Filing of the Claim

In order to file a formal claim under the LHWCA, you must simply complete a single form with the Department of Labor. This form is known as an LS 201 and it is entitled an Employee’s Claim for Compensation. Click here to view a copy of this form. Generally it is not necessary to have an attorney at this stage of the proceeding although it is always best to obtain counsel as soon as possible after your accident. However, simply completing the LS 201 and filing it with the appropriate Department of Labor office is not a very “legal” or complicated process.

Informal Conference

The informal conference is the first step in attempting to resolve any type of dispute which may arise between you and your employer (or its insurance company) under your LHWCA claim. The informal conference is scheduled by the Department of Labor when either party, you or your employer/insurance carrier, notifies the Department of Labor that there is a “disputed issue” in regard to your claim. Typically this will occur when your employer terminates or refuses to pay compensation or medical benefits or your employer modifies or adjusts your compensation benefits without a legitimate reason. At this stage of the process normally an informal conference would be requested with the Department of Labor.

The informal conference is typically set two to three months from the date of the request. The conference takes place at the Department of Labor office either in person or by telephone and generally lasts 30 minutes to one hour. During the informal conference the Department of Labor “claims examiner” to whom your claim has been assigned will lead the conference. The claims examiner simply tries to determine the nature of the disputed issue and then hears both sides of the issue. If you have any type of medical records or wage records to support your position, it will be necessary for you to present these to the claims examiner at the informal conference. If you are represented by an attorney at this stage, the attorney typically attends the informal conference on your behalf and very often it is not necessary for you to attend or take part in the informal conference. Most employers will not have attorneys represent them at the informal conference but instead send the insurance adjuster or representative who has been handling the claim on behalf of the employer.

At the end of the informal conference, the claims examiner will make his “recommendation”. Typically the claims examiner will decide if the dispute should be resolved in favor of you or your employer. Within a few days of the informal conference the claims examiner will issue a written statement on a form which documents the informal conference and also specifically sets forth his recommendation in writing. Unfortunately, neither party is required or bound to follow the recommendation of the claims examiner. The procedure is called an “informal” conference because not only is the nature of the proceeding informal but the claims examiner’s recommendation has absolutely no authority or binding effect on your employer. Very often employers will refuse to follow the claims examiner’s recommendation and they will continue to handle the claim as they were before the informal conference. Unfortunately the informal conference is a required step before you can obtain a formal hearing in regard to any disputed issue in your claim and it can often appear as a waste of time if your employer does not voluntarily follow the claims examiner’s recommendation.

Formal Hearing

A formal hearing under the LHWCA is the only procedure for forcing or ordering your employer to do anything under the LHWCA. If you have a dispute with your employer in regard to either your compensation or medical benefits, the only method you have to force your employer to do anything in regard to your compensation or medical benefits is to present your disputed issue and claim at a formal hearing before an Administrative Law Judge. And before you can obtain a formal hearing in regard to your claim, you must first request and go through the informal conference process.

A formal hearing is requested by completing an LS 18 form with the Department of Labor. On this form you set forth each of the specific disputed issues which you intend to present to the Administrative Law Judge at the formal hearing. Typically you will also list your witnesses as well as any type of exhibits or medical records upon which you may rely. However, you are often not bound or limited to such witnesses or exhibits and typically lawyers will make general statements and list any and all possible witnesses as well as exhibits on the LS 18. It is best to complete this form as broadly as possible so that you can present any aspect of your claim as may be necessary at the formal hearing.

Once an LS 18 is completed and submitted to the Department of Labor, the Department of Labor will then set a date for your formal hearing which is generally about six months following the request for the formal hearing. The formal hearing will then take place at the courtroom for the Administrative Law Judge. You do not have a jury trial and it is simply an ALJ who works with the Department of Labor who presides over your formal hearing. There are rules of procedure and technically the ALJ will follow the Federal Rules of Civil Procedure which are also followed in federal court for regular tort lawsuits. However, most ALJs do not strictly enforce the rules of evidence or procedure and generally their goal is to obtain all of the necessary facts so that they can make a reasonable, correct and informed decision in regard to any disputed issue that may be presented to them.

Following the formal hearing the ALJ will typically issue a written opinion within one or two months of the hearing. It is in this written opinion that the ALJ can finally order your employer to pay compensation or medical benefits under the LHWCA.

Finally, in extreme cases, you can seek an expedited or quick date for your formal hearing. However, this is an exception and the Department of Labor rarely conducts formal hearings on an expedited or emergency type basis. Typically the fact that your compensation benefits have been terminated and you are having financial difficulty, or the fact that you are being denied basic medical treatment will not justify an expedited formal hearing. Expedited formal hearings generally are limited to extreme cases where the employee could die or suffer severe injury due to denied medical treatment. Remember that the LHWCA is administered through the federal Department of Labor and unfortunately the process is slow.