LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT
33 U.S.C. § 901 et seq.
§ 901. Short title
§ 902. Definitions
§ 903. Coverage
§ 904. Liability for compensation
§ 905. Exclusiveness of liability
§ 906. Compensation
§ 907. Medical services and supplies
§ 908. Compensation for disability
§ 909. Compensation for death
§ 910. Determination of pay
§ 911. Guardian for minor or incompetent
§ 912. Notice of injury or death
§ 913. Filing of claims
§ 914. Payment of compensation
§ 915. Invalid agreements
§ 916. Assignment and exemption from claims of creditors
§ 917. Compensation a lien against assets
§ 918. Collection of defaulted payments; special fund
§ 919. Procedure in respect of claims
§ 920. Presumptions
§ 921. Review of compensation orders
§ 922. Modification of awards
§ 923. Procedure before deputy commissioner or Board
§ 924. Witnesses
§ 925. Witness fees
§ 926. Costs in proceedings brought without reasonable grounds
§ 927. Powers of deputy commissioners or Board
§ 928. Fees for services
§ 929. Record of injury or death
§ 930. Reports to Secretary
§ 931. Penalty for misrepresentation; prosecution of claims
§ 932. Security for compensation
§ 933. Compensation for injuries where third persons are liable
§ 934. Compensation notice
§ 935. Substitution of carrier for employer
§ 936. Insurance policies
§ 937. Certificate of compliance with this Act
§ 938. Penalty for failure to secure payment of compensation
§ 939. Administration by Secretary
§ 940. Deputy commissioners
§ 941. Safety rules and regulations
§ 942. Annual report
§ 943. [Repealed]
§ 944. Special fund
§ 948. Laws inapplicable
§ 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
§ 949. Effect of unconstitutionality
§ 950. Separability provision
§§ 951--980. [Reserved]
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§ 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;
(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 as measured under section 14502 of title 46, or an alternate tonnage
measured under section 14302 of that title as prescribed by the Secretary under section 14104 of that
title.
(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]
DISTRICT OF COLUMBIA WORKMEN'S COMPENSATION ACT
36 D.C. Code 501 et seq.
(a) The Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901 et seq.) applies with
respect to disability or death resulting from injury, as defined by section 2(2) of such Act (33 U.S.C.
902(2)), occurring to an employee of a nonappropriated fund instrumentality described by section
2105(c) of this title, or to a volunteer providing such an instrumentality with services accepted under
section 1588 of title 10, who is--
(1) a United States citizen or a permanent resident of the United States or a territory or
possession of the United States employed outside the continental United States; or
(2) employed inside the continental United States. However, that part of section 3(a) of such
Act (33 U.S.C. 903(a)) which follows the second comma does not apply to such an employee.
(b) For the purpose of this subchapter, the term ``employer'' in section 2(4) of the Longshore and
Harbor Workers' Compensation Act (33 U.S.C. 902(4)) includes the nonappropriated fund
instrumentalities described by section 2105(c) of this title.
(c) The Secretary of Labor may--
(1) extend compensation districts established under section 39(b) of the Longshore and
Harbor Workers' Compensation Act (33 U.S.C. 939(b)), or establish new districts to include the
areas outside the continental United States; and
(2) assign to each district one or more deputy commissioners as the Secretary considers
advisable.
(d) Judicial proceedings under sections 18 and 21 of the Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 918 and 921) with respect to an injury or death occurring outside the
continental United States shall be instituted in the district court within the territorial jurisdiction of
which is located the office of the deputy commissioner having jurisdiction with respect to the injury
or death.
Legislative History
(October 5, 1994, Pub. L. 103-337, Div. A, Title X, §§1061(c), 1070(d)(8)(A), 108 Stat. 2847, 2858,
2859; February 10, 1996, Pub. L. 104-106 §1505(b)(1), 110 Stat. 514.)
§ 8172. Employees Not Citizens or Residents of the United States.
In case of disability or death resulting from injury, as defined by section 2(2) of the Longshore and
Harbor Workers' Compensation Act (33 U.S.C. 902(2)), occurring to an employee of a
nonappropriated fund instrumentality described by section 2105(c) of this title who is--
(1) not a citizen or permanent resident of the United States or a territory or possession of the
United States; and
(2) employed outside the continental United States;
compensation shall be provided in accordance with regulations prescribed by the Secretary of the
military department concerned and approved by the Secretary of Defense or regulations prescribed
by the Secretary of Transportation, as the case may be.
