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S. 669 (112th): Longshore and Harbor Workers’ Compensation Act Amendments of 2011

The text of the bill below is as of Mar 29, 2011 (Introduced).

Source: GPO

II

112th CONGRESS

1st Session

S. 669

IN THE SENATE OF THE UNITED STATES

March 29, 2011

introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions

A BILL

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

1.

Short title; references

(a)

Short title

This Act may be cited as the Longshore and Harbor Workers' Compensation Act Amendments of 2011.

(b)

References

Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901 et seq.).

2.

Intent of Congress; neutral interpretation

The Act (33 U.S.C. 901 et seq.) is amended by inserting after section 1 the following:

1A.

Congressional intent of neutral interpretation

It is the intent of Congress that—

(1)

in a dispute concerning the facts in a claim brought under this Act, the facts are not to be given a broad liberal construction in favor of the employee or of the employer, and the laws pertaining to a claim brought under this Act are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either the employee or employer;

(2)

the system established under this Act shall be an efficient and self-executing system that is not an economic or administrative burden; and

(3)

the Department of Labor and the Benefits Review Board shall administer this Act in a manner which facilitates the self-execution of the system established under this Act and the process of ensuring a prompt and cost-effective delivery of payments.

.

3.

Definitions

Section 2 (33 U.S.C. 902) is amended—

(1)

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

(2)

in paragraph (2), by adding after the period at the end the following: Physical or mental conditions caused in part or in whole by an employer's personnel actions shall not be considered an injury or disease compensable under this Act. Physical or mental conditions caused in part or in whole by an employer's personnel action may only be compensable under applicable State or Federal employment laws other than workers' compensation laws.;

(3)

in paragraph (3)(A)—

(A)

by striking employed exclusively to perform and inserting primarily performing; and

(B)

by inserting on the day of the injury before the semicolon at the end;

(4)

in paragraph (13), by inserting before the period at the end the following: , or an incentive or 1-time payment, severance pay, a settlement of an employment law claim, a bonus that is not guaranteed, container royalties, stock, or stock options;

(5)

in paragraph (14), by striking (19) and inserting (18);

(6)

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

(7)

by inserting after paragraph (20) the following:

(21)

The term participating network means a network of physicians and other health care providers that has been designated by a carrier to provide medical services to an employee under this Act.

(22)

The term health care panel means 3 or more physicians or other health care providers in a common geographic region who practice in the same or similar medical specialty, which panel is designated by a carrier to provide medical services to an employee under this Act.

(23)

The term nationally recognized evidence-based treatment standards means the treatment standards in the Occupational Medicine Practice Guidelines published by the American College of Occupational and Environmental Medicine. Any subsequent revision of these standards by the American College of Occupational and Environmental Medicine shall be effective with respect to all treatment decisions under this Act on the date that is 90 days after the promulgation of the revision, unless the Secretary determines that the revision is inconsistent with this Act's policy of ensuring treatment pursuant to evidence-based standards.

(24)

The term objective relevant medical findings means those objective findings that correlate to the subjective complaints of an injured employee and are confirmed by physical examination findings or diagnostic testing.

(25)

The term fraud means the act of knowingly, and with intent to defraud—

(A)

providing material false information that could result in the obtaining or denying, in whole or in part, of compensation under this Act; or

(B)

failing to provide material information that could result in the obtaining or denying, in whole or in part, of compensation under this Act.

(26)

The term major contributing cause, when used with respect to an injury, means the cause constituting greater than 50 percent of the total of all causes.

(27)

The term standard premium means the product of an employer's payroll and the filed manual rate applicable to the employer multiplied by the employer's current experience modification factor, if applicable. The calculation may not include any deductible credit. For policies written using retrospective rating, the standard premium must be calculated in accordance with this definition regardless of the actual retrospective premium calculation.

(28)

The term filed manual rate means the premium rate for each unit of exposure, as a function of the applicable basis of premium, for the occupational classes assigned to the employer's business, filed pursuant to the insurance laws of the applicable jurisdiction.

(29)

The term experience modification factor means the adjustment to a policyholder's premium rate for a specific exposure period, resulting from a rating procedure utilizing the past insurance experience of the individual policyholder to forecast future losses by measuring the policyholder's loss experience against the loss experience of policyholders in the same classification to produce a prospective premium credit, debit, or unity modification.

.

4.

Coverage

Section 3 (33 U.S.C. 903) is amended—

(1)

in subsection (c), by striking solely;

(2)

by redesignating subsection (e) as subsection (f);

(3)

by inserting after subsection (d) the following:

(e)

Compensation limitation

No compensation shall be payable to an employee for dentures, eyeglasses, a hearing aid, a prosthetic device, or an artificial limb unless the dentures, eyeglasses, hearing aid, prosthetic device, or artificial limb—

(1)

is part of the medical treatment for a disability compensated under section 8; or

(2)

was damaged as part of, or in concert with, an accident that resulted in a traumatic injury to the employee.

; and

(4)

in subsection (f) (as redesignated by paragraph (2))—

(A)

by inserting this Act, after pursuant to;

(B)

by striking law or section and inserting law, or section; and

(C)

by inserting ) after death of seamen.

5.

Liability for compensation

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

4.

Liability for compensation

(a)

In general

Every employer shall be liable for, and shall secure the payment to the employer's employees of, the compensation payable under sections 7, 8, and 9.

