BRB | OALJ
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:
- The Longshore and Harbor Workers Act (LHWCA)
- The Outer Continental Shelf Lands Act (OSCLA)
- The Defense Base Act (LDA)
- The Non-Appropriated Funds Instrumentality Act (NFIA)
- The War Hazards Compensation Act (WHCA)
- The District of Columbia Workers Compensation Act. (DCWCA)
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.
Public Access
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.
Ex parte communications are communications, outside the knowledge of
the opposing counsel or party, between an agency employee involved in the
decision making process, e.g., the judge presiding in a case, and an interested
person outside the decision-making process, e.g., one of the attorneys or
parties to the case, about significant substantive issues or the case, i.e.,
facts in issue, or procedural issues, if procedural communication could
unfairly disadvantage other parties to the case.
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.
Appeals
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.).
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