Form Frenzy: Common Defense Base Act, and Longshore & Harbor Workers' Compensation Act Forms Explained

One question I receive frequently from my clients is, "why are there so many different forms to fill out?" The short answer is that the Department of Labor requires the filing of such forms to ensure that their files comply with federal regulations. The long answer is that the Longshore & Harbor Workers' Compensation Act, as extended by the Defense Base Act, incorporated many provisions of the New York Workers' Compensation Law ("NYWCL"), a notorious formulaic workers' compensation framework. One can easily trace the Longshore forms' roots in the NYWCL, as almost all are similar in appearance, name and intent. For example, the NYWCL C-7 denial form, became the LS-207; the NYWCL C-3 claim form, became the LS-203; the NYWCL C-2 notice form, became the LS-202; and so on. 

Below, I address some of the more common forms used during a claim for benefits under the Defense Base Act, and Longshore & Harbor Workers' Compensation Act. In addition, I provide links to the PDF version of each form for ease of reference. 

LS-18

Pre-Hearing Statement. This form is filed by either the Claimant or insurance company to request a formal hearing before the Department of Labor's Office of Administrative Law Judges following the issuance of a Memorandum of Informal Conference. Once the OALJ receives this form from the OWCP's District Director, they will issue a Notice of Hearing and Pre-hearing Order formally placing a claim on the trial calendar. 

LS-200

Report of Earnings. This form is usually served upon a Claimant by an insurance company in order to obtain a record of the Claimant's earnings to justify the payment of ongoing disability compensation benefits. Failure to respond to the same in a timely manner may result in the forfeiture of compensation payments.

LS-202

Employer's First Report of Injury or Occupational Illness. This form must be completed by an Employer following an employee's work-related injury. Failure to properly file the same with the Office of Workers' Compensation Programs will result in harsh penalties, and will toll the statute of limitations for both traumatic and occupational injuries.

LS-203

Employee's Claim for Compensation. This form is filed by an injured employee with the US Department of Labor to formally request the payment of medical and/or compensation benefits following a work-related injury. The DBA and LHWCA provide strict timelines for the filing of a claim, so it is best to retain a knowledgeable attorney immediately following a work-related injury to preserve the right to seek disability compensation benefits.

LS-206

Payment of Compensation Without Award. This form is completed by the insurance adjuster assigned to a claim, and notifies the Department of Labor that the responsible insurance company is making voluntary payment of indemnity benefits to the injured employee.

LS-207

Notice of Controversion of Right to Compensation. This form is filed by an insurance company to deny a claim for benefits brought by an injured employee. Oftentimes, some insurance companies will automatically file this form out of an abundance of caution on all claims that require further investigation. Receipt of this notice should not deter you from pursuing a valid claim for disability benefits. Should you receive this form from your insurance company, immediately retain an attorney. 

LS-208

Notice of Final Payment or Suspension of Compensation Payments. This form is filed by an insurance company following the payment of all compensation benefits they believe are due to an injured employee. Failure to file the same in a timely manor results in a small fine charged against the responsible insurance company.

LS-262

Claim for Death Benefits. This form is filed with the Department of Labor by a statutorily defined dependent in order to obtain death benefits under the Defense Base Act, and Longshore and Harbor Workers' Compensation Act. This form must be filed within one year if the work-related death resulted from a traumatic incident, or two years if the death was an occupational death. More information about filing a claim for death benefits under the Defense Base Act can be found HERE.

LS-265

Certification of Funeral Expenses. An LS-265 is completed by a funeral director, or a deceased worker's estate, and is accepted as evidence supporting the payment of funeral expenses. This form is generally required to receive reimbursement of funeral expenses up to the statutory maximum amount of $3,000.00.

LS-266

Application for Continuation of Death Benefit for Student. Under the DBA and LHWCA, a deceased employee's children, who are over the age of 18, must be enrolled in school to continue receiving death benefits through the age of 23. Form LS-266 is completed by the relevant school's registrar, and is accepted as evidence supporting the payment of ongoing death benefits during enrollment. Generally speaking, the responsible insurance company will request this form to be completed biannually to rule out a possible overpayment of compensation benefits.

LS-801

Waiver of Service by Registered or Certified Mail for Employers and/or Insurance Carriers. This form allows all compensation orders to be served upon an insurance carrier via email, to ensure prompt payment of benefits. 

LS-802

Waiver of Service by Registered or Certified Mail for Claimants and Authorized Representatives. This form allows all compensation orders to be served upon a Claimant via email, to ensure prompt payment of benefits. 

OWCP-5a

Work Capacity Evaluation. Oftentimes, a treating physician will have no knowledge of the legal requirements of the Defense Base Act, or Longshore and Harbor Workers' Compensation Act. Accordingly, their written reports may fall short of what the Department of Labor requires to substantiate a disability claim. Accordingly, oftentimes the DOL will ask a physician to complete this form, along with a narrative report, to clarify their findings.

Located at 1 World Trade Center in New York, New York, Diamond Law Practice, PLLC was established to help injured workers recover under the Defense Base Act, Longshore & Harbor Workers' Compensation Act, and New York Workers' Compensation Law. 

