II 

112TH CONGRESS 

1ST SESSION S. 669 

To amend the Longshore and Harbor Workers’ Compensation Act to improve 

the compensation system, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 29, 2011 

Mr. ISAKSON introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Longshore and Harbor Workers’ Compensation Act to improve the compensation system, and for 

other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; REFERENCES. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Longshore and Harbor Workers’ Compensation Act 

6 Amendments of 2011’’. 

7 (b) REFERENCES.—Except as otherwise expressly 

8 provided, whenever in this Act an amendment or repeal 

9 is expressed in terms of an amendment to, or repeal of, 

10 a section or other provision, the reference shall be considVerDate Mar 15 2010 00:41 Mar 30, 2011 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S669.IS S669

rfrederick on DSKD9S0YB1PROD with BILLS
2 

•S 669 IS

1 ered to be made to a section or other provision of the 

2 Longshore and Harbor Workers’ Compensation Act (33 

3 U.S.C. 901 et seq.). 

4 SEC. 2. INTENT OF CONGRESS; NEUTRAL INTERPRETATION. 

5 The Act (33 U.S.C. 901 et seq.) is amended by in6 serting after section 1 the following: 

7 ‘‘SEC. 1A. CONGRESSIONAL INTENT OF NEUTRAL INTER8 PRETATION. 

9 ‘‘It is the intent of Congress that— 

10 ‘‘(1) in a dispute concerning the facts in a 

11 claim brought under this Act, the facts are not to 

12 be given a broad liberal construction in favor of the 

13 employee or of the employer, and the laws pertaining 

14 to a claim brought under this Act are to be con15 strued in accordance with the basic principles of 

16 statutory construction and not liberally in favor of 

17 either the employee or employer; 

18 ‘‘(2) the system established under this Act shall 

19 be an efficient and self-executing system that is not 

20 an economic or administrative burden; and 

21 ‘‘(3) the Department of Labor and the Benefits 

22 Review Board shall administer this Act in a manner 

23 which facilitates the self-execution of the system es24 tablished under this Act and the process of ensuring 

25 a prompt and cost-effective delivery of payments.’’. 


rfrederick on DSKD9S0YB1PROD with BILLS
3 

•S 669 IS

1 SEC. 3. DEFINITIONS. 

2 Section 2 (33 U.S.C. 902) is amended— 

3 (1) in paragraph (1), by striking ‘‘association.’’ 

4 and inserting ‘‘association, but does not include the 

5 Secretary.’’; 

6 (2) in paragraph (2), by adding after the period 

7 at the end the following: ‘‘Physical or mental condi8 tions caused in part or in whole by an employer’s 

9 personnel actions shall not be considered an injury 

10 or disease compensable under this Act. Physical or 

11 mental conditions caused in part or in whole by an 

12 employer’s personnel action may only be compen13 sable under applicable State or Federal employment 

14 laws other than workers’ compensation laws.’’; 

15 (3) in paragraph (3)(A)— 

16 (A) by striking ‘‘employed exclusively to 

17 perform’’ and inserting ‘‘primarily performing’’; 

18 and 

19 (B) by inserting ‘‘on the day of the injury’’ 

20 before the semicolon at the end; 

21 (4) in paragraph (13), by inserting before the 

22 period at the end the following: ‘‘, or an incentive or 

23 1-time payment, severance pay, a settlement of an 

24 employment law claim, a bonus that is not guaran25 teed, container royalties, stock, or stock options’’; 


rfrederick on DSKD9S0YB1PROD with BILLS
4 

•S 669 IS

1 (5) in paragraph (14), by striking ‘‘(19)’’ and 

2 inserting ‘‘(18)’’; 

3 (6) by redesignating paragraphs (21) and (22) 

4 as paragraphs (26) and (27), respectively; and 

5 (7) by inserting after paragraph (20) the fol6 lowing: 

7 ‘‘(21) The term ‘participating network’ means a net8 work of physicians and other health care providers that 

9 has been designated by a carrier to provide medical serv10 ices to an employee under this Act. 

11 ‘‘(22) The term ‘health care panel’ means 3 or more 

12 physicians or other health care providers in a common geo13 graphic region who practice in the same or similar medical 

14 specialty, which panel is designated by a carrier to provide 

15 medical services to an employee under this Act. 

16 ‘‘(23) The term ‘nationally recognized evidence-based 

17 treatment standards’ means the treatment standards in 

18 the Occupational Medicine Practice Guidelines published 

19 by the American College of Occupational and Environ20 mental Medicine. Any subsequent revision of these stand21 ards by the American College of Occupational and Envi22 ronmental Medicine shall be effective with respect to all 

23 treatment decisions under this Act on the date that is 90 

24 days after the promulgation of the revision, unless the Sec25 retary determines that the revision is inconsistent with 


rfrederick on DSKD9S0YB1PROD with BILLS
5 

•S 669 IS

1 this Act’s policy of ensuring treatment pursuant to evi2 dence-based standards. 

3 ‘‘(24) The term ‘objective relevant medical findings’ 

4 means those objective findings that correlate to the subjec5 tive complaints of an injured employee and are confirmed 

6 by physical examination findings or diagnostic testing. 

7 ‘‘(25) The term ‘fraud’ means the act of knowingly, 

8 and with intent to defraud— 

9 ‘‘(A) providing material false information that 

10 could result in the obtaining or denying, in whole or 

11 in part, of compensation under this Act; or 

12 ‘‘(B) failing to provide material information 

13 that could result in the obtaining or denying, in 

14 whole or in part, of compensation under this Act. 

15 ‘‘(26) The term ‘major contributing cause’, when 

16 used with respect to an injury, means the cause consti17 tuting greater than 50 percent of the total of all causes. 

18 ‘‘(27) The term ‘standard premium’ means the prod19 uct of an employer’s payroll and the filed manual rate ap20 plicable to the employer multiplied by the employer’s cur21 rent experience modification factor, if applicable. The cal22 culation may not include any deductible credit. For poli23 cies written using retrospective rating, the standard pre24 mium must be calculated in accordance with this definition 

25 regardless of the actual retrospective premium calculation. 


rfrederick on DSKD9S0YB1PROD with BILLS
6 

•S 669 IS

1 ‘‘(28) The term ‘filed manual rate’ means the pre2 mium rate for each unit of exposure, as a function of the 

3 applicable basis of premium, for the occupational classes 

4 assigned to the employer’s business, filed pursuant to the 

5 insurance laws of the applicable jurisdiction. 

6 ‘‘(29) The term ‘experience modification factor’ 

7 means the adjustment to a policyholder’s premium rate 

8 for a specific exposure period, resulting from a rating pro9 cedure utilizing the past insurance experience of the indi10 vidual policyholder to forecast future losses by measuring 

11 the policyholder’s loss experience against the loss experi12 ence of policyholders in the same classification to produce 

13 a prospective premium credit, debit, or unity modifica14 tion.’’. 

15 SEC. 4. COVERAGE. 

16 Section 3 (33 U.S.C. 903) is amended— 

17 (1) in subsection (c), by striking ‘‘solely’’; 

18 (2) by redesignating subsection (e) as sub19 section (f); 

20 (3) by inserting after subsection (d) the fol21 lowing: 

22 ‘‘(e) COMPENSATION LIMITATION.—No compensation 

23 shall be payable to an employee for dentures, eyeglasses, 

24 a hearing aid, a prosthetic device, or an artificial limb unVerDate Mar 15 2010 00:41 Mar 30, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S669.IS S669

rfrederick on DSKD9S0YB1PROD with BILLS
7 

•S 669 IS

1 less the dentures, eyeglasses, hearing aid, prosthetic de2 vice, or artificial limb— 

3 ‘‘(1) is part of the medical treatment for a dis4 ability compensated under section 8; or 

5 ‘‘(2) was damaged as part of, or in concert 

6 with, an accident that resulted in a traumatic injury 

7 to the employee.’’; and 

8 (4) in subsection (f) (as redesignated by para9 graph (2))— 

10 (A) by inserting ‘‘this Act,’’ after ‘‘pursu11 ant to’’; 

12 (B) by striking ‘‘law or section’’ and in13 serting ‘‘law, or section’’; and 

14 (C) by inserting ‘‘)’’ after ‘‘death of sea15 men’’. 

16 SEC. 5. LIABILITY FOR COMPENSATION. 

17 Section 4 (33 U.S.C. 904) is amended to read as fol18 lows: 

19 ‘‘SEC. 4. LIABILITY FOR COMPENSATION. 

