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Policy
and Procedure Name:
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Longshore
and Harbor Workers’ Compensation Claims (aka Marine Industry Fund)
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Policy
#:
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CP-12-05
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Code/Rule
Reference:
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R.C. 4131.11 to R.C. 4131.16; O.A.C. 4123-20-01 to O.A.C.
4123-20-07; 33 USC §901 et seq.; 20 CFR §701 et seq.
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Effective
Date:
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12/20/19
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Approved:
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Ann
Shannon, Chief of Claims Policy and Support
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Origin:
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Claims
Policy
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Supersedes:
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Policy
CP-12-05,
effective 07/22/16 and Procedure CP-12-05.PR1, effective 07/22/16
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History
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Previous versions of this policy are available upon
request.
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Longshore and Harbor Workers’ Compensation Claims Table
of Contents
I.
POLICY PURPOSE
II.
APPLICABILITY
III.
DEFINITIONS
Longshore
and Harbor Workers’ Compensation Act (LHWCA)
Marine
Industry Fund (MIF)
IV.
POLICY
A. BWC Role
B. Exclusions
V.
PROCEDURE
A. Standard Claim File
Documentation
B. General Provisions
C. Notice of a Longshore Claim
D. Compensability
E. Rate and Payment of
Compensation
F. Medical Benefits
G. Death Benefits
H. Disputes
The purpose of this policy is to ensure that when BWC is the
authorized longshore carrier for an employer, qualifying claims are processed
in compliance with the Longshore and Harbor Workers’ Compensation Act.
This policy applies to Claims Services staff.
Longshore
and Harbor Workers’ Compensation Act (LHWCA): A federal act,
administered by the U.S. Department of Labor (DOL), that offers compensation
and medical care to employees disabled from injuries (including occupational
diseases) that occur on the navigable waters of the United States, or in
adjoining areas customarily used in loading, unloading, repairing, or building
a vessel. This act also offers benefits to dependents if the injury causes the
employee’s death.
Marine
Industry Fund (MIF): A separate State of Ohio fund for the payment
of compensation and benefits under the Federal Longshore and Harbor Workers’
Compensation Act.
1. It
is the policy of BWC that claims qualifying under the LHWCA (hereinafter
referred to as “Longshore claims”) for which BWC is the authorized longshore
carrier shall be:
a.
Processed by BWC consistent with that act; and
b.
Charged against the MIF.
2. BWC
shall:
a. Represent
the interest of the MIF in all proceedings pertinent to a controverted claim;
and
b. Charge
representation expenses, including travel, incurred by BWC to the MIF.
1. Longshore
claims are not subject to the provisions of the Disabled Workers’ Relief Fund
(DWRF).
2. There
shall be no deduction from Longshore claims:
a. For
family support orders; or
b. For
the purposes of recoupment of overpayment in a BWC State Fund claim or from a
different Longshore claim.
1. BWC
staff shall refer to the Standard
Claim File Documentation and Altered Documents policy and
procedure for claim note requirements; and
2. Shall
follow any other specific instructions for claim notes included in this
procedure.
1. Claims
services staff shall consult with the BWC attorney, as needed, regarding the
handling of a Longshore claim.
2. The
Special Claims Department shall process all Longshore claims unless otherwise
assigned by claims services management.
3. Special
Claims staff shall reference the “Longshore Procedure Manual” (available in the
Special Claims Department) and the DOL Division of Longshore and Harbor
Workers’ Compensation (DLHWC) website for additional information on federal
requirements.
4. References
to specific federal forms or other communications within this procedure are for
the convenience of Special Claims staff. Special Claims staff shall always
follow the direction of the DOL should any of the specific forms or other
communications change.
a. Special
Claims staff may locate Federal Longshore claim forms on the DOL DLHWC website.
b. Special
Claims staff shall ensure that the federal forms used are current (by checking
the DOL website or contacting the DOL, as needed).
5. Any
written communication required by this procedure that is not identified as a
federal form shall be drafted by Special Claims staff as off-line
correspondence or generated through the claims management system, as available.
6. Special
Claims staff shall ensure Longshore claims, where BWC is the insurer, are
charged against the MIF and to the extent possible, provide guidance so that
potential Longshore claims are not allowed in the State Insurance Fund.
7. Special
Claims staff may reference the Longshore and Harbor Workers’ Policy COR page
for links to websites referenced within this procedure.
8. Claims
services staff may email the BWC Marine Fund email box with any questions.
