Waiver of Registered Mail Service Approved by OWCP

OWCP, DLHWC has issued Industry Notice 152 effective June 10, 2015, which allows electronic service of notices and orders to longshore stakeholders. First proposed over five years ago by the DOL-Joint Bar Association, Inc., OWCP has issued revised regulations that allow parties to proceedings before OWCP to waive service by registered mail and receive notices and orders via email.

To elect electronic service, a party must complete and submit either Form LS-801 (Employers, Carriers and their representatives) or Form LS-802 (Claimants and their representatives). The forms can be obtained on the OWCP website: http://www.dol.gov/owcp/dlhwc/lsforms.htm.

The full text of the industry notice is below:

To speed delivery of benefits to injured workers covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA), and its extensions, the Office of Workers’ Compensation Programs (OWCP), Division of Longshore and Harbor Workers’ Compensation (DLHWC), now offers an alternative electronic option for service of compensation orders. Any party to a claim or the party’s representative may now choose to waive service by certified mail and instead receive service via email.
BACKGROUND: Section 919(e) of the LHWCA provides that parties have a right to service of compensation orders by registered or certified mail. By practice, the Department has elected to use certified mail and has extended this manner of service to the parties’ representatives. See 20 C.F.R. 702.349(a). Effective June 10, 2015, a new implementing regulation found at 20 C.F.R. 702.349(b) allows parties and their representatives to waive certified mail service and consent to electronic service instead.
Revised 20 C.F.R. 702.349(b) provides:
All parties and their representatives are entitled to be served with compensation orders via registered or certified mail. Parties and their representatives may waive this right and elect to be served with compensation orders electronically by filing the appropriate waiver form with the district director responsible for administering the claim. To waive service by registered or certified mail, employers, insurance carriers, and their representatives must file form LS-801 (Waiver of Service by Registered or Certified Mail for Employers and/or Insurance Carriers), and claimants and their representatives must file form LS-802 (Waiver of Service by Registered or Certified Mail for Claimants and/or Authorized Representatives). A signature on a waiver form represents a knowing and voluntary waiver of that party’s or representative’s right to receive compensation orders via registered or certified mail.
(1) Waiving parties and representatives must provide a valid electronic address on the waiver form.
(2) Parties and representatives must submit a separate waiver form for each case in which they intend to waive the right to certified or registered mail service.
(3) A representative may not sign a waiver form on a party’s behalf.
(4) All compensation orders issued in a claim after receipt of the waiver form will be sent to the electronic address provided on the waiver form. Any changes to the address must be made by submitting another waiver form. Individuals may revoke their service waiver at any time by submitting a new waiver form that specifies that the service waiver is being revoked.
(5) If it appears that service in the manner selected by the individual has not been effective, the district director will serve the individual by certified mail.
The only method of electronic service OWCP is providing at this time is transmission via email. Thus, under section 702.349(b), any party to a claim or their representative may now sign up for email service of compensation orders by waiving certified mail service. This includes claimants, employers, insurance carriers, self-insured employers, and attorneys (or lay representatives) for both claimants and employer/carriers. Parties and representatives who do not waive certified mail service in accordance with the procedures below will receive compensation orders via certified mail.
1. If a party wishes to request service via email, the appropriate “Waiver of Service by Registered or Certified Mail” form must be completed and submitted to OWCP for inclusion in the case file. There are two different waiver forms, and they are both available on the DLHWC website (http://www.dol.gov/owcp/dlhwc/lsforms.htm).
The correct form, based on the party submitting the waiver, must be used or the waiver will be deemed invalid. No other request – written or verbal – will be honored.
LS-801 (Waiver of Service by Registered or Certified Mail for Employers and/or Insurance Carriers) is to be used by Employers, Insurance Carriers, and their representatives.

LS-802 (Waiver of Service by Registered or Certified Mail for Claimants and Authorized Representatives) is to be used by claimants and their representatives.
2. The waiver form requires the author to identify his/her role in the claims process; name, firm or business name (if applicable); and the email address(es) to which compensation orders should be sent. No more than two (2) email addresses can be listed on the form.
A representative, including an attorney, may not sign a waiver form on a party’s behalf.
3. All fields on the form must be completed. It must be signed, dated and submitted to OWCP.
DLHWC’s Secure Electronic Access Portal (SEAPortal) may be used to upload the waiver form into the case file. (See Industry Notice No. 148, issued October 31, 2014.) The SEAPortal can be accessed at the following web address: https://seaportal.dol-esa.gov/. The document category option to be used during the upload process is “Waiver of Service by Certified Mail (LS-801/802).”

Alternatively, the form may be mailed to the DLHWC Central Mail Receipt site at the following address: U.S. Department of Labor, OWCP/DLHWC, 400 West Bay Street, Suite 63A, Box 28, Jacksonville, FL 32202.
4. If the individual who signs the waiver form wishes to revoke the waiver or change the email address(es) for delivery, he/she must submit a new waiver form and check the appropriate box at the top of the form. No other request – written or verbal – will be honored.
5. When a compensation order is served via email, the subject line of the email will be “Compensation Order,” with the case number only, and the order will be attached as an Adobe document that is password protected. The password will be the injured worker’s date of birth in the following format: MM/DD/YYYY. The actual date of birth will not be provided since any party to the claim (or their representative) should have that information.
6. If the order is sent via email and OWCP receives a notice that it is undeliverable or otherwise appears not to have been transmitted, OWCP will then serve the order via certified mail to that recipient. (An out-of-office reply is not considered to be an “undeliverable” email.) If the order is sent via certified mail in this instance, written notice will be sent to that individual party or representative indicating that the attempt to serve the compensation order via email was unsuccessful. If the individual wishes to receive additional orders via email, he/she must file a new waiver form.
Signature on the waiver serves as a knowing and voluntary waiver of the right to receive the compensation order(s) by registered or certified mail. If any party or representative chooses to receive service via email, a hard copy of the order will not be sent via certified or registered mail to that party or representative. All other parties and representatives to the claim will receive service in the usual and customary manner (unless they have also waived their right to certified mail service). In light of the availability of email service, the DLHWC will no longer send courtesy copies of compensation orders to certain parties and representatives by fax as it has occasionally done in the past.