20 ‘‘(a) IN GENERAL.—Every employer shall be liable 

21 for, and shall secure the payment to the employer’s em22 ployees of, the compensation payable under sections 7, 8, 

23 and 9. 


rfrederick on DSKD9S0YB1PROD with BILLS
8 

•S 669 IS

1 ‘‘(b) PAYMENT IRRESPECTIVE OF FAULT.—Com2 pensation shall be payable irrespective of fault as a cause 

3 for the injury. 

4 ‘‘(c) PROPORTIONAL PAYMENT.— 

5 ‘‘(1) IN GENERAL.—Except as provided in sub6 section (e) and section 8(a)(13), in making com7 pensation determinations under this Act, compensa8 tion shall be reduced by an amount attributable to 

9 the percentage of— 

10 ‘‘(A) the disability rating for a prior per11 manent injury; and 

12 ‘‘(B) the anatomical physical impairment 

13 that resulted from nonoccupational factors 

14 (such as aging, prior or subsequent anatomical 

15 physical impairment, or personal habits, includ16 ing smoking and alcohol use). 

17 ‘‘(2) LIMITATION.—In no case shall compensa18 tion be calculated under this Act by deducting the 

19 dollar amount of compensation paid or payable for 

20 a prior injury described in paragraph (1). 

21 ‘‘(3) DETERMINATIONS.—A determination 

22 under this subsection shall be based upon the find23 ings of the treating physician upon a review of the 

24 available records. The treating physician designated 

25 in section 7 shall make a determination under this 


rfrederick on DSKD9S0YB1PROD with BILLS
9 

•S 669 IS

1 paragraph by finding what percentage of the em2 ployee’s disability was a result of an injury arising 

3 out of and occurring in the course of the employ4 ment involved and what percentage of such disability 

5 was the result of prior injury and other nonoccupa6 tional factors. 

7 ‘‘(d) BORROWED EMPLOYEES.— 

8 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 

9 in the case of the injury or death of an employee 

10 who is working for another employer at the direction 

11 of the employee’s primary employer, all employers of 

12 the employee at the time of the injury shall be treat13 ed as a single employer for purposes of this Act, in14 cluding with respect to the obligation to pay com15 pensation under this section and the exclusiveness of 

16 the remedy under section 5. 

17 ‘‘(2) INDEMNIFICATION AGREEMENT.—Nothing 

18 in paragraph (1) shall be construed to supercede an 

19 express contractual indemnification agreement be20 tween the borrowing and lending employer. 

21 ‘‘(e) LAST EMPLOYER DOCTRINE; INTERVENING

22 NONMARITIME EMPLOYMENT; NONCONTRIBUTING EXPO23 SURE.— 

24 ‘‘(1) LAST EMPLOYER DOCTRINE.— 


rfrederick on DSKD9S0YB1PROD with BILLS
10 

•S 669 IS

1 ‘‘(A) IN GENERAL.—Except as provided in 

2 section 8(a)(13), if more than 1 employer or 

3 employment exposure contributed to the injury 

4 or death of an employee, the last employer to 

5 have contributed to the injury or death of the 

6 employee shall be responsible for benefits under 

7 this Act. 

8 ‘‘(B) RIGHTS AND DEFENSES.—The em9 ployer responsible for the benefits under this 

10 section shall retain all rights and defenses that 

11 any employer who contributed to the injury or 

12 death would otherwise have had. The employee 

13 shall retain all burdens of production, burdens 

14 of persuasion, and presumptions that the em15 ployee would otherwise have had. 

16 ‘‘(2) INTERVENING EMPLOYMENT.—If the last 

17 employment exposure that contributed to an injury 

18 or death was the result of employment that was not 

19 covered under this Act, no benefits shall be payable 

20 under this Act for the injury or death. 

21 ‘‘(3) NONCONTRIBUTING EMPLOYMENT EXPO22 SURE.—For purposes of this Act, employment expo23 sure did not contribute to the injury or death of an 

24 employee if— 


rfrederick on DSKD9S0YB1PROD with BILLS
11 

•S 669 IS

1 ‘‘(A) the medical condition that resulted in 

2 the injury or death was diagnosed before em3 ployment commenced; or 

4 ‘‘(B) the employer did not expose the em5 ployee to conditions capable of causing or con6 tributing to the injury or death.’’. 

7 SEC. 6. EXCLUSIVENESS OF LIABILITY. 

8 Section 5 (33 U.S.C. 905) is amended— 

9 (1) in subsection (a)— 

10 (A) in the first sentence, by striking ‘‘or in 

11 admiralty’’ each place the term occurs and in12 serting ‘‘in admiralty, or otherwise,’’; and 

13 (B) by striking the third sentence; and 

14 (2) by adding at the end the following: 

15 ‘‘(d) PREEMPTION.— 

16 ‘‘(1) STATE LAW PREEMPTION.—Any State law 

17 that provides additional or alternative remedies for 

18 an injured employee, the employee’s legal represent19 ative, husband or wife, parents, dependents, or next 

20 of kin, or anyone otherwise entitled to recover from 

21 such employer on account of such injury or death 

22 against the employer, at law or in admiralty, or oth23 erwise, is expressly preempted when the carrier— 

24 ‘‘(A) has voluntarily paid compensation 

25 under this Act; 


rfrederick on DSKD9S0YB1PROD with BILLS
12 

•S 669 IS

1 ‘‘(B) has settled a claim for compensation 

2 under this Act; 

3 ‘‘(C) is contesting a claim for compensa4 tion under this Act; 

5 ‘‘(D) is appealing an order under this Act; 

6 ‘‘(E) is subject to an order under this Act; 

7 or 

8 ‘‘(F) has notified the Secretary that a 

9 claim for compensation should have been 

10 brought under this Act. 

11 ‘‘(2) STATE JURISDICTION PREEMPTION.—Any 

12 State proceeding (including a judicial or administra13 tive proceeding) involving the claims of an injured 

14 employee, the employee’s legal representative, hus15 band or wife, parents, dependents, or next of kin, or 

16 anyone otherwise entitled to recover damages from 

17 such employer at law or in admiralty, or otherwise, 

18 on account of such injury or death, shall be pre19 empted when the carrier has taken an action de20 scribed in subparagraphs (A) through (F) of para21 graph (1). 

22 ‘‘(3) ADMINISTRATIVE STAY.— 

23 ‘‘(A) PROCESS FOR STAY.—In order to ef24 fectuate this subsection and protect the admi25 ralty and maritime jurisdiction of the Federal 


rfrederick on DSKD9S0YB1PROD with BILLS
13 

•S 669 IS

1 Government, an employer who is party to a 

2 State proceeding may notify the Secretary of 

3 the proceeding and any reason why this sub4 section preempts the State proceeding. Within 

5 10 days after receiving the notification, the Sec6 retary shall issue an administrative stay order 

7 to the State that shall remain in effect until a 

8 final determination has been made by the Sec9 retary that this subsection does not preempt the 

10 State proceeding. 

11 ‘‘(B) INJUNCTION.—If a State does not 

12 comply with a stay order issued by the Sec13 retary under subparagraph (A), within 10 days 

14 after the State’s refusal to comply, the Sec15 retary shall seek, in a Federal district court, an 

16 injunction against further State proceedings re17 garding the claim that may be preempted by 

18 this subsection. 

19 ‘‘(C) TIMELY RESPONSE.—If the Secretary 

20 does not fulfill the Secretary’s obligations under 

21 this paragraph in a timely manner, the em22 ployer may seek an order in a Federal district 

23 court compelling the Secretary to so act. 

24 ‘‘(e) GOVERNMENT RESPONSIBILITY.—The exclusive 

25 remedy for any person injured, in whole or in part, by 


rfrederick on DSKD9S0YB1PROD with BILLS
14 

•S 669 IS

1 exposure to ionizing or nonionizing radiation from equip2 ment required to be used by Federal law or regulation or 

3 owned by a Federal Government entity shall be found 

4 under chapter 171 of title 28, United States Code (com5 monly known as the ‘Federal Tort Claims Act’), and this 

6 Act shall not apply to any injury or death resulting from 

7 such exposure.’’. 

