [33 USC 940(a)]) and
other officers and employees; and (3) to make such expenditures (including expenditures
for personal services and rent at the seat of government and elsewhere, for law
books, books of reference, periodicals, and for printing and binding) as may be
necessary in the administration of this Act. All expenditures of the Secretary in
the administration of this Act shall be allowed and paid as provided in section
45 [33 USC 945] upon the presentation of itemized vouchers therefor approved by
the Secretary.
(b) Establishing compensation districts. The Secretary shall establish compensation
districts, to include the high seas and the areas within the United States to which
this Act applies, and shall assign to each such district one or more deputy commissioners,
as the Secretary deems advisable. Judicial proceedings under sections 18 and 21
of this Act [33 USC 918, 921] in respect of any injury or death occurring on the
high seas shall be instituted in the district court within whose territorial jurisdiction
is located the office of the deputy commissioner having jurisdiction in respect
of such injury or death (or in the Supreme Court of the District of Columbia [United
States District Court for the District of Columbia] if such office is located in
such District).
(c) Furnishing information and assistance; directing vocational rehabilitation.
(1) The Secretary shall, upon request, provide persons covered by this Act with
information and assistance relating to the Act's coverage and compensation and the
procedures for obtaining such compensation and including assistance in processing
a claim. The Secretary may, upon request, provide persons covered by this Act with
legal assistance in processing a claim. The Secretary shall also provide employees
receiving compensation information on medical, manpower, and vocational rehabilitation
services and assist such employees in obtaining the best such services available.
(2) The Secretary shall direct the vocational rehabilitation of permanently disabled
employees and shall arrange with the appropriate public or private agencies in State
or Territories, possessions, or the District of Columbia for such rehabilitation.
The Federal Board for Vocational Education shall cooperate with the Secretary in
such educational work. The Secretary may in its discretion furnish such prosthetic
appliances or other apparatus made necessary by an injury upon which an award has
been made under this Act to render a disabled employee fit to engage in a remunerative
occupation. Where necessary rehabilitation services are not available otherwise,
the Secretary of Labor may, in his discretion, use the fund provided for in section
44 [44 USC 944] in such amounts as may be necessary to procure such services, including
necessary prosthetic appliances or other apparatus. This fund shall also be available
in such amounts as may be authorized in annual appropriations for the Department
of Labor for the costs of administering this subsection.
940. Deputy commissioners
(a) Appointment; use of personnel and facilities of boards, commissions, or other
agencies; expenses and salaries. The Secretary may appoint as deputy commissioners
any member of any board, commission [Secretary], or other agency of a State to act
as deputy commissioner for any compensation district or part thereof in such State,
and may make arrangements with such board, commission [Secretary], or other agency
for the use of the personnel and facilities thereof in the administration of this
Act. The Secretary may make such arrangements as may be deemed advisable by it for
the payment of expenses of such board, commission [Secretary], or other agency,
incurred in the administration of this Act pursuant to this section, and for the
payment of salaries to such board, commission [Secretary], or other agency, or the
members thereof, and may pay any amounts agreed upon to the proper officers of the
State, upon vouchers approved by the Secretary.
(b) Appointment in Territories and District of Columbia; compensation. In any Territory
of the United States or in the District of Columbia a person holding an office under
the United States may be appointed deputy commissioner and for services rendered
as deputy commissioner may be paid compensation, in addition to that he is receiving
from the United States, in an amount fixed by the Secretary in accordance with the
Classification Act of 1923.
(c) Transfers to other districts; temporary details. Deputy commissioners (except
deputy commissioners appointed under subdivision (a) of this section) may be transferred
from one compensation district to another and may be temporarily detailed from one
compensation district for service in another in the discretion of the Secretary.
(d) Maintaining offices. Each deputy commissioner shall maintain and keep open during
reasonable business hours an office, at a place designated by the Secretary, for
the transaction of business under this Act, at which office he shall keep his official
records and papers. Such office shall be furnished and equipped by the Secretary,
who shall also furnish the deputy commissioner with all necessary clerical and,
other assistants, records, books, blanks, and supplies. Wherever practicable such
office shall be located in a building owned or leased by the United States; otherwise
the Secretary shall rent suitable quarters.
(e) Records and papers. If any deputy commissioner is removed from office, or for
any reason ceases to act as such deputy commissioner, all of his official records
and papers and office equipment shall be transferred to his successor in office
or, if there be no successor, then to the Secretary or to a deputy commissioner
designated by the Secretary.