1. Employer’s Reporting of an
Employee’s Injury, Occupational Disease, or Death Upon receipt of an Employer’s First Report of Injury or
Occupational Illness (LS-202) from an employer reporting an injury,
occupational illness, or death under the LHWCA, Special Claims staff shall:
a. Obtain
a claim number utilizing the following information:
i. Name;
ii. Social
Security Number;
iii. Date
of birth;
iv. Address;
v. Date
of injury;
vi. Employer
name; and
vii. Employer
policy number (claims services staff shall ensure the employer’s MIF policy
number for Longshore claims is identified).
b. Initially identify the claim
as “medical only” in the claims management system during investigation;
c. Confirm coverage by MIF for
the applicable period with BWC Underwriting.
d. Send a “Medical Benefits Card”
letter to the claimant advising the claimant of:
i. The
BWC MIF claim number;
ii. The
name and contact information of the assigned claims service specialist (CSS);
iii. Information
on medical benefits; and
iv. Any other relevant
information and/or requests appropriate at the time of sending the letter.
e. Send a copy of the LS-202 to
the DOL.
i. If the DOL has not yet
assigned a DOL claim number:
a) For
new claims the initial notice is sent to the Case Create designated fax number,
202-513-6814; or
b) U.S.
Department of Labor
Office of Workers' Compensation
Programs
Division of Longshore and
Harbor Workers' Compensation
201 Varick Street, Room 740
Post Office Box 249
New York, NY 10014-0249
FAX (646) 264-3002
ii. If the DOL has assigned a DOL
claim number, the notice should be:
a) Submitted
electronically through the SEAPortal and a copy of
the proof of submission imaged in the BWC claim file; or
b) Sent
to:
U. S. Department of Labor Office
of Workers' Compensation Programs Division of Longshore and Harbor Workers'
Compensation 400 West Bay Street, Suite 63A, Box 28
Jacksonville, FL 32202
2. Filing of a First Report of Injury, Occupational Disease
or Death (FROI)
a. If a Longshore claim is filed
with BWC on a FROI and claims services staff have
confirmed the existence of an MIF employer policy, claims services staff shall:
i. Assign the employer’s MIF
policy number; and
ii. Reassign the claim to the
Special Claims department.
b. If not yet received, Special
Claims staff shall contact the employer and advise it to file the appropriate
DOL forms for the claim.
3. If the proper assignment
and/or processing of a claim is unclear, claims services staff or Special
Claims staff shall consult with the BWC attorney.
1. While the Longshore claim is
being investigated for compensability, Special Claims staff shall send a Notice of Controversion
of Right to Compensation (LS-207) to the DOL, with copies to the claimant
and the claimant’s representative, if applicable, and the employer and
employer’s representative, if applicable.
2. If not already received,
Special Claims staff shall contact the employer and request that an Attending Physician’s Supplementary Report
(LS-204) be provided. Special Claims staff may also request an independent
medical examination or a physician file review, as needed, for determination of
the claim.
3. Special Claims staff shall
review the claim documentation to determine if the status and situs test are
met.
a. Status Test: Was the claimant
engaged in maritime employment at the time of his or her injury (i.e., a job
related to the loading, unloading, construction or repair of a vessel);
i. In general, the following
maritime employees may file a claim for a job-related injury under the LHWCA:
a) Longshoremen;
b) Waterfront
crane operators;
c) Longshore
checkers;
d) Stevedores;
e) Terminal
workers;
f) Shipyard
employees;
g) Shipbuilders;
h) Marine
Construction workers; and
i) Vessel
repair workers.
ii. The following employees, if
covered by state workers’ compensation law, are excluded from coverage under
the LHWCA:
a) Employees
hired exclusively to perform office clerical, secretarial, security or data processing
work;
b) Employees
of a club, camp, recreational operation, restaurant, museum or retail outlet;
c) Employees
of a marina who are not engaged in construction, replacement, or expansion of
the marina (except for routine maintenance);
d) Employees
of suppliers, transporters or vendors that are temporarily doing business on
the premises of a maritime employer and are not engaged in work normally
performed by employees of that employer covered under the LHWCA;
e) Aquaculture
workers;
f) Individuals
employed to build any recreational vessel under sixty-five feet in length, or
to dismantle any part of a recreational vessel in connection with the repair of
such vessel; and
g) Small
vessel workers if exempt, by certification of the Secretary of Labor, under
certain conditions.
iii. Other employees excluded from
LHWCA coverage are:
a) Masters
or members of a crew of any vessel;
b) Individuals
engaged by a master to load or unload or repair any small vessel under eighteen
tons net; and
c) Employees
of the U.S. government or of any state or foreign government.
b. Situs Test: Did the injury
occur upon the navigable waters of the United States, including any adjoining:
i. Pier;
ii. Wharf;
iii. Dry dock;
iv. Terminal building way;
v. Marine railway; or
vi. Other adjoining area
customarily used by an employer in loading, unloading, repairing, dismantling
or building a vessel.