Legislative History
(July 5, 1994, Pub. L. 103-272, §4(b)(3), 108 Stat. 1361; October 5, 1994, Pub. L. 103-337, Div.
A, Title X, §1070(d)(8)(B), 108 Stat. 2859; February 10, 1996, Pub. L. 104-106 §1505(b)(2),
110 Stat. 514.)
§ 8173. Liability Under This Subchapter Exclusive.
The liability of the United States or of a nonappropriated fund instrumentality described by section
2105(c) of this title, with respect to the disability or death resulting from injury, as defined by section
2(2) of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 902(2)), of an employee
referred to by sections 8171 and 8172 of this title, shall be determined as provided by this
subchapter. This liability is exclusive and instead of all other liability of the United States or the
instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any
other person otherwise entitled to recover damages from the United States or the instrumentality
because of the disability or death in a direct judicial proceeding, in a civil action, or in admiralty, or
by an administrative or judicial proceeding under a workmen's compensation statute or under a
Federal tort liability statute.
Legislative History
(October 5, 1994, Pub. L. 103-337, Div. A, Title X, §1070(d)(8)(B), 108 Stat. 2859; February 10,
1996, Pub. L. 104-106 §1505(b)(2), 110 Stat. 514.)
WAR HAZARDS COMPENSATION ACT
42 U.S.C. § 1701 et seq.
COMPENSATION FOR INJURY, DEATH, OR DETENTION OF EMPLOYEES OF
CONTRACTORS WITH THE UNITED STATES OUTSIDE UNITED STATES
§ 1701. Compensation for Injury or Death Resulting From War-Risk
Hazard.
(a) Persons covered.
In case of injury or death resulting from injury--
(1) to any person employed by a contractor with the United States, if such
person is an employee specified in the Act of August 16, 1941 (Public Law Numbered
208, Seventy-seventh
Congress), as amended [42 USCS §§ 1651 et seq.], and no compensation is payable with respect to
such injury or death under such Act [42 USCS §§ 1651 et seq.]; or
(2) to any person engaged by the United States under a contract for his personal services
outside the continental United States; or
(3) to any person employed outside the continental United States as a civilian employee paid
from nonappropriated funds administered by the Army and Air Force Exchange Service, Army and
Air Force Motion Picture Service, Navy Ship's Store Ashore, Navy exchanges, Marine Crops
exchanges, officers' and noncommissioned officers' open messes, enlisted men's clubs, service clubs,
special service activities, or any other instrumentality of the United States under the jurisdiction of
the Department of Defense and conducted for the mental, physical, and morale improvement of
personnel of the Department of Defense and their dependents; or
(4) to any person who is an employee specified in section 1(a)(5) of the
Defense Base Act, as amended [42 USCS § 1651(a)(5)], if no compensation is payable with respect to such injury or
death under such Act [42 USCS §§ 1651 et seq.], or to any person engaged under
a contract for his personal services outside the United States approved and
financed by the United States under the
Mutual Security Act of 1954, as amended (other than title II of chapter II
thereof unless the Secretary of Labor, upon the recommendation of the head
of any department or other agency of the United
States Government, determines a contract financed under a successor provision
of any successor Act should be covered by this section): Provided, That in
cases where the United States is not a formal
party to contracts approved and financed under the Mutual Security Act of 1954,
as amended, the Secretary, upon the recommendation of the head of any department
or agency of the United States,
may, in the exercise of his discretion, waive the application of the provisions
of this subparagraph with respect to any such contracts, subcontracts, or subordinate
contracts, work location under such
contracts, subcontracts, or subordinate contracts, or classification of employees;
or
(5) to any person employed or otherwise engaged for personal services outside the
continental United States by an American employer providing welfare or similar services for the
benefit of the Armed Forces pursuant to appropriate authorization of the Secretary of Defense. and
such injury proximately results from a war-risk hazard, whether or not such person then actually was
engaged in the course of his employment, the provisions of the Act entitled ``An Act to provide
compensation for employees of the United States suffering injuries while in the performance of their
duties, and for other purposes,'' approved September 7, 1916 (5 U.S.C., ch. 15), as amended, and as
modified by this Act, shall apply with respect thereto in the same manner and to the same extent as
if the person so employed were a civil employee of the United States and were injured while in the
performance of his duty, and any compensation found to be due shall be paid from the compensation
fund established pursuant to section 35 of said Act of September 7, 1916, as amended. This
subsection shall not be construed to include any person who would otherwise come within the
purview of such Act of September 7, 1916, as amended.
(b) Missing persons considered as totally disabled.
(1) Any person specified in subsection (a) who-
(A) is found to be missing from his place of employment, whether or not such
person then actually was engaged in the course of his employment, under
circumstances supporting an inference that his absence is due to the belligerent action
of a hostile force or person, or
(B) is known to have been taken by a hostile force or person as a prisoner, hostage,
or otherwise, or
(C) is not returned to his home or to the place where he was employed by
reason of the failure of the United States or its contractor to furnish transportation,
until such time as he is returned to his home, to the place of his employment, or is able
to be returned to the jurisdiction of the United States, shall, under such
regulations as the Secretary of Labor may prescribe, be regarded solely for the purposes of this
subsection as totally disabled, and the same benefits as are provided for such
disability under this title [42 USCS §§ 1701 et seq.] shall be credited to his account
and be payable to him for the period of such absence or until his death is in fact
established or can be legally presumed to have occurred: Provided, That if such
person has dependents residing in the United States or its Territories or possessions
(including the United States Naval Operating Base, Guantanamo Bay, Cuba, the
Canal Zone, [and the Phillippine Islands]), the Commission [Secretary of Labor]
during the period of such absence may disburse a part of such compensation,
accruing for such total disability, to such dependents, which shall be equal to the
monthly benefits otherwise payable for death under this title [42 USCS §§ 1701 et
seq.], and the balance of such compensation for total disability shall accrue and be
payable to such person upon his return from such absence. Any payment made
pursuant to this subsection shall not in any case be included in computing the
maximum aggregate or total compensation payable for disability or death, as
provided in section 102(a) [42 USCS § 1702(a)]: Provided further, That no such
payment to such person or his dependent, on account of such absence, shall be made
during any period such person or dependent, respectively, has received, or may be
entitled to receive, any other payment from the United States, either directly or
indirectly, because of such absence, unless such person or dependent refunds or
renounces such other benefit or payment for the period claimed.Benefits found to be
due under this subsection shall be paid from the compensation fund established
pursuant to section 35 of such Act of September 7, 1916, as amended: Provided, That
the determination of dependents, dependency, and amounts of payments to
dependents shall be made in the manner specified in such Act: Provided further, That
claim for such detention benefits shall be filed in accordance with and subject to the
limitation provisions of such Act, as modified by section 106(c) of this Act [42
USCS § 1706(c)]: And provided further, That except in cases of fraud or willful
misrepresentation, the Commission [Secretary of Labor] may waive recovery of
money erroneously paid under this subdivision whenever it finds that such recovery
would be impracticable or would cause hardship to the beneficiary affected:
And further provided further, That where such person is found to be missing
from his place of employment, whether or not such person then actually was engaged in
the course of his employment, under circumstances supporting and inference
that his absence is due to the belligerent action of a hostile force or person or is
known to have been taken by a hostile force or person as a prisoner, hostage,
or otherwise, the amount of benefits to be credited to the account of such person under this
subsection, and for the purposes of this subsection only, shall be 100 per
centum of the average weekly wages of such person, except that in computing such benefits such average
weekly wages (a) shall not exceed the average weekly wages paid to civilian
employees of the United States in the same or most similar occupation in the
area nearest to the place of employment where such person was last employed,
and (b) shall not exceed the average weekly wages of such absent person at the time
such absence began; and 70 per centum of such average weekly wage so determined
shall be disbursed to the dependent or dependents of such person, irrespective of
the limitations of section 9 of the Longshoremen's and Harbor Workers' Compensation
Act, but should there be more than one such dependent, the distribution of
such 70 per centum shall be proportionate to the percentages allowed for dependents
by section 9 of such Longshoremen's and Harbor Workers' Compensation Act, and
if such manner of disbursement in any case would result in injustice or excessive
allowance for a dependent, the Secretary of Labor may, in its discretion, modify
such percentage or apportionment to meet the requirements of the case; and
in such cases benefits for detention shall accrue from January 1, 1942, unless the beginning
of absence occurred upon a later date in which event benefits shall accrue
from such later date, and for the period of such absence shall be 100 per centum of the
average weekly wages, determined as herein provided: And provided further,
That compensation for disability under this title [42 USCS §§ 1701 et seq.] (except under
allowance for scheduled losses of members or functions of the body, within the
purview of section 102(a) [42 USCS § 1702(a)]) shall not be paid in any case in
respect to any period of time during which benefits for detention may accrue under
