Longshoremen and Workers’ Comp Act — Coverage, Benefits and Compensation

Episode Notes

Transcript

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Male: Workers’ Comp Matters, the podcast dedicated to the laws, the landmark cases, and the people that that makeup the diverse world of workers’ compensation.  Here are your hosts, Jud and Alan Pearce.

Judson Pierce: Hello, and welcome to another edition of Workers’ Comp Matters.  I am your host, Jud Pierce.  My law firm is Pierce, Pierce & Napolitano in Salem, Massachusetts and today I’m pleased to have on as a guest Norman Cole.  Mr. Cole is an attorney in Portland, Oregon for the firm of Brownstein and Rask, and for almost 40 years has the experience of representing Longshore Harbor Workers’ Compensation Act cases.  It’s a federal act, and I know we talk a lot about state workers’ comp cases here in this program.  I thought it’d be a good opportunity to take in an expert in the field of Longshore Act cases and Mr. Cole certainly has many years of experience as a fellow in the College of Workers’ Compensation Attorneys and as an avid and active workers’ injury law and advocacy group member.  He’s spoken on several CLE programs, not only in Oregon, but also in California.  Norm, pleasure to have you on the program today.

Norman Cole: Thank you for inviting me.

Judson Pierce: So, as I said, you specialize in representing workers now subject to the Longshore and Harbor Workers’ Compensation Act.  Could you tell us briefly who is covered by that act?

Norman Cole: Well, the Longshore Act is a Federal Compensation Act that covers certain categories of workers injured at certain locations.  The workers who are covered are those who load unload build, repair, dismantle ships, or the people who do work that’s integral to those functions, like the person who repairs the machinery that’s needed to load something.  But they have to be injured on navigable waters of the United States or on certain designated areas like piers or stocks and certain adjoining areas that are used for those core functions.

Judson Pierce: How does this act differ from, say, State Workers’ Compensation Acts?

Norman Cole: Well, first let’s look at the common elements that this act has with just about every other workers’ compensation claim, and that is that the claimant doesn’t have to prove negligence to establish entitlement to contribute to compensation.  There’s no contributory negligence defense.  But the flip side of that is that the workers receive a sort of a defined benefit of temporary disability, permanent disability and payment of medical expenses, but not pain and suffering as you see in civil cases.  So that’s the common elements.

And then every state determines who is eligible and the extent to which the employers or carriers must pay for those common disability and medical services benefits and that differs widely from state to state.  The Longshore Act is a generous act in terms of allowing people in the door and then giving them benefits once they’re there.  There’s a very low threshold to prove compensability.  Just about any amount of contribution is sufficient.  In my state, for example, Oregon workers in a number of types of claims have to prove that their injury is the major contributing cause, the more than 50% cause of an injury, that standard doesn’t apply in Longshore claims.  It’s just about any amount of contribution.

Also, there’s a rebuttable presumption that an injury is compensable if the claimant produces evidence of harm that could have been caused by the work injury.  Another element that makes it easier to get into the door, there’s a rebuttable presumption that a worker is permanently and totally disabled if that worker can’t return to usual and customary employment after the injury.  So, you start off saying permanent total disability, and then maybe you go down from there if they can’t go back to their regular work.

The average weekly wage for the worker, which is the basis for payment of just about all types of compensation is based on earning capacity of the injury, not just the wage at the time of the injury.  And there’s a pretty generous maximum compensation level as of last October 1, 2022, it was $1,833.98 a week.  That’s the maximum that could be awarded.  It’s temporary disability in one week generally.  And then it awards permanent disabilities, either scheduled or unscheduled, scheduled the extremities, loss of hearing, loss of vision, based on a percentage of the maximum number of weeks that may be allowed for that loss.

So, say you have an injury to the arm.  If you had 100% loss of the arm, you get your compensation rate paid for 312 weeks.  If it’s 25%, then you get that compensation rate for 78 weeks.

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If you have a generous compensation rate, then you’re getting a pretty generous award for your scheduled loss.  If you have any other kind of loss, it’s called unscheduled and that’s measured by two thirds of the difference between your average weekly wage and your post injury earning capacity and that’s payable as a lifetime benefit unless there’s a change of condition or a mistake, in fact and it can be changed up or down later on.  So that can count up to quite a bit of money in six figure awards, and settlements in Longshore claims are pretty common.

