(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.
(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.
(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.
(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.
(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.
(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).
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.
(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.
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].
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.
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.
(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.
(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.
(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.
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.
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.
(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.
(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.
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.
(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].
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.
(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.
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).
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.
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.
(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.
(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.
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.
(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.
(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.
(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.
(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.
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.
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.
(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).]
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.
(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.
(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.
(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.
(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.
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.
(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].
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.
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 ,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.
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.
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.