this title [42 USCS §§ 1701 et seq.] in the same case, and should a person entitled to
benefits for detention also be entitled to workmen's compensation or similar benefits
under any other law, agreement or plan (except allowances for scheduled losses of
members or functions of the body), where such other benefits are paid or to be paid
directly or indirectly by the United States, the amount thereof accruing as to the
period of absence shall be taken into account and the benefits credited to the account
of the detained person reduced accordingly: And provided further, That where
through mistake of fact, absence of proof of death, or error through lack of adequate
information or otherwise, payments as for detention have in any case been
erroneously made or credited, any resulting overpayment of detention benefits (the
recovery of which is not waived as otherwise provided for in this section) shall be
recouped by the Commission [Secretary of Labor] in such manner as it shall
determine from any unpaid accruals to the account of the detained person, and if such
accruals are insufficient for such purpose, then from any allowance of compensation
for injury or death in the same case (whether under this title [42 USCS §§ 1701 et
seq.] or under any other law, agreement, or plan if the United States pays, or is
obligated to pay, such benefits, directly or indirectly), but only to the extent of the
amount of such compensation benefits payable for the particular period of such
overpayment, and in cases of erroneous payments of compensation for injury or
death, made through mistake of fact, whether under this title [42 USCS §§ 1701
et seq.] or under any other law, agreement, or plan (if the United States is
obligated to pay such compensation, directly or indirectly), the Commission [Secretary of
Labor] is authorized to recoup from any unpaid benefits for detention, the
amount of any overpayment thus arising; and any amounts recovered under this section shall
be covered into such compensation fund, and for the foregoing purposes the
Commission [Secretary of Labor] shall have a right of lien, intervention, and
recovery in any claim or proceeding for compensation.
(2) Upon application by such person, or someone on his behalf, the Commission [Secretary
of Labor] may, under such regulations as it may prescribe, furnish transportation or the cost thereof
(including reimbursement) to any such person from the point where his release from custody by a
hostile force or person is effected, to his home, the place of his employment, or other place within
the jurisdiction of the United States; but no transportation, or the cost thereof, shall be furnished
under this paragraph where such person is furnished such transportation, or the cost thereof, under
any agreement with his employer or under any other provision of law.
(3) In the case of death of any such person, if his death occurred away from his home, the
body of such person shall, in the discretion of the Commission [Secretary of Labor], and if so desired
by his next of kin, near relative, or legal representative, be embalmed and transported in a
hermetically sealed casket or other appropriate container to the home of such person or to such other
place as may be designated by such next of kin, near relative, or legal representative. No expense
shall be incurred under this paragraph by the Commission [Secretary of Labor] in any case where
death takes place after repatriation, unless such death proximately results from a war-risk hazard.
(4) Such benefits for detention, transportation expenses of repatriated persons, and expenses
of embalming, providing sealed or other appropriate container, and transportation of the body, and
attendants (if required), as approved by the Commission [Secretary of Labor], shall be paid out of
the compensation fund established under section 35 of such Act of September 7, 1916, as amended.
(c) Persons not citizens or residents of United States.
Compensation for permanent total or permanent partial disability or for death payable under this
section to persons who are not citizens of the United States and who are not residents of the United
States or Canada, shall be in the same amount as provided for residents; except that dependents in
any foreign country shall be limited to surviving wife or husband and child or children, or if there
be no surviving wife or husband or child or children, to surviving father or mother whom such
person has supported, either wholly or in part, for the period of one year immediately prior to the
date of the injury; and except that the Commission [Secretary of Labor], at its option, may commute
all future installments of compensation to be paid to such persons by paying to them one-half of the
commuted amount of such future installments of compensation as determined by the Commission
[Secretary of Labor].
(d) Persons excepted from coverage.
The provisions of this section shall not apply in the case of any person (1) whose residence is at or
in the vicinity of the place of his employment, and (2) who is not living there solely by virtue of the
exigencies of his employment, unless his injury or death resulting from injury occurs or his detention
begins while in the course of his employment, or (3) who is a prisoner of war or a protected person
under the Geneva Conventions of 1949 and who is detained or utilized by the United States.
Legislative History
(Dec. 2, 1942, ch. 668, Title I, §101, 56 Stat. 1028; Dec. 23, 1943, ch. 380, Title I, 57 Stat. 626; Aug.
7, 1946, ch. 805, §1, 60 Stat. 899; June 30, 1953, ch. 176, §§2, 3, 67 Stat. 135; June 30, 1958, P.L.
