The LHWCA covers claims for longshoremen and shipbuilding and repair workers.
Some months ago, I reported about a slowdown in the processing of claims under the Longshore and Harbor Workers’ Compensation Act and allied statutes. The LHWCA was enacted in 1927, and through amendments over the years has been broadened to include injury and disease claims for longshoremen and shipbuilding and repair workers. Expansion of the program in 1941 resulted in the Defense Base Act, covering employees of military contractors working abroad. With our ten-year presence in Afghanistan and Iraq, a large cohort of injured workers has fallen under the DBA in recent years.
Underfunding of ALJ positions within the Department of Labor routinely results in long delays for the hearing and decision making in claims, often meaning claimants are without any coverage for years.
In another segment of its Breathless and Burdened report (subsequent to the one I recently posted about, concerning how black lung victims are routinely having their claims denied as a result of coal company-sponsored evaluations at Johns Hopkins), the Center for Public integrity has now reported on the extreme reduction of the number of administrative law judges within the US Department of Labor who hear and decide claims under the LHWCA and DBA. The center reports that the number of ALJ’s, nationwide, it has fallen to 35, from 41 earlier in 2013 and 53 a decade ago. This has occurred in the context of a 68% rise of new cases before the office of administrative law judges, and 134% increase in pending cases.
Underfunding of ALJ positions within the Department of Labor routinely results in long delays for the hearing and decision making in claims, often meaning claimants are without any coverage for years. Longshore and military contractor employers and their insurance companies, knowing that the adjudicative process in contested claims has become ridiculously long, are emboldened to sit on monies that are clearly owed to injured workers. In addition to the injustice to entitled injured workers resulting from this administrative chaos, to the extent that an injured workers medical benefits and indemnity payments are pushed to other systems, such as Medicare, Social Security, and state disability systems, the costs of the Longshore system are shifted to the federal tax payer and away from the employers and their carriers who should appropriately bear the burden.
Read about the specifics of particular cases in the Center’s report here.
Injured workers with claims under the Longshore & Harbor Workers Act and the Defense Base Act, who are awaiting hearings by federal administrative law judges (ALJs), have now had their cases seriously impacted by the Sequester. The Office of Administrative Law Judges (OALJ), with District Offices in seven cities including San Francisco, schedules hearings not only in those cities but in other venues in the District. The San Francisco office schedules hearings in San Diego, Seattle, Portland, Denver and elsewhere, and so-called Calendar Calls are scheduled in those cities by traveling ALJs.
The Sequester has caused the San Francisco office…to cancel all travel by ALJs until at least October, when a new fiscal year for OALJ may refresh its travel budget.
The Sequester has caused the San Francisco office, which covers a larger geographical territory than any other, to cancel all travel by ALJs until at least October, when a new fiscal year for OALJ may refresh its travel budget. No further Calendars in outlying cities will be scheduled until at least October. In the meantime, the parties may agree to bring their witnesses to San Francisco for hearings (or agree to a telephonic hearing – rarely a good alternative), but both sides must to agree to the alternative process. The cost of bringing the claimant and expert witnesses to San Francisco, even if jointly agreed to, makes that a mostly unrealistic option.
The cancellation of travel for ALJs makes the system even more unfair to claimants.
The likelihood is that, in claims where the insurance carrier is denying benefits, many carriers will simply choose to wait out the claimants for the many additional months delay the Sequester budget issue gives them. An terribly-burdensome delay already exists in this system, as ALJ decisions on cases typically take one to two years to issue after the trial. The cancellation of travel for ALJs makes the system even more unfair to claimants. Because of the long delay in getting to a hearing and then to a decision, a large number of cases in which hearings are requested ultimately end up settling in an alternative dispute resolution process called “mediation,” as both sides wish to arrive at settlement without the work and expense of getting ready for trial and then a long wait for a decision. A scheduled hearing is what mostly drives the parties to mediate these cases. But with six months of cancelled Calendars in non-District Office cities, claimants attorneys worry that insurance carriers will feel under far less pressure to bring these cases to the mediation table.