8 SEC. 7. MEDICAL SERVICES AND SUPPLIES. 

9 Section 7 (33 U.S.C. 907) is amended— 

10 (1) in subsection (a)— 

11 (A) by striking ‘‘(a)’’ and inserting 

12 ‘‘(a)(1)’’; 

13 (B) by striking ‘‘furnish such’’ and insert14 ing ‘‘furnish medical services and supplies, in15 cluding’’; and 

16 (C) by adding at the end the following: 

17 ‘‘(2) Notwithstanding any other provision of this Act, 

18 in the case where nationally recognized evidence-based 

19 treatment standards apply to the employee’s medical con20 dition, the medical treatment shall include only the care 

21 provided pursuant to such treatment standards.’’; 

22 (2) by striking subsection (i); 

23 (3) by redesignating subsections (c) through 

24 (e), (f) through (h), (j), and (k), as subsections (d) 


rfrederick on DSKD9S0YB1PROD with BILLS
15 

•S 669 IS

1 through (f), (h) through (j), (k), and (l), respec2 tively; 

3 (4) by striking subsection (b) and inserting the 

4 following: 

5 ‘‘(b) PHYSICIAN SELECTION.— 

6 ‘‘(1) CARRIER USING PARTICIPATING NET7 WORKS OR HEALTH CARE PANELS.— 

8 ‘‘(A) IN GENERAL.—A carrier may des9 ignate 1 or more participating networks or 1 or 

10 more health care panels, or both, for purposes 

11 of providing medical services to employees 

12 under this Act. An injured employee served by 

13 a carrier that has designated an approved par14 ticipating network under subparagraph (C) or a 

15 health care panel under subparagraph (D) shall 

16 not be entitled to recover any amount expended 

17 by the employee for medical services and sup18 plies unless the employee has secured such med19 ical services and supplies through a physician or 

20 other health care provider that is a participant 

21 in such network or panel, respectively. 

22 ‘‘(B) GEOGRAPHIC EXCEPTION.—Subpara23 graph (A) shall not apply if the injured em24 ployee can demonstrate that the carrier’s par25 ticipating network or health care panel does not 


rfrederick on DSKD9S0YB1PROD with BILLS
16 

•S 669 IS

1 include a physician capable of treating the em2 ployee within 100 miles of the employee’s resi3 dence. 

4 ‘‘(C) PARTICIPATING NETWORKS.— 

5 ‘‘(i) IN GENERAL.—The Secretary 

6 shall establish a process for approving par7 ticipating networks, in accordance with 

8 clause (ii), that shall include an automatic 

9 approval for a participating network that 

10 has been authorized by a State workers’ 

11 compensation program. 

12 ‘‘(ii) QUALIFICATIONS.—In order to 

13 be approved under clause (i), a partici14 pating network shall establish an internal 

15 review process to address any disputes 

16 with respect to the provision of medical 

17 care or treatment to an employee. Such 

18 process shall conform to the utilization re19 view standards for workers’ compensation 

20 described in subsection (m). 

21 ‘‘(D) DESIGNATION OF HEALTH CARE PAN22 ELS.—To designate a health care panel for pur23 poses of this subsection, a carrier shall submit 

24 the names of the health care panel participants 

25 to the Secretary. 


rfrederick on DSKD9S0YB1PROD with BILLS
17 

•S 669 IS

1 ‘‘(2) CARRIER NOT USING PANELS OR NET2 WORKS.—If a carrier has not provided medical serv3 ices or supplies in accordance with paragraph (1), 

4 the employee shall have the right to choose an at5 tending physician authorized by the Secretary to 

6 provide medical care under this Act as hereinafter 

7 provided. If, due to the nature of the injury, the em8 ployee is unable to select a physician and the nature 

9 of the injury requires immediate medical treatment 

10 and care, the employer shall select a physician for 

11 the employee. 

12 ‘‘(c) SUPERVISION AND CHANGE OF PHYSICIANS.— 

13 The Secretary, consistent with the nationally recognized 

14 evidence-based standards provided for under subsection 

15 (a)(2)— 

16 ‘‘(1) shall actively supervise the medical care 

17 rendered to injured employees; 

18 ‘‘(2) shall require periodic reports as to the 

19 medical care being rendered to injured employees; 

20 ‘‘(3) shall have authority to determine the ne21 cessity, character, and sufficiency of any medical aid 

22 furnished or to be furnished; 

23 ‘‘(4) may, on the Secretary’s own initiative or 

24 at the request of the employer, order a change of 

25 physicians or hospitals when, in the Secretary’s 


rfrederick on DSKD9S0YB1PROD with BILLS
18 

•S 669 IS

1 judgment, such change is desirable or necessary in 

2 the interest of the employee or where the charges ex3 ceed those prevailing within the community for the 

4 same or similar services or exceed the provider’s cus5 tomary charges; and 

6 ‘‘(5) shall permit, in accordance with regula7 tions promulgated by the Secretary, the change of 

8 physicians at the request of an employee (except 

9 that such change may be approved not more fre10 quently than twice annually unless otherwise author11 ized by the carrier).’’; 

12 (5) in subsection (d) (as redesignated by para13 graph (3))— 

14 (A) in paragraph (1)(B), by striking ‘‘(j)’’ 

15 and inserting ‘‘(k)’’; and 

16 (B) in paragraph (2), by striking ‘‘by an 

17 employee’’; 

18 (6) in subsection (e)(4) (as redesignated by 

19 paragraph (3))— 

20 (A) by striking ‘‘employer’’ and inserting 

21 ‘‘employer or designated by the Secretary’’; and 

22 (B) by striking ‘‘may’’ and inserting 

23 ‘‘shall’’; 

24 (7) in subsection (f) (as redesignated by para25 graph (3)), by striking the third sentence; 


rfrederick on DSKD9S0YB1PROD with BILLS
19 

•S 669 IS

1 (8) by inserting after subsection (f) (as redesig2 nated by paragraph (3)) the following: 

3 ‘‘(g) USE OF MEDICAL RECORDS.—When there is the 

4 need for any review, hearing, investigation, or other pro5 ceeding authorized or directed under this section relating 

6 to medical care or treatment, the finder of fact shall rely 

7 on the medical record and the findings of qualified medical 

8 professionals that are based on the medical record.’’; and 

9 (9) by adding at the end the following: 

10 ‘‘(m) APPLICABILITY OF UTILIZATION REVIEW

11 STANDARDS.—Notwithstanding any other provision of 

12 this Act, any utilization review, whether within a partici13 pating network, health care panel, or otherwise, carried 

14 out under this Act shall be conducted pursuant to the uti15 lization review standards applicable to workers’ compensa16 tion promulgated by URAC, as such standards were in 

17 effect on the date of enactment of the Longshore and Har18 bor Workers’ Compensation Act Amendments of 2011. 

19 Any subsequent revision of the standards shall be effec20 tive, with respect to all utilization review determinations 

21 under this Act, on the date that is 90 days after the pro22 mulgation of the revised standards, unless the Secretary 

23 determines that the revised standards are inconsistent 

24 with this Act’s policy of ensuring utilization review in ac25 cordance with nationally recognized standards.’’. 


rfrederick on DSKD9S0YB1PROD with BILLS
20 

•S 669 IS

1 SEC. 8. COMPENSATION FOR DISABILITY. 

2 (a) COMPENSATION FOR DISABILITY.—Section 8 (33 

3 U.S.C. 908) is amended— 

(1) in subsection (a), by striking ‘‘662 4 ⁄3 per cen5 tum of the average weekly wages’’ and inserting ‘‘75 

6 percent of the spendable earnings’’; 

(2) in subsection (b), by striking ‘‘662 7 ⁄3 per cen8 tum of the average weekly wages’’ and inserting ‘‘75 

9 percent of the spendable earnings’’; 

10 (3) in subsection (c)— 

11 (A) in the matter preceding paragraph (1), 

by striking ‘‘662 12 ⁄3 per centum of the average 

13 weekly wages’’ and inserting ‘‘75 percent of the 

14 spendable earnings’’; 

15 (B) by striking paragraph (13) and insert16 ing the following: 

17 ‘‘(13) LOSS OF HEARING.— 

18 ‘‘(A) COMPENSATION.— 

19 ‘‘(i) TOTAL LOSS OF HEARING.— 

20 ‘‘(I) ONE EAR.—The compensa21 tion for total loss of hearing in 1 ear 

22 shall be 52 weeks. 

23 ‘‘(II) BOTH EARS.—The com24 pensation for total loss of hearing in 

25 both ears shall be 200 weeks. 


rfrederick on DSKD9S0YB1PROD with BILLS
21 

•S 669 IS

1 ‘‘(ii) PARTIAL LOSS OF HEARING.— 

2 For the partial loss of hearing in 1 or both 

3 ears, compensation shall be paid for a pe4 riod proportionate to the degree of the 

5 loss, in accordance with clause (i). 