The other element that is, I don’t know if it’s unique to the Longshore Act, but it’s a pretty important element is that attorneys who represent workers don’t receive a percent of the claimant’s recovery.  They get paid, if successful, with some limitations under the act, if they succeed in obtaining additional compensation for the claimant, and they get paid by the employer and carrier, not by the claimant.  That’s a big difference for the claimants.  Also, they get reimbursed for their costs if successful.

Judson Pierce: Now, can the employer restrict a claimant’s choice of attending physician?

Norman Cole: Well, the claimant has the initial right to select an attending physician.  After that, there may be some limitations on changing physicians.  But unlike some acts, like in Oregon, for example, the employer can’t require the claimant to select a physician from a group, from a managed care organization when making that first choice or even choices thereafter.  It’s only after that first choice of physician is made that the claimant must seek the approval of the employer carrier or the district director of the Office of Workers’ Compensation Programs.  That’s the sort of the Department of Labor Administrator, or sometimes an ALJ (Administrator Law Judge) to change physicians.

Judson Pierce: Why should the district director or ALJ order a change of physician?

Norman Cole: Well, if the initial choice was not of a specialist whose services were necessary or appropriate for care and treatment of the injury or the disease, then there can be a change of physician.  You wouldn’t want to have your low back injury evaluated and treated by a pediatrician, for example.  So, there are some limits there.  If the claimant has good cause to change physicians, it can be allowed.  Good cause is a pretty nebulous term in a way, it’s whatever the trial seems to think is an appropriate reason to do it.

The employer can request a change of physician when desirable or necessary in the interest of the employee, or where those charges exceed those prevailing within the community of the same or similar services or exceed the provider’s customary charges.  In other words, I think they get engaged by some provider, and it’s inappropriate for the claimant to be treating with that person.  That’s pretty rare.  That doesn’t happen very often when the employer requests a change of physician.  It’s usually the claimant who wants to get a different doctor.

Judson Pierce: Why would the claimant have good cause to change?

Norman Cole: Some reasons are pretty obvious.  Sometimes it’s the claimant saying that the initial choice was not voluntary.  They were directed by the employer to go down to the local clinic and see the doctor there, and they maybe didn’t know that they had a choice or that they could go somewhere else.  Sometimes their attending physician retires, so the physician is gone.  They got to get a new doctor somewhere.  Sometimes the claimant moves to another city, and it’s too far to commute, so they’d have to find a new doctor.  And sometimes, but not always, there can be these disagreements between the claimant and the attending physician such that the claimant just no longer has trust or wants to treat with that physician and these kinds of disputes tend to be claimants saying, “I don’t trust the doctor, I don’t like the doctor, he’s not treating me” and the employer says, “Oh, you’re just doctor shopping.  That doctor released you to go back to work.  You don’t like the news, so you want to find another doctor who will release you.”  It’s those sorts of disputes.

Judson Pierce: All right, why don’t we take a quick break for a word from our sponsors, and we’ll be right back with attorney Norman Cole.

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And we’re back with attorney Norm Cole from Portland, Oregon.  Before the break, you said sometimes an ALJ can order a change of physicians.  Why an ALJ and not the district director?

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Norman Cole: Section 7 of the statute says that the secretary, which essentially means the district director of the OWCP (Office of Workers’ Compensation Programs) has authority that includes the active supervision of medical care rendered the injured employees.  But then that act was amended in 1972 to transfer hearing authority previously held by the deputy commissioner to the administrative law judges.  Let me put that in a little context here.  In a number of jurisdictions and states, you have a state agency that has authority to regulate insurance programs like workers’ compensation and also adjudicate the claims in it.  And so, there are judges and there are administrators.  And that was kind of the situation that occurred originally when the act was allowed by the congress and then 1972, there was this transfer of certain authority to judges.  So now you have judges and you have district directors, administrators and you have judges, but the administrators still had certain authorities.  So, there was a question of who has authority to do what.  This is eventually interpreted to mean that the judges have jurisdiction when there is a question of fact, and the district director has jurisdiction when the decision is purely discretionary based on agreed facts.