(b)

Payment irrespective of fault

Compensation shall be payable irrespective of fault as a cause for the injury.

(c)

Proportional payment

(1)

In general

Except as provided in subsection (e) and section 8(a)(13), in making compensation determinations under this Act, compensation shall be reduced by an amount attributable to the percentage of—

(A)

the disability rating for a prior permanent injury; and

(B)

the anatomical physical impairment that resulted from nonoccupational factors (such as aging, prior or subsequent anatomical physical impairment, or personal habits, including smoking and alcohol use).

(2)

Limitation

In no case shall compensation be calculated under this Act by deducting the dollar amount of compensation paid or payable for a prior injury described in paragraph (1).

(3)

Determinations

A determination under this subsection shall be based upon the findings of the treating physician upon a review of the available records. The treating physician designated in section 7 shall make a determination under this paragraph by finding what percentage of the employee's disability was a result of an injury arising out of and occurring in the course of the employment involved and what percentage of such disability was the result of prior injury and other nonoccupational factors.

(d)

Borrowed employees

(1)

In general

Subject to paragraph (2), in the case of the injury or death of an employee who is working for another employer at the direction of the employee's primary employer, all employers of the employee at the time of the injury shall be treated as a single employer for purposes of this Act, including with respect to the obligation to pay compensation under this section and the exclusiveness of the remedy under section 5.

(2)

Indemnification agreement

Nothing in paragraph (1) shall be construed to supercede an express contractual indemnification agreement between the borrowing and lending employer.

(e)

Last employer doctrine; intervening nonmaritime employment; noncontributing exposure

(1)

Last employer doctrine

(A)

In general

Except as provided in section 8(a)(13), if more than 1 employer or employment exposure contributed to the injury or death of an employee, the last employer to have contributed to the injury or death of the employee shall be responsible for benefits under this Act.

(B)

Rights and defenses

The employer responsible for the benefits under this section shall retain all rights and defenses that any employer who contributed to the injury or death would otherwise have had. The employee shall retain all burdens of production, burdens of persuasion, and presumptions that the employee would otherwise have had.

(2)

Intervening employment

If the last employment exposure that contributed to an injury or death was the result of employment that was not covered under this Act, no benefits shall be payable under this Act for the injury or death.

(3)

Noncontributing employment exposure

For purposes of this Act, employment exposure did not contribute to the injury or death of an employee if—

(A)

the medical condition that resulted in the injury or death was diagnosed before employment commenced; or

(B)

the employer did not expose the employee to conditions capable of causing or contributing to the injury or death.

.

6.

Exclusiveness of liability

Section 5 (33 U.S.C. 905) is amended—

(1)

in subsection (a)—

(A)

in the first sentence, by striking or in admiralty each place the term occurs and inserting in admiralty, or otherwise,; and

(B)

by striking the third sentence; and

(2)

by adding at the end the following:

(d)

Preemption

(1)

State law preemption

Any State law that provides additional or alternative remedies for an injured employee, the employee's legal representative, husband or wife, parents, dependents, or next of kin, or anyone otherwise entitled to recover from such employer on account of such injury or death against the employer, at law or in admiralty, or otherwise, is expressly preempted when the carrier—

(A)

has voluntarily paid compensation under this Act;

(B)

has settled a claim for compensation under this Act;

(C)

is contesting a claim for compensation under this Act;

(D)

is appealing an order under this Act;

(E)

is subject to an order under this Act; or

(F)

has notified the Secretary that a claim for compensation should have been brought under this Act.

(2)

State jurisdiction preemption

Any State proceeding (including a judicial or administrative proceeding) involving the claims of an injured employee, the employee's legal representative, husband or wife, parents, dependents, or next of kin, or anyone otherwise entitled to recover damages from such employer at law or in admiralty, or otherwise, on account of such injury or death, shall be preempted when the carrier has taken an action described in subparagraphs (A) through (F) of paragraph (1).

(3)

Administrative stay

(A)

Process for stay

In order to effectuate this subsection and protect the admiralty and maritime jurisdiction of the Federal Government, an employer who is party to a State proceeding may notify the Secretary of the proceeding and any reason why this subsection preempts the State proceeding. Within 10 days after receiving the notification, the Secretary shall issue an administrative stay order to the State that shall remain in effect until a final determination has been made by the Secretary that this subsection does not preempt the State proceeding.

(B)

Injunction

If a State does not comply with a stay order issued by the Secretary under subparagraph (A), within 10 days after the State's refusal to comply, the Secretary shall seek, in a Federal district court, an injunction against further State proceedings regarding the claim that may be preempted by this subsection.

(C)

Timely response

If the Secretary does not fulfill the Secretary’s obligations under this paragraph in a timely manner, the employer may seek an order in a Federal district court compelling the Secretary to so act.

(e)

Government responsibility

The exclusive remedy for any person injured, in whole or in part, by exposure to ionizing or nonionizing radiation from equipment required to be used by Federal law or regulation or owned by a Federal Government entity shall be found under chapter 171 of title 28, United States Code (commonly known as the Federal Tort Claims Act), and this Act shall not apply to any injury or death resulting from such exposure.

.

7.

Medical services and supplies

Section 7 (33 U.S.C. 907) is amended—

(1)

in subsection (a)—

(A)

by striking (a) and inserting (a)(1);

(B)

by striking furnish such and inserting furnish medical services and supplies, including; and

(C)

by adding at the end the following:

(2)

Notwithstanding any other provision of this Act, in the case where nationally recognized evidence-based treatment standards apply to the employee's medical condition, the medical treatment shall include only the care provided pursuant to such treatment standards.

;

(2)

by striking subsection (i);

(3)

by redesignating subsections (c) through (e), (f) through (h), (j), and (k), as subsections (d) through (f), (h) through (j), (k), and (l), respectively;

(4)

by striking subsection (b) and inserting the following:

(b)

Physician selection

(1)

Carrier using participating networks or health care panels

(A)

In general

A carrier may designate 1 or more participating networks or 1 or more health care panels, or both, for purposes of providing medical services to employees under this Act. An injured employee served by a carrier that has designated an approved participating network under subparagraph (C) or a health care panel under subparagraph (D) shall not be entitled to recover any amount expended by the employee for medical services and supplies unless the employee has secured such medical services and supplies through a physician or other health care provider that is a participant in such network or panel, respectively.

(B)

Geographic exception

Subparagraph (A) shall not apply if the injured employee can demonstrate that the carrier's participating network or health care panel does not include a physician capable of treating the employee within 100 miles of the employee's residence.

(C)

Participating networks

(i)

In general

The Secretary shall establish a process for approving participating networks, in accordance with clause (ii), that shall include an automatic approval for a participating network that has been authorized by a State workers’ compensation program.

(ii)

Qualifications

In order to be approved under clause (i), a participating network shall establish an internal review process to address any disputes with respect to the provision of medical care or treatment to an employee. Such process shall conform to the utilization review standards for workers’ compensation described in subsection (m).

(D)

Designation of health care panels

To designate a health care panel for purposes of this subsection, a carrier shall submit the names of the health care panel participants to the Secretary.

(2)

Carrier not using panels or networks

If a carrier has not provided medical services or supplies in accordance with paragraph (1), the employee shall have the right to choose an attending physician authorized by the Secretary to provide medical care under this Act as hereinafter provided. If, due to the nature of the injury, the employee is unable to select a physician and the nature of the injury requires immediate medical treatment and care, the employer shall select a physician for the employee.

(c)

Supervision and change of physicians

The Secretary, consistent with the nationally recognized evidence-based standards provided for under subsection (a)(2)—

(1)

shall actively supervise the medical care rendered to injured employees;

(2)

shall require periodic reports as to the medical care being rendered to injured employees;

(3)

shall have authority to determine the necessity, character, and sufficiency of any medical aid furnished or to be furnished;

(4)

may, on the Secretary's own initiative or at the request of the employer, order a change of physicians or hospitals when, in the Secretary's judgment, such change is desirable or necessary in the interest of the employee or where the charges exceed those prevailing within the community for the same or similar services or exceed the provider's customary charges; and

(5)

shall permit, in accordance with regulations promulgated by the Secretary, the change of physicians at the request of an employee (except that such change may be approved not more frequently than twice annually unless otherwise authorized by the carrier).

;

(5)

in subsection (d) (as redesignated by paragraph (3))—

(A)

in paragraph (1)(B), by striking (j) and inserting (k); and

(B)

in paragraph (2), by striking by an employee;

(6)

in subsection (e)(4) (as redesignated by paragraph (3))—

(A)

by striking employer and inserting employer or designated by the Secretary; and

(B)

by striking may and inserting shall;

(7)

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

(8)

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

(g)

Use of medical records

When there is the need for any review, hearing, investigation, or other proceeding authorized or directed under this section relating to medical care or treatment, the finder of fact shall rely on the medical record and the findings of qualified medical professionals that are based on the medical record.

; and

(9)

by adding at the end the following:

(m)

Applicability of utilization review standards

Notwithstanding any other provision of this Act, any utilization review, whether within a participating network, health care panel, or otherwise, carried out under this Act shall be conducted pursuant to the utilization review standards applicable to workers' compensation promulgated by URAC, as such standards were in effect on the date of enactment of the Longshore and Harbor Workers' Compensation Act Amendments of 2011. Any subsequent revision of the standards shall be effective, with respect to all utilization review determinations under this Act, on the date that is 90 days after the promulgation of the revised standards, unless the Secretary determines that the revised standards are inconsistent with this Act's policy of ensuring utilization review in accordance with nationally recognized standards.

.

8.

Compensation for disability

(a)

Compensation for disability

Section 8 (33 U.S.C. 908) is amended—

(1)

in subsection (a), by striking 662/3 per centum of the average weekly wages and inserting 75 percent of the spendable earnings;

(2)

in subsection (b), by striking 662/3 per centum of the average weekly wages and inserting 75 percent of the spendable earnings;

(3)

in subsection (c)—

(A)

in the matter preceding paragraph (1), by striking 662/3 per centum of the average weekly wages and inserting 75 percent of the spendable earnings;

(B)

by striking paragraph (13) and inserting the following:

(13)

Loss of hearing

(A)

Compensation

(i)

Total loss of hearing

(I)

One ear

The compensation for total loss of hearing in 1 ear shall be 52 weeks.

(II)

Both ears

The compensation for total loss of hearing in both ears shall be 200 weeks.

(ii)

Partial loss of hearing

For the partial loss of hearing in 1 or both ears, compensation shall be paid for a period proportionate to the degree of the loss, in accordance with clause (i).