6 ‘‘(B) MEASUREMENT.— 

7 ‘‘(i) EMPLOYMENT-RELATED LOSS.— 

8 The employer shall pay compensation only 

9 for any hearing loss caused by an injury 

10 arising out of and in the course of employ11 ment with such employer, and shall not be 

12 liable for that part of the employee’s hear13 ing loss caused by presbycusis, nonoccupa14 tional causes, and documented preemploy15 ment hearing loss. The percentage of loss 

16 caused by those conditions shall be de17 ducted from the percentage of the employ18 ee’s hearing loss before determining the 

19 employer’s liability. 

20 ‘‘(ii) DETERMINATION OF LOSS.—Ex21 cept as provided in clause (iii), determina22 tions of loss of hearing shall be made in 

23 accordance with the guides for the evalua24 tion of permanent impairment, as promulVerDate Mar 15 2010 00:41 Mar 30, 2011 Jkt 099200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S669.IS S669

rfrederick on DSKD9S0YB1PROD with BILLS
22 

•S 669 IS

1 gated and modified from time to time by 

2 the American Medical Association. 

3 ‘‘(iii) MEASUREMENT.—The measure4 ment of presbycusis shall be in accordance 

5 with the methodology adopted in section 

6 1910.95 of title 29, Code of Federal Regu7 lations, appendix F, applied to the applica8 ble decibel levels for hearing loss deter9 minations as provided in clause (ii). 

10 ‘‘(iv) AUDIOGRAM STANDARDS.—In 

11 determining the amount of hearing loss for 

12 purposes of this paragraph, an audiogram 

13 that is administered by a licensed or cer14 tified technician, an audiologist who is cer15 tified, or a physician who is certified in 

16 otolaryngology, and is interpreted by an 

17 audiologist who is certified or a physician 

18 who is certified in otolaryngology, shall 

19 prevail over an audiogram that is not per20 formed in accordance with these criteria.’’; 

21 (C) by striking paragraph (21) and insert22 ing the following: 

23 ‘‘(21) In all other cases in the class of dis24 ability, the compensation shall be 75 percent of the 

25 difference between the injured employee’s spendable 


rfrederick on DSKD9S0YB1PROD with BILLS
23 

•S 669 IS

1 earnings before the injury and the amount of spend2 able earnings the employee is able to earn after the 

3 injury in the same or another employment, payable 

4 during the continuance of partial disability.’’; and 

5 (D) in paragraph (23)— 

(i) by striking ‘‘662 6 ⁄3 per centum’’ and 

7 inserting ‘‘75 percent’’; and 

8 (ii) by striking ‘‘average weekly 

9 wages’’ each place the term occurs and in10 serting ‘‘spendable earnings’’; 

11 (4) by striking subsection (e) and inserting the 

12 following: 

13 ‘‘(e) TEMPORARY PARTIAL DISABILITY.—In the case 

14 of temporary partial disability resulting in decrease of 

15 earning capacity, the compensation shall be 75 percent of 

16 the difference between the injured employee’s spendable 

17 earnings before the injury and the amount of spendable 

18 earnings the employee is able to earn after the injury in 

19 the same or another employment, to be paid during the 

20 continuance of such disability, but shall not be paid for 

21 a period exceeding 5 years.’’; 

22 (5) in subsection (f), by adding at the end the 

23 following: 

24 ‘‘(4) LIMITATION.—After the date of enactment of 

25 the Longshore and Harbor Workers’ Compensation Act 


rfrederick on DSKD9S0YB1PROD with BILLS
24 

•S 669 IS

1 Amendments of 2011, no order for relief under this sub2 section shall be entered except— 

3 ‘‘(A) an order for modification of benefits for 

4 which an order has been entered prior to such date 

5 of enactment; or 

6 ‘‘(B) an order for relief, in respect of a survivor 

7 of an employee, being paid from the special fund at 

8 the date of death.’’; 

9 (6) in subsection (j)(1), by striking ‘‘a disabled 

10 employee’’ and inserting ‘‘an employee’’; and 

11 (7) by adding at the end the following: 

12 ‘‘(k) MULTIPLE-INJURY MAXIMUM.—Notwith13 standing any other provision of this Act, when an em14 ployee qualifies for compensation for disability caused by 

15 2 or more injuries, in no case shall the amount of com16 pensation payable for all such injuries when combined ex17 ceed the lesser of— 

18 ‘‘(1) 75 percent of spendable earnings at the 

19 time of the last injury; or 

20 ‘‘(2) the maximum rate of compensation, as de21 termined under section 6(b), at the time of the last 

22 injury.’’. 

23 (b) NONAPPLICABILITY UNTIL PUBLICATION OF

24 TABLE.—Not later than 90 days after the date of enact25 ment of this Act, the Secretary of Labor shall promulgate 


rfrederick on DSKD9S0YB1PROD with BILLS
25 

•S 669 IS

1 regulations and publish a table of compensation imple2 menting the amendments made by this section. A carrier 

3 shall not be required to adjust payments made by the car4 rier under the Longshore and Harbor Workers’ Com5 pensation Act to comply with the amendments made by 

6 this section until such table is published. 

7 SEC. 9. COMPENSATION FOR DEATH. 

8 (a) COMPENSATION FOR DEATH.—Section 9 (33 

9 U.S.C. 909) is amended— 

10 (1) in subsection (a), by striking ‘‘$3,000’’ and 

11 inserting ‘‘$7,500’’; 

12 (2) by redesignating subsections (e) through (g) 

13 as subsections (f) through (h), respectively; 

14 (3) by striking subsections (b) through (d) and 

15 inserting the following: 

16 ‘‘(b) WIDOW OR WIDOWER WITHOUT CHILDREN.— 

17 If there be a widow or widower and no surviving child of 

18 the deceased, the widow or widower shall receive 75 per19 cent of the spendable earnings of the deceased during wid20 owhood or widowerhood, except that upon remarriage of 

21 the widow or widower, the widow or widower shall receive 

22 2 years’ worth of such payments in a lump sum. 

23 ‘‘(c) WIDOW OR WIDOWER WITH CHILDREN.—If 

24 there be a widow or widower and 1 or more surviving chil25 dren of the deceased— 


rfrederick on DSKD9S0YB1PROD with BILLS
26 

•S 669 IS

1 ‘‘(1) the widow or widower shall receive 50 per2 cent of the spendable earnings of the deceased dur3 ing widowhood or widowerhood, except that upon re4 marriage of the widow or widower, the widow or wid5 ower shall receive 2 years’ worth of such payments 

6 in a lump sum; and 

7 ‘‘(2) each child of the deceased shall receive a 

8 pro rata share of 25 percent of the spendable earn9 ings of the deceased. 

10 ‘‘(d) SURVIVING CHILDREN.—If there be 1 or more 

11 surviving children of the deceased, but no widow or wid12 ower, then each child shall receive a pro rata share of 75 

13 percent of the spendable earnings of the deceased. 

14 ‘‘(e) NO WIDOW, WIDOWER, OR SURVIVING CHILD.— 

15 If there be no widow or widower or surviving child, then 

16 for the support of grandchildren, brothers and sisters, par17 ents, and grandparents, if dependent upon the deceased 

18 at the time of the injury, and any other persons who sat19 isfy the definition of the term ‘dependent’ in section 152 

20 of the Internal Revenue Code of 1986, but are not other21 wise eligible under this section, 25 percent of spendable 

22 earnings for the support of each such person during such 

23 dependency, but in no case shall the aggregate amount 

24 payable under this subsection exceed 75 percent of the 

25 spendable earnings of the deceased.’’; and 


rfrederick on DSKD9S0YB1PROD with BILLS
27 

•S 669 IS

1 (4) by adding at the end the following: 

2 ‘‘(i) APPOINTMENT OF GUARDIAN.—The deputy com3 missioner having jurisdiction over a claim for compensa4 tion under this section shall have discretion to require the 

5 appointment of a guardian for the purpose of receiving 

6 the compensation of a minor child. In the absence of such 

7 a requirement, the appointment of a guardian for such 

8 purpose shall not be necessary.’’. 

9 (b) NONAPPLICABILITY UNTIL PUBLICATION OF

10 TABLE.—Not later than 90 days after the date of enact11 ment of this Act, the Secretary of Labor shall promulgate 

12 regulations and publish a table of compensation imple13 menting the amendments made by this section. A carrier 

14 shall not be required to adjust payments made under the 

15 Longshore and Harbor Workers’ Compensation Act to 

16 comply with the amendments made by this section until 

17 such table is published. 