(f) Conflict of interest. Neither a deputy commissioner or Board member nor any
business associate of a deputy commissioner shall appear as attorney in any proceeding
under this Act, and no deputy commissioner or Board member shall act in any such
case in which he is interested, or when he is employed by any party in interest
or related to any party in interest by consanguinity or affinity within the third
degree, as determined by the common law.
941. Safety rules and regulations
(a) Safe place of employment; installation of safety devices and safeguards. Every
employer shall furnish and maintain employment and places of employment which shall
be reasonably safe for his employees in all employments covered by this Act and
shall install, furnish, maintain, and use such devices and safeguards with particular
reference to equipment used by and working conditions established by such employers
as the Secretary may determine by regulation or order to be reasonably necessary
to protect the life, health, and safety of such employees, and to render safe such
employment and places of employment, and to prevent injury to his employees. However,
the Secretary may not make determinations by regulation or order under this section
as to matters within the scope of title 52 of the Revised Statutes and Acts supplementary
or amendatory thereto, the Act of June 15, 1917 (ch. 30, 40 Stat. 220), as amended
or section 4(e) of the Act of August 7, 1953 (ch. 345, 67 Stat. 462), as amended
[43 USC 1333(e)].
(b) Studies and investigations by the Secretary. The Secretary, in enforcing and
administering the provisions of this section, is authorized in addition to such
other powers and duties as are conferred upon him--
(1) to make studies and investigations with respect to safety provisions and the
causes and prevention of injuries in employments covered by this Act, and in making
such studies and investigations to cooperate with any agency of the United States
or with any State agency engaged in similar work;
(2) to utilize the services of any agency of the United States or any State agency
engaged in similar work (with the consent of such agency) in connection with the
administration of this section;
(3) to promote uniformity in safety standards in employments covered by this Act
through cooperative action with any agency of the United States or with any State
agency engaged in similar work;
(4) to provide for the establishment and supervision of programs for the education
and training of employers and employees in the recognition, avoidance, and prevention
of unsafe working conditions in employments covered by this Act, and to consult
with and advise employers as to the best means of preventing injuries;
(5) to hold such hearings, issue such orders, and make such decisions, based upon
findings of fact, as are deemed to be necessary to enforce the provisions of this
section, and for such purposes the Secretary and the district courts shall have
the authority and jurisdiction provided by section 5 of the Act of June 30, 1936
(ch. 881, 49 Stat. 2036), as amended [41 USC 39], and the Secretary shall be represented
in any court proceedings as provided in the Act of May 4, 1928 (ch. 502, 45 Stat.
490), as amended [33 USC 921a].
(c) Inspection of places and practices of employment. The Secretary or his authorized
representative may inspect such places of employment, question such employees, and
investigate such conditions, practices, or matters in connection with employment
subject to this Act, as he may deem appropriate to determine whether any person
has violated any provision of this section, or any rule or regulation issued thereunder,
or which may aid in the enforcement of the provisions of this section. No employer
or other person shall refuse to admit the Secretary or his authorized representatives
to any such place or shall refuse to permit any such inspection.
(d) Requests for advice; variations from safety rules and regulations. Any employer
may request the advice of the Secretary or his authorized representative, in complying
with the requirements of any rule or regulation adopted to carry out the provisions
of this section. In case of practical difficulties or unnecessary hardships, the
Secretary in his discretion may grant variations from any such rule or regulation,
or particular provisions thereof, and permit the use of other or different devices
if he finds that the purpose of the rule or regulation will be observed by the variation
and the safety of employees will be equally secured thereby. Any person affected
by such rule or regulation, or his agent, may request the Secretary to grant such
variation, stating in writing the grounds on which his request is based. Any authorization
by the Secretary of a variation shall be in writing, shall describe the conditions
under which the variation shall be permitted, and shall be published as provided
in section 3 of the Administrative Procedure Act (ch. 324, 60 Stat. 237), as amended.
A properly indexed record of all variations shall be kept in the office of the Secretary
and open to public inspection.
(e) Jurisdiction to restrain violations. The United States district courts, together
with the District Court for the Territory of Alaska, shall have jurisdiction for
cause shown, in any action brought by the Secretary, represented as provided in
the Act of May 4, 1928 (ch. 502, 45 Stat. 490), as amended [33 USC 921a], to restrain
violations of this section or of any rule, regulation, or order of the Secretary
adopted to carry out the provisions of this section.
