U.S. DEPARTMENT OF LABOR 

EMPLOYMENT STANDARDS ADMINISTltATION 

Office of Workers' Compensation Programs Washington, D.C. 20210 

Division of Longshore and Harbor Workers' Compensation 

July 14, 1980 

No. 43 

NOTICE TO INSURANCE CARRIERS, SELF-INSURED EMPLOYERS 

UNDER THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION 

ACT, AND OTHER INTERESTED PERSONS 

SUBJECT: Procedures for Applying for a Limitation of 

Liability Under section S(f) 

This notice is to advise interested parties of the current 

procedures which apply to the processing of applications 

from employers/carriers for Section S(fl relief, including 

the evidence required to support such applications. 

It is the responsibility of the employer/carrier to apply 

for relief under the second injury provisions at the 

District Office level. Since success on the employer's 

part will result in a distinct advantage to the employer/ 

carrier, the District Office is not obligated to develop 

or perfect the application. The em~loyer/carrier has the 

burden of submitting sufficient evidence to substantiate 

the application at both the District Office and National 

Office levels. However, if Section 8(f) is an issue, the 

District Office must address the issue in its informal 

proceedings before the case can be referred for formal 

hearing. No case is to be referred for a formal hearing 

if a determination has not been made by the District Office. 

It is the Deputy commissioner'!! prerogative to deny 

Section 8(f) relief at the District Office level if the 

application is not in proper posture. To evaluate such 

application, the Deputy Commissioner must very carefully 

review the evidence submitted by the employer/carrier. 

Unless adequate and persuasive evidence is submitted and 

contained in the file, and unless the employer/carrier is 

willing to accept a comperisation order defining and establishing all issues except the actual issue of second injury 

under Section 8(f), the application will be denied at the 

District Office level. Negotiation by the employer/carrier 

to agree to approval of the application of Section B(f) 

prior to or at the same time as issues of disability or 

death is not appropriate. The issue of extent of disability 

must be finalized by means of a compensation order before 
- 2 -

serious consideration can be given to the B(f) application. 

Extent of disability will be determined by the medical and 

economic facts of the case and not on the condition that a 

Section B(f) application will be approved. 

After a compensation order has been issued (pursuant to stipulations executed by the parties), the employer/carrier may make 

application for Section B(f) relief. Documentation of evidence 

needed to support the application shall include the following: 

(al Factual and/or medical evidence of pre-existing 

permanent partial disability. 

(b) Evidence to show the impact of the pre-existing 

disability, which combined with the current 

injury causes greater disability than the 

current injury would have caused of itself. 

(c) Current medical report which establishes the 

extent of all impairment and the date of 

maximum improvement. (This may be the medical 

data used as the basis for the compensation 

order). If the current disability is less than 

totaL, the medic~l evidence must show that the 

disability is materially and substantially 

greater than that which would have resulted 

from the subsequent injury alone. 

(d) Either factual or observable evidence to 

show that the pre-existing disability was 

manifest to the employer and in what manner. 

(el Evidence that the permanent disability is 

not due solely to the subject injury. 

Upon receipt of the above data (a) thru (e) the Deputy 

Commissioner shall carefully review the evidence supporting the 

application. If key elements are missing the omissions may be 

called to the attention of the employer/carrier who shall be 

given an opportunity to furnish them. If the employer/carrier 

chooses not to do so, or the data furnished does not support 

the application, the Deputy Commissioner may recommend denial. 

If the data does support the application, the Deputy Commissioner 

will recommend acceptance. In either case (recommendation for 

acceptance or denial), the compensation order for permanent 

disability and all evidence submitted by the employer/carrier 

in support of its application or that the Deputy Commissioner 
- 3 -

believes is relevant to the recommendation, will be submitted 

to the National Office for consideration. Final approval or 

denial must be given by the National Office. 

After the file, with application and supporting evidence, has 

been reviewed, the National Office will determine whether 

approval or denial is appropriate. If approved, the Deputy 

tommissioner will be advised by memorandum to issue a supplementary order, finding Section B(f) applicable and describing 

the payments to be made by the employer/carrier. The National 

Office will initiate payments from the Special Fund when the 

appropriate notification is received from the District Office. 

If the application for section B(f) relief is denied, the . 

Deputy Commissioner will be advised by memorandum. The Deputy 

Commissioner shall inform the employer/carrier of the decision. 

The employer/carrier may then request a formal hearing on the 

application of Section B(f). Should the employer/carrier wish, 

it may apply to the Deputy Commissioner pursuant to Section 22 

of the Act for modification of the initial compensation order. 

Issues raised in such an application should be referred along 

with the issues regarding Section B(f) for resolution in a 

single formal hearing. 

7/:la~ 

NEIL A. MONTONE 

Associate Director, 

Longshore and Harbor 

Workers' Compensation