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Policy and Procedure Name:
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Longshore and Harbor Workers’
Compensation Claims (aka Marine Industry Fund)
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Policy #:
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CP-12-05
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Code/Rule Reference:
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R.C. 4131.11
to R.C.
4131.16; O.A.C.
4123-20-01 to O.A.C.
4123-20-07; 33 USC §901 et seq.; 20 CFR §701 et seq.
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Industrial Commission (IC) Resolution/Memo
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N/A
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Effective Date:
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04/04/2025
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Approved:
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Shawn Crosby, Chief Operating Officer
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Origin:
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Operational Policy and Support
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Supersedes:
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Policy # CP-12-05, effective 12/20/2019
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History:
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Previous versions of this policy are available upon
request
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Table of
Contents
I. POLICY PURPOSE
II. APPLICABILITY
III. DEFINITIONS
Longshore and Harbor Workers’
Compensation Act (LHWCA)
Marine Industry Fund (MIF)
IV. POLICY
A. BWC Role
B. Exclusions
V. PROCEDURE
A. General Claim Note and
Documentation Requirements
B. General Provisions
C. Notice of a Longshore
Claim
D. Compensability
E. Rate and Payment of
Compensation
F. Medical Benefits and
Travel Reimbursement
G. Death Benefits
H. Disputes
This policy ensures that qualifying claims are processed in
compliance with the Longshore and Harbor Workers’ Compensation Act (LHWCA) when
BWC is an employer's authorized longshore carrier.
This policy applies to Claims Services staff.
Longshore
and Harbor Workers’ Compensation Act (LHWCA): A
federal act, administered by the U.S. Department of Labor (DOL), that offers
compensation and medical care to employees for injuries (including occupational
diseases (OD)) that occur on the navigable waters of the United States, or in
adjoining areas customarily used in loading, unloading, repairing, or building
a vessel. This act also offers benefits to dependents if the injury causes the
employee’s death.
Marine
Industry Fund (MIF): A separate State of Ohio fund,
administered by BWC, for the payment of compensation and benefits under the
Federal LHWCA.
A. BWC Processing
of Claims Qualifying Under the LHWCA (Longshore Claims)
1. It is
BWC’s policy that claims qualifying under the LHWCA, for which BWC is the
authorized longshore carrier, must be:
a. Processed
by BWC consistent with that act: and
b. Charged
against the MIF.
2. Longshore
claims are only compensable if they satisfy both the status and situs tests.
a. Status
Test: Was the claimant engaged in maritime employment at the time of their
injury (i.e., a job related to the loading, unloading, construction, or repair
of a vessel)?
i.
In general, the following maritime employees may file a claim for a
job-related injury under the LHWCA:
a) Longshoremen;
b) Waterfront
crane operators;
c) Longshore
checkers;
d) Stevedores;
e) Terminal
workers;
f)
Shipyard employees;
g) Shipbuilders;
h) Marine
construction workers; and
i)
Vessel repair workers.
ii. The
following employees, if covered by state workers’ compensation law, are
excluded from coverage under the LHWCA:
a) Employees
hired exclusively to perform office clerical, secretarial, security, or data
processing work;
b) Employees
of a club, camp, recreational operation, restaurant, museum, or retail outlet;
c) Employees
of a marina who are not engaged in construction, replacement, or expansion of
the marina (except for routine maintenance);
d) Employees
of suppliers, transporters, or vendors that are temporarily doing business on
the premises of a maritime employer and are not engaged in work normally
performed by employees of that employer covered under the LHWCA;
e) Aquaculture
workers;
f)
Individuals employed to build any recreational vessel under 65 feet in
length, or to dismantle any part of a recreational vessel in connection with
the repair of such vessel; and
g) Small
vessel workers if exempt, by certification of the Secretary of Labor, under
certain conditions.
iii. Other employees
excluded from LHWCA coverage are:
a) Masters
or members of a crew of any vessel;
b) Individuals
engaged by a master to load or unload or repair any small vessel under 18 tons
net; and
c) Employees
of the U.S. government or of any state or foreign government.
b. Situs
Test: Did the injury occur upon the navigable waters of the United States,
including any adjoining:
i.
Pier;
ii. Wharf;
iii. Dry dock;
iv. Terminal
building way;
v. Marine
railway; or
vi. Other
adjoining area customarily used by an employer in loading, unloading,
repairing, dismantling, or building a vessel.
3. BWC
will:
a. Represent
the interest of the MIF in all proceedings pertinent to a controverted claim;
and
b. Charge
representation expenses incurred by BWC, including travel, to the MIF.
