Dlms Manual

[Hermila Farquhar]

TheDLM 4000.25-1 & 2 manuals (MILSTRIP and MILSTRAP) have been decommissioned and removed by intent. All information contained within should be considered obsolete and used solely for historical and reference purposes. Please see DLM 4000.25 series of manuals for the latest information.

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1. Purpose and Scope. The Introduction to the Longshore and Harbor Workers' Compensation Act (LHWCA) Procedure Manual (PM) outlines some of the basic things you need to know about the Procedure Manual, e.g., its structure, composition, and relationship to other written instructions. The Introduction also contains a description of the organization and structure of the Division of Longshore and Harbor Workers' Compensation (DLHWC), and discusses the benefits and services available under the LHWCA and the requirements which must be met to obtain these benefits and services.

2. Structure of the LHWCA PM. The Procedure Manual (PM) consists of ten major divisions or Parts. The Parts, in turn, are further divided into chapters which are identified by triple-digit identifiers, e.g., 0-100, 0-200, etc. Chapters are further divided into paragraphs and other necessary subdivisions as follows:

1. Purpose and Scope. This Chapter presents a brief summary of the statutory authority for the compensation programs administered by DLHWC and briefly describes the LHWCA and its extensions.

2. Authority. The basic authority for all DLHWC compensation programs and their administration by agencies and persons within the Department of Labor is derived from the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. sections 901-950, its extensions and from the implementing rules and regulations issued by the Department, 20 C.F.R. Parts 701-704. Administration of the LHWCA was initially vested in an independent establishment known as the U.S. Employees' Compensation Commission. The Commission was abolished in 1946 and its functions transferred to the Federal Security Agency to be performed by a newly created Bureau of Employees' Compensation. In 1950, the Bureau was transferred to the Department of Labor (Reorganization Plan No. 19 of 1950). By Secretary's Order No. 13-71, the Assistant Secretary, Employment Standards Administration (ESA), established the Office of Workers' Compensation Programs (OWCP) within ESA and designated the Director thereof to administer the programs assigned to OWCP by the Assistant Secretary. See PM 0-400 for a discussion of the relationships and lines of authority within OWCP and between OWCP and ESA.

3. Basic Act. The Longshore and Harbor Workers' Compensation Act (LHWCA)(33 U.S.C. sections 901-950) was passed in 1927 to provide compensation payable by an employer to an employee, or the employee's dependents, for disability or death due to an injury occurring upon the navigable waters of the United States. The LHWCA provides payment for medical care required for the injury, disability compensation payments, and a maintenance allowance during rehabilitation training. In the event of death caused by injury, benefits include payment for reasonable funeral expenses and compensation payments to surviving dependents. The Act resolved a problem of worker coverage when the worker's activity was on the navigable waters of the United States. Before the enactment of the law, state workers' compensation programs applied to injuries occurring on land, and the Supreme Court had held that a state could not extend its workers' compensation remedy to cover longshoremen injured over the navigable waters of the United States (Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917)).

4. Amendments of 1972. The LHWCA Amendments of 1972 (Pub. L. No. 86-1251), enacted in October 1972, extended coverage to maritime workers employed in shoreside areas such as piers, wharves, drydocks, terminals, building ways, marine railways, or other adjoining areas customarily used by employees in loading, unloading, repairing, or building a vessel. Other changes included in the Amendments pertained to maximum and minimum benefit rates, student benefits, time for commencement of compensation, medical services, disfigurements, special fund, injury following previous impairment, death benefits, annual increases in compensation, time for notice and claims, fees for services, hearing procedure, a Benefits Review Board, representation of the Secretary of Labor by the Solicitor, claimant assistance, third party liability, prohibition against discrimination against certain employees, annual adjustment of benefit levels, and other miscellaneous provisions. Under the LHWCA, the employer must notify the DOL of all lost-time injuries as well as any action taken regarding the employee's claims, i.e., payment, medical treatment provided, or denial of the claim.

