U.S. Department of Labor 

February 28, 1985 

Employment S•andards Administration 

O!fice of Workers' Compensal'on Programs 

D!vision o! Longshore and 

Harbor Workers' CompMsation 

Washing:on, D.C. 20210 

NO. 58 

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

This notice transmits procedures regarding the processing of 

claims for relief under Section 8(f) of the Longshore Act. 

The Longshore Amendments of 1984 (Public Law 98-426) adds the 

requirement that any request for Section 8(f) relief must be 

presented to the deputy commissioner for consideration before 

such issue may be considered by an administrative law judge. 

Longshore Act Section 8(f) (3). Evidence to support the request 

for relief must also be presented to the deputy commissioner. 

Failure to comply with this requirement shall be an absolute 

defense to the Special Fund's liability. The attached procedures have been developed to insure compliance with the statute 

and applicable regulations S20 CFR 702.321 (50 FR 401, 

January 3, 1985). 

The amendment to Section 8(f) became effective on September 28, 

1984. Regulations implementing the 1984 amendments became 

effective on December 27, 1984 (50 FR 384). These procedures, 

therefore, apply only to those claims pending in the office of 

the deputy commissioner on or after December 27, 1984. 

Because there were no regulations o·r procedures for implementing 

the new Section 8(f) (3) prior to December 27, 1984, the Director, 

OWCP, is of the opinion that Section 8(f) (3) should not be 

applied to claims referred to the Office of Administrative Law 

Judges (OALJ) for hearing before that date. Consistent with 

this policy, the Director will not challenge an ALJ decision 

affording relief under Section 8(f) in any case referred to 

the OALJ before December 27, 1984, on the ground that the 

employer/carrier failed to raise the Section 8(f) issue before 

the deputy commissioner. For this reason, it will not be 

necessary for an employer/carrier to request that such a claim 

be remanded to the deputy commissioner for consideration of 

its entitlement to Section 8(f) relief. 

~~~~ Associate Director, 

Longshore and Harbor 

Workers' Compensation 

Attachment 
Procedures In Regard To Sec. 8(f) 

These procedures are to be interpreted in a manner consistent 

with the intent of Congress to encourage employers to raise 

the Special Fund 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 Sec. 8(f) relief. 

Failure to submit a timely, documented application for Sec. 

8(f) 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 riot meant to allow an 

employer to disregard the Congressional intention to have 

the issue of Sec. 8(f) relief raised and considered early in 

the adjudication process. 

The Longshore and Harbor Workers' Compensation Act Amendments 

of 1984 add a requirement that any request for Sec. 8(f) 

relief together with a statement of the grounds for application 

of this section must be submitted to the deputy commissioner 

prior to a consideration of the claim by the deputy commissioner. 

Failure to present such a documented request 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 should arise infrequently. 

Only circumstances outside the control of the employer will 

be grounds to consider this exception. 

This provision of the amendments became effective on 

September 28, 1984. However, the following procedures 

only apply to claims that were pending before the deputy 

commissioner as of December 27, 1984. The following 

procedures describe when a request for Sec. 8(f) relief 

must be made and what evidence must be submitted to support 

the request. 

A request for Sec. 8(f) relief must be made on or before 

whichever of the following occurs first: 1) the date of the 

informal conference where the permanency of the claimant's 

condition is to be considered, or 2) the date when benefits 

are first paid for permanent disability. 

When the request for Sec. 8(f) relief is made an application 

for such relief, together with all the evidence described 

below, must be submitted in duplicate to the deputy commissioner 

within ninety (90) days. This period may be extended by the 

deputy commissioner for good cause. However, this extension 

may not continue beyond the date of the informal conference 

where Sec. 8(f) relief or the permanency of the claimant's 
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condition is to be considered. Failure to submit a fully 

documented application by the date of that informal conference 

shall be an absolute defense to the liability of the Special 

Fund. 

Failure to submit a timely request or application for 

Sec. 8(f) relief within ninety (90) days shall not prevent 

the deputy commissioner, at his or her discretion, from 