(B)

Measurement

(i)

Employment-related loss

The employer shall pay compensation only for any hearing loss caused by an injury arising out of and in the course of employment with such employer, and shall not be liable for that part of the employee's hearing loss caused by presbycusis, nonoccupational causes, and documented preemployment hearing loss. The percentage of loss caused by those conditions shall be deducted from the percentage of the employee's hearing loss before determining the employer's liability.

(ii)

Determination of loss

Except as provided in clause (iii), determinations of loss of hearing shall be made in accordance with the guides for the evaluation of permanent impairment, as promulgated and modified from time to time by the American Medical Association.

(iii)

Measurement

The measurement of presbycusis shall be in accordance with the methodology adopted in section 1910.95 of title 29, Code of Federal Regulations, appendix F, applied to the applicable decibel levels for hearing loss determinations as provided in clause (ii).

(iv)

Audiogram standards

In determining the amount of hearing loss for purposes of this paragraph, an audiogram that is administered by a licensed or certified technician, an audiologist who is certified, or a physician who is certified in otolaryngology, and is interpreted by an audiologist who is certified or a physician who is certified in otolaryngology, shall prevail over an audiogram that is not performed in accordance with these criteria.

;

(C)

by striking paragraph (21) and inserting the following:

(21)

In all other cases in the class of disability, the compensation shall be 75 percent of the difference between the injured employee's spendable earnings before the injury and the amount of spendable earnings the employee is able to earn after the injury in the same or another employment, payable during the continuance of partial disability.

; and

(D)

in paragraph (23)—

(i)

by striking 662/3 per centum and inserting 75 percent; and

(ii)

by striking average weekly wages each place the term occurs and inserting spendable earnings;

(4)

by striking subsection (e) and inserting the following:

(e)

Temporary partial disability

In the case of temporary partial disability resulting in decrease of earning capacity, the compensation shall be 75 percent of the difference between the injured employee's spendable earnings before the injury and the amount of spendable earnings the employee is able to earn after the injury in the same or another employment, to be paid during the continuance of such disability, but shall not be paid for a period exceeding 5 years.

;

(5)

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

(4)

Limitation

After the date of enactment of the Longshore and Harbor Workers' Compensation Act Amendments of 2011, no order for relief under this subsection shall be entered except—

(A)

an order for modification of benefits for which an order has been entered prior to such date of enactment; or

(B)

an order for relief, in respect of a survivor of an employee, being paid from the special fund at the date of death.

;

(6)

in subsection (j)(1), by striking a disabled employee and inserting an employee; and

(7)

by adding at the end the following:

(k)

Multiple-Injury maximum

Notwithstanding any other provision of this Act, when an employee qualifies for compensation for disability caused by 2 or more injuries, in no case shall the amount of compensation payable for all such injuries when combined exceed the lesser of—

(1)

75 percent of spendable earnings at the time of the last injury; or

(2)

the maximum rate of compensation, as determined under section 6(b), at the time of the last injury.

.

(b)

Nonapplicability until publication of table

Not later than 90 days after the date of enactment of this Act, the Secretary of Labor shall promulgate regulations and publish a table of compensation implementing the amendments made by this section. A carrier shall not be required to adjust payments made by the carrier under the Longshore and Harbor Workers' Compensation Act to comply with the amendments made by this section until such table is published.

9.

Compensation for death

(a)

Compensation for death

Section 9 (33 U.S.C. 909) is amended—

(1)

in subsection (a), by striking $3,000 and inserting $7,500;

(2)

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

(3)

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

(b)

Widow or widower without children

If there be a widow or widower and no surviving child of the deceased, the widow or widower shall receive 75 percent of the spendable earnings of the deceased during widowhood or widowerhood, except that upon remarriage of the widow or widower, the widow or widower shall receive 2 years' worth of such payments in a lump sum.

(c)

Widow or widower with children

If there be a widow or widower and 1 or more surviving children of the deceased—

(1)

the widow or widower shall receive 50 percent of the spendable earnings of the deceased during widowhood or widowerhood, except that upon remarriage of the widow or widower, the widow or widower shall receive 2 years' worth of such payments in a lump sum; and

(2)

each child of the deceased shall receive a pro rata share of 25 percent of the spendable earnings of the deceased.

(d)

Surviving children

If there be 1 or more surviving children of the deceased, but no widow or widower, then each child shall receive a pro rata share of 75 percent of the spendable earnings of the deceased.

(e)

No widow, widower, or surviving child

If there be no widow or widower or surviving child, then for the support of grandchildren, brothers and sisters, parents, and grandparents, if dependent upon the deceased at the time of the injury, and any other persons who satisfy the definition of the term dependent in section 152 of the Internal Revenue Code of 1986, but are not otherwise eligible under this section, 25 percent of spendable earnings for the support of each such person during such dependency, but in no case shall the aggregate amount payable under this subsection exceed 75 percent of the spendable earnings of the deceased.

; and

(4)

by adding at the end the following:

(i)

Appointment of guardian

The deputy commissioner having jurisdiction over a claim for compensation under this section shall have discretion to require the appointment of a guardian for the purpose of receiving the compensation of a minor child. In the absence of such a requirement, the appointment of a guardian for such purpose shall not be necessary.

.

(b)

Nonapplicability until publication of table

Not later than 90 days after the date of enactment of this Act, the Secretary of Labor shall promulgate regulations and publish a table of compensation implementing the amendments made by this section. A carrier shall not be required to adjust payments made under the Longshore and Harbor Workers' Compensation Act to comply with the amendments made by this section until such table is published.