4. Special Claims staff shall
not allow a claim for compensation if the injury was caused solely by:
a. The intoxication of the
employee; or
b. The willful intention of the
employee to injure or kill him/herself or another.
5. If the status and situs tests
are met, Special Claims staff shall review the medical documentation in the
claim to determine if the medical documentation supports any one or more of the
following, as defined by the LHWCA:
a. Temporary total disability
(TT);
b. Permanent total disability
(PTD);
c. Temporary partial disability
(TPD);
d. Permanent partial disability
(PPD); or
e. Death benefits.
6. If the Special Claims staff
determines that the claim is compensable, Special Claims staff shall send the claimant
an “IW Introduction” letter to notify the claimant of the allowance, and as
applicable:
a. Identification of the
specific allowed conditions;
b. Information related to
medical benefits;
c. The address for submission of
medical invoices;
d. The compensation to be paid,
if applicable; and
e. Other information pertinent
to the claim.
7. If Special Claims staff
receive an Employee's Claim for
Compensation (LS-203) or other notice that the claimant is off work, the
claim shall be identified as “Lost Time” in the claims management system.
1. Special Claims staff shall
staff an allowed claim with the BWC attorney to determine the appropriate
compensation, consistent with 33 USC §902, §906, and §908-§910 (Be aware these
statutes are similar, but vary in detail, from BWC law and rules). General
provisions of those statutes include:
a. Time for commencement - No monetary compensation
shall be allowed for the first three days of the disability unless the
disability extends beyond fourteen (14) days, then the compensation shall be
allowed from the date of the disability.
b. Determination of Average
Weekly Wage-Factors
considered under §910 include whether the employee is a five or six-day worker
and whether they were employed substantially the entire year.
c. PTD and TT - Compensation is two-thirds
of the claimant’s average weekly wage, subject to a maximum amount. The maximum
rate for PTD and TT is adjusted every October 1, based on the current National
Average Weekly Wage (NAWW) for the affected period. PTD is subject to a maximum
adjustment of 5%.
d. Permanent Partial Disability- Compensation is payable for
the permanent loss or proportionate loss as a percentage associated with
certain parts or functions of the body. Compensation is payable as specified in
33 USC §908.
e. Temporary Partial and
Non-scheduled Permanent Partial Disability - Compensation is two-thirds of the employee's weekly wage
loss or loss of wage-earning capacity.
f. Permanent Partial Disability
for Retirees - If
the claimant suffers the onset of a latent occupational disease after
retirement, compensation is two-thirds of the NAWW multiplied by the percentage
of impairment resulting from the disease.
g. Maximum and Minimum Payments:
i. Compensation may not exceed
200% of the NAWW, applicable at the time of injury, or the claimant’s full
average weekly wage, whichever is less.
ii. Compensation for total
disability may not be less than 50% of the NAWW except if the average weekly
wages are less than 50% of the NAWW, then the compensation rate equals the average
weekly wage.
2. Special
Claims staff may locate the NAWW maximum and minimum rates and annual increase
percentage on the DOL DLHWC website.
3. Special
Claims staff shall request wages using the “Request for Wage Information”
letter.
4. Special Claims staff shall
not apply family support deduction orders or provisions for the Disabled Workers’ Relief Fund (DWRF) to
Longshore claims.
5. Special Claims staff shall
not recoup an overpayment in a BWC state fund claim from a Longshore claim.
6. Special Claims staff shall
ensure the first payment of compensation is made no later than fourteen (14)
days from the date the employer has been notified or has knowledge of the
injury or death.
a. Special Claims staff shall
send a Payment of Compensation Without
Award (LS-206) to the DOL, the claimant, and the claimant’s representative,
as applicable, and the employer and employer’s representative, as applicable,
on the same day the first payment is made.
b. If the first payment of
compensation is not made timely, a significant penalty will be assessed.
c. If for any reason the first
payment of compensation may be late or is already late, Special Claims staff
shall consult with the BWC attorney.