(f) Violations and penalties. Any employer who, willfully, violates or fails or
refuses to comply with the provisions of subsection (a) of this section, or with
any lawful rule, regulation, or order adopted to carry out the provisions of this
section, and any employer or other person who willfully interferes with, hinders,
or delays the Secretary or his authorized representative in carrying out his duties
under subsection (c) of this section by refusing to admit the Secretary or his authorized
representative to any place, or to permit the inspection or examination of any employment
or place of employment, or who willfully hinders or delays the Secretary or his
authorized representative in the performance of his duties in the enforcement of
this section, shall be guilty of an offense, and, upon conviction thereof, shall
be punished for each offense by a fine of not less than $ 100 nor more than $ 3,000;
and in any case where such employer is a corporation, the officer who willfully
permits any such violation to occur shall be guilty of an offense, and, upon conviction
thereof, shall be punished also for each offense by a fine of not less than $ 100
nor more than $ 3,000. The liability hereunder shall not affect any other liability
of the employer under this Act.
(g) Inapplicability to certain employments.
(1) The provisions of this section shall not apply in the case of any employment
relating to the operations for the exploration, production, or transportation by
pipeline of mineral resources upon the navigable waters of the United States, nor
under the authority of the Act of August 7, 1953 (ch. 345, 67 Stat. 462) [43 USC
1331 et seq.], nor in the case of any employment in connection with lands (except
filled in, made or reclaimed lands) beneath the navigable waters as defined in the
Act of May 22, 1953 (ch. 65, 67 Stat. 29) [43 USC 1301 et seq.] nor in the case
of any employment for which compensation in case of disability or death is provided
for employees under the authority of the Act of May 17, 1928 (ch. 612, 45 Stat.
600), as amended, nor under the authority of the Act of August 16, 1941 (ch. 357,
55 Stat. 622), as amended [42 USC 1651 et seq.].
(2) The provisions of this section, with the exception of paragraph (1) of subsection
(b), shall not be applied under the authority of the Act of September 7, 1916 (ch.
458, 39 Stat. 742), as amended.
942. Annual report
The Secretary shall make to Congress at the beginning of each regular session, commencing
at the beginning of the second regular session after the enactment of the Longshore
and Harbor Workers' Compensation Act Amendments of 1984 [enacted Sept. 28, 1984],
a report of the administration of this Act for the preceding fiscal year, including
a detailed statement of receipts of and expenditures from the fund established in
section 44 [33 USC 944], together with such recommendations as the Secretary deems
advisable.
943. [Repealed]
944. Special fund
(a) Establishment; administration; custody, trust. There is hereby established in
the Treasury of the United States a special fund. Such fund shall be administered
by the Secretary. The Treasurer of the United States shall be the custodian of such
fund, and all moneys and securities in such fund shall be held in trust by such
Treasurer and shall not be money or property of the United States.
(b) Disbursements; bond of custodian. The Treasurer is authorized to disburse moneys
from such fund only upon order of the Secretary. He shall be required to give bond
in an amount to be fixed and with securities to be approved by the Secretary of
the Treasury and the Comptroller General of the United States conditioned upon the
faithful performance of his duty as custodian of such fund.
(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 which 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 therefor) to maintain adequate reserves in the fund. Each carrier
and 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 carrier's or self-insured's
workers' compensation payments under this Act during the preceding calendar year,
to (ii) the total of such payments by all carriers and self-insureds under this
Act during such year;
(B) computing the ratio (expressed as a percent) of (i) the payments under section
8(f) of this Act [33 USC 908(f)] during the preceding calendar year which are attributable
to the carrier or self-insured, to (ii) the total of such payments during such year
attributable to all carriers and self-insureds;
(C) dividing the sum of the percentages computed under subparagraphs (A) and (B)
for the carrier or self-insured by two; and
(D) multiplying the percent computed under subparagraph (C) by such probable expenses
of the fund (as determined under the first sentence of this paragraph).
(3) All amounts collected as finds and penalties under the provisions of this Act
shall be paid into such fund.
(d) Investigations; records, availability; recordkeeping; provisions of sections
49 and 50 of title 15 applicable to Secretary.
(1) For the purpose of making rules, regulations, and determinations under this
section under and for providing enforcement thereof, the Secretary may investigate
and gather appropriate data from each carrier and self-insurer. For that purpose,
the Secretary may enter and inspect such places and records (and make such transcriptions
thereof), question such employees, and investigate such facts, conditions, practices,
or matters as he may deem necessary or appropriate.
(2) Each carrier and self-insurer shall make, keep, and preserve such records, and
make such reports and provide such additional information, as prescribed by regulation
or order of the Secretary, as the Secretary deems necessary or appropriate to carry
out his responsibilities under this section.