10.

Determination of pay

(a)

Determination of pay

Section 10 (33 U.S.C. 910) is amended—

(1)

in the matter preceding subsection (a)—

(A)

by striking average weekly wage and inserting spendable earnings; and

(B)

by inserting as provided in sections 8 and 9 after compensation;

(2)

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

(a)

Average weekly wage calculation

(1)

In general

If the injured employee was available to work, as determined under paragraph (3), in 40 of the 52 weeks immediately preceding the injury, or if the employee was employed in a seasonal position when the injury occurred, the average weekly wage shall be calculated by dividing the actual earnings of the employee for the previous 52 weeks by 52.

(2)

Rule for certain individuals

If the injured employee was available for work, as determined under paragraph (3), in less than 40 of the 52 weeks immediately preceding the injury, the average weekly wage shall be based on the average weekly wage of other employees in the same classification, who worked in the same job, with the same seniority, and at the same location for the 52 weeks immediately preceding the injury.

(3)

Availability to work

An injured employee shall be considered available to work in a week if the injured employee—

(A)

actually worked not less than 1 day during the week;

(B)

voluntarily withdrew from the workforce for the week;

(C)

was not offered work during a week for reasons of seniority; or

(D)

was unable to work during a week for any reason other than a work-related injury.

(4)

Special method of calculation

If either of the methods of arriving at the average weekly wages of the injured employee described in paragraphs (1) and (2) cannot reasonably and fairly be applied, the average weekly wages shall be such sum as, having regard to the previous earnings of the injured employee in the employment in which the employee was working at the time of the injury, and of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, or other employment of such employee, including the reasonable value of the services of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee, divided by 52.

(5)

Minor employees

If it is established that the injured employee was a minor when injured, and that under normal conditions the employee's wages should be expected to increase during the period of disability, the fact may be considered in arriving at the employee's average weekly wages.

(b)

Retired employees

(1)

Employees injured within the first year of retirement

With respect to any claim based on a death or disability due to an occupational disease for which the time of injury (as determined under subsection (g)) occurs within the first year after the employee has retired, the average weekly wage shall be calculated in accordance with subsection (a).

(2)

Employees injured after the first year of retirement

With respect to any claim based on a death or disability due to an occupational disease for which the time of injury (as determined under subsection (g)) occurs more than 1 year after the employee has retired, the average weekly wage shall be deemed to be the national average weekly wage (as determined by the Secretary pursuant to section 6(b)) applicable at the time of the injury.

(c)

Spendable earnings

(1)

Method of calculation

The spendable earnings of an employee shall be the average weekly wage, as calculated under subsection (a), reduced by subtracting the Federal, State, and local taxes that would have been withheld based on standard deductions and on the domicile of the employee at the time of the injury, and reduced by subtracting the tax that would have been withheld under section 3101 of the Internal Revenue Code of 1986.

(2)

Annual table

The Secretary shall annually publish a table for calculating spendable earnings under this subsection.

; and

(3)

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

(b)

Nonapplicability until publication of table

Not later than 90 days after the date of enactment of this Act, the Secretary of Labor shall promulgate regulations and publish a table of average weekly wages, and the associated amount of spendable earnings, implementing the amendments made by this section. A carrier shall not be required to adjust payments made under the Longshore and Harbor Workers' Compensation Act to comply with the amendments made by this section until such table is published.

11.

Notice of injury or death

Section 12 (33 U.S.C. 912) is amended—

(1)

by striking subsection (a) and inserting the following:

(a)

Timing and recipients of notice

(1)

Traumatic injury or death

Notice of a traumatic injury or death in respect of which compensation is payable under this Act shall be given not later than 30 days after the date of the trauma, or 30 days after the employee or beneficiary is aware that the trauma resulted in injury or death (or in the exercise of reasonable diligence or by reason of medical advice should have been aware) of a relationship among the trauma, the injury or death, and the employment, but in no case shall the notice be given more than 1 year after the trauma occurs.

(2)

Non-traumatic Injury or Death Resulting from Injury

Except as provided in paragraph (3), in the case of a non-traumatic injury that does not immediately result in a disability or death, and in the case of death from a non-traumatic injury, such notice shall be given not later than 1 year after the employee or claimant becomes aware (or in the exercise of reasonable diligence or by reason of medical advice should have been aware) of the relationship between the non-traumatic injury or death and employment, provided that in no case shall the notice be given more than 1 year after the diagnosis of a non-traumatic injury or a death resulting from such injury.

(3)

Hearing loss

Notice of hearing loss shall be given not later than the date specified in paragraph (2) or 1 year after the last date of employment, whichever occurs first.

(4)

Individuals receiving notice

Notice under this subsection shall be given—

(A)

to the deputy commissioner in the compensation district in which the injury or death occurred; and

(B)

to the employer.