85-477, Subch. V, §502(g), 72 Stat. 273; Aug. 8, 1958, P.L. 85-608, Title I, §§101, 104, Title IV,
§401, 72 Stat. 536, 537, 539; June 25, 1959, P.L. 86-70, §42(a), 73 Stat. 151; Sept. 4, 1961, P.L.
87-195, Part IV, §702, 75 Stat. 463.)
§ 1702. Application of Longshore and Harbor Workers' Compensation
Act.
(a) In the administration of the provisions of such Act of September 7, 1916,
as amended, with respect to cases coming within the purview of section 101
of this title [42 USCS § 1701], the scale
of compensation benefits and the provisions for determining the amount of compensation and the
payment thereof as provided in sections 8 and 9 of the Longshoremen's and Harbor Workers'
Compensation Act, approved March 4, 1927 (44 Stat. 1424), as amended, so far as the provisions
of said sections can be applied under the terms and conditions set forth therein, shall be payable in
lieu of the benefits, except medical benefits, provided under such Act of September 7, 1916, as
amended: Provided, That the total compensation payable under this title [42 USCS §§ 1701
et seq.] for injury or death shall in no event exceed the limitations upon
compensation as fixed in section
14(m) of such Act as such section may from time to time be amended except that
the total compensation shall not be less than that provided for in the original
enactment of this Act.
(b) For the purpose of computing compensation with respect to cases coming
within the purview of section 101 of this title [42 USCS § 1701], the provisions of sections 6 and 10 of such
Longshoremen's and Harbor Workers' Compensation Act, as amended, shall be applicable: Provided,
That the minimum limit on weekly compensation for disability, established by section 6(b) [33
USCS § 906(b)], and the minimum limit on the average weekly wages on which death benefits are
to be computed, established by section 9(e) of such Longshoremen's and Harbor Workers'
Compensation Act, as amended, shall not apply in computing compensation under this title [42
USCS §§ 1701 et seq.].
Legislative History
(Dec. 2, 1942, ch. 668, Title I, §102, 56 Stat. 1031; July 3, 1948, ch. 826, §4(c), 62 Stat. 1242; Aug.
8, 1958, P.L. 85-608, Title I, §102, 72 Stat. 536.)
§ 1703. ``Contractor With the United States'' Defined.
As used in this title [42 USCS §§ 1701 et seq.] the term ``contractor with
the United States'' includes any subcontractor or subordinate subcontractor
with respect to the contract of such contractor.
Legislative History
(Dec. 2, 1942, ch. 668, Title I, §103, 56 Stat. 1031.)
§ 1704. Reimbursement.
(a) Payments reimbursable; filing claim for reimbursement; regulations for payment of direct
benefits.
Where any employer or his insurance carrier or compensation fund pays or is required to pay
benefits--
(1) to any person or fund on account of injury or death of any person coming
within the purview of this title [42 USCS §§ 1701 et seq.] or the Act of August 16, 1941 (Public Law
Numbered 208, Seventy-seventh Congress), as amended [42 USCS §§ 1651 et seq.],
if such injury or death arose from a war-risk hazard, which are payable under
any workmen's compensation law
of the United States or of any State, Territory, or possession of the United
States, or other jurisdiction; or
(2) to any person by reason of any agreement outstanding on the date of enactment of this
Act [enacted Dec. 2, 1942] made in accordance with a contract between the United States and any
contractor therewith to pay benefits with respect to the death of any employee of such contractor
occurring under circumstances not entitling such person to benefits under any workmen's
compensation law or to pay benefits with respect to the failure of the United States or its contractor
to furnish transportation upon the completion of the employment of any employee of such contractor
to his home or to the place where he was employed; or
(3) to any person by reason of an agreement approved or authorized by the United States
under which a contractor with the United States has agreed to pay workmen's compensation benefits
or benefits in the nature of workmen's compensation benefits to an injured employee or his
dependents on account of detention by a hostile force or person or on account of injury or death
arising from a war-risk hazard;
such employer, carrier, or fund shall be entitled to be reimbursed for all benefits so paid or payable,
including funeral and burial expenses, medical, hospital, or other similar costs for treatment and care;
and reasonable and necessary claims expense in connection therewith. Claim for such reimbursement
shall be filed with the Commission [Secretary of Labor] under regulations promulgated by it, and
such claims, or such part thereof as may be allowed by the Commission [Secretary of Labor], shall
be paid from the compensation fund established under section 35 of such Act of September 7, 1916,
as amended. The Commission [Secretary of Labor] may, under such regulations as it shall prescribe,
pay such benefits, as they accrue and in lieu of reimbursement, directly to any person entitled
thereto, and the insolvency of such employer, insurance carrier, or compensation fund shall not affect
the right of the beneficiaries of such benefits to receive the compensation directly from the said
compensation fund established under section 35 of such Act of September 7, 1916, as amended. The
Commission [Secretary of Labor] may also, under such regulations as it shall prescribe, use any
private facilities, or such Government facilities as may be available, for the treatment or care of any
person entitled thereto.
(b) Charging of premiums as prohibiting reimbursement.
No reimbursement shall be made under this title [42 USCS §§ 1701 et seq.]
in any case in which the Commission [Secretary of Labor] finds that the benefits
paid or payable were on account of injury,
detention, or death which arose from a war-risk hazard for which a premium
(which included an additional charge or loading for such hazard) was charged.
(c) Injury or death occurring within any State.
The provisions of this section shall not apply with respect to benefits on account of any injury or
death occurring within any State.
Legislative History
(Dec. 2, 1942, ch. 668, Title I, §104, 56 Stat. 1031; Aug. 8, 1958, P.L. 85-608, Title I, §104, 72 Stat.
537; June 25, 1959, P.L. 86-70, §42(b), 73 Stat. 151.)
§ 1705. Receipt of Workmen's Compensation Benefits.
(a) Receipt of benefits under other provisions.
No benefits shall be paid or furnished under the provisions of this title
[42 USCS §§ 1701 et seq.]
for injury or death to any person who recovers or receives workmen's compensation
benefits for the same injury or death under any other law of the United States,
or under the law of any State,
Territory, possession, foreign country, or other jurisdiction, or benefits
in the nature of workmen's compensation benefits payable under an agreement
approved or authorized by the United States
pursuant to which a contractor with the United States has undertaken to provide
such benefits.
(b) Lien and right of recovery against compensation payable under other provisions.
The Commission [Secretary of Labor] shall have a lien and a right of recovery,
to the extent of any payments made under this title [42 USCS §§ 1701 et seq.]
on account of injury or death, against any compensation payable under any other
workmen's compensation law on account of the same injury
or death; and any amounts recovered under this subsection shall be covered
into the fund established under section 35 of such Act of September 7, 1916,
as amended.
(c) Receipt of wages as credit against payment under this subchapter; intervention by Secretary in
proceeding to recover wages, etc.
Where any person specified in section 101(a) [42 USCS § 1701(a)], or the dependent, beneficiary,
or allottee of such person, receives or claims wages, payments in lieu of wages, insurance benefits
for disability or loss of life (other than workmen's compensation benefits), and the cost of such
wages, payments, or benefits is provided in whole or in part by the United States, the amount of such
wages, payments, or benefits shall be credited, in such manner as the Commission [Secretary of
Labor] shall determine, against any payments to which any such person is entitled under this title
[42 USCS §§ 1701 et seq.].
Where any person specified in section 101(a) [42 USCS § 1701(a)], or any dependent, beneficiary,
or allottee of such person, or the legal representative or estate of any such entities, after having
obtained benefits under this title [42 USCS §§ 1701 et seq.], seeks through any proceeding, claim,
or otherwise, brought or maintained against the employer, the United States, or other person, to
recover wages, payments in lieu of wages, or any sum claimed as for services rendered, or for failure
to furnish transportation, or for liquidated or unliquidated damages under the employment contract,
or any other benefit, and the right in respect thereto is alleged to have accrued during or as to any
period of time in respect of which payments under this title [42 USCS §§ 1701 et seq.] in such case
have been made, and in like cases where a recovery is made or allowed, the Commission [Secretary
of Labor] shall have the right of intervention and a lien and right of recovery to the extent of any
payments paid and payable under this title [42 USCS §§ 1701 et seq.] in such
case, provided the cost of such wages, payments in lieu of wages, or other
such right, may be directly or indirectly paid by
the United States; and any amounts recovered under this subsection shall be
covered into the fund established under section 35 of such Act of September
7, 1916, as amended.
(d) Entitlement to benefits by national of a foreign government under foreign laws.
Where a national of a foreign government is entitled to benefits on account
of injury or death resulting from a war-risk hazard, under the laws of his
native country or any other foreign country,
the benefits of this title [42 USCS §§ 1701 et seq.] shall not apply.
(e) Receipt of benefits for prior accident or disease.