No Cause of Action Against Coworker’s Lending Employer

The U.S. District Court for the Eastern District of Louisiana recently issued an interesting decision applying the Longshore and Harbor Workers’ Compensation Act’s borrowed servant doctrine.  The plaintiff was injured on a tension leg platform on the outer continental shelf when another worker dropped a piece of equipment on his back.  Plaintiff sued his employer (BP) as well as the other worker’s employer (Danos and Curole).

The parties ultimately agreed that the LHWCA applied by virtue of the Outer Continental Shelf Lands Act and BP was eventually dismissed as plaintiff’s employer.  Danos and Curole filed a motion for summary judgment, arguing plaintiff had no cause of action because its employee was acting as a borrowed servant of BP at the time of the incident.  If plaintiff’s coworker was acting as a borrowed employee of his own employer, BP, the LHWCA prevented him from suing his coworker for negligence and he therefore had no cause of action for vicarious liability against Danos and Curole.

The Court applied the Fifth Circuit’s nine factor test for the borrowed servant doctrine.  After finding that the vast majority of the evidence weighed in favor of plaintiff’s coworker being a borrowed servant of BP, the Court held that plaintiff had no cause of action against Danos and Curole for vicarious liability and dismissed all claims.

Crawford v. BP Corporation North America, Inc.

Mineral Lessee Does Not Have a Duty to Police the Waterways it Leases

In June 2014, Danny Luke was checking his crab traps when his skiff struck a submerged piling.  Mr. Luke’s vessel was damaged by the collision, and he sustained injuries to his head, neck, back, and other areas.  Mr. Luke alleges that the negligence of Hilcorp Energy Company and Roustabouts, Inc. caused the accident.  It is well established that a private company assumes liability for damages resulting from a collision of a boat with an obstruction in navigable waters when it has ownership, custody or is responsible for placement of the obstruction in the navigable waters.  Here, Hilcorp had held the mineral lease where the accident occurred since July 2010, and Roustabouts was contracted to provide oilfield construction services to Hilcorp.  Luke sued Hilcorp and Roustabouts in the U.S. District Court for the Eastern District of Louisiana.

The defendants moved for summary judgment contending that they did not own, control, maintain, place, or have any connection to the piling that struck Mr. Luke’s vessel.  In an attempt to establish a genuine dispute of material fact, Mr. Luke focused on the facts that Hilcorp and Roustabouts worked in the general area, Roustabouts removed the piling after the accident, and Hilcorp failed to inspect the waterway it leased.  The court emphasized that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion for summary judgment.  The court granted the motion, ruling that Mr. Luke failed to present any evidence that Hilcorp or Roustabouts owned or were responsible for the piling, and as such, owed no duty to Mr. Luke.  The court reasoned that a mineral lessee does not have a duty to those using navigable waterways to police the waters covered by its lease or to take steps to remove obstructions that it does not own, has not placed there, or does not maintain under its control.

Luke v. Hilcorp Energy Company, et al.

D.C. Circuit Rules No Intentional Tort Exception Under Defense Base Act

On June 2, 2015, the United States Court of Appeals for the District of Columbia Circuit ruled that there is no intentional tort exception under the Defense Base Act, affirming the dismissal of a purported class action suit on behalf of a group of 32 plaintiffs who alleged a variety of intentional tort claims in connection with the administration of their Defense Base Act claims. They sought to be declared class representatives for an estimated 10,000 similarly situated DBA workers.

The court noted: Members of the plaintiff class suffered severe injuries. They lost limbs in massive explosions, suffered traumatic brain injuries from “concussive blasts, mortars, rockets, and bombs,” and developed post-traumatic stress disorder after witnessing “gruesome scenes of carnage.”

The plaintiffs alleged their DBA employers and carriers “failed or refused to provide medical benefits owed,” “cut off medical benefits,” delayed providing benefits, “made false statements and misrepresentations” regarding payment of DBA benefits “while actually reducing, denying or ignoring [their] medical needs,” failed to comply with orders to pay benefits, threatened or discouraged workers from making claims, and terminated employment after the claimants were disabled by their allegedly covered injuries. They made class-wide claims for discrimination and retaliatory discharge under the LHWCA, RICO violations, bad faith and tortious breach of the covenant of good faith, “unconscionable, fraudulent, and deceptive trade practices,” civil conspiracy, violations of the ADA, and wrongful death.

Citing to the exclusivity provisions of the DBA, LHWCA, and District of Columbia Workers’ Compensation Act, all of which follow a similar construct, the court found that the intentional torts alleged by the plaintiffs fell squarely within the quid pro quo of those Acts and prohibited the suit to proceed. The court allowed the tangential tort claims, including an alleged assault and the ADA claims to be remanded for further proceedings.

This decision is important both for DBA and LHWCA practitioners, as it is the clearest pronouncement to date explaining the scope of the exclusivity provisions of these statutes and determining no intentional tort exception exists under the DBA.

Brink v. Continental Insurance Co., No. 13-7165 (June 2, 2015).