;

(2)

in subsection (b), by adding at the end the following: In order to facilitate prompt settlement of cases, notice of an injury shall also include an opportunity for the employer to have the employee answer questions under oath, so that the employer may determine if and how much compensation should be paid. The opportunity for questioning shall occur at a reasonable time and place that provides the employee with sufficient opportunity to obtain legal counsel before such questioning, should the employee so choose. Failure by an employee to be available for such questioning (unless waived by the employer in writing), or failure to fully and truthfully answer material questions, shall be considered a failure to give notice under this Act.; and

(3)

by striking subsection (d) and inserting the following:

(d)

Failure To give notice

Failure to give timely notice in accordance with this section shall not bar any claim for compensation under this Act if—

(1)
(A)

the employer (or the employer's agent or other responsible official designated by the employer pursuant to subsection (c)) or the carrier had knowledge of the injury or death;

(B)

the deputy commissioner determines that the employer or carrier has not been prejudiced by failure to give such notice; or

(C)

the deputy commissioner excuses such failure on the ground that—

(i)

notice, while not given to a responsible official designated by the employer pursuant to subsection (c), was given to an official of the employer or the employer's insurance carrier, and the employer or carrier was not prejudiced due to the failure to provide notice to a responsible official designated by the employer pursuant to subsection (c); or

(ii)

for some satisfactory reason such notice could not be given;

(2)

objection to such failure is raised before the deputy commissioner at the first hearing of a claim for compensation in respect of such injury or death; and

(3)

notice that meets the requirements of this section is given not more than 1 year after the injury or death.

.

12.

Filing of claims

Section 13 (33 U.S.C. 913) is amended—

(1)

by striking subsection (a) and inserting the following:

(a)

Time To file

The right to compensation for disability or death under this Act shall be barred unless a claim therefore is filed not later than 90 days after providing notice under section 12. If payment of compensation has been made without an award on account of such injury or death, a claim may be filed not later than 90 days after the date of the last payment. Such claim shall be filed with the deputy commissioner in the compensation district in which such injury or death occurred.

;

(2)

by striking subsection (b);

(3)

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

(4)

in subsection (c) (as redesignated by paragraph (3)), by inserting , provided that such suit was filed in accordance with subsection (a) before the period at the end.

13.

Payment of compensation

Section 14(f) (33 U.S.C. 914(f)) is amended—

(1)

by striking within ten days after it becomes due and inserting within 10 business days after receipt by the employer or carrier of a priority mailing containing the order; and

(2)

by adding at the end the following: For purposes of this section, the date on which compensation is paid shall be the earlier of the date on which the employer or carrier actually delivers the compensation to the employee (or the representative designated by the employee) or the postmark date on which the compensation was mailed to such employee (or representative)..

14.

Assignment and exemption from claims of creditors

Section 16 (33 U.S.C. 916) is amended—

(1)

by striking No assignment and inserting the following:

(a)

In general.—Except as provided in subsection (b), no assignment

; and

(2)

by adding at the end the following:

(b)

Limitation

Benefits due or payable under this Act shall be subject to withholding and any other legal process in the same form and manner, and to the same extent, as withholding and other legal processes apply under section 206 of the Employment Retirement Income Security Act of 1974 (29 U.S.C. 1056).

.

15.

Presumptions, burdens, and rules of evidence

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

20.

Presumptions, burdens, and rules of evidence

(a)

Presumptions

(1)

Rebuttable presumptions

In any proceeding for the enforcement of a claim for compensation under this Act, it shall be a rebuttable presumption—

(A)

that the claim comes within the provisions of this Act;

(B)

that sufficient notice of such claim has been given;

(C)

that the injury was not occasioned solely by the intoxication of the injured employee; and

(D)

that the injury was not occasioned by the willful intention of the injured employee to injure or kill the employee or another.

(2)

Rebutting presumptions

A presumption described in paragraph (1) shall not be considered evidence once rebutted. Once a presumption has been rebutted, the burden of production of evidence and burden of persuasion shall be governed by section 556(d) of title 5, United States Code.

(3)

Rebutting nonintoxication presumption

The presumption described in paragraph (1)(C) shall be rebutted by evidence that the employee—

(A)

refused a drug or alcohol test;

(B)

did not make himself available for a drug or alcohol test;

(C)

tested positive for illegal drugs; or

(D)

tested as having a blood alcohol concentration level above the permitted driving limit as established by the State where the injury occurred.

(4)

Exclusion of other presumptions

No other presumptions shall be authorized under this Act.

(b)

False statements

(1)

Affirmative and complete defense

It shall be an affirmative and complete defense to any employee claim under this Act that the employee or employee’s agent knowingly made a false statement that is material to obtaining a benefit or payment.

(2)

Credibility

If any individual knowingly makes a false statement, whether in writing or under oath, such false statement shall go to the credibility of the individual on all other issues.

(c)

Rules of evidence

(1)

Evidence of injury

With respect to proof of injury for any claim for compensation under this Act—

(A)

the injury, its occupational cause, and any resulting manifestations or disability must be proven to a reasonable degree of medical certainty, based on objective relevant medical findings;

(B)

notwithstanding section 4(c) or section 8(c)(13)(B), the employment exposure or accident shall be the major contributing cause of any injury;

(C)

a causal relationship between a compensable accident or injury, and conditions that are not readily observable, shall be by medical evidence only, as proven by physical examination findings or diagnostic testing;

(D)

the fact that the injury was the major contributing cause shall be proven by medical evidence only;

(E)

in cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation shall be proven by clear and convincing evidence; and

(F)

pain or other subjective complaints alone, in the absence of objective relevant medical findings, is not compensable.

(2)

Junk science

(A)

Expert testimony

With respect to a claim under this Act, expert testimony shall not be considered if it does not meet the requirements of Rule 702 of the Federal Rules of Evidence.