If at the time a person sustains an injury coming within the purview of this
title [42 USCS §§ 1701
et seq.] said person is receiving workmen's compensation benefits on account of a prior accident or
disease, said person shall not be entitled to any benefits under this title [42 USCS §§ 1701
et seq. during the period covered by such workmen's compensation benefits unless
the injury from a
war-risk hazard increases his disability, and then only to the extent such
disability has been so increased.
Legislative History
(Dec. 2, 1942, ch. 668, Title I, §105, 56 Stat. 1032; Dec. 23, 1943, ch. 380,
Title I, 57 Stat. 627.)
§ 1706. Administration.
(a) Rules and regulations.
The provisions of this title [42 USCS §§ 1701 et seq.] shall be administered
by the Commission [Secretary of Labor] and the Commission [Secretary] is authorized
to make rules and regulations for
the administration thereof and to contract with insurance carriers for the
use of the service facilities of such carriers for the purpose of facilitating
administration.
(b) Agreements and working arrangements with other agencies, etc.
In administering the provisions of this title [42 USCS §§ 1701 et seq.] the Commission [Secretary
of Labor] may enter into agreements or cooperative working arrangements with other agencies of
the United States or of any State (including the District of Columbia, Hawaii, Alaska, Puerto Rico,
and the Virgin Islands) or political subdivision thereof, and with other public agencies and private
persons, agencies, or institutions, within and outside the United States, to utilize their services and
facilities and to compensate them for such use. The Commission [Secretary of Labor] may delegate
to any officer or employee, or to any agency, of the United States or of any State, or of any political
subdivision thereof, or Territory or possession of the United States, such of its powers and duties as
it finds necessary for carrying out the purposes of this title [42 USCS §§ 1701
et seq].
(c) Waiver of notice of injury and filing of claims.
The Commission [Secretary of Labor], in its discretion, may waive the limitation
provisions of such Act of September 7, 1916, as amended, with respect to notice
of injury and filing of claims under
this title [42 USCS §§ 1701 et seq.], whenever the Commission [Secretary of
Labor] shall find that, because of circumstances beyond the control of an injured
person or his beneficiary, compliance with
such provisions could not have been accomplished within the time therein specified.
Legislative History
(Dec. 2, 1942, ch. 668, Title I, §106, 56 Stat. 1033.)
SUBCHAPTER II Miscellaneous Provisions
§ 1711. Definitions.
When used in this Act (except when used in title III [42 USCS § 1651]--
(a) The term ``Commission'' [``Secretary''] means the United States Employees' Compensation
Commission [Secretary of Labor].
(b) The term ``war-risk hazard'' means any hazard arising during a war in which the United States
is engaged; during an armed conflict in which the United States is engaged, whether or not war has
been declared; or during a war or armed conflict between military forces of any origin, occurring
within any country in which a person covered by this Act is serving; from--
(1) the discharge of any missile (including liquids and gas) or the use of any weapon,
explosive, or other noxious thing by a hostile force or person or in combating an attack or an
imagined attack by a hostile force or person; or
(2) action of a hostile force or person, including rebellion or insurrection against the United
States or any of its Allies; or
(3) the discharge or explosion of munitions intended for use in connection with a war or
armed conflict with a hostile force or person as defined herein (except with respect to employees of
a manufacturer, processor, or transporter of munitions during the manufacture, processing, or
transporting thereof, or while stored on the premises of the manufacturer, processor, or transporter);
or
(4) the collision of vessels in convoy or the operation of vessels or aircraft without running
lights or without other customary peacetime aids to navigation; or
(5) the operation of vessels or aircraft in a zone of hostilities or engaged in war activities.
(c) The term ``hostile force or person'' means any nation, any subject of a foreign nation, or any
other person serving a foreign nation (1) engaged in a war against the United States or any of its
allies, (2) engaged in armed conflict, whether or not war has been declared, against the United States
or any of its allies, or (3) engaged in a war or armed conflict between military forces of any origin
in any country in which a person covered by this Act is serving.
(d) The term ``allies'' means any nation with which the United States is engaged in a common
military effort or with which the United States has entered into a common defensive military
alliance.
(e) The term ``war activities'' includes activities directly relating to military operations.
(f) the term ``continental United States'' means the States and the District of Columbia.