1. Longshore
claims are not subject to provisions of the Disabled Workers’ Relief Fund.
2. There
will be no deduction from Longshore claims for:
a. Family
support orders; or
b. Recoupment
of overpayment in a BWC state-fund claim, or from a different Longshore claim.
1. BWC
staff will refer to the Standard
Claim File Documentation and Altered Documents policy and procedure for
claim note and documentation requirements; and
2. Must
follow any other specific instructions for claim notes and documentation
included in this procedure.
1. The
Special Claims Department will process all Longshore claims unless otherwise
assigned by Operations management.
2. Claims
services staff will consult with BWC Legal regarding the handling of a
Longshore claim as needed.
3. Special
Claims staff must reference the “Longshore Procedure Manual” (available in the
Special Claims Department) and the DOL Division of Longshore and Harbor
Workers’ Compensation (DLHWC) website
for additional information on federal requirements.
4. Federal
Forms
a. Special
Claims staff may locate Federal Longshore claim forms on the DOL DLHWC website.
b. Special
Claims staff must ensure that the federal forms used are current (by checking
the DOL website, or
contacting the DOL, as needed).
c. Special
Claims staff must follow the DOL’s direction should any of the specific forms
or other communications change.
5. Any
written communication required by this procedure that is not identified as a
federal form will be drafted by Special Claims staff as offline correspondence,
or generated through the claims management system, as available.
6. The Special
Claims CSS must:
a. Ensure
that Longshore claims, where BWC is the insurer, are charged against the MIF;
and
b. To
the extent possible, provide guidance so that potential Longshore claims are
not allowed in the State Insurance Fund.
7. Claims
services staff may email the BWC
Marine Fund mailbox with any questions.
1. Upon
receipt of an Employer’s First Report of Injury or Occupational Illness
(LS-202) from an employer reporting an injury, occupational illness, or death
under the LHWCA, the Special Claims CSS must:
a. Obtain
a claim number utilizing the following information:
i.
Name;
ii. Social
Security number;
iii. Date of birth;
iv. Address;
v. Date
of injury;
vi. Employer
name; and
vii. Employer MIF policy
number.
b. Initially
identify the claim as “medical only” in the claims management system during
investigation;
c. Confirm
coverage by MIF for the applicable period with BWC Underwriting;
d. Send
a copy of the LS-202 to the DOL;
i.
If the DOL has not yet assigned a DOL claim number, submit the LS-202:
a) Electronically
through the SEAPortal by clicking on the SUBMIT NEW CLAIM OR REPORT INJURY
banner at the top of the portal page, and image a copy of the proof of
submission to the BWC claim file; or
b) By fax, to
the case create fax number: 202-513-6814; or
c) By
mail to:
U.S. Department of
Labor
OWCP/DLHWC
400 West Bay St
Room 63A, Box 28
Jacksonville, FL
32202
ii. Once
the DOL has assigned a DOL claim number, submit all future correspondence,
forms, medical, etc.:
a) Electronically
through the SEAPortal, and image a copy of the proof of submission to the BWC
claim file; or
b) By mail to:
U.S. Department
of Labor
OWCP/DLHWC
400 West Bay
Street, Suite 63A, Box 28
Jacksonville, FL
32202
2. Upon
receipt of either a Notice of Employee’s Injury or Death (form LS-201), Employer’s
First Report of Injury or Occupational Illness (form LS-202), or a First
Report of Injury, Occupational Disease or Death (FROI) reporting an injury,
occupational illness, or death under the LHWCA:
a. Claims
services staff must:
i.
Confirm the existence of a MIF employer policy;
ii. Assign
the employer’s MIF policy number; and
iii. Reassign the
claim to the Special Claims Department.
b. The Special
Claims CSS must contact the employer and advise it to file the appropriate DOL
forms for the claim if they have not been received.
3. If the
proper assignment or processing of a claim is unclear, Claims Services staff,
or the Special Claims CSS must consult with BWC Legal.
1. While
the Longshore claim is being investigated for compensability, the Special
Claims CSS will send a Notice of Controversion of Right to Compensation
(LS-207) to the DOL, with copies to the claimant, the employer, and their
individual representatives, if applicable.
2. If
not already received, the Special Claims CSS must contact the employer and
request that they provide an Attending Physician’s Supplementary Report
(LS-204).
3. The Special
Claims CSS may request an independent medical examination (IME) or a physician
file review for the initial determination of the claim.
4. The
Special Claims CSS must assess the evidence in the claim by applying the status
and situs tests, as detailed in Section IV.A.2(a)-(b) of this policy.