18 SEC. 10. DETERMINATION OF PAY. 

19 (a) DETERMINATION OF PAY.—Section 10 (33 

20 U.S.C. 910) is amended— 

21 (1) in the matter preceding subsection (a)— 

22 (A) by striking ‘‘average weekly wage’’ and 

23 inserting ‘‘spendable earnings’’; and 

24 (B) by inserting ‘‘as provided in sections 8 

25 and 9’’ after ‘‘compensation’’; 


rfrederick on DSKD9S0YB1PROD with BILLS
28 

•S 669 IS

1 (2) by striking subsections (a) through (e) and 

2 inserting the following: 

3 ‘‘(a) AVERAGE WEEKLY WAGE CALCULATION.— 

4 ‘‘(1) IN GENERAL.—If the injured employee was 

5 available to work, as determined under paragraph 

6 (3), in 40 of the 52 weeks immediately preceding the 

7 injury, or if the employee was employed in a sea8 sonal position when the injury occurred, the average 

9 weekly wage shall be calculated by dividing the ac10 tual earnings of the employee for the previous 52 

11 weeks by 52. 

12 ‘‘(2) RULE FOR CERTAIN INDIVIDUALS.—If the 

13 injured employee was available for work, as deter14 mined under paragraph (3), in less than 40 of the 

15 52 weeks immediately preceding the injury, the aver16 age weekly wage shall be based on the average week17 ly wage of other employees in the same classifica18 tion, who worked in the same job, with the same se19 niority, and at the same location for the 52 weeks 

20 immediately preceding the injury. 

21 ‘‘(3) AVAILABILITY TO WORK.—An injured em22 ployee shall be considered available to work in a 

23 week if the injured employee— 

24 ‘‘(A) actually worked not less than 1 day 

25 during the week; 


rfrederick on DSKD9S0YB1PROD with BILLS
29 

•S 669 IS

1 ‘‘(B) voluntarily withdrew from the work2 force for the week; 

3 ‘‘(C) was not offered work during a week 

4 for reasons of seniority; or 

5 ‘‘(D) was unable to work during a week for 

6 any reason other than a work-related injury. 

7 ‘‘(4) SPECIAL METHOD OF CALCULATION.—If 

8 either of the methods of arriving at the average 

9 weekly wages of the injured employee described in 

10 paragraphs (1) and (2) cannot reasonably and fairly 

11 be applied, the average weekly wages shall be such 

12 sum as, having regard to the previous earnings of 

13 the injured employee in the employment in which the 

14 employee was working at the time of the injury, and 

15 of other employees of the same or most similar class 

16 working in the same or most similar employment in 

17 the same or neighboring locality, or other employ18 ment of such employee, including the reasonable 

19 value of the services of the employee if engaged in 

20 self-employment, shall reasonably represent the an21 nual earning capacity of the injured employee, di22 vided by 52. 

23 ‘‘(5) MINOR EMPLOYEES.—If it is established 

24 that the injured employee was a minor when injured, 

25 and that under normal conditions the employee’s 


rfrederick on DSKD9S0YB1PROD with BILLS
30 

•S 669 IS

1 wages should be expected to increase during the pe2 riod of disability, the fact may be considered in ar3 riving at the employee’s average weekly wages. 

4 ‘‘(b) RETIRED EMPLOYEES.— 

5 ‘‘(1) EMPLOYEES INJURED WITHIN THE FIRST

6 YEAR OF RETIREMENT.—With respect to any claim 

7 based on a death or disability due to an occupational 

8 disease for which the time of injury (as determined 

9 under subsection (g)) occurs within the first year 

10 after the employee has retired, the average weekly 

11 wage shall be calculated in accordance with sub12 section (a). 

13 ‘‘(2) EMPLOYEES INJURED AFTER THE FIRST

14 YEAR OF RETIREMENT.—With respect to any claim 

15 based on a death or disability due to an occupational 

16 disease for which the time of injury (as determined 

17 under subsection (g)) occurs more than 1 year after 

18 the employee has retired, the average weekly wage 

19 shall be deemed to be the national average weekly 

20 wage (as determined by the Secretary pursuant to 

21 section 6(b)) applicable at the time of the injury. 

22 ‘‘(c) SPENDABLE EARNINGS.— 

23 ‘‘(1) METHOD OF CALCULATION.—The spend24 able earnings of an employee shall be the average 

25 weekly wage, as calculated under subsection (a), reVerDate Mar 15 2010 00:41 Mar 30, 2011 Jkt 099200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\S669.IS S669

rfrederick on DSKD9S0YB1PROD with BILLS
31 

•S 669 IS

1 duced by subtracting the Federal, State, and local 

2 taxes that would have been withheld based on stand3 ard deductions and on the domicile of the employee 

4 at the time of the injury, and reduced by subtracting 

5 the tax that would have been withheld under section 

6 3101 of the Internal Revenue Code of 1986. 

7 ‘‘(2) ANNUAL TABLE.—The Secretary shall an8 nually publish a table for calculating spendable earn9 ings under this subsection.’’; and 

10 (3) by redesignating subsections (f) through (i) 

11 as subsections (d) through (g), respectively. 

12 (b) NONAPPLICABILITY UNTIL PUBLICATION OF

13 TABLE.—Not later than 90 days after the date of enact14 ment of this Act, the Secretary of Labor shall promulgate 

15 regulations and publish a table of average weekly wages, 

16 and the associated amount of spendable earnings, imple17 menting the amendments made by this section. A carrier 

18 shall not be required to adjust payments made under the 

19 Longshore and Harbor Workers’ Compensation Act to 

20 comply with the amendments made by this section until 

21 such table is published. 

22 SEC. 11. NOTICE OF INJURY OR DEATH. 

23 Section 12 (33 U.S.C. 912) is amended— 

24 (1) by striking subsection (a) and inserting the 

25 following: 


rfrederick on DSKD9S0YB1PROD with BILLS
32 

•S 669 IS

1 ‘‘(a) TIMING AND RECIPIENTS OF NOTICE.— 

2 ‘‘(1) TRAUMATIC INJURY OR DEATH.—Notice of 

3 a traumatic injury or death in respect of which com4 pensation is payable under this Act shall be given 

5 not later than 30 days after the date of the trauma, 

6 or 30 days after the employee or beneficiary is aware 

7 that the trauma resulted in injury or death (or in 

8 the exercise of reasonable diligence or by reason of 

9 medical advice should have been aware) of a rela10 tionship among the trauma, the injury or death, and 

11 the employment, but in no case shall the notice be 

12 given more than 1 year after the trauma occurs. 

13 ‘‘(2) NON-TRAUMATIC INJURY OR DEATH RE14 SULTING FROM INJURY.—Except as provided in 

15 paragraph (3), in the case of a non-traumatic injury 

16 that does not immediately result in a disability or 

17 death, and in the case of death from a non-trau18 matic injury, such notice shall be given not later 

19 than 1 year after the employee or claimant becomes 

20 aware (or in the exercise of reasonable diligence or 

21 by reason of medical advice should have been aware) 

22 of the relationship between the non-traumatic injury 

23 or death and employment, provided that in no case 

24 shall the notice be given more than 1 year after the 


rfrederick on DSKD9S0YB1PROD with BILLS
33 

•S 669 IS

1 diagnosis of a non-traumatic injury or a death re2 sulting from such injury. 

3 ‘‘(3) HEARING LOSS.—Notice of hearing loss 

4 shall be given not later than the date specified in 

5 paragraph (2) or 1 year after the last date of em6 ployment, whichever occurs first. 

