OWCP/DLHWC Oct 08 

Loyola Law Schoo

Loyola Law Schoo

U. S. Department of 

U. S. Department of 

OWCP 

DBA Conferenc

DBA Conferenc

October 2008 October 2008

Insurance and Waivers Insurance and Waivers

John Chamberlain John Chamberlain

Office of Workers Office of Workers’ Compensation Programs Compensation Programs

Division of Division of Longshore Longshore & Harbor Workers & Harbor Workers’ Compens

Compens
OWCP/DLHWC Oct 08 

Insurance Insurance

 The provisions of the The provisions of the Longshore Longshore and H

and H

Workers Workers’ Compensation Act and its Compensation Act and its 

Regulations apply to the Defense Base 

Regulations apply to the Defense Base 

 4(a) makes the employer 4(a) makes the employer 

Liable for the benefits Liable for the benefitsObliged to secure the benefits Obliged to secure the benefits
OWCP/DLHWC Oct 08 

Insurance Insurance

 32(a) (1) provides for insurance by an 32(a) (1) provides for insurance by an 

authorized carrier authorized carrier

 32(a) (2) provides for self 32(a) (2) provides for self-insurance insurance
OWCP/DLHWC Oct 08 

Insurance Insurance

 5(a) Failure to secure payment allows 5(a) Failure to secure payment allows 

employee either to collect compensatio

employee either to collect compensatio

to sue employer for damages to sue employer for damages

 The defenses of The defenses of “fellow servant fellow servant”, 

“assumption of risk assumption of risk” and “contributor

contributor

negligence negligence” are not available are not available
OWCP/DLHWC Oct 08 

Insurance Insurance

 38(a) The 38(a) The corporation corporation and its and its president, se

president, se

and treasurer and treasurer are severally liable for a fine o

are severally liable for a fine o

$10,000 and imprisonment for not more tha

$10,000 and imprisonment for not more tha

year.

 The president, treasurer and secretary president, treasurer and secretary are 

are 

severally liable jointly with the severally liable jointly with the company company for 

for 

benefits during the period it fails to secure benefits during the period it fails to secure compensation compensation
OWCP/DLHWC Oct 08 

Insurance Insurance

 Failure to report a claim carries a separ

Failure to report a claim carries a separ

penalty of up to $11,000. penalty of up to $11,000.

 Failure to report a claim waives the tim

Failure to report a claim waives the tim

 Failure to controvert a claim requires 1

Failure to controvert a claim requires 1

additional compensation for each amo

additional compensation for each amo

unpaid. unpaid.
OWCP/DLHWC Oct 08 

Insurance Insurance

 The Employer may be The Employer may be

Uninsured Uninsured Insured by an unauthorized carrier Insured by an unauthorized carrier Insured by an authorized carrier, but h

Insured by an authorized carrier, but 

DBA endorsement DBA endorsement

Operating under a waiver which is no

Operating under a waiver which is no

effective effective
OWCP/DLHWC Oct 08 

Insurance Insurance

 The Employer is responsible, not The Employer is responsible, not

The broker or agent The broker or agentThe government contracting offic

The government contracting offic

The insurance company The insurance companyThe attorney The attorneyThe Department of Labor The Department of Labor
OWCP/DLHWC Oct 08 

Insurance Insurance

 The Employer is also responsible fo

The Employer is also responsible fo

Subordinate contractors Subordinate contractorsSubcontractors Subcontractors
OWCP/DLHWC Oct 08 

Consequences Consequences

 There are both civil and criminal There are both civil and criminal 

proceedings for which proceedings for which

 The company The company Its President, Treasurer and Sec

Its President, Treasurer and Sec

 Each needs separate representation Each needs separate representation 

8 lawyers in all. 8 lawyers in all.

 The compensation case is now a $50

The compensation case is now a $50

Lawsuit Lawsuit
OWCP/DLHWC Oct 08 

Consequences Consequences

 The contract was bid without the 

The contract was bid without the 

DBA included. DBA included. 

 The premiums must be paid witho

The premiums must be paid witho

reimbursement reimbursement
OWCP/DLHWC Oct 08 

Consequences Consequences

 And this may all be because of a And this may all be because of a 

subcontractor, or the subcontracto

subcontractor, or the subcontracto

subcontractor. subcontractor.
OWCP/DLHWC Oct 08 

Consequences Consequences

BROKERS BROKERS

 You are compensated for providin

You are compensated for providin

cover

 You are at risk of an E & O claim 

You are at risk of an E & O claim 

do not
OWCP/DLHWC Oct 08 

Waivers Waivers

The Secretary of Labor The Secretary of Labor 

 On the recommendation of On the recommendation of

 The head of The head of Any department or agency Any department or agency

 In the exercise of her discretion, may In the exercise of her discretion, may Waive the application of this section with r

Waive the application of this section with 

 Any contract, subcontract or subordina

Any contract, subcontract or subordina

contract contract

 Work location under such contracts Work location under such contracts Or classification of employees Or classification of employees
OWCP/DLHWC Oct 08 

Waivers Waivers

 Waivers are routinely granted when Waivers are routinely granted when

 Submitted by the proper person Submitted by the proper person In the proper form In the proper form Subject to limits and conditions Subject to limits and conditions

 Waivers apply to Guam for Waivers apply to Guam for all employe

employe

including US nationals. including US nationals. 
OWCP/DLHWC Oct 08 

Waivers Waivers

 Do not apply to Do not apply to

 US Citizens US Citizens People hired in the US People hired in the US Legal residents of the US Legal residents of the US

 Do not apply unless waived employees 

Do not apply unless waived employees 

receive compensation under local laws receive compensation under local laws providing for workers providing for workers’ compensation fo

compensation fo

injuries, illness or death. injuries, illness or death.
OWCP/DLHWC Oct 08 

Waivers Waivers

 Each contractor must before commencing Each contractor must before commencing 

performance performance

 Provide and maintain Provide and maintain For all waived employees For all waived employees Workers compensation insurance as requir

Workers compensation insurance as requir

the law of the place of the work the law of the place of the work

 With no exclusions e.g. for war hazards With no exclusions e.g. for war hazards
OWCP/DLHWC Oct 08 

Waivers Waivers

 If there is no local workers compensation 

If there is no local workers compensation 

 Nationals are covered under DBA Nationals are covered under DBA

 If a worker is NOT covered by anoth

If a worker is NOT covered by anoth

compensation act for any reason compensation act for any reason

 Employers face penalties Employers face penalties Brokers face E & O claims Brokers face E & O claims

 If in doubt, If in doubt, buy protection buy protection