|November 3, 2008|
Information for Longshore Claimants
The Benefits Review Board reviews workers compensation claims and issues decisions in cases arising under the Longshore and Harbor Workers Compensation Act, 33 U.S.C. §901 et seq., and its extensions, the Defense Base Act, 42 U.S.C. § 1651 et seq., the Outer Continental Shelf lands Act, 43 U.S.C. §1331, et seq., the Nonapproriated Fund Instrumentalities Act, 5 U.S.C. §8171 et seq, and the War Hazards Compensation Act (WHCA). The Benefits Review Board exercises the appellate review authority exercised by the United States District Courts prior 1973. The decisions of the Benefits Review Board may be appealed to the United States Courts of Appeals, and from there to the United States Supreme Court.
A Longshore Claim encompasses cases filed under several statutes:
Thus, the Act covers more than just maritime workers. For example, oil rig workers may be covered under the OSCLA. Construction workers in Iraq may be covered under the LDA. Civilian workers working on military bases may be covered under the NAFIA.
Where are claims filed?
All claims are filed at the Office of Workers Compensation Programs (OWCP). After a claim is filed at OWCP, an investigation may be conducted. See 20 C.F.R § 702.301 et seq. The parties (claimant, employer and insurance carrier) may request an informal conference with the District Director or claims examiner attempts to resolve the matter. The claims examiner then issues a recommendation. If any of the parties is not happy with this recommendation, they may appeal the matter to the Office of Administrative Law Judges (OALJ). 20 C.F.R. § 702.331 et seq. Parties may also request the matter be referred to OALJ without an informal conference if they think that the conference will not resolve matters. Once a request is made, the matter is transferred to OALJ. Find out more information about the claims process.
What Happens After My Case Is Transferred to OALJ ?
Within a week of receipt, OALJ will assign a docket number to a claim and send it to the appropriate office to be included in an administrative law judge's (ALJ) case docket. The LHC docket number should be used in all correspondence with OALJ or any parties involved in the case. Once an OALJ Field Office receives the claim, it will be added to a docket. This process could take one to two months, depending on where the hearing needs to be held. For budgetary reasons, an ALJ must usually have a full docket in order to travel to a city to conduct hearings. Exceptions are made, but a claimant must provide a written request explaining the unique situation in order to have the case expedited and heard quickly.
How Do I find Out when My Case Will Be Heard?
Once an ALJ has sufficient cases for a docket, Notices of Hearing will be issued informing the parties when and where the hearing will take place. Under the Longshore regulations, a claimant is not required to travel more than 75 miles to a hearing location. On occasion, a claimant may choose to travel further in order to get a quicker hearing. The Notice of Hearing also contains instructions from the assigned ALJ explaining how the hearing will be conducted and how evidence is to be presented. It will also contain a Stipulation Sheet for the parties to fill out stating what they believe the issues to be and what they may agree on.
What Happens Before the Hearing?
Like other law suits, the pre-hearing period is used for discovery (depositions, interrogatories, etc.) and to engage in settlement talks, if all parties are willing. If all parties agree, they may request a Settlement Judge who will set up a meeting in order to discuss settling the claim. See Settlement Judge. http://www.oalj.dol.gov/SETTLEMENT_JUDGE.HTM The Settlement Judge is not the same ALJ assigned to hear the claim if it must go to trial. The Settlement Judge will not disclose any communications with the parties to the Trial ALJ.
If a party needs documents from an opposing party, it is at this stage that a subpoena should be requested. A subpoena is a request that a party provide specific documents, or appear at a deposition, or appear at the hearing itself. Parties must serve their own subpoenas, as instructed on the subpoena form. If a party objects to a subpoena, the ALJ should be requested to provide relief.
What Happens at My Hearing?
At the hearing, the parties will be given the opportunity to call witnesses to testify as well as to present evidence. 20 C.F.R. § 702.338 et seq. The evidence and testimony are the record on which the ALJ will decide the claim. Parties should ensure that all evidence is presented at this time.
ALJ hearings are de novo, which means from the beginning. Thus, what happened before the District Director is not automatically made a part of the record. 20 C.F.R. §702.318. The Claims Examiners recommendations are normally not part of the official ALJ record. A court reported will be present to record the testimony and a transcript of the entire proceeding is made a part of the official record.
ALJ hearings are open to the public. ALJ decisions and selected orders are published on the DOL Web site. Thus, if you intend to introduce evidence or testimony that you do not wish to have open to public scrutiny, you must take steps before the ALJ to invoke whatever legal protections may be available to limit public access. An ALJ, however, is limited in authority to restrict such access. See Public Access Notice. http://www.oalj.dol.gov/ACCESS_TO_COURT_RECORDS.HTM
Contacting the OALJ or your assigned Trial ALJ
Improper ex parte (one-sided) communication with an administrative adjudicatory officer is prohibited by statute and regulation. If you make such a communication, including messages sent by e-mail, the agency is required to put that communication on the public record. See 5 U.S.C. 557(d)(1)(c); 29 C.F.R. § 18.38.
Some ex parte communications are not improper. Communications, for example, for the sole purpose of scheduling hearings or requesting extensions of time are not considered ex parte communications, except that all other parties shall be notified of such request by the requesting party and be given an opportunity to respond. No person at OALJ may give you advice on how to litigate your case.
The ALJs Decision and Order
Once the record is closed, the ALJ will write a decision based on the entire record. The decision will be forwarded to the District Director who will officially file and issue it. Within five business days of issuance of a decision and order, it will also be posted on the official OALJ Web site at www.oalj.dol.gov. Compensation must be paid within 10 days after it becomes due. OWCP will mail a copy of the decision to each party of record within 24 hours of the day of filing. Once received, any party may request a reconsideration of the decision. This Motion for Reconsideration must be filed within 10 days of the filing of the decision. 20 C.F.R. § 802.206. Parties also have the option of filing an appeal with the Benefits Review Board (within 30 days of the filing of the decision) instead of moving for a reconsideration by the ALJ. 20 C.F.R. § 702.393. Instructions for filing an appeal are on a notice which accompanies the copy of the decision which the parties receive from OWCP. If a party does file a Motion for Reconsideration, the time for filing an appeal with the Board is stayed until the ALJ issues an Order on Reconsideration.
How Long Does It Take?
The length of the hearing process varies depending on the complexity of the case. An average case takes about five months from the close of the record after the hearing.
Attorneys and Representatives
Most longshore claimants are represented by an attorney. Since the law in this area can be complex, you may be well-advised to retain a private attorney. You may, however, use a lay representative or choose to appear on your own behalf (pro se).
OALJ does not appoint counsel nor can it make attorney referrals. 29 C.F.R. § 18.35. Various bar associations maintain a list of lawyer referral contacts. See http://www.dol.gov/ejudication/how_to_find_legal_representation.htm
In a longshore case, an attorney can collect a fee only if successful in prosecuting the case for the claimant. 33 U.S.C. § 928. An attorney only gets a fee when the ALJ awards one. The ALJ makes a fee determination only after the attorney who represented the claimant files a fee petition and the opposing side has been given the chance to make objections. In the overwhelming majority of successful cases fees and costs are paid by either the employer or the employers insurance carrier.
As previously noted, appeals are made to the Benefits Review Board. Once the Board dockets an appeal, it issues a Notice setting out the briefing schedule and procedural requirements. The Board may affirm, reverse or modify the ALJs decision, or it may remand the case for further proceeding before the ALJ. After the Board issues its decision any further proceedings are in the federal circuit courts of appeal (except for some Defense Base Act cases which are appealed to federal district court.).