U.S. Department of Labor 

June 15, 1987 

Employrner! Standads /\dm'nistration ADM 8- 5 • 3 

Office of Workers' Compensation Programs X COM-L 9 

D'.vis;on of Longshore and 

Harbor Workers' Compensation 

Washington, D.C. 20210 

No. 64 

NOTICE TO INSURANCE CARRIERS, SELF-INSURED EMPLOYERS UNDER THE 

LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT, AND OTHER INTERESTED PERSONS 

Subject: Procedures Regarding Application for Relief Under 

Section 8(f) of the Act, 33 U.S.C. 908(f) 

Reference: Industry Notice No. 58, February 28, 1985 

Section 8(f) of the Act requires a request for relief of liability, together with a statement of the grounds for such relief, to 

be presented to the deputy commissioner prior to consideration of 

the claim for compensation. This notice transmits revised procedures regarding the application for relief under Section 8(f) of 

the Longshore Act. These procedures are to be interpreted in a 

manner consistent with the intent of Congress that employers 

raise the Section 8(f) issue early in the claims adjudication 

process. This will insure that the deputy commissioner and the 

Director, OWCP have the opportunity to examine the validity of 

the employer's request for Section 8(f) relief, before the claim 

is referred to the Office of Administrative Law Judges for hearing. 

Failure to submit a timely and fully documented application for 

relief is an absolute defense to the liability of the Special 

Fund unless the employer could not have reasonably anticipated 

the liability of the Special Fund. This exception is to be narrowly construed and is not meant to allow an employer to disr'egard the Congressional intention to have the issue of Section 

8(fl relief raised and considered early in the ad'judication process. Only circumstances outside the control of the employer 

will be grounds to consider this exception. 

For purposes of consideration of the Section 8(f) issue, the Director, OWCP has delegated to the Assistant Deputy Commissioner, 

DLHWC (ADC) the authority to receive and initially evaluate the 

application for relief. The ADC has the authority to require the 

submission of additional evidence when the application is found 

deficient and to resolve any outstanding medical issues. The ADC 

also has the authority to deny the application. However, 
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approval of the application needs the concurrence of the Associate Director, DLHWC. Once the application is in posture for administrative review the ADC will refer the matter to the Associate Director, DLHWC together with a reco,nmendation. · .. ihere the 

injury is loss of hearing, the Associate Director has delegated 

to the ADC the authority to arprove the arplication. 

l,othing in these procedures should be interpreted in a manner 

contradictory to the Department's regulations concerning Section 

S(f) relief 1,hich appear at 20 CFR 702.321. Any questions 

regarding these procedures should be directed to the Associate 

Director, Division of Longshore anc Harbor Workers' Compensation, 

U.S. Deoartment of Labor. 

HK~ 

Associate Director, 

Longshore and Harbor 

IJorkers' Compensation 

Attachment 
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Procedures In Regard to Section S(f) 

A t{equest For Section 8(f) Relief 

A request for relief should be made as soon as the permanency of 

the claimant's condition becomes known or is an issue in dispute. 

This could be when benefits are first paid for permanent disabi.1-

ity, or at an informal conference held to discuss the permanency 

of the claimant's condition. Where the claim is for death benefits, the request should be made as soon as possible after the 

date of death. An application, as described below, must also be 

submitted in duplicate. Where possible, this application should 

accompany the request, but may be submitted separately, in which 

case the ADC shall, at the time of the request, fix a date for 

submission of the application. The ADC may grant an extension of 

the date for submission of the application for good cause, if petitioned by the applicant. Neither the date selected for submission of the application nor any extension can be beyond the date 

the case is referred to the Office of Administrative Law Judges 

(OALJ) for formal hearing. 

Where the claimant's condition has not reached maximum medical 

improvement and/or no claim for permanency is raised by the date 

of referral to the OALJ, an application need not be submitted to 

the ADC to preserve the applicant's rights to later seek relief 

under Section 8(f). In all other cases, failure to submit a 

fully documented application by the date established by the ADC 

shall be an absolute defense to the liability of the Special 

Fund. 

The Application 

A fully documented application shall contain the following: 

1) A specific description of the pre-existing condition relied 

upon as constituting an existing permanent partial disability. 

2) The reasons for believing that the claimant's permanent disability after the injury would be less were it not for the preexisting permanent partial disability or that the death would not 

have ensued but for that disability. These reasons must be supported by medical evidence as outlined in 4) below. 

3) The basis for the assertion that the pre-existing condition 

relied upon was manifest to the employer. 

4) Documentary medical evidence to support the application. 

This medical evidence shall include, but not be limited to, a 
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current medical report establishing the extent 0£ all impairments 

and the date of maximum medical improvenent. If the claimant had 

already reached niaximum medical improvement, a report prepared at 

that time will be satisfactory. If the current disability is total, the medical report must explain why the disability is not 

due solely to the second injury. If the current disability is 

partial, the medical report must explain why the disability is 

not due solely to the second injury and wh)• the resulting 

disability is nateria~ly and substantially greater than that 

which would have resulted from the subsequent injury alone. If 

the injury is loss of hearing the pre-existing hearing loss must 

be documented by an audiogram and a report explaining the results 

shown by the test. If the claim is for survivor's benefits, the 

medical report must establish that the death was not due solely 

to the second injury. 

Any other evidence considered necessary for a full evaluation of 

the request for Section 8(f) relief must be submitted when requested by the ADC. 

Consideration of the Application 

Upon receipt of the application the ADC will review it to insure 

that all the evidence outlined above was submitted. If any required evidence is missing or the ADC determines that additional 

evidence is necessary, the applicant will be notified and given 

the opportunity to submit the evidence. If the applicant does 

not submit the evidence, or the evidence submitted is found to be 

unsatisfactory, the ADC will deny the application on the merits. 

The ADC will also consider whether the absolute defense should be 

asserted because of the failure to submit a fully documented application. 

If the application was complete and the ADC agrees that Section 

8(f) relief is appropriate, the application, with the administrative file, is forwarded for the concurrence of the Associate Director, DLHWC. Where the injury is loss of hearing, the ADC can 

approve the application for relief without concurrence of the Associate Director. 

If the Associate Director or ADC determines that the facts do not 

warrant relief the applicant will be advised bf the reason(s) for 

the denial. The application may then be considered by an 

administrative law judge. 

Failure to submit a timely request or application for Section 

8(f) relief will not prevent the ADC from considering the claim 

for compensation and transmitting the case for formal hearing. 
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This will insure that lack of timely submission of the documented 

application will not unreasonably delay a formal hearing in cases 

where the claimant is not receiving compensation. 

If a claim is being paid by the Special Fund and the claimant 

dies, an employer need not reapply for Section 8(f) relief, However, survivor benefits will not be paid until it has been established that the death was due to the accepted injury and the 

eligible survivors have been identified. The ADC will issue a 

compensation order after a claim for survivor benefits is filed 

and entitlement of the survivors has been verified. Since the 

employer remains a party in interest to the claim, the ADC will 

notify the employer, and where appropriate the carrier, when a 

claim for survivor benefits is filed. 

The Absolute Defense 

The absolute defense is an affirmative defense which must be 

raised and pleaded by the Director, OWCP. The absolute defense 

will not be raised where permanency was not an issue before the 

ADC. 

Any questions regarding these procedures or any problems you may 

have in following them should be addressed to the Associate 

Director, DLHWC.