(B)

Medical opinion

In order to be considered with respect to a claim under this Act, a medical opinion shall be based on not less than 1 peer-reviewed study that—

(i)

has been published in a major medical journal; and

(ii)

is accepted by the majority of the scientific community.

.

16.

Review of compensation orders

Section 21 (33 U.S.C. 921) is amended—

(1)

in subsection (b)—

(A)

in paragraph (3)—

(i)

in the fourth sentence, by striking the amounts required by an award shall not and inserting disputed amounts required by an award shall; and

(ii)

by striking the fifth sentence;

(B)

in paragraph (4), by adding at the end the following: An employee may request that the Board hold an expedited hearing with respect to an appeal under this subsection.; and

(C)

by adding at the end the following:

(6)

Timing for decisions

(A)

One-year appeal period

If the Board fails to resolve an appeal during the 1-year period following the date on which the appeal was filed, the decision that was the basis of the appeal is automatically affirmed and such affirmation shall be considered a final order by the Board.

(B)

Ninety-day motion to reconsider period

If the Board issues a decision on an appeal during the 1-year period following the date on which the appeal was filed and a timely motion for reconsideration is filed, the Board may consider the motion for reconsideration. If the Board fails to rule upon the motion for reconsideration during the 90-day period following the filing of such motion, the motion for reconsideration shall be deemed denied.

; and

(2)

in subsection (c), by adding at the end the following: A litigating position of the Secretary shall not be entitled to any deference, unless such position has been expressly adopted by the Secretary as a rule made on the record after opportunity for an agency hearing (pursuant to sections 556 and 557 of title 5, United States Code)..

17.

Modification of compensation cases

Section 22 (33 U.S.C. 922) is amended—

(1)

by striking 22. Upon and inserting 22. (a) Modification of awards.—Upon;

(2)

in the last sentence of subsection (a) (as inserted by paragraph (1)), by striking modification of settlements. and inserting modification of settlements, except as provided in subsection (b) or (c).; and

(3)

by adding at the end the following:

(b)

Fraud

Notwithstanding subsection (a), if any payment of compensation has been made as a result of fraud, a carrier may at any time seek an order for immediate—

(1)

termination or suspension of all future payments; and

(2)

full restitution of all amounts paid as a result of the fraud.

(c)

Overpayment

If a carrier makes a payment under this Act to a person in amounts in excess of the amounts owed, the carrier may seek an order for repayment by such person, including a credit against any future payment due under this Act or wages paid to the employee. This subsection shall apply regardless of whether such excess amounts resulted from voluntary payments, a settlement, or an order.

.

18.

Penalty for misrepresentation

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

(d)

Reports of fraud

A carrier shall report credible incidents of fraud to the Secretary for investigation. The Secretary shall report any credible incident of fraud involving more than $10,000 to the appropriate United States Attorney. In the absence of a finding by the Secretary that a report of fraud under this subsection was made with knowledge that the information was false or was disclosed in reckless disregard of whether it was false, no person reporting fraud under this subsection shall be subject to civil liability for libel, slander, or any other cause of action arising from such report.

.

19.

Special fund

Section 44 (33 U.S.C. 944) is amended—

(1)

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

(2)

by striking subsection (c) and inserting the following:

(c)

Payments into fund

Payments into such fund shall be made as follows:

(1)

Whenever the Secretary determines that there is no person entitled under this Act to compensation for the death of an employee that would otherwise be compensable under this Act, the appropriate employer shall pay $5,000 as compensation for the death of such an employee.

(2)

At the beginning of each calendar year, the Secretary shall estimate the probable expenses of the fund during that calendar year and the amount of payments required (and the schedule therefore) to maintain adequate reserves in the fund.

(3)

Each self-insurer shall make payments into the fund on a prorated assessment by the Secretary determined by—

(A)

computing the ratio (expressed as a percent) of—

(i)

the self-insurer's compensation payments under sections 8 and 9 during the preceding calendar year, to

(ii)

the total of such payments by all carriers and self-insurers under such sections during the preceding calendar year;

(B)

computing the ratio (expressed as a percent) of—

(i)

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

(ii)

the total of such payments during such year attributable to all carriers and self-insurers;

(C)

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

(D)

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

(4)

Each employer who is not self-insured shall make payments into the fund through a surcharge based on the standard premium, to be computed and collected as follows:

(A)

Carriers that are not self-insurers shall report the amount of all standard premiums for insurance for the payment of compensation under this Act to the Secretary by April 1 of each year.

(B)

The Secretary shall compute an amount for each carrier that is not a self-insurer, using the methodology described in subparagraph (3) for self-insurers.

(C)

The Secretary shall determine the ratio (expressed as a percent) of the total of the assessments computed for all such carriers under subparagraph (B), to the total amount of the standard premiums for insurance for the payment of compensation under this Act for all carriers during the preceding calendar year. This ratio shall be the premium surcharge rate.

(D)

Each such carrier shall collect a share of the assessment from each employer insured by the carrier through a premium surcharge equal to the product of the premium surcharge rate multiplied by the standard premium for the insured employer. The premium surcharge is the amount payable by each insured employer to satisfy its obligation to the fund.

