A Long Way from a New Longshore Act: Critiquing Senate Bill 669

Abstract

This Article addresses the proposed amendments to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) set out in Senate Bill 669, and argues that many of the proposed amendments will have deleterious effects on the administration and adjudication of LHWCA and Defense Base Act (“DBA”) claims. To be sure, some of the amendments proposed by Senator Johnny Isakson on March 29, 2011, such as the increase in the amount of funeral benefits and the relaxation of the time constraints associated with penalties for late payment of benefits, are non-controversial. The Article argues that other amendments in Senate Bill 669 are complete “game changers,” including: (1) codification of the last responsible employer doctrine; (2) reducing benefits because of prior impairments from non-occupational factors; (3) limiting a claimant’s choice of physician to a physician designated in a carrier’s “health care panel;” (4) abolishing the Second Injury Fund; (5) calculating a claimant’s compensation rate based upon “spendable earnings;” (6) reducing the time for filing claims; (7) allowing benefits-withholding pursuant to the Employment Retirement Income Security Act; and (8) severely punishing LHWCA fraud. The Article describes how these “game changers” will redefine the LHWCA and DBA practice areas. Finally, the Article considers important issues that Senate Bill 669 fails to address, such as the circuit split regarding attorney’s fees under the LHWCA, the meaning of the term “compensation,” and the proper classification of psychological injuries as “traumatic injuries” or “occupational diseases.” Taken as a whole, Senate Bill 669 proves that we are a long way from a new Longshore Act.

Keywords: Longshore and Harbor Workers' Compensation Act, LHWCA, Defense Base Act, DBA, Senate Bill 669, proposed amendments, last responsible employer, reducing benefits, choice of physician, Second Injury Fund, spendable earnings, fraud, attorney's fees, compensation, psychological injuries