Longshore Program Updates

Dear Longshore Stakeholders:

 

I hope this email finds all of you safe and healthy during these unusual times. I am writing to provide you an explanation of the causes, effects, and the solutions implemented to address the following issues that were brought to my attention recently:

1. Certain correspondence was delivered to you much later than the date it was authored;
2. An unexpected influx of pre-penalty letters has been generated due to missing Forms LS-202 (Employer’s First Report of Injury or Occupational Illness); and
3. Notices of Claim were served on employers without an attached Form LS-203 (Employee’s Claim for Compensation).

We implemented a new process that automates outgoing correspondence and I am happy to report that as of Friday, September 25, there is no backlog of mail.

 

This year has been a challenging one for most of us, in that normal business operations have changed dramatically due to the pandemic. On March 17, 2020, all Longshore program federal employees were directed to telework 100% of the time. As a result, what was a daily process where Longshore staff would print outgoing correspondence in their local office and place it in that day’s mail has changed. Longshore staff now route all outgoing correspondence to a remote printing location for processing and mailing. With a relatively small contractor operation that was customarily focused solely on creating new cases and processing incoming mail, this process led to a backlog of outgoing mail and a delay in creating new cases. Additional backlogs accumulated when employers re-filed Forms LS-202 multiple times. These issues were unforeseen and their compounded effects led to a delay in the delivery of mail. Sadly, this included informal conference notices. This also led to Notices of Claim letters being sent without Forms LS-203 attached.

 

Receiving backdated mail is certainly not ideal, and we will accommodate any requests for informal conferences that need to be rescheduled due to insufficient notice. Out of an abundance of caution you may have received multiple copies of the same letter, but that should no longer occur.

 

I also want to address the large influx of pre-penalty (30(e)) letters that some employers have received. As you know, when our division creates a case following the receipt of Form LS-203, it is our responsibility to inquire if the employer was aware of the injury, particularly when a Form LS-202 has not been filed with the Department of Labor under Section 30 of the Longshore and Harbor Workers’ Compensation Act. Our letters request a statement explaining why the employer did not file Form LS-202 within 10 days of the injury. We have recently seen an increased number of Forms LS-203 filed primarily on Defense Base Act claims, which have generated a large volume of pre-penalty letters. As the issue became more prevalent, to ensure that our statutory duty did not create an onerous and unnecessary work volume for employers, effective July 2, 2020, the missing Form LS-202 pre-penalty letters included the following statement: If Form LS-202 is filed timely, you do not need to provide a statement. To be clear, if Form LS-202 was filed timely according to Section 30(a) of the Act, but a missing Form LS-202 pre-penalty letter was nevertheless sent by DOL, employers do need not to file a statement along with the Form LS-202, nor should they respond to the pre-penalty letter. If the date of knowledge (item 22 on Form LS-202) reflects that you have filed or are filing the Form LS-202 timely, that evidence speaks for itself. A Form LS-202 filed within 10 days of the date of knowledge is considered timely and not subject to a civil penalty.

 

Finally, on the issue of penalties, most of you are aware that the Department of Labor has not been assessing penalties following its rollout of our new case management system (OWCS). This was a conscious decision intended to provide all employers with the transition period necessary to properly acclimate to our new, automated process of identifying potential penalties. This transition period is dedicated to ensuring that employers who may not have been aware of their untimely filings learn from this period where such letters are received.

 

I want to thank all of you for your patience as we adjusted our business operations to the pandemic and as we worked through the issues that came with deployment of a new IT system. I also want to thank you for providing us the feedback that was necessary to refine our operations. While the major issues are now resolved, if you experience new or continued issues, I again welcome and strongly encourage you to immediately bring them to our attention by contacting your local District Director. I look forward to seeing you in person once normal operations resume.

 

Sincerely,

 

Antonio A. Rios

Director of Federal Employees’, Longshore

and Harbor Workers’ Compensation