7 ‘‘(4) INDIVIDUALS RECEIVING NOTICE.—Notice 

8 under this subsection shall be given— 

9 ‘‘(A) to the deputy commissioner in the 

10 compensation district in which the injury or 

11 death occurred; and 

12 ‘‘(B) to the employer.’’; 

13 (2) in subsection (b), by adding at the end the 

14 following: ‘‘In order to facilitate prompt settlement 

15 of cases, notice of an injury shall also include an op16 portunity for the employer to have the employee an17 swer questions under oath, so that the employer may 

18 determine if and how much compensation should be 

19 paid. The opportunity for questioning shall occur at 

20 a reasonable time and place that provides the em21 ployee with sufficient opportunity to obtain legal 

22 counsel before such questioning, should the employee 

23 so choose. Failure by an employee to be available for 

24 such questioning (unless waived by the employer in 

25 writing), or failure to fully and truthfully answer 


rfrederick on DSKD9S0YB1PROD with BILLS
34 

•S 669 IS

1 material questions, shall be considered a failure to 

2 give notice under this Act.’’; and 

3 (3) by striking subsection (d) and inserting the 

4 following: 

5 ‘‘(d) FAILURE TO GIVE NOTICE.—Failure to give 

6 timely notice in accordance with this section shall not bar 

7 any claim for compensation under this Act if— 

8 ‘‘(1)(A) the employer (or the employer’s agent 

9 or other responsible official designated by the em10 ployer pursuant to subsection (c)) or the carrier had 

11 knowledge of the injury or death; 

12 ‘‘(B) the deputy commissioner determines that 

13 the employer or carrier has not been prejudiced by 

14 failure to give such notice; or 

15 ‘‘(C) the deputy commissioner excuses such fail16 ure on the ground that— 

17 ‘‘(i) notice, while not given to a responsible 

18 official designated by the employer pursuant to 

19 subsection (c), was given to an official of the 

20 employer or the employer’s insurance carrier, 

21 and the employer or carrier was not prejudiced 

22 due to the failure to provide notice to a respon23 sible official designated by the employer pursu24 ant to subsection (c); or 


rfrederick on DSKD9S0YB1PROD with BILLS
35 

•S 669 IS

1 ‘‘(ii) for some satisfactory reason such no2 tice could not be given; 

3 ‘‘(2) objection to such failure is raised before 

4 the deputy commissioner at the first hearing of a 

5 claim for compensation in respect of such injury or 

6 death; and 

7 ‘‘(3) notice that meets the requirements of this 

8 section is given not more than 1 year after the in9 jury or death.’’. 

10 SEC. 12. FILING OF CLAIMS. 

11 Section 13 (33 U.S.C. 913) is amended— 

12 (1) by striking subsection (a) and inserting the 

13 following: 

14 ‘‘(a) TIME TO FILE.—The right to compensation for 

15 disability or death under this Act shall be barred unless 

16 a claim therefore is filed not later than 90 days after pro17 viding notice under section 12. If payment of compensa18 tion has been made without an award on account of such 

19 injury or death, a claim may be filed not later than 90 

20 days after the date of the last payment. Such claim shall 

21 be filed with the deputy commissioner in the compensation 

22 district in which such injury or death occurred.’’; 

23 (2) by striking subsection (b); 

24 (3) by redesignating subsections (c) and (d) as 

25 subsections (b) and (c), respectively; and 


rfrederick on DSKD9S0YB1PROD with BILLS
36 

•S 669 IS

1 (4) in subsection (c) (as redesignated by para2 graph (3)), by inserting ‘‘, provided that such suit 

3 was filed in accordance with subsection (a)’’ before 

4 the period at the end. 

5 SEC. 13. PAYMENT OF COMPENSATION. 

6 Section 14(f) (33 U.S.C. 914(f)) is amended— 

7 (1) by striking ‘‘within ten days after it be8 comes due’’ and inserting ‘‘within 10 business days 

9 after receipt by the employer or carrier of a priority 

10 mailing containing the order’’; and 

11 (2) by adding at the end the following: ‘‘For 

12 purposes of this section, the date on which com13 pensation is paid shall be the earlier of the date on 

14 which the employer or carrier actually delivers the 

15 compensation to the employee (or the representative 

16 designated by the employee) or the postmark date on 

17 which the compensation was mailed to such em18 ployee (or representative).’’. 

19 SEC. 14. ASSIGNMENT AND EXEMPTION FROM CLAIMS OF 

20 CREDITORS. 

21 Section 16 (33 U.S.C. 916) is amended— 

22 (1) by striking ‘‘No assignment’’ and inserting 

23 the following: 

24 ‘‘(a) IN GENERAL.—Except as provided in subsection 

25 (b), no assignment’’; and 


rfrederick on DSKD9S0YB1PROD with BILLS
37 

•S 669 IS

1 (2) by adding at the end the following: 

2 ‘‘(b) LIMITATION.—Benefits due or payable under 

3 this Act shall be subject to withholding and any other legal 

4 process in the same form and manner, and to the same 

5 extent, as withholding and other legal processes apply 

6 under section 206 of the Employment Retirement Income 

7 Security Act of 1974 (29 U.S.C. 1056).’’. 

8 SEC. 15. PRESUMPTIONS, BURDENS, AND RULES OF EVI9 DENCE. 

10 Section 20 (33 U.S.C. 920) is amended to read as 

11 follows: 

12 ‘‘SEC. 20. PRESUMPTIONS, BURDENS, AND RULES OF EVI13 DENCE. 

14 ‘‘(a) PRESUMPTIONS.— 

15 ‘‘(1) REBUTTABLE PRESUMPTIONS.—In any 

16 proceeding for the enforcement of a claim for com17 pensation under this Act, it shall be a rebuttable 

18 presumption— 

19 ‘‘(A) that the claim comes within the provi20 sions of this Act; 

21 ‘‘(B) that sufficient notice of such claim 

22 has been given; 

23 ‘‘(C) that the injury was not occasioned 

24 solely by the intoxication of the injured em25 ployee; and 


rfrederick on DSKD9S0YB1PROD with BILLS
38 

•S 669 IS

1 ‘‘(D) that the injury was not occasioned by 

2 the willful intention of the injured employee to 

3 injure or kill the employee or another. 

4 ‘‘(2) REBUTTING PRESUMPTIONS.—A presump5 tion described in paragraph (1) shall not be consid6 ered evidence once rebutted. Once a presumption has 

7 been rebutted, the burden of production of evidence 

8 and burden of persuasion shall be governed by sec9 tion 556(d) of title 5, United States Code. 

10 ‘‘(3) REBUTTING NONINTOXICATION PRESUMP11 TION.—The presumption described in paragraph 

12 (1)(C) shall be rebutted by evidence that the em13 ployee— 

14 ‘‘(A) refused a drug or alcohol test; 

15 ‘‘(B) did not make himself available for a 

16 drug or alcohol test; 

17 ‘‘(C) tested positive for illegal drugs; or 

18 ‘‘(D) tested as having a blood alcohol con19 centration level above the permitted driving 

20 limit as established by the State where the in21 jury occurred. 

22 ‘‘(4) EXCLUSION OF OTHER PRESUMPTIONS.— 

23 No other presumptions shall be authorized under 

24 this Act. 

25 ‘‘(b) FALSE STATEMENTS.— 


rfrederick on DSKD9S0YB1PROD with BILLS
39 

•S 669 IS

1 ‘‘(1) AFFIRMATIVE AND COMPLETE DE2 FENSE.—It shall be an affirmative and complete de3 fense to any employee claim under this Act that the 

4 employee or employee’s agent knowingly made a 

5 false statement that is material to obtaining a ben6 efit or payment. 

7 ‘‘(2) CREDIBILITY.—If any individual know8 ingly makes a false statement, whether in writing or 

9 under oath, such false statement shall go to the 

10 credibility of the individual on all other issues. 

11 ‘‘(c) RULES OF EVIDENCE.— 

12 ‘‘(1) EVIDENCE OF INJURY.—With respect to 

13 proof of injury for any claim for compensation under 

14 this Act— 

15 ‘‘(A) the injury, its occupational cause, and 

16 any resulting manifestations or disability must 

17 be proven to a reasonable degree of medical cer18 tainty, based on objective relevant medical find19 ings; 

20 ‘‘(B) notwithstanding section 4(c) or sec21 tion 8(c)(13)(B), the employment exposure or 

22 accident shall be the major contributing cause 

23 of any injury; 

24 ‘‘(C) a causal relationship between a com25 pensable accident or injury, and conditions that 


rfrederick on DSKD9S0YB1PROD with BILLS
40 

•S 669 IS

1 are not readily observable, shall be by medical 

2 evidence only, as proven by physical examina3 tion findings or diagnostic testing; 

4 ‘‘(D) the fact that the injury was the 

5 major contributing cause shall be proven by 

6 medical evidence only; 

7 ‘‘(E) in cases involving occupational dis8 ease or repetitive exposure, both causation and 

9 sufficient exposure to support causation shall be 

10 proven by clear and convincing evidence; and 

11 ‘‘(F) pain or other subjective complaints 

12 alone, in the absence of objective relevant med13 ical findings, is not compensable. 

14 ‘‘(2) JUNK SCIENCE.— 

15 ‘‘(A) EXPERT TESTIMONY.—With respect 

16 to a claim under this Act, expert testimony 

17 shall not be considered if it does not meet the 

18 requirements of Rule 702 of the Federal Rules 

19 of Evidence. 

20 ‘‘(B) MEDICAL OPINION.—In order to be 

21 considered with respect to a claim under this 

22 Act, a medical opinion shall be based on not 

23 less than 1 peer-reviewed study that— 

24 ‘‘(i) has been published in a major 

25 medical journal; and 


rfrederick on DSKD9S0YB1PROD with BILLS
41 

•S 669 IS

1 ‘‘(ii) is accepted by the majority of the 

2 scientific community.’’. 