7. When the claimant ceases to
be eligible for compensation, Special Claims staff shall send a Notice of Final Payment or Suspension of
Compensation Payments (LS-208) to the DOL, the claimant, and the claimant’s
representative, as applicable, and the employer and the employer’s
representative, as applicable.
a. The LS-208 shall be sent no
later than sixteen (16) days after the date of final payment.
b. If the LS-208 is not sent to
the DOL timely, BWC is subject to a civil penalty.
c. Special
Claims staff shall consult with the BWC attorney if for any reason the LS-208
may not be sent in the required timeframe or is already beyond the required
timeframe.
1. Special
Claims staff shall receive, review and approve or disapprove all medical
invoices submitted on behalf of the claimant, in accordance with 33 USC §907.
2. In general, Special Claims
staff shall approve:
a. All medical, surgical, and
hospital treatment and other medical supplies and services required due to the
claim-related injury or occupational disease; and
b. The cost of travel and
mileage incidental to the medical treatment.
i. Travel expenses shall be paid
at the federal reimbursement rates available on the U.S. General Services
Administration (GSA) website and the DOL DLHWC website.
ii. All other processing steps
shall follow the Travel Reimbursement
policy and procedure.
c. Special claims staff shall
notify the physician of C-9 treatment approvals using the “Treatment Approval”
letter.
3. Special
Claims staff shall ensure, prior to approval, that the medical treatment is
provided by one of the following physicians within the scope of his/her
practice, as defined by Ohio law:
a. Doctor of Medicine;
b. Surgeons;
c. Podiatrists;
d. Dentists;
e. Clinical psychologist;
f. Optometrists;
g. Osteopathic practitioners;
h. Chiropractors, but only to
the extent that the treatment is for the manual manipulation of the spine to
correct a subluxation (dislocation).
4. Special Claims staff shall
authorize the treating physician initially selected by the claimant and shall
send that physician the “Ohio Marine Industry Fund Provider” letter.
a. Special Claims staff shall
not permit the claimant to change the treating physician without good cause.
b. Special Claims staff shall
consult with the BWC attorney, as needed, if the claimant makes a request to
change the treating physician.
5. Special Claims staff shall
refer a Request for Medical Service
Reimbursement or Recommendation for Additional Conditions for Industrial Injury
or Occupational Disease (C-9) or equivalent to the medical services
specialist (MSS) for review. Based upon the review by the MSS, Special Claims
staff shall:
a. Approve or deny the C-9 or
equivalent request or recommendation;
b. Fax the decision to the
medical provider’s office; and
c. Notify the claimant by letter
of the decision.
d. Significant requests for
additional conditions should be staffed with BWC attorney.
6. In addition to the provisions
of section V.F.2-3, above, Special Claims staff shall review a medical service
invoice to ensure:
a. The HCPCS, CPT, and ICD codes
are included;
b. The provider is an enrolled
and active BWC provider, and the provider number is included. If the provider
is not enrolled, Special Claims staff shall:
i. Pend approval of the medical
service invoice; and
ii. Send the provider the Application for Provider Enrollment and
Certification (MEDCO-13).
c. If the medical service
invoice is approved, Special Claims staff shall:
i. Place the date, initials and
his or her “A” number on the invoice;
ii. Indicate if the invoice is
approved or denied and if denied, the reason for the denial; and
iii. Send the invoice to BWC
Medical Billing and Adjustments (MB&A).
d. If the medical service
invoice is disapproved, MB&A will send notice and the reason for
disapproval to the provider and parties to the claim.
7. Vocational
Rehabilitation: Special Claims staff shall consult with the BWC attorney if the
claimant makes a request for vocational rehabilitation or for a Functional
Capacities Evaluation (FCE).
1. Special Claims staff and the
BWC attorney shall determine death benefits and rates in accordance with 33 USC
§902 and §909. General provisions of those statutes provide that:
a. The following survivors may
be eligible for death benefits in a Longshore claim:
i. A surviving spouse;
ii. Children of the decedent;
iii. Parents;
iv. Siblings;
v. Grandparents.
b. Reasonable funeral expenses
may be paid up to a maximum of $3000.
2. When notified of the death of
the injured worker/claimant, Special Claims staff shall identify the claim as
“Death” in the claims management system.
1. Special
Claims staff shall staff disputes in a claim (e.g., claimant’s disagreement
with a compensation rate or disapproval of a medical service invoice) with the
BWC attorney.
2. Disputes
in Longshore claims shall not be referred to the Industrial Commission or to
the Alternative Dispute Resolution (ADR) process.
3. Special
Claims staff shall refer claimant inquiries regarding appeal rights under the
LHWCA to the Office of Workers’ Compensation Programs website for national
and/or regional Longshore office phone numbers.