considering the claim for compensation and transmitting the 

case for formal hearing. This will insure that lack of 

timely submission of the documented application for Sec. 

8(f) relief will not unreasonably delay a formal hearing in 

cases where the claimant is not receiving compensation. 

The application for Sec. B(f) must include: 1) a specific 

description of the pre-existing condition relied upon as 

having caused or constituted 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 pre-existing permanent partial disability or 

that the death would not have ensued but for that disability, 

3) the basis for the assertion that the pre-existing disability 

relied upon was manifest to the employer before the employment 

injury. Documentary medical evidence relied upon in support 

of the request for Sec. S(f) relief shall also be submitted. 

This medical evidence shall include, but not be limited to, 

a current medical report establishing the extent of all 

impairments and the date of maximum medical improvement. If 

the current disability is less than total, the medical 

evidence must show how the subsequent disability is materially 

and substantially greater than that which would have resulted 

from the second injury alone. This application shall be 

submitted in duplicate to the deputy commissioner within the 

time frames described above. Any additional evidence considered 

necessary by the deputy commissioner after a review of the 

application shall also be submitted. 

The deputy commissioner shall consider the application for 

Sec. B(f) relief to determine if all the necessary evidence 

was submitted. If the application is found to be complete 

and the deputy commissioner agrees that Sec. B(f) applies, 

the application, with the administrative file, is forwarded 

to the National Office for the concurrence of the Associate 

Director, DLHWC. The deputy commissioner will prepare an 

accompanying memorandum which fully discusses the facts of 
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the case and includes the recommendation of the deputy 

commissioner. However, if the case concerns a loss of 

hearing, the deputy commissioner does not need the concurrence of the Associate Director, DLHWC to award sec. 8(f). 

relief if the facts of the case warrant it. 

If all necessary evidence was submitted with the application 

for Sec. 8(f) relief and the deputy commissioner finds that 

the facts do not warrant relief under this section the 

deputy commissioner shall advise the employer of the grounds 

for the denial. The application for Sec. B(f) relief may 

then be considered by an administrative law judge. An 

administrative law judge may also consider the application 

after a denial of Sec. 8(f) relief by the Associate Director, 

DLHWC. When a case is transmitted to the Office of Administrative Law Judges the deputy commissioner shall indicate 

whether the application for Sec. 8(f) was properly presented 

to the deputy commissioner for consideration and whether the 

employer is properly insured or permissably self-insured. 

The deputy commissioner shall also attach a copy of the 

application for Sec. 8(f) relief submitted by the employer, 

and the deputy commissioner's or Associate Director's denial 

of the application. 

If the deputy commissioner determines that all the required 

evidence was not submitted with the application or that the 

submitted evidence is unsatisfa~tory the employer shall be 

so advised. If medical issues are not resolved by the 

documentation submitted by the employer/carrier or the 

claimant, the deputy commissioner shall direct that an 

impartial medical examination be conducted. Any additional 

evidence required by the deputy commissioner shall be submitted 

in a timely fashion. Failure to do so shall not prevent the 

deputy commissioner from considering the claim and transmitting 

the case for formal hearing. 

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

claimant dies, an employer need not reapply for Sec 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 

deputy commissioner will issue a compensation order once a 

claim for survivor benefits is filed and entitlement of the 

survivors to compensation has been verified. Since the 

employer remains a party in interest to the claim, the 

deputy commissioner will notify the employer and where 

appropriate the carrier when a claim for survivor benefits 

is filed. 
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As noted above these procedures are to be interpreted in a 

manner consistent with the Congressional intention to have 

the issue of Sec. 8(f) relief raised early in the adjudication 

process. Any questions regarding these procedures should be 

directed to the Associate Director, Division of Longshore 

and Harbor Workers' compensation.