3 SEC. 16. REVIEW OF COMPENSATION ORDERS. 

4 Section 21 (33 U.S.C. 921) is amended— 

5 (1) in subsection (b)— 

6 (A) in paragraph (3)— 

7 (i) in the fourth sentence, by striking 

8 ‘‘the amounts required by an award shall 

9 not’’ and inserting ‘‘disputed amounts re10 quired by an award shall’’; and 

11 (ii) by striking the fifth sentence; 

12 (B) in paragraph (4), by adding at the end 

13 the following: ‘‘An employee may request that 

14 the Board hold an expedited hearing with re15 spect to an appeal under this subsection.’’; and 

16 (C) by adding at the end the following: 

17 ‘‘(6) TIMING FOR DECISIONS.— 

18 ‘‘(A) ONE-YEAR APPEAL PERIOD.—If the Board 

19 fails to resolve an appeal during the 1-year period 

20 following the date on which the appeal was filed, the 

21 decision that was the basis of the appeal is auto22 matically affirmed and such affirmation shall be con23 sidered a final order by the Board. 

24 ‘‘(B) NINETY-DAY MOTION TO RECONSIDER PE25 RIOD.—If the Board issues a decision on an appeal 


rfrederick on DSKD9S0YB1PROD with BILLS
42 

•S 669 IS

1 during the 1-year period following the date on which 

2 the appeal was filed and a timely motion for recon3 sideration is filed, the Board may consider the mo4 tion for reconsideration. If the Board fails to rule 

5 upon the motion for reconsideration during the 90- 

6 day period following the filing of such motion, the 

7 motion for reconsideration shall be deemed denied.’’; 

8 and 

9 (2) in subsection (c), by adding at the end the 

10 following: ‘‘A litigating position of the Secretary 

11 shall not be entitled to any deference, unless such 

12 position has been expressly adopted by the Secretary 

13 as a rule made on the record after opportunity for 

14 an agency hearing (pursuant to sections 556 and 

15 557 of title 5, United States Code).’’. 

16 SEC. 17. MODIFICATION OF COMPENSATION CASES. 

17 Section 22 (33 U.S.C. 922) is amended— 

18 (1) by striking ‘‘22. Upon’’ and inserting ‘‘22. 

19 (a) MODIFICATION OF AWARDS.—Upon’’; 

20 (2) in the last sentence of subsection (a) (as in21 serted by paragraph (1)), by striking ‘‘modification 

22 of settlements.’’ and inserting ‘‘modification of set23 tlements, except as provided in subsection (b) or 

24 (c).’’; and 

25 (3) by adding at the end the following: 


rfrederick on DSKD9S0YB1PROD with BILLS
43 

•S 669 IS

1 ‘‘(b) FRAUD.—Notwithstanding subsection (a), if any 

2 payment of compensation has been made as a result of 

3 fraud, a carrier may at any time seek an order for imme4 diate— 

5 ‘‘(1) termination or suspension of all future 

6 payments; and 

7 ‘‘(2) full restitution of all amounts paid as a re8 sult of the fraud. 

9 ‘‘(c) OVERPAYMENT.—If a carrier makes a payment 

10 under this Act to a person in amounts in excess of the 

11 amounts owed, the carrier may seek an order for repay12 ment by such person, including a credit against any future 

13 payment due under this Act or wages paid to the em14 ployee. This subsection shall apply regardless of whether 

15 such excess amounts resulted from voluntary payments, 

16 a settlement, or an order.’’. 

17 SEC. 18. PENALTY FOR MISREPRESENTATION. 

18 Section 31 (33 U.S.C. 931) is amended by adding 

19 at the end the following: 

20 ‘‘(d) REPORTS OF FRAUD.—A carrier shall report 

21 credible incidents of fraud to the Secretary for investiga22 tion. The Secretary shall report any credible incident of 

23 fraud involving more than $10,000 to the appropriate 

24 United States Attorney. In the absence of a finding by 

25 the Secretary that a report of fraud under this subsection 


rfrederick on DSKD9S0YB1PROD with BILLS
44 

•S 669 IS

1 was made with knowledge that the information was false 

2 or was disclosed in reckless disregard of whether it was 

3 false, no person reporting fraud under this subsection 

4 shall be subject to civil liability for libel, slander, or any 

5 other cause of action arising from such report.’’. 

6 SEC. 19. SPECIAL FUND. 

7 Section 44 (33 U.S.C. 944) is amended— 

8 (1) by redesignating subsections (d) through (j) 

9 as subsections (e) through (k), respectively; 

10 (2) by striking subsection (c) and inserting the 

11 following: 

12 ‘‘(c) PAYMENTS INTO FUND.—Payments into such 

13 fund shall be made as follows: 

14 ‘‘(1) Whenever the Secretary determines that 

15 there is no person entitled under this Act to com16 pensation for the death of an employee that would 

17 otherwise be compensable under this Act, the appro18 priate employer shall pay $5,000 as compensation 

19 for the death of such an employee. 

20 ‘‘(2) At the beginning of each calendar year, 

21 the Secretary shall estimate the probable expenses of 

22 the fund during that calendar year and the amount 

23 of payments required (and the schedule therefore) to 

24 maintain adequate reserves in the fund. 


rfrederick on DSKD9S0YB1PROD with BILLS
45 

•S 669 IS

1 ‘‘(3) Each self-insurer shall make payments 

2 into the fund on a prorated assessment by the Sec3 retary determined by— 

4 ‘‘(A) computing the ratio (expressed as a 

5 percent) of— 

6 ‘‘(i) the self-insurer’s compensation 

7 payments under sections 8 and 9 during 

8 the preceding calendar year, to 

9 ‘‘(ii) the total of such payments by all 

10 carriers and self-insurers under such sec11 tions during the preceding calendar year; 

12 ‘‘(B) computing the ratio (expressed as a 

13 percent) of— 

14 ‘‘(i) the payments under section 8(f) 

15 of this Act during the preceding calendar 

16 year that are attributable to the self-in17 surer, to 

18 ‘‘(ii) the total of such payments dur19 ing such year attributable to all carriers 

20 and self-insurers; 

21 ‘‘(C) dividing the sum of the percentages 

22 computed under subparagraphs (A) and (B) for 

23 the self-insurer by 2; and 

24 ‘‘(D) multiplying the percentage computed 

25 under subparagraph (C) by such probable exVerDate Mar 15 2010 00:41 Mar 30, 2011 Jkt 099200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 E:\BILLS\S669.IS S669

rfrederick on DSKD9S0YB1PROD with BILLS
46 

•S 669 IS

1 penses of the fund (as determined under para2 graph (2)). 

3 ‘‘(4) Each employer who is not self-insured 

4 shall make payments into the fund through a sur5 charge based on the standard premium, to be com6 puted and collected as follows: 

7 ‘‘(A) Carriers that are not self-insurers 

8 shall report the amount of all standard pre9 miums for insurance for the payment of com10 pensation under this Act to the Secretary by 

11 April 1 of each year. 

12 ‘‘(B) The Secretary shall compute an 

13 amount for each carrier that is not a self-in14 surer, using the methodology described in sub15 paragraph (3) for self-insurers. 

16 ‘‘(C) The Secretary shall determine the 

17 ratio (expressed as a percent) of the total of the 

18 assessments computed for all such carriers 

19 under subparagraph (B), to the total amount of 

20 the standard premiums for insurance for the 

21 payment of compensation under this Act for all 

22 carriers during the preceding calendar year. 

23 This ratio shall be the premium surcharge rate. 

24 ‘‘(D) Each such carrier shall collect a 

25 share of the assessment from each employer inVerDate Mar 15 2010 00:41 Mar 30, 2011 Jkt 099200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\S669.IS S669

rfrederick on DSKD9S0YB1PROD with BILLS
47 

•S 669 IS

1 sured by the carrier through a premium sur2 charge equal to the product of the premium 

3 surcharge rate multiplied by the standard pre4 mium for the insured employer. The premium 

5 surcharge is the amount payable by each in6 sured employer to satisfy its obligation to the 

7 fund. 

8 ‘‘(E) Assessments collected as a premium 

9 surcharge under this paragraph shall not con10 stitute an element of loss for the purpose of es11 tablishing rates for workers’ compensation in12 surance but, for the purpose of collection, shall 

13 be treated as separate costs imposed upon in14 sured employers. The total of the assessment 

15 imposed by this paragraph shall be stated as a 

16 separate cost on an insured employer’s policy 

17 (or on a separate document submitted to the in18 sured employer) and shall be identified as the 

19 ‘workers’ compensation policyholder surcharge’. 