5. The Special
Claims CSS must not allow a claim if the injury was caused solely by:
a. The
intoxication of the employee; or
b. The
willful intention of the employee to injure or kill themself or another.
6. If
the status and situs tests are met, the Special Claims CSS will review the
medical documentation in the claim to determine if the medical documentation
supports any one or more of the following, as defined by the LHWCA:
a. Temporary
total disability (TT);
b. Permanent
total disability (PTD);
c. Temporary
partial disability (TPD);
d. Permanent
partial disability (PPD); or
e. Death
benefits.
7. If
the Special Claims CSS determines that the claim is compensable, they must send
the claimant a “Marine Fund Approved Medical Benefits Explanation” letter to
notify the claimant of the allowance, and as applicable:
a. Identification
of the specific allowed conditions;
b. Information
related to medical benefits;
c. The
address for submission of medical invoices;
d. The
compensation to be paid, if applicable; and
e. Other
information pertinent to the claim.
8. If the
Special Claims CSS receives an Employee's Claim for Compensation
(LS-203) or other notice that the claimant is off work, they must identify the
claim as “Lost Time” in the claims management system.
1. The Special
Claims CSS must staff an allowed claim with BWC Legal to determine the
appropriate compensation, consistent with 33 USC §902, §906, and §908-§910 (be
aware these statutes are similar, but vary in detail, from BWC law and rules).
General provisions of those statutes include:
a. Time
for Commencement
i.
No monetary compensation will be allowed for the first three days of the
disability unless the disability extends beyond 14 calendar days;
ii. Then
the compensation will be allowed from the date of the disability.
b. Determination
of Average Weekly Wage (AWW)
i.
Factors considered under §910 include:
a) Whether
the employee is a five or six-day worker; and
b) Whether
they were employed substantially the entire year.
c. PTD
and TT
i.
Compensation is two-thirds of the claimant’s AWW, subject to a maximum and
minimum amount.
ii. The
maximum rate for PTD and death benefits is adjusted every Oct. 1, based on the
current National Average Weekly Wage (NAWW) for the affected period.
iii. PTD is subject
to a maximum adjustment of 5%.
d. PPD
i.
Compensation is payable for the permanent loss or proportionate loss as
a percentage associated with certain parts or functions of the body.
ii. Compensation
is payable as specified in 33 USC §908.
e. Temporary
Partial and Non-scheduled Permanent Partial Disability: Compensation is
two-thirds of the employee's weekly wage loss or loss of wage-earning capacity.
f.
Permanent Partial Disability for Retirees: If the claimant suffers the
onset of a latent OD after retirement, compensation is two-thirds of the NAWW
multiplied by the percentage of impairment resulting from the disease.
g.
Maximum and Minimum Payments
i.
Compensation may not exceed the lesser of:
a) 200%
of the NAWW at the time of injury; or
b) The
claimant’s full AWW.
ii. Compensation
for total disability may not be less than 50% of the NAWW, except if the AWW is
less than 50% of the NAWW; then the compensation rate equals the AWW.
2. The
Special Claims CSS may locate the NAWW maximum and minimum rates and annual
increase percentage on the DOL DLHWC website.
3. The Special
Claims CSS must request wages using the “Request for Wage Information” letter.
4. The Special
Claims CSS must ensure the first payment of compensation is made no later than 14
calendar days from the date the employer has been notified or has knowledge of
the injury or death.
a. The Special
Claims CSS must send a Notice of Payments (LS-208) to the DOL, with
copies to the claimant, the employer, and their individual representatives, if
applicable, on the same day the first payment is made.
b. If
the first payment of compensation is not made timely, a significant penalty
will be assessed.
c. If
for any reason the first payment of compensation may be late or is already
late, the Special Claims CSS must consult with BWC Legal.
d. When
the claimant ceases to be eligible for compensation:
i.
The Special Claims CSS must send a Notice of Payments (LS-208) to
the DOL, with copies to the claimant, the employer, and their individual
representatives, if applicable.
a) The
LS-208 must be sent no later than 16 calendar days after the date of final
payment, including a payment that is made in conjunction with a final settlement.
b) If the
LS-208 is not sent to the DOL timely, BWC is subject to a civil penalty.
ii. The
Special Claims CSS must consult with BWC Legal if, for any reason, the LS-208 might
not be sent in the required timeframe or is already beyond the required
timeframe.
5. The
Special Claims CSS will not apply family support deduction orders or provisions
for the Disabled Workers’ Relief Fund to Longshore claims.