If you have a question about a potential claim, please do not hesitate to drop me a line at JDiamond@DiamondLawPractice.com. I am here to help. 

www.DiamondLawPractice.com

Experienced Defense Base Act, Longshore & Harbor Workers' Compensation Act, and New York Workers' Compensation Law Attorney.

Located on the 85th Floor of One World Trade Center, Diamond Law Practice is dedicated to helping injured workers recover all benefits available to them under the Defense Base Act, Longshore & Harbor Workers’ Compensation Act, and New York Workers’ Compensation Law. Please visit www.DiamondLawPractice.com or call (212) 220–7134 for a free claim consultation.

Proving Your Claim for Death Benefits Under the Federal Defense Base Act.

It has been a little over a year since I gave the eulogy I wished I would never have to give. I still have memories of that day, which will linger on for years to come. Losing someone very near and dear to your heart can leave you with many unanswered questions, anger, and resentment. These feelings are magnified if your loved one’s death resulted from unsafe working conditions overseas.

In general, the Defense Base Act provides death compensation benefits, medical expenses and funeral expenses to workers perishing overseas on United States’ military bases. The majority of Defense Base Act death claims filed today stem from heart attacks, insurgent attacks, and aircraft crashes occurring in Afghanistan. Under Section 20 of the LHWCA, as extended by the Defense Base Act, a claim for death benefits is presumed to be work-related in the absence of substantial evidence to the contrary. In this respect, the law is on your side. Additionally, it is important to note that the Defense Base Act is your exclusive remedy for recovery of monetary compensation resulting from the death of your loved one. Therefore, it is imperative that you retain an attorney who is specifically experience in the niche field of Defense Base Act litigation. 

The governmental agency responsible for the administration and oversight of all new Defense Base Act claims is the United States Department of Labor’s Office of Workers’ Compensation Programs located at 201 Varick Street, New York, New York. As all new claims originate in the New York office, having a Defense Base Act attorney headquartered in New York City makes the most sense.

The first step in the claim process involves the decedent’s employer filing an LS-202 First Report of Injury or Illness. This form must be filed within 10 days of the workers' injury, and must include the date of injury, location of injury, and a brief description of the incident. Thereafter, you should immediately retain an experienced attorney who can help prepare and file a fully documented claim for death benefits (Form LS-262), even if you are receiving benefits from your insurance company. Take my word for it, having an attorney at the beginning of your claim will (1) give you piece of mind, (2) ensure that you and your family are receiving all due and owing benefits, and (3) cost you nothing.

Section 9 of the LHWCA, as extended in part by the DBA, lists potential beneficiaries for deceased American and Canadian workers. These potential beneficiaries include the following:

• A widow or widower, married or separated at the time of death;
• A child, which includes posthumous children, adopted children, en loco parentis, step-children, and acknowledged illegitimate children;
• Dependent parents;
• Dependent grandparents;
• Dependent grandchildren;
• Dependent brothers and sisters; and
• Any other individual who qualifies as a dependent under the US Tax Code.

If the decedent's dependents are non-resident aliens of the United States or Canada, then potential beneficiaries include a surviving spouse and children. If there is no surviving spouse or child, then beneficiaries are strictly limited to surviving dependent parents. 

As a result of your loved ones’ overseas death, the insurance company should pay for all funeral expenses up to the statutory maximum amount of $3,000.00. In addition, they should pay for any and all costs associated with performing autopsies, DNA testing required for identification purposes, and the costs of repatriating your loved one's remains back home. If they deny any of the above, call an attorney immediately. It will be important to retain a copy of your loved one’s death certificate, marriage certificate, birth certificate, and all receipts documenting your funeral expenses to expedite the processing of your claim.

Additionally, you may be entitled to Defense Base Act compensation benefits due to the death of your loved one to help support your family. A surviving widow or widower is entitled to 50% of the decedent’s average weekly wage, subject to the statutory maximum compensation rate, for life (or until remarriage). If a surviving spouse has children, then the children share an additional 16 2/3% of the decedent’s average weekly wage until (1) the age of 18, (2) the age of 23 if enrolled in full-time course of study at an accredited educational or training institution, or (3) for life, if wholly dependent upon the decedent by virtue of mental or physical disability.  33 U.S.C.S. §902(14)-(18).

If there is no surviving spouse and only one surviving child, he or she receives 50% of the decedent’s average weekly wage. If there is no surviving spouse and more than one surviving child, the children share 66 2/3% of the decedent’s average weekly wage in equal portions. Grandchildren, sibilings, and other dependents receive 20% of the deceased worker’s average weekly wage, while dependent parents and grandparents each receive 25% of the decedent’s average weekly wage.

Non-resident claimants of the U.S. or Canada are subject to the commutation process established under Section 2(b) of the Defense Base Act. In short, a commutation is essentially a forced settlement amounting to 50% of the future value of all death benefits. If you are a non-United States resident and currently receiving death benefits, your benefits are subject to the commutation provisions established in Section 2(b) of the Defense Base Act. (For more information about commutations, please read this.) If this is the case, you will want to retain an attorney based in New York City, as the New York office of the US Department of Labor’s Office of Workers’ Compensation Programs handles all commutation applications in conjunction with the National Office. 