Legislative History
(Dec. 2, 1942, ch. 668, Title II, §201, 56 Stat. 1033; June 30, 1953, ch. 176, §1, 67 Stat. 134; June
30, 1954, ch. 431, §1, 68 Stat. 336; June 30, 1955, ch. 257, §1, 69 Stat. 241; July 9, 1956, c. 537, §1,
70 Stat. 519; June 29, 1957, P.L. 85-70, 71 Stat. 242; Aug. 8, 1958, P.L. 85-608, Title I, §§103, 104,
72 Stat. 536, 537; June 25, 1959, P.L. 86-70, §42(c), 73 Stat. 151.)
§ 1712. Disqualification From Benefits.
No person convicted in a court of competent jurisdiction of any subversive
act against the United States or any of its Allies, committed after the declaration
by the President on May 27, 1941, of the
national emergency, shall be entitled to compensation or other benefits under
title I [42 USCS §§
1701 et seq.], nor shall any compensation be payable with respect to his death or detention under
such title [42 USCS §§ 1701 et seq.] and upon indictment or the filing of an information charging
the commission of any such subversive act, all such compensation or other benefits shall be
suspended and remain suspended until acquittal or withdrawal of such charge, but upon conviction
thereof or upon death occurring prior to a final disposition thereof, all such payments and all benefits
under such title [42 USCS §§ 1701 et seq.] shall be forfeited and terminated.
If the charge is withdrawn, or there is an acquittal, all such compensation
withheld shall be paid to the person or
persons entitled thereto.
Legislative History
(Dec. 2, 1942, ch. 668, Title II, §202, 56 Stat. 1034.)
§ 1713. Fraud; Penalties.
Whoever, for the purpose of causing an increase in any payment authorized
to be made under this Act, or for the purpose of causing any payment to be
made where no payment is authorized
hereunder, shall knowingly make or cause to be made, or aid or abet in the
making of any false statement or representation of a material fact in any application
for any payment under title I [42
USCS §§ 1701 et seq.], or knowingly make or cause to be made, or aid or abet
in the making of any false statement, representation, affidavit, or document
in connection with such an application, or
claim, shall be guilty of a misdemeanor and upon conviction thereof shall be
fined not more than $ 1,000 or imprisoned for not more than one year, or both.
Legislative History
(Dec. 2, 1942, ch. 668, Title II, §203, 56 Stat. 1034.)
§ 1714. Legal Services.
No claim for legal services or for any other services rendered in respect
of a claim or award for compensation under title I [42 USCS §§ 1701 et seq.] to or on account of any person shall be valid
unless approved by the Commission [Secretary]; and any claim so approved shall, in the manner and
to the extent fixed by the said Commission [Secretary], be paid out of the compensation payable to
the claimant; and any person who receives any fee, other consideration, or any gratuity on account
of services so rendered, unless such consideration or gratuity is so approved, or who solicits
employment for another person or for himself in respect of any claim or award for compensation
under title I [42 USCS §§ 1701 et seq.] shall be guilty of a misdemeanor and
upon conviction thereof shall, for each offense, be fined not more than $ 1,000
or imprisoned not more than one year, or both.
Legislative History
(Dec. 2, 1942, ch. 668, Title II, §204, 56 Stat. 1034.)
§ 1715. Finality of Secretary's Decisions.
The action of the Commission [Secretary] in allowing or denying any payment
under title I [42 USCS §§ 1701 et seq.] shall be final and conclusive on all
questions of law and fact and not subject to review by any other official of
the United States or by any court by mandamus or otherwise, and
the Comptroller General is authorized and directed to allow credit in the accounts
of any certifying or disbursing officer for payments in accordance with such
action.
Legislative History
(Dec. 2, 1942, ch. 668, Title II, §205, 56 Stat. 1034.)
§ 1716. Determination of Death or Detention.
A determination that an individual is dead or a determination that he has been detained by a hostile
force or person may be made on the basis of evidence that he has disappeared under circumstances
such as to make such death or detention appear probable.
Legislative History
(Dec. 2, 1942, ch. 668, Title II, §206, 56 Stat. 1034; Aug. 8, 1958, P.L. 85-608, Title I, §104,
72 Stat. 537.)
§ 1717. Assignment of Benefits; Execution, Levy, Etc., Against Benefits.
The right of any person to any benefit under title I [42 USCS §§ 1701 et seq.] shall not be
transferable or assignable at law or in equity except to the United States, and none of the moneys
paid or payable (except money paid hereunder as reimbursement for funeral expenses or as
reimbursement with respect to payments of workmen's compensation or in the nature of workmen's
compensation benefits), or rights existing under such title [42 USCS §§ 1701
et seq.], shall be subject to execution, levy, attachment, garnishment, or
other legal process or to the operation of any
bankruptcy or insolvency law.