So, let’s say the claimant was treating with a doctor in Boston but then moved to Portland, and these facts were uncontested.  So, the claimant wants to change physicians to another doctor in Oregon.  If that’s the only issue, then that’s something the district director could decide, because there clearly would be good cause to find a new doctor if the only reason you want a new doctor is because you moved.  But let’s say the claimant wanted a new doctor because he or she was dissatisfied with the treatment or the services provided, and the employer says the doctor’s qualified, claimants just doctor shopping, just wants to get more time loss.  Well, that would require a finding of good cause and that’s a question of fact.  And so the administrative law judge would have to resolve that dispute.

Judson Pierce: Who qualifies as an attending physician under the act?

Norman Cole: There’s an administrative rule that defines physician as including doctors of medicine, I’d say like an MD, surgeons, podiatrists, dentist, clinical psychologists, optometrist, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.  Simple enough.  It then says naturopaths, faith healers, and other practitioners of the healing arts, which are not listed, are not included within the term physician in this part.  Well, that would seem to sort of take care of the issue about who’s a physician and who’s not and who’s not within the act.  But in a 2017 decision from the Benefits Review Board, that’s the first level of appellate body, it held that an audiologist somebody with an AUD degree qualifies as an attending physician because of amendments to the act that were made in 1984.  So superseded the rule on who could be an attending physician.

Chiropractors are covered under another rule to the extent that their services are limited to manipulation of the spine to correct a subluxation shown by x-ray or clinical manipulation.  So that would mean, if you took this provision literally, that modalities like ultrasound, heat, massage are not covered under this rule and unless these modalities perhaps are necessary to make the manipulation effective, there have been several cases that have held that although those other modalities are not covered under the rule, they would be covered if they are a necessary element to make the covered manipulation effective.

Judson Pierce: So, in our state comp cases, we generally have a lot of different treatment modalities to help injured workers’ and their pain, such as acupuncture massage.  You’re saying that those wouldn’t be considered covered medicals?

Norman Cole: No.  The question was who qualifies as a physician?  So, a physician has certain authority to refer the claimant to other specialists and is looked upon as kind of a primary treater or care provider for it.  But an attending physician or a physician who is treating the claimant can refer the claimant to a physical therapist or an acupuncturist or some other specialist for treatment, and then that other person can treat under the supervision and effect of the attending physician or the qualified physician.

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Judson Pierce: What about rates for these medical providers?  Is there a governing rate body or are they akin to Medicare rates?  How do the providers get paid?

Norman Cole: The Office of Workers’ Compensation Programs publishes a sort of a fee scale.  I don’t know how to call it.  Sort of a maximum rate that can be charged based on the reasonable necessary charges in the community.  I don’t know exactly how they come up with their list of what’s available and what’s not.

There have been some cases when physicians have contested the fee that they were given and generally what happens in those disputes is that the fee they eventually are allowed to receive is the fee in the OWCP schedule is comparable generally I think to something maybe a little better than Medicare, but not as much as the doctors always want, and so they take it and there’s really relatively few fee disputes that get into litigation.

Judson Pierce: Interesting.  And so, I have to ask you the question that it’s almost on every program these days, but the covering of the cost of medical marijuana and how does the LHWCA see that?

Norman Cole: Well, it’s not covered.  There was a 2022 decision that specific from the Benefits Review Board, that specifically held that claimant was not entitled to reimbursement for the cost of medical marijuana prescribed by his physician.  He was in Puerto Rico in a state where medical marijuana was legal, and the reason is that the Controlled Substance Act still class, which is a federal act, still declassifies marijuana as a Schedule I Controlled Substance, which under federal law has no currently accepted medical use or treatment in the United States.  So, until that act is amended in some way to give marijuana some medicinal value, this is a federal act, and so therefore, there’s no coverage for it.

Judson Pierce: Well, thank you, and we’ve reached a point in program for another break for a word from our sponsors.  We will be right back with attorney Norm Cole.

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Judson Pierce: And we’re back.  Before the break, we were talking about what the LHWCA covers and does for injured workers’ wondering about the unconventional medical expenses, such as home remodeling, specially equipped care or vans to accommodate disabilities.  Can you tell us a little bit about those types of services?