(3) For the purpose of any hearing or investigation related to determinations or
the enforcement of the provisions of this section, the provisions of sections 9
and 10 (relating to the attendance of witnesses and the production of books, papers,
and documents) of the Federal Trade Commission Act of September 16, 1914, as amended
(U.S.C., title 15, secs. 49 and 50) [15 USC 49, 50], are hereby made applicable
to the jurisdiction, powers, and duties of the Secretary of Labor.
(e) Depositories; investments. The Treasurer of the United States shall deposit
any moneys paid into such fund into such depository banks as the Secretary may designate
and may invest any portion of the funds which, in the opinion of the Secretary,
is not needed for current requirements, in bonds or notes of the United States or
of any Federal land bank.
(f) Limitation of liability. Neither the United States nor the Secretary shall be
liable in respect of payments authorized under section 8 [33 USC 908] in an amount
greater than the money or property deposited in or belonging to such fund.
(g) Audit by Comptroller General; finality of payment determinations; credits of
disbursing officers. The Comptroller General of the United States shall audit the
account for such fund, but the action of the Secretary in making payments from such
fund shall be final and not subject to review, and the Comptroller General is authorized
and directed to allow credit in the accounts of any disbursing officer of the Secretary
for payments made from such fund authorized by the Secretary.
(h) Civil actions for civil penalties. All civil penalties and unpaid assessments
provided for in this Act shall be collected by civil suit brought by the Secretary.
(i) Proceeds available for certain payments. The proceeds of this fund shall be
available for payments:
(1) Pursuant to section 10 [33 USC 910] with respect to certain initial and subsequent
annual adjustments in compensation for total permanent disability or death.
(2) Under section 8(f) and (g), under section 18(b), and under section 39(c) [33
USC 908(f) and (g), 918(b), and 939(c)].
(3) To repay the sums deposited in the fund pursuant to subsection (d).
(4) To defray the expense of making examinations as provided in section 7(e) [33
USC 907(e)].
(j) Audit to be included in report. The fund shall be audited annually and the results
of such audit shall be included in the annual report required by section 42 [33
USC 942].
(k) [Redesignated]
945--947. [Repealed]
948. Laws inapplicable
Nothing in sections 4283, 4284, 4285, 4286, or 4289 of the Revised Statutes, as
amended [46 USC 183, 184--186, 188], nor in section 18 of the Act entitled "An act
to remove certain burdens on the American merchant marine and encourage the American
foreign carrying trade, and for other purposes," approved June 26, 1884, as amended
[46 USC 189], shall be held to limit the amount for which recovery may be had (1)
in any suit at law or in admiralty where an employer has failed to secure compensation
as required by this Act [33 USC 901 et seq.], or (2) in any proceeding for compensation,
any addition to compensation, or any civil penalty.
948a. Discrimination against employees who bring proceedings; penalties;
deposit of payments in special funds; civil actions; entitlement to restoration
of employment and compensation, qualifications requirement; liability of employer
for penalties and payments; insurance policy exemption from liability
It shall be unlawful for any employer or his duly authorized agent to discharge
or in any other manner discriminate against an employee as to his employment because
such employee has claimed or attempted to claim compensation from such employer,
or because he has testified or is about to testify in a proceeding under this chapter.
The discharge or refusal to employ a person who has been adjudicated to have filed
a fraudulent claim for compensation is not a violation of this section. Any employer
who violates this section shall be liable to a penalty of not less than $1,000 or
more than $5,000, as may be determined by the deputy commissioner. All such penalties
shall be paid to the deputy commissioner for deposit in the special fund as described
in section 944 of this title, and if not paid may be recovered in a civil action
brought in the appropriate United States district court. Any employee so discriminated
against shall be restored to his employment and shall be compensated by his employer
for any loss of wages arising out of such discrimination: Provided, That if such
employee shall cease to be qualified to perform the duties of his employment, he
shall not be entitled to such restoration and compensation. The employer alone and
not his carrier shall be liable for such penalties and payments. Any provision in
an insurance policy undertaking to relieve the employer from the liability for such
penalties and payments shall be void.
949. Effect of unconstitutionality
If any part of this Act is adjudged unconstitutional by the courts, and such adjudication
has the effect of invalidating any payment of compensation under this Act, the period
intervening between the time the injury was sustained and the time of such adjudication
shall not be computed as a part of the time prescribed by law for the commencement
of any action against the employer in respect of such injury; but the amount of
any compensation paid under this Act on account of such injury shall be deducted
from the amount of damages awarded in such action in respect of such injury.
950. Separability provision
If any provision of this Act is declared unconstitutional or the applicability thereof
to any person or circumstances is held invalid, the validity of the remainder of
the Act and the applicability of such provision to other persons and circumstances
shall not be affected thereby.
951--980. [Reserved]
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