6. The
Special Claims CSS will not recoup an overpayment in a BWC state-fund claim
from a Longshore claim.
1. The Special
Claims CSS will receive, review, and approve or disapprove all medical invoices
submitted on behalf of the claimant, in accordance with 33 USC §907.
2. In
general, the Special Claims CSS will approve:
a. All
medical, surgical, and hospital treatment, and other medical supplies and
services required due to the claim-related injury or OD; and
b. The reasonable
cost of travel and mileage incidental to the medical treatment.
3. The
Special Claims CSS must notify the physician of Request for Medical Service
Reimbursement or Recommendation for Additional Conditions for Industrial Injury
or Occupational Disease (C-9) treatment approvals using the “Treatment
Approval” letter.
4. Medical
Benefits
a. Prior
to approval, the Special Claims CSS will ensure that the medical treatment is
provided by one of the following physicians within the scope of their practice,
as defined by Ohio law:
i.
Doctor of medicine;
ii. Surgeon;
iii. Podiatrist;
iv. Dentist;
v. Clinical
psychologist;
vi. Optometrist;
vii. Osteopathic
practitioner;
viii. Chiropractor, but only to the
extent that the treatment is for the manual manipulation of the spine to
correct a subluxation (dislocation).
b. The Special
Claims CSS will:
i.
Authorize the treating physician initially selected by the claimant; and
ii. Send
that physician the “Ohio Marine Industry Fund Provider” letter.
c. The
Special Claims CSS:
i.
Will not permit the claimant to change the treating physician without
good cause; and
ii. Must
consult with BWC Legal if the claimant makes a request to change the treating
physician.
d. The Special
Claims CSS must refer a C-9 or equivalent to the medical service specialist
(MSS) for review.
i.
The Special Claims CSS should staff significant requests for additional
conditions with BWC Legal prior to referral to the MSS.
ii. The
MSS will approve or deny the C-9, or equivalent request or recommendation; and
iii. The Special
Claims CSS will:
a) Fax
the decision to the medical provider’s office; and
b) Notify the
claimant by letter of the decision.
e. In
addition to the provisions detailed above, the Special Claims CSS must review a
medical service invoice to ensure:
i.
The HCPCS, CPT, and ICD codes are included; and
ii. The
provider is an enrolled and active BWC provider, and the provider number is
included. If the provider is not enrolled, the Special Claims CSS must:
a) Pend
approval of the medical service invoice; and
b) Send the
provider the Application for Provider Enrollment and Certification
(MEDCO-13).
f.
If the medical service invoice is approved, the Special Claims CSS will:
i.
Place the date, initials, and their “A” number on the invoice;
ii. Indicate
that the invoice is approved; and
iii. Email the
invoice to BWC Medical Billing and Adjustments (MB&A).
g. If
the medical service invoice is denied:
i.
The Special Claims CSS will:
a) Place
the date, initials, and their “A” number on the invoice;
b) Indicate that
the invoice is denied; and
c) Email
the invoice to BWC MB&A.
ii. MB&A
will send notice and the reason for denial to the provider and parties to the
claim.
h. Vocational
Rehabilitation: If the claimant makes a request for vocational rehabilitation
or for a functional capacity evaluation (FCE), the Special Claims CSS must
consult with BWC Legal.
5. Travel
Expenses
a. Travel
expenses will be paid at the federal reimbursement rates available on the U.S.
General Services Administration (GSA) website and the DOL DLHWC website.
b. Upon
approval, the Special Claims CSS must forward requests for travel reimbursement
to BWC Benefits Payable for payment.
1. The Special
Claims CSS and BWC Legal will determine death benefits and rates in accordance
with 33 USC §902 and §909. General provisions of those statutes provide that:
a. The
following survivors may be eligible for death benefits in a Longshore claim:
i.
A surviving spouse;
ii. Children
of the decedent;
iii. Parents;
iv. Siblings;
v. Grandparents.
b. Reasonable
funeral expenses may be paid up to a maximum of $3,000.
2. When
notified of the death of the claimant, the Special Claims CSS will identify the
claim as “Death” in the claims management system.
1. Disputes in Longshore claims (e.g., a medical service
invoice is not approved, or a claimant disagrees with a compensation rate):
a.
Must be staffed with BWC Legal; and
b.
Will not be referred to the IC or to
the alternative dispute resolution process.
2. The
Special Claims CSS must refer claimant inquiries regarding their appeal rights
under the LHWCA to the Office of Workers’ Compensation Programs website for
national and/or regional Longshore office phone numbers.