Norman Cole: Yeah, they’re covered home modification, special transportation devices that are necessitated by the injury.  They’re a compensable medical service.  Well, that does not preclude, however, disputes about the extent of the service that would be provided, like, for example, what type of van should be provided.

There’s a 2019 decision, for example, where the employer paid and this is with home modifications paid $36,000 to modify the claimant’s home.  We’re typically talking about somebody who needs wheelchair access or special modifications in the bathroom, that sort of thing.  So, employer, after paying $36,000 to modify a home, is faced with a situation where the claimant has moved to a different home and now wants to modify the next home.  And there are estimates from the claimant’s experts that this would cost $124,000 to $165,00 and the employer says, “Oh, no, no, you can do all this for $44,000.”  So, it gets to a judge.  There’s a question of fact.  The judge gives more weight to the employer’s plan, but remands to the district director to determine the character and sufficiency of the employer’s plan and gives the employer a credit for the prior modifications.  On appeal, the Benefits Review Board says, “No, you don’t get credit you just have to do it.”  But it is correct for the district or director to evaluate the details within that estimated $44,000 plan.

Judson Pierce: Is the Benefits Review Board a single member, or is it a panel?

Norman Cole: It’s a panel of several appellate judges.  Three of them, I think and they hear cases based on a standard of whether there is substantial evidence to support findings of fact or errors of law.

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Generally, it takes about a year or so from the time that briefs are completed.  At least they try to do it within a year, sometimes longer, of course, to issue their decisions, and then after that, the appeal may go to the Court of Appeals and the appropriate district, and after that, rarely to the Supreme Court.

Judson Pierce: Have you had experiences in the appeals sort of ladder up to or including the Supreme Court?

Norman Cole: Never made it to the Supreme Court, but I’ve had a decent share of Court of Appeals cases.  Mostly, well, all the Ninth Circuit, because that’s my jurisdiction.

Judson Pierce: Yeah.  Do people call you from around the country knowing that you practice in this area?  Technically, you could represent someone in Portland, Maine, in addition to Portland, Oregon, right?

Norman Cole: Yes, I could represent anybody in the country in any trial level because I’m admitted to practice in a federal district court.  If I wanted to practice in a Court of Appeals, I’d have to be admitted to the specific court in that jurisdiction.  I’ve admitted in the Ninth Circuit, but I haven’t sought admission in other Courts of Appeals but could get it.  But I do have people who contact me now and then ask me to do a little appellate work or some other kind of work.  Mostly that comes from California area attorneys, because that’s a big part of the Ninth Circuit, but I answer questions on the worker injury and law group website from variety of people across the country who have questions of law, tried to make a contribution, correct or not, but still doing it.

Judson Pierce: Back to care of injured workers’, what about attendant care?  People like home health, AIDS, people help the patients in and out of wheelchairs and beds.  Is that type of attendant care covered?

Norman Cole: Yes, that’s covered too.  In fact, there was a case that went to the Ninth Circuit in 2006.  The doctor wanted the claimant to have 24 hours care, and the employer didn’t want to do that.  They didn’t want to at least spend that much and certainly didn’t want to have a wife or a spouse providing some of that care and be paid for it.  But the Ninth Circuit held that medical care can include attended and domestic services up to and including 24 hours care if there is evidence to support those services.  Now, there could be a dispute about how much to pay the attendant.  That’s a dispute that might have to be decided by a district director or an ALJ depending on the circumstances, and there are limits.  You can’t be reimbursed for the cost of hiring a gardener when the injury prevents the claimant from doing it, because I doubt that would be medical services.  But at least in my circuit, when we go back to the question of what type of service should be provided, whether it’s attendant care or any other kind of medical service, there is great deference to the treating physician.  The court, in a 1998 decision called Amos, said that when the injured employee is faced with competing medical opinions about the best way to treat a work related injury, when each choice is medically reasonable, it’s for the worker and not the employer or the judge to decide what’s best for the worker.

Judson Pierce: When there are disputes, how long will it take before a claimant gets his or her decision?  In other words, in state comp here in Massachusetts, we have a temporary conference proceeding which is designed to give a quick order of payment if the judge finds that way, and then the appeal can take another six months for hearing de novo.  Do you have a sort of temporary step where the claimant can get quicker compensation than a year or more?

