(a) Application: filing, service, contents. (1) An employer or
insurance carrier which seeks to invoke the provisions of section 8(f)
of the Act must request limitation of its liability and file, in
duplicate, with the district director a fully documented application. A
fully documented application shall contain the following information:
(i) A specific description of the pre-existing condition relied upon as
constituting an existing permanent partial disability; (ii) the reasons
for believing that the claimant's permanent disability after the injury
would be less were it not for the pre-existing permanent partial
disability or that the death would not have ensued but for that
disability. These reasons must be supported by medical evidence as
specified in paragraph (a)(1)(iv) of this section; (iii) the basis for
the assertion that the pre-existing condition relied upon was manifest
in the employer; and (iv) documentary medical evidence relied upon in
support of the request for section 8(f) relief. This medical evidence
shall include, but not be limited to, a current medical report
establishing the extent of all impairments and the date of maximum
medical improvement. If the claimant has already reached maximum medical
improvement, a report prepared at that time will satisfy the requirement
for a current medical report. If the current disability is total, the
medical report must explain why the disability is not due solely to the
second injury. If the current disability is partial, the medical report
must explain why the disability is not due solely to the second injury
and why the resulting disability is materially and substantially greater
than that which would have resulted from the subsequent injury alone. If
the injury is loss of hearing, the pre-existing hearing loss must be
documented by an audiogram which complies with the requirements of
Sec. 702.441. If the claim is for survivor's benefits, the medical
report must establish that the death was not due solely to the second
injury. Any other evidence considered necessary for consideration of the
request for section 8(f) relief must be submitted when requested by the
district director or Director.
(2) If claim is being paid by the special fund and the claimant
dies, an employer need not reapply for section 8(f) relief. However,
survivor benefits will not be paid until it has been established that
the death was due to the accepted injury and the eligible survivors have
been identified. The district director will issue a compensation order
after a claim has been filed and entitlement of the survivors has been
verified. Since the employer remains a party in interest to the claim, a
compensation order will not be issued without the agreement of the
employer.
(b) Application: Time for filing. (1) A request for section 8(f)
relief should be made as soon as the permanency of the claimant's
condition becomes known or is an issue in dispute. This could be when
benefits are first paid for permanent disability, or at an informal
conference held to discuss the permanency of the claimant's condition.
Where the claim is for death benefits, the request should be made as
soon as possible after the date of death. Along with the request for
section 8(f) relief, the applicant must also submit all the supporting
documentation required by this section, described in paragraph (a), of
this section. Where possible, this documentation should accompany the
request, but may be submitted separately, in which case the district
director shall, at the time of the request, fix a date for submission of
the fully documented application. The date shall be fixed as follows:
(i) Where notice is given to all parties that permanency shall be an
issue at an informal conference, the fully documented application must
be submitted at or before the conference. For these purposes, notice
shall mean when the issues of permanency is noted on the form LS-141,
Notice of Informal Conference. All parties are required to list issue
reasonably anticipated to be discussed at the conference when the
initial request for a conference is made and to notify all parties of
additional issues which arise during the period before the conference is
actually held.
(ii) Where the issue of permanency is first raised at the informal
conference and could not have reasonably been anticipated by the parties
prior to the conference, the district director shall adjourn the
conference and establish the date by which the fully documented
application must be submitted and so notify the employer/carrier. The
date shall be set by the district director after reviewing the
circumstances of the case.
(2) At the request of the employer or insurance carrier, and for
good cause, the district director, at his/her discretion, may grant an
extension of the date for submission of the fully documented
application. In fixing the date for submission of the application under
circumstances other than described above or in considering any request
for an extension of the date for submitting the application, the
district director shall consider all the circumstances of the case,
including but not limited to: Whether the claimant is being paid
compensation and the hardship to the claimant of delaying referral of
the case to the Office of Administrative Law Judges (OALJ); the
complexity of the issues and the availability of medical and other
evidence to the employer; the length of time the employer was or should
have been aware that permanency is an issue; and, the reasons listed in
support of the request. If the employer/carrier requested a specific
date, the reasons for selection of that date will also be considered.
Neither the date selected for submission of the fully documented
application nor any extension therefrom can go beyond the date the case
is referred to the OALJ for formal hearing.
(3) Where the claimant's condition has not reached maximum medical
improvement and no claim for permanency is raised by the date the case
is referred to the OALJ, an application need not be submitted to the
district director to preserve the employer's right to later seek relief
under section 8(f) of the Act. In all other cases, failure to submit a
fully documented application by the date established by the district
director shall be an absolute defense to the liability of the special
fund. This defense is an affirmative defense which must be raised and
pleaded by the Director. The absolute defense will not be raised where
permanency was not an issue before the district director. In all other
cases, where permanency has been raised, the failure of an employer to
submit a timely and fully documented application for section 8(f) relief
shall not prevent the district director, at his/her discretion, from
considering the claim for compensation and transmitting the case for
formal hearing. The failure of an employer to present a timely and fully
documented application for section 8(f) relief may be excused only where
the employer could not have reasonably anticipated the liability of the
special fund prior to the consideration of the claim by the district
director. Relief under section 8(f) is not available to an employer who
fails to comply with section 32(a) of the Act, 33 U.S.C. 932(a).
(c) Application: Approval, disapproval. If all the evidence required
by paragraph (a) was submitted with the application for section 8(f)
relief and the facts warrant relief under this section, the district
director shall award such relief after concurrence by the Associate
Director, DLHWC, or his or her designee. If the district director or the
Associate Director or his or her designee finds that the facts do not
warrant relief under section 8(f) the district director shall advise the
employer of the grounds for the denial. The application for section 8(f)
relief may then be considered by an administrative law judge. When a
case is transmitted to the Office of Administrative Law Judges the
district director shall also attach a copy of the application for
section 8(f) relief submitted by the employer, and notwithstanding
Sec. 702.317(c), the district director's denial of the application.
(Approved by the Office of Management and Budget under control number
1215-0160)
[51 FR 4285, Feb. 3, 1986]