(E)

Assessments collected as a premium surcharge under this paragraph shall not constitute an element of loss for the purpose of establishing rates for workers' compensation insurance but, for the purpose of collection, shall be treated as separate costs imposed upon insured employers. The total of the assessment imposed by this paragraph shall be stated as a separate cost on an insured employer's policy (or on a separate document submitted to the insured employer) and shall be identified as the workers' compensation policyholder surcharge. Each such assessment shall be shown as a percentage of the total workers' compensation policyholder premium. The premium surcharge shall be collected at the same time and in the same manner that the premium for the coverage is collected. The premium surcharge shall not be considered as part of the premium, but an insurer may cancel a policy for coverage under this Act for the nonpayment of the premium surcharge in accordance with the procedures applicable to the nonpayment of the premium.

(F)

Each such carrier shall report and remit premium surcharges to the Secretary semiannually on January 1 and July 1 of the calendar year following the year in which the assessment is based, and such surcharges shall be final except for adjustments made as a result of an audit by the Secretary.

(d)

Notification of payment rates

The Secretary shall notify carriers of the premium surcharge rate to be effective for policies written or renewed on or after the date of enactment of the Longshore and Harbor Workers' Compensation Act Amendments of 2011, and annually thereafter. At the same time as such notification to carriers, the Secretary shall notify each self-insured employer of the amount to be assessed against such employer under this section for the following calendar year.

; and

(3)

in subsection (i) (as redesignated by paragraph (1)), by adding at the end the following: Such civil suit for collections shall be brought against the control group of the employer, as such term is defined under section 3(40)(B) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002(40)(B))..

20.

Conforming amendments

(a)

Section 7

The Act (33 U.S.C. 901 et seq.) is amended—

(1)

in section 7—

(A)

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

(B)

in subsection (h) (as redesignated by section 7(3)), by striking (e) and inserting (f);

(C)

in subsection (k)(1) (as redesignated by section 7(3)), by striking (c) and inserting (d); and

(D)

in subsection (l)(2) (as redesignated by section 7(3)), by striking (d) and inserting (e);

(2)

in section 28(b), by striking 7(e) and inserting 7(f);

(3)

in section 31(b)(2)(B), by striking (j) and inserting (k); and

(4)

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

(b)

Section 10

The Act (33 U.S.C. 901 et seq.) is amended—

(1)

in section 10—

(A)

in subsection (e) (as redesignated by section 10(a)(3)), by striking (f) and inserting (d); and

(B)

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

(2)

in section 2(10) and section 8(c)(23), by striking (10)(d)(2) each place the term appears and inserting 10(b)(2); and

(3)

in section 9(f)(2) (as redesignated by section 9(a)(2)), by striking 10(i) and inserting 10(f).

(c)

Section 44

The Act (33 U.S.C. 901 et seq.) is amended—

(1)

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

(2)

in section 22(a) (as inserted by section 17(1)), by striking (i) and inserting (j).

21.

Effective dates

(a)

References

A reference in subsection (b) to a provision of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901 et seq.) shall be considered to be a reference to such provision as added, amended, or redesignated by this Act.

(b)

Effective dates

The amendments made to the Longshore and Harbor Workers' Compensation Act (referred to in this section as the Act) (33 U.S.C. 901 et seq.) by this Act shall take effect on the date of enactment of this Act, except that—

(1)

the amendments made to paragraphs (3)(A) and (13) of section 2, subsections (c) and (e) of section 3, subsections (c), (d), and (e) of section 4, subsections (a) and (e) of section 5, section 7(g), section 13, and subsections (b) and (c) of section 20 of the Act shall apply with respect to any claim under the Act filed on or after the date of enactment of this Act;

(2)

the amendments made to section 2(25) of the Act shall take effect on the date of enactment of this Act, and shall apply regardless of the date that the fraudulent act occurred;

(3)

in section 5(d) of the Act—

(A)

the amendments made to paragraph (1) shall apply with respect to any claim under a Federal or State workers' compensation law filed on or after the date of enactment of this Act; and

(B)

the amendments made to paragraphs (2) and (3) shall apply with respect to any claim under a Federal or State workers' compensation law, and any action under section 30104 of title 46, United States Code, or in tort, filed on or after the date of enactment of this Act;

(4)

the amendments made to section 7 (not including subsection (g)) of the Act shall apply with respect to any medical care delivered, or examination conducted, under the Act on or after the date of enactment of this Act;

(5)

the amendments made to sections 8, 9, and 10 of the Act shall apply with respect to any claim under the Act filed on or after the date of enactment of this Act, subject to sections 8(b), 9(b), and 10(b) of this Act;

(6)

the amendments made to section 11 (not including subsection (a)) of the Act shall apply with respect to any claim under the Act filed on or after the date of enactment of this Act;

(7)

the amendments made to section 14 of the Act shall apply with respect to any claim for compensation under the Act for which the carrier receives notice of the claim for compensation on or after the date of enactment of this Act;

(8)

the amendments made to section 20(a)(3) of the Act shall apply with respect to any injury covered under the Act that occurs on or after the date of enactment of this Act;

(9)

the amendments made to section 21(b)(3) of the Act shall apply to any proceeding conducted under the Act on or after the date of enactment of this Act;

(10)

the amendments made to section 22 of the Act shall apply with respect to any payment of compensation under the Act on or after the date of enactment of this Act;

(11)

the amendments made to section 31 of the Act shall apply with respect to any instance of known or suspected fraud involving a claim under the Act that is detected on or after the date of enactment of this Act; and

(12)

the amendments made to section 44 of the Act shall take effect on the January 1st following the date of enactment of this Act.