Office of Workers' Compensation Programs (OWCP)

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Division of Longshore and Harbor Workers' Compensation (DLHWC)

CHAPTER 4-600 — REFERRALS FOR FORMAL HEARINGS

1. Purpose and Scope. This Chapter establishes guidelines and procedures for preparing cases for referral to the Office of Administrative Law Judges (OALJ) for formal hearings.
2. Authority. Section 702.316 of the regulations provides that if the District Director (DD) is satisfied that any further informal conference (PM 4-200) would be unproductive or if any party has requested a hearing, he/she shall prepare the case for transfer to the Office of the Chief Administrative Law Judge. A case may also be referred for a formal hearing without first holding an informal conference if the parties agree to the referral and the DD believes that a conference would be totally unproductive.
3. Case Preparation. A case is prepared for transfer in the following manner:
1. Identification of Parties. In any case in which the named employer is a corporation and has failed to secure the payment of compensation by obtaining either insurance or authorization to pay compensation directly, the DD shall name the president, secretary, and treasurer of the corporation as parties.
2. Pre-Hearing Statement. The DD furnishes each of the parties or their representatives a copy of Form LS-18, Pre-Hearing Statement, (Exhibit 5, PM 10-200). Form Letter LS-21 (Exhibit 9, PM 10-200) is used for this purpose.
3. Response From Interested Parties. Each party is required, within twenty-one days after receipt of the form, to complete and return it to the DD and serve copies on all other parties. Extensions of time for good cause may be granted by the DD, but requests for extension must be made within the twenty-one day submission period.
4. Transfer of Materials. Upon receipt of the completed forms, the DD checks them for completeness and schedules any conferences deemed warranted. The forms are then forwarded to the OALJ by Form Letter (Exhibit 9, PM 10-300) together with all available evidence which the parties intend to submit at the hearing (exclusive of x-rays, slides, and other materials not suitable for mailing which may be offered into evidence at the time of hearing). The materials transmitted will not include any recommendation of or memoranda prepared by the DD, except in section 8(f) cases where the EC’s application and the DD's denial should be sent (See 20 C.F.R. sections 702(c), 702.317 and 702.319).
5. Additional Issues. If the completed pre-hearing statement forms either (1) raise new or additional issues not previously considered by the DD or (2) indicate that material evidence will be submitted that could reasonably have been made available to the DD before the preparation of the last memorandum of conference, the Administration Law Judge (ALJ) may remand the case to the DD for re-evaluation (20 C.F.R. section 702.336). Thus, it is important that the Form LS-18 be completed as accurately as possible.
6. Failure of a Party to Respond. If a party fails to complete or return a pre-hearing statement form within the time allowed, the DD may, at his/her discretion, transmit the case without that party's form. However, the transmittal should include a statement from the DD that the party has failed to furnish the form. The party may be given an opportunity to explain the failure to submit the form in subsequent rulings which may be made in the course of the formal hearing.
7. Where an LS-18 is received in a case where an 8(f) application is being considered, the receipt of the LS-18 (18r) should not be keyed into LCMS since the case is not in posture for referral at that point. If 18r is entered in error, it should be deleted. Once a determination has been made on the 8(f) issue, the receipt of the LS-18 should be keyed into the LCMS using the current date.
8. When a case is referred for a formal hearing, the 18r or ctoa codes are entered. If additional LS-18s are received after the case has been referred to the OALJ, do not enter the 18r ctoa codes again as this will show a statistically larger number of cases being referred to the OALJ than is actually the case.
4. Referral to OALJ.
   1. Formal hearings are initiated when the DD transmits to the OALJ copies of available evidence which the parties intend to submit at the formal hearing, and a letter of transmittal. In accordance with 20 C.F.R. section 702.317, each party must furnish all documents or exhibits they wish to be considered at the formal hearing. All exhibits must be listed and identified on the Form LS-18. Generally, the DD will not make copies of the exhibits (from the administrative file), which previously have been furnished by the parties. However, upon written request, copies may be made of documents contained only in the administrative file. These (or the originals), as appropriate, will be furnished to the requesting party.
   2. The letter of transmittal (Exhibit 9, PM 10-300) is addressed to the Office of the Chief Administrative Law Judge, U.S. Department of Labor, 800 K St., N.W., Suite 400, Washington, D.C. 20001-8002.
   3. The previous practice of sending the Associate Solicitor of labor for Employee Benefits, Room S4325, U.S. Department of Labor, Washington, DC 20210, and the National Office, DLHWC, a copy of every case referral to the OALJ is discontinued. However, a copy of the transmittal letter and the pre-hearing statements of the parties are sent both to the Associate Solicitor and to the Director, DLHWC, in the following situations: (1) cases involving issues of OWCP policy, (2) cases involving the interpretation of the Act which have not previously been the subject of formal adjudication and a hearing, (3) cases in which individual corporate officers are named as parties, and (4) other cases which the DD believes should be brought to the attention of the NO.
5. Correspondence Received After Referral.