(1) History. When enacted in 1941 its main purpose was to extend coverage for civilians engaged in employment overseas at American Military Bases. The statute was adopted at the request of the Secretary of War in order to enable the U.S. Government and its defense contractors to avoid enormous expenses when securing workers' compensation insurance for overseas employees who had suffered industrial accidents that had taken place outside the United States. Subsequently, after World War II, the Defense Base Act's coverage was expanded to include civilians working on overseas construction projects for the United States. Employees covered under the Federal Employees' Compensation Act are excluded from coverage.

(2) Zone of Special Danger. The traditional concept of causal relationship does not normally apply to claims filed under the DBA. This is due to the advent of the "zone of special danger" doctrine. The zone of special danger doctrine (see Self v. Hanson, 305 F. 2d 699, 702 (9th Circuit 1962) is a judicially created legal concept. The U.S. Supreme Court, in a 1951 decision, first enunciated and defined the scope of compensability under the Defense Base Act in the following terms:

The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his/her employer. All that is required is that the "obligation or condition" of employment create the "zone of special danger" out of which the injury arose.

(3) Reasonable Recreation. Normally, a DBA claim arising out of an injury or death of an employee that takes place while the injured worker is on duty in most cases is found to be compensable. The difficult task under this Act is to determine compensability when the injury occurs while the employee was off duty and engaged in some form of recreational activity. In O'Keefe v. Pan American World Airways, Inc., 338 F. 2d 319, 322 (5th Cir. 1964), cert. Denied, 380 U.S. 951 (1965), the court recognized that these types of claims may be compensable:

Employees working under the DBA far away from their families and friends, in remote places where there are severely limited recreational and social activities, are in different circumstances from employees working at home. Personal activities of a social or recreational nature must be considered as incident to the overseas employment relationship.

That being said, the CE should keep in mind that not every claim arising out of an off duty injury or death is compensable. The issue then arises as to what types of recreational activities fall within the zone of special danger such that claims for injuries or deaths arising out of those activities are compensable. What constitutes reasonable recreation in a given case is considered a fact question as opposed to a question of law. This question is normally answered by the trier of fact based on a review of the evidence. Due to the absence of any case law precedent, defining the concept of reasonable recreation has compelled the courts to employ a case by case analysis of compensability.

Continental shelves have been defined as those slightly submerged portions of the continents that surround all the continental areas of the earth. They are a part of the same continental mass that forms the lands above water. They are part of the continent temporarily overlapped by oceans. The outer boundary of each shelf is marked by a sharp increase in the slope of the sea floor. It is the point where the continental mass drops off steeply toward the ocean depths. Typically, this abrupt drop occurs where the water reaches depths of 600 feet or greater. This depth is used as a gauge in defining the outer limits of the shelf. For example, the Atlantic coastal region from the shore to the outer edge of the shelf is approximately 250 miles, and the average distance is about 70 miles.

(1) Conditions of Coverage. The OCSLA provides workers' compensation coverage for the death or disability of an employee resulting from any injury occurring as a result of operations connected with the exploration, development, removal, and transportation of natural resources from the seabed and subsoil of the Outer Continental Shelf. The Act applies to all submerged lands (and artificial islands and fixed structures thereon) which lie beneath navigable waters seaward of state jurisdictional boundaries, and which are subject to the jurisdiction and control of the United States.

(a) Coverage under the OCSLA is not based on the same requirements as coverage requirements under the LHWCA. One of the main differences is that work activities covered under the OCSLA is not considered maritime employment. See Herb's Welding v. Gray, 470 U.S. 414 (1985).

(b) Each State has a claim over the area off their shores. For most States, the claim occurs within the three-mile radius or limit. The area within three miles falls under State jurisdiction. The area beyond is called the Outer Continental Shelf and is subject to the Federal OCSLA.

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