Norman Cole: Unfortunately, the Longshore Act does not really provide a quick route to a formal decision, at least in my circuit.  Maybe in some other areas it may goa little bit faster, but it can take months or years to secure an order easily.  It can be difficult to determine if this is a dispute that the district director should resolve or an ALJ should resolve.  To get to an ALJ hearing, it’s a process to get to that level.  That could take a year or more just to get to a judge.  Then once you’re at the Office of Administrative Law Judges level, where you are in line to get a hearing, it may take many months just to get a hearing date and then when you get a hearing date, it’s maybe four months away from that notice, and then you have your hearing.  And then it’s not uncommon for judges to take a year or more to issue a decision.  I’m waiting three years now for a decision on one case that I had and have a number of others that are still waiting out there, and it’s been more than a year.

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Judges are, too few judges and not enough help, and they just take them as fast as they can, but it takes time.  Unfortunately, that’s the drawback of the system.

I should say that I’ve heard that cases can be decided a little bit faster in some other jurisdictions.  There are six Office of Administrative Law Judges in the country.  The one I work out of is San Francisco, but there’s Boston, Cherry Hill, Covington, Newport News and District of Columbia too, and maybe in some of those other areas it goes a little bit faster, but it’s a slow process compared to a lot of state systems which require a decision in 60 or 90 days after you get there.  That doesn’t happen in the Longshore Act.

Judson Pierce: So, is anything being done virtually, or do claimants have to travel if they live far away from their closest office?

Norman Cole: Before COVID we did everything in person unless we made a special application and demonstrated kind of a good reason to have a witness testify by video or some other method.  But when COVID came in, the Office of Administrative Law Judges started adopting methods to have a hearing virtually with video conferences and it became kind of a normal thing and at least my experience is it’s a pretty good way of doing it.  In my office, for example, we can have the claimant and our witnesses in our conference room and we can set up a large screen television to see what’s happening on the other side and we set up a camera so that the other side can see all of us in the conference room and it’s worked pretty well.

Now, with COVID coming more under control, the judges seem more willing to have in person hearings or video hearings without this extra request to justify the video hearing.  I think the judges like video hearings.  It certainly caused less expense from the Department of Labor’s point of view than sending a judge to another city and to hang out in a hotel for a week.  So, I think they’re here to stay.  It’s a good thing from my standpoint.  I still have some — I have a client, for example, who is moving to California or excuse me, moving to Idaho, and his hearing will come up sometime and instead of requiring him to come back from Idaho, we can do this hearing while he’s still there.  That’s very convenient.

Now, the Defense Base Act people have some different issues in hearings and you should find somebody who is a specialist in those kinds of claims to deal with their unique issues.  But for the typical Longshore on Harbor claims, I think video conferencing has worked very well.  It’s also worked for depositions so that we don’t have to kind of go out to the doctor’s office and sit there and take notes on some small little table as we’re asking questions.  That’s worked out well.

Judson Pierce: Well, we’re approaching the end of our program.  Just wanted to thank you very much for your time today and giving our listeners a look into the life of the LHWCA.  It’s an area that isn’t covered a whole lot and you seem to be fairly happy in it.  I mean, you started out as a district attorney way back when and now you’re doing this type of work.  Do you enjoy doing it?

Norman Cole: Oh yeah, very much. Actually.  I started off after the DA’s Deputy District Attorney period, working as a defense attorney, first for a kind of a state run provider of workers’ compensation for 25 years and then in private practice for 13 years and then after that last three and a half years or so, I’ve been representing injured workers’ instead.  I find that a little more satisfactory than the defense work which I did for so many years.  But in the course of that, I started doing Longshore work in about 1982 or so.  So that’s really all I’ve known is workers’ compensation, either under Oregon or the Longshore Act for all those years and too late to change anything else.  Unfortunately, I like it.

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Judson Pierce: That’s great.  Well, again, thank you so much, Norman for coming on and joining us on Workers’ Comp Matters, and until next time, listeners, this is Jud Pierce from Salem, Massachusetts.  Remember, make it a day that matters.  Have a good one.

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