   1. Inquiries received by the DO after a case has been referred for a formal hearing to the OALJ, which relate to the formal hearing, should be acknowledged and forwarded to the Chief Judge, OALJ. Requests for modification under section 22 in cases in which either the EC or employee opposes the modification should also be referred to OALJ even if the case is presently on appeal to the BRB. (See LHWCA Circular 86-1, March 3, 1986.) Other correspondence received may be handled in the usual manner.
   2. Congressional inquiries should be forwarded to the Chief Judge, OALJ, after the appropriate Congressman has been advised of the referral of the particular inquiry.
6. Receipt of Subpoena. Whenever a DD is served with a subpoena, calling for the production of documents and/or directing the DD or a member of his/her staff to appear or testify at a hearing, the DD should notify the Regional Solicitor immediately. Thereafter, the DD will be notified by the Solicitor's Office as to what action shall be taken.
7. Filing and Service of Compensation Orders.
   1. Filing. The ALJ shall, within twenty days after the official termination of the hearing, deliver by mail, or otherwise, to the DD who has original jurisdiction of the case and is the official custodian of all records with respect to the case, the transcript of the hearing and other documents or pleadings filed with respect to the claim, together with the signed compensation order. Upon receipt thereof, the DD formally dates, signs, and files the original compensation order in the administrative file. The filing must be accomplished by the close of business of the next succeeding business day. On the day the order is filed, the DD sends by certified mail a copy of the order to each of the parties and to the representatives of the parties.
   2. Form LS-19. A Certificate of Filing and Service (Exhibit 6, PM 10-200) is appended to each copy of the compensation order. This form contains the certification of the DD that the copies were mailed to all interested parties on the date stated as shown on the form. (Form LS-19a, Certificate of Filing and Service is used for distributing copies of compensation orders issued by the DD. Exhibit 7, PM 10-200.)
   3. Form LS-20. The Letter Transmitting Decision of ALJ (Exhibit 8, PM 10-200) is used as a letter of transmittal of the compensation order and proof of service. It advises the parties that the transcript, pleadings, and compensation order have been formally dated and filed in the DD's office, and advises them of appeal procedures.
   4. ALJ Orders.
8. ALJs will not serve orders that involve any substantial matter, i.e., orders which could be the subject of, or pertain to, appeals to the BRB. Any such order will be sent by the ALJ to the appropriate DO to be served by the DD in the same manner as a decision and order following a hearing, with the proof of service information as usually appended. Opposed requests for modification under section 22 should also be referred to OALJ even if the case is presently on appeal to the BRB.
9. ALJs will issue and serve their own orders which involve what may be characterized as housekeeping matters, e.g., which schedule or reschedule hearings, remand cases to the DD for approval of agreed settlements, etc. ALJ's may also serve notice of deficiency of settlement application. 20 C.F.R. section 702.243(c).
10. Whenever a DD receives a compensation order from an ALJ which is believed technically incorrect, the DD should nevertheless file and serve the order. However, within forty-eight hours of receipt of the order, the DD should advise the NO, by telephone, of the error, followed by a memorandum to the Director, DLHWC, setting forth the portions of the order believed to be incorrect. A copy of the memorandum is sent to the Associate Solicitor for Employee Benefits.
11. Procedure Subsequent to Filing of Order.
    1. Effective Date. A compensation order is effective when filed, at which time any payment required under that order becomes due. (But see, Nealon v. California Stevedore & Ballast Co., 996 F.2d 966, 27 BRBS 31(CRT) (9th Cir. 1993) wherein the court found that a compensation order must be served on the parties before it may be considered filed.)
    2. An order becomes final unless proceedings for suspension or having it set aside are instituted within thirty days of such filing. However, unless the BRB or a court issues an order staying payments pending appeal, the compensation continues to be due and payable as of the date the order was filed. Simply filing a motion for reconsideration will not stay payments.
    3. Late Payment. Under section 14(f), if the award is not received by the claimant within ten days of its filing, there shall be added to the compensation due an amount equal to 20% thereof, to be paid in addition to the compensation due. The DD will have advised the interested parties, at the time copies of the order are sent to them, of the 20% additional compensation payable if compensation is not paid within ten days of the filing of Form Ltr. LS-20. Ten days after the order is filed and served, the DD must determine that the order has been complied with, and if not, take appropriate steps to see that the EC is notified that the additional 20% compensation is due and payable. (See PM 8-203 regarding the section 14(f) penalty in general and PM 8-203.7(b) for application of the ten day rule.)
12. 9. Withdrawal of Controversion. If a party withdraws any controversion of the issues which have been set for a formal hearing, the ALJ may remand the matter to the DD who shall dispose of the case as provided for by issuing a formal compensation order embodying the agreement, to be filed and mailed in the manner described in 20 C.F.R. section 702.349. 10. Retention of Hearing Records. The DO must retain as part of the official file and record in any compensation case referred for formal hearing by an ALJ all original pleadings, motions, briefs, orders and records of formal hearings, or any other documents received from the ALJ handling the case.