20 Each such assessment shall be shown as a per21 centage of the total workers’ compensation pol22 icyholder premium. The premium surcharge 

23 shall be collected at the same time and in the 

24 same manner that the premium for the cov25 erage is collected. The premium surcharge shall 


rfrederick on DSKD9S0YB1PROD with BILLS
48 

•S 669 IS

1 not be considered as part of the premium, but 

2 an insurer may cancel a policy for coverage 

3 under this Act for the nonpayment of the pre4 mium surcharge in accordance with the proce5 dures applicable to the nonpayment of the pre6 mium. 

7 ‘‘(F) Each such carrier shall report and 

8 remit premium surcharges to the Secretary 

9 semiannually on January 1 and July 1 of the 

10 calendar year following the year in which the 

11 assessment is based, and such surcharges shall 

12 be final except for adjustments made as a result 

13 of an audit by the Secretary. 

14 ‘‘(d) NOTIFICATION OF PAYMENT RATES.—The Sec15 retary shall notify carriers of the premium surcharge rate 

16 to be effective for policies written or renewed on or after 

17 the date of enactment of the Longshore and Harbor Work18 ers’ Compensation Act Amendments of 2011, and annu19 ally thereafter. At the same time as such notification to 

20 carriers, the Secretary shall notify each self-insured em21 ployer of the amount to be assessed against such employer 

22 under this section for the following calendar year.’’; and 

23 (3) in subsection (i) (as redesignated by para24 graph (1)), by adding at the end the following: 

25 ‘‘Such civil suit for collections shall be brought 


rfrederick on DSKD9S0YB1PROD with BILLS
49 

•S 669 IS

1 against the control group of the employer, as such 

2 term is defined under section 3(40)(B) of the Em3 ployee Retirement Income Security Act of 1974 (29 

4 U.S.C. 1002(40)(B)).’’. 

5 SEC. 20. CONFORMING AMENDMENTS. 

6 (a) SECTION 7.—The Act (33 U.S.C. 901 et seq.) is 

7 amended— 

8 (1) in section 7— 

9 (A) in subsection (e)(1)(A) (as redesig10 nated by section 7(3)), by striking ‘‘and (c)’’ 

11 and inserting ‘‘and (d)’’; 

12 (B) in subsection (h) (as redesignated by 

13 section 7(3)), by striking ‘‘(e)’’ and inserting 

14 ‘‘(f)’’; 

15 (C) in subsection (k)(1) (as redesignated 

16 by section 7(3)), by striking ‘‘(c)’’ and inserting 

17 ‘‘(d)’’; and 

18 (D) in subsection (l)(2) (as redesignated 

19 by section 7(3)), by striking ‘‘(d)’’ and inserting 

20 ‘‘(e)’’; 

21 (2) in section 28(b), by striking ‘‘7(e)’’ and in22 serting ‘‘7(f)’’; 

23 (3) in section 31(b)(2)(B), by striking ‘‘(j)’’ and 

24 inserting ‘‘(k)’’; and 


rfrederick on DSKD9S0YB1PROD with BILLS
50 

•S 669 IS

1 (4) in section 44(j)(4) (as redesignated by sec2 tion 19(1)), by striking ‘‘7(e)’’ and inserting ‘‘7(f)’’. 

3 (b) SECTION 10.—The Act (33 U.S.C. 901 et seq.) 

4 is amended— 

5 (1) in section 10— 

6 (A) in subsection (e) (as redesignated by 

7 section 10(a)(3)), by striking ‘‘(f)’’ and insert8 ing ‘‘(d)’’; and 

9 (B) in subsection (f)(3) (as redesignated 

10 by section 10(a)(3)), by striking ‘‘(f) and (g)’’ 

11 and inserting ‘‘(d) and (e)’’; 

12 (2) in section 2(10) and section 8(c)(23), by 

13 striking ‘‘(10)(d)(2)’’ each place the term appears 

14 and inserting ‘‘10(b)(2)’’; and 

15 (3) in section 9(f)(2) (as redesignated by sec16 tion 9(a)(2)), by striking ‘‘10(i)’’ and inserting 

17 ‘‘10(f)’’. 

18 (c) SECTION 44.—The Act (33 U.S.C. 901 et seq.) 

19 is amended— 

20 (1) in section 44(j)(3) (as redesignated by sec21 tion 19(1)), by striking ‘‘(d)’’ and inserting ‘‘(e)’’; 

22 and 

23 (2) in section 22(a) (as inserted by section 

24 17(1)), by striking ‘‘(i)’’ and inserting ‘‘(j)’’. 


rfrederick on DSKD9S0YB1PROD with BILLS
51 

•S 669 IS

1 SEC. 21. EFFECTIVE DATES. 

2 (a) REFERENCES.—A reference in subsection (b) to 

3 a provision of the Longshore and Harbor Workers’ Com4 pensation Act (33 U.S.C. 901 et seq.) shall be considered 

5 to be a reference to such provision as added, amended, 

6 or redesignated by this Act. 

7 (b) EFFECTIVE DATES.—The amendments made to 

8 the Longshore and Harbor Workers’ Compensation Act 

9 (referred to in this section as ‘‘the Act’’) (33 U.S.C. 901 

10 et seq.) by this Act shall take effect on the date of enact11 ment of this Act, except that— 

12 (1) the amendments made to paragraphs (3)(A) 

13 and (13) of section 2, subsections (c) and (e) of sec14 tion 3, subsections (c), (d), and (e) of section 4, sub15 sections (a) and (e) of section 5, section 7(g), sec16 tion 13, and subsections (b) and (c) of section 20 of 

17 the Act shall apply with respect to any claim under 

18 the Act filed on or after the date of enactment of 

19 this Act; 

20 (2) the amendments made to section 2(25) of 

21 the Act shall take effect on the date of enactment 

22 of this Act, and shall apply regardless of the date 

23 that the fraudulent act occurred; 

24 (3) in section 5(d) of the Act— 

25 (A) the amendments made to paragraph 

26 (1) shall apply with respect to any claim under 


rfrederick on DSKD9S0YB1PROD with BILLS
52 

•S 669 IS

1 a Federal or State workers’ compensation law 

2 filed on or after the date of enactment of this 

3 Act; and 

4 (B) the amendments made to paragraphs 

5 (2) and (3) shall apply with respect to any 

6 claim under a Federal or State workers’ com7 pensation law, and any action under section 

8 30104 of title 46, United States Code, or in 

9 tort, filed on or after the date of enactment of 

10 this Act; 

11 (4) the amendments made to section 7 (not in12 cluding subsection (g)) of the Act shall apply with 

13 respect to any medical care delivered, or examination 

14 conducted, under the Act on or after the date of en15 actment of this Act; 

16 (5) the amendments made to sections 8, 9, and 

17 10 of the Act shall apply with respect to any claim 

18 under the Act filed on or after the date of enactment 

19 of this Act, subject to sections 8(b), 9(b), and 10(b) 

20 of this Act; 

21 (6) the amendments made to section 11 (not in22 cluding subsection (a)) of the Act shall apply with 

23 respect to any claim under the Act filed on or after 

24 the date of enactment of this Act; 


rfrederick on DSKD9S0YB1PROD with BILLS
53 

•S 669 IS

1 (7) the amendments made to section 14 of the 

2 Act shall apply with respect to any claim for com3 pensation under the Act for which the carrier re4 ceives notice of the claim for compensation on or 

5 after the date of enactment of this Act; 

6 (8) the amendments made to section 20(a)(3) 

7 of the Act shall apply with respect to any injury cov8 ered under the Act that occurs on or after the date 

9 of enactment of this Act; 

10 (9) the amendments made to section 21(b)(3) 

11 of the Act shall apply to any proceeding conducted 

12 under the Act on or after the date of enactment of 

13 this Act; 

14 (10) the amendments made to section 22 of the 

15 Act shall apply with respect to any payment of com16 pensation under the Act on or after the date of en17 actment of this Act; 

18 (11) the amendments made to section 31 of the 

19 Act shall apply with respect to any instance of 

20 known or suspected fraud involving a claim under 

21 the Act that is detected on or after the date of en22 actment of this Act; and 


rfrederick on DSKD9S0YB1PROD with BILLS
54 

•S 669 IS

1 (12) the amendments made to section 44 of the 

2 Act shall take effect on the January 1st following 

3 the date of enactment of this Act. 

Æ 


rfrederick on DSKD9S0YB1PROD with BILLS