During my time as a DBA defense attorney, I was assigned the majority of new death claims that came into our office. It was a somber task, but I gained more experience in this subject area than any of my peers. For a long time, I succeeded at denying claims, decreasing benefit payments, and passing the buck to the government under the War Hazards Compensation Act. Everything changed once I started Diamond Law Practice, PLLC. Now I fight for workers who were injured or killed due to workplace accidents on overseas military bases. I haven’t slept better in years, as I know I am fighting the good fight.

I know the tactics that defense attorneys use to deny, or decrease the value of your claim for death benefits under the Defense Base Act. I will use my knowledge and very specific skill set to your advantage.

John-Austin Diamond of Diamond Law Practice, PLLC is an experienced attorney who has handled countless death claims brought under the Defense Base Act. Call (212) 220-7134, or email me at JDiamond@DiamondLawPractice.com for a free claim consultation at no cost to you and your family. Our office is located on the 85th Floor of One World Trade Center, and is fully handicapped accessible. 

Calculating Your Average Weekly Wage Under the Defense Base Act, and Longshore & Harbor Workers’ Compensation Act.

The most critical factor influencing the prospective value of your claim for compensation benefits under the DBA/LHWCA is the manner in which you calculate your Average Weekly Wage (“AWW”). Establishing a fair and accurate AWW at the outset of your claim will ensure that you maximize your entitlement to all available compensation under the law.

By way of example, below you will see a chart showing the value of a claim for death benefits brought by a widow under the DBA/LHWCA based upon four different AWW calculations. As you can see, even a small difference in the AWW calculation will result in a very significant change in the claim’s overall value. Hence, it is critical to retain an attorney early in your claim to ensure that you are receiving all available benefits by establishing a fair AWW.

A Sample Death Claim's Un-discounted Present Value By AWW Amount

Example includes a death claim brought by a 26 year American old widow, and is un-discounted.

Section 10 of the LHWCA, as extended by the DBA, establishes three methods for determining your average annual earnings, which are then divided by 52 to arrive at an AWW. This section states in pertinent part:

Except as otherwise provided in this Act, the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows:  (a) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding the injury, his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed. (b) If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings, if a six-day worker, shall consist of three hundred times the average daily wage or salary, and, if a five-day worker, two hundred and sixty times the average daily wage or salary, which an employee of the same class working substantially the whole of such immediately preceding year in the same or similar employment in the same or neighboring place shall have earned in such employment during the days when so employed. (c) If either of the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such average annual earnings shall be such sum as, having regard to the previous earnings of the injured employee in the employment in which he was working at the time of the injury, and of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, or other employment of such employee, including the reasonable value of the services of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee.

33 U.S.C. §910(a)-(c). 

To summarize, Section 10(a) examines your actual wages to determine your AWW. This provision applies only if you worked substantially the whole year leading up to the date of your injury at the same job. By way of example, if you earned $68,000.00 in the year preceding your injury, your average weekly wage will be approximately $1,307.69 ($68,000.00 / 52 weeks). Your resultant weekly compensation rate is then calculated by taking 2/3'rds of your AWW. In the above example, your compensation rate would be $871.79 per week.

In the event that Section 10(a) cannot be applied because you did not work in the same or similar employment during substantially the whole of the year preceding your injury, then an analysis must be performed under Section 10(b).  As a practical matter, the application of Section 10(b) usually involves examining the wages of your co-workers and colleagues who perform the same or similar job as you. Section 10(b) does not take into account individual performance or accolades that may affect your rate of compensation. Therefore, Section 10(b) is only useful in determining a worker's wages when their salary is rigidly set by a government or union mandated pay scale. 

Under circumstances where there is insufficient evidence in the record to make a determination of your average daily wage under Section 10(a) or Section 10(b), the courts will look at Section 10(c) as a potential method of calculating your AWW.  Insurance companies oftentimes utilize Section 10(c) as a tactic to depreciate your earning potential, reduce your AWW, and maximize their profits. Don’t fall into this trap. Retain an attorney now who will advocate on your behalf to obtain the highest AWW afforded by law.

DBA workers challenge the classic framework established in the LHWCA, as they are compensated at a much higher rate due to the dangers inherent in their employment. With great risk, comes great reward. Factored into the high profits of selling DBA insurance policies to employers operating in a warzone is a fundamental understanding that overall claim costs will be higher. Attempting to argue that Section 10(c) of the LHWCA should apply in any DBA matter is an attempt to pervert the intent of the law, and discount the sacrifice and risks taken by the average defense contractor. Nonetheless, the courts have been more open to the application of Section 10(c) since the issuance of the Hamidzada decision, and the United States District Court for the Southern District of Texas' holding that the Benefits Review Board abused their discretion in vacated Judge Kennington's ruling in K.S. v. Service Employees International, Inc. 43 BRBS 18 (2009).

Please feel free to contact Diamond Law Practice, PLLC now to discuss the calculation of your AWW under the Defense Base Act, or Longshore & Harbor Workers’ Compensation Act.