Section 12 of the Longshore and Harbor Workers’ Compensation Act provