Law Offices of Scott J Bloch, P.A.

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NEW DEPARTMENT OF LABOR REGULATIONS AFFECTING RATES OF PAY

January 17th, 2017 by Scott Bloch

There are two areas injured workers need to be watching, one is the civil penalties assessed against insurance companies and employers for discrimination against employees (such as firing you for filing a workers compensation claim overseas, or having an injury that is likely to result in a claim) or penalty for failure to report injury or death (failure to file the LS 202), or termination of payments (failure to file the LS 207).   These regulations will increase the amount assessed against employers, and provide a small disincentive for them to misbehave.

The other regulation to watch is the implementation of the Roberts rule, based on Roberts v. Sea-Land Services, Inc., 566 U.S. __, 132 S.Ct. 1350, 1354 (2012), which would put in a regulation what the courts and the Benefits Review Board of the Department of Labor have long held: that the rate for persons determined to be Permanently Totally Disabled (PTD).  As it is now, the insurance companies get to pick a rate they like to pay a person determined to be PTD, and only give one COLA increase to their original rate at time of accident when they were only TTD (temporarily totally disabled).  Roberts and cases interpreting it and the section 6(c) language “newly awarded compensation” for what rate to pay a person first determined to be PTD, says that the rate is the prevailing rate of maximum average weekly wage in effect on the date when they were determined to be PTD.  That will significantly increase the pay for persons who become PTD after they are initially injured.

The regulation has gone past the public statement phase, but because of the change in administration it is unclear whether this regulation will simply fall into a batch of any regulations pending at the time of the end of the prior administration and be held up pending further review for what cost and effect it would have on business.

The Regulations

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires the Department of Labor (DOL) to annually adjust its civil money penalty levels for inflation. On January 13, 2017, DOL promulgated a final rule adjusting penalties for 2017.  The rule makes small upward adjustments to the following penalties assessed by the Office of Workers’ Compensation Programs under the Longshore and Harbor Workers’ Compensation Act:

  • 20 C.F.R. 702.204

Penalty for late report of injury or death.

  • 20 C.F.R. 702.236

Failure to report termination of payments.

  • 20 C.F.R. 702.271(a)(2)

Discrimination against employees who bring proceedings.

The public inspection version of the rule is available on the Federal Register’s website athttps://www.federalregister.gov/documents/2017/01/18/2017-00614/department-of-labor-federal-civil-penalties-inflation-adjustment-act-annual-adjustments-for-2017. The Federal Register will publish the final version on January 18, 2017. The rule became effective on January 13, 2017.

The regulation that has already passed the public comment on the “newly awarded compensation” language of Section 6(c) of the Act, is found at https://www.regulations.gov/documentD=WCPO-2016-0001-0001.