The Longshore and Harbor Workers’ Compensation Act’s Pre-Hearing Statement, Form LS-18, is an integral part of the administration and adjudication process. Typically, a party submits a Form LS-18 to the Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) after an informal conference, when the parties cannot reach an agreement and the district director must make recommendations. See 20 C.F.R. § 702.316. When a party submits a completed Form LS-18 to the DLHWC, the agency then transfers the case to the Office of Administrative Law Judges (“OALJ”) pursuant to 20 C.F.R. § 702.317.
Section 702.317 prohibits the DLHWC from transferring to the OALJ “any recommendations expressed or memoranda prepared by the district director” following the parties participation in an informal conference. Because these recommendations cannot be submitted to the OALJ, parties to an administrative formal hearing try to refrain from attaching the district director’s written recommendations (known as a Memorandum of Informal Conference, Form LS-280) as trial evidence. The problem is that most federal circuits require proof of the existence of an informal conference before attorney’s fees may shift pursuant to Section 28(b) of the Longshore and Harbor Workers’ Compensation Act. See, e.g., Andrepont v. Murphy Exploration and Prod. Co., 566 F.3d 415, 418, 421 (5th Cir. 2009).
Consequently, the DOL-Joint Bar Association suggested modifying the Form LS-18 to include a check “Yes or No” space for the parties to indicate whether an informal conference ever occurred at the DLHWC level.
The DOL-Joint Bar Association’s second suggestion concerns the Longshore Act’s special fund, 33 U.S.C. § 908(f). When a claim is referred to the OALJ, the district director typically identifies whether Section 8(f) relief is at issue. An employer’s failure to comply with statutory and regulatory requirements associated with Section 8(f) relief will bar an employer’s subsequent claim for relief.
Considering the important procedural requirements for Section 8(f), the DOL-Joint Bar Association suggested modifying the Form LS-18 to include a check “Yes or No” space for the parties to indicate whether Section 8(f) relief is at issue.
Finally, the DOL-Joint Bar Association’s third recommendation was to increase the time necessary to complete the Longshore Pre-Hearing Statement, Form LS-18. Presently, the form accounts for a ten (10) minute preparation time. Experience dictates that the preparation time should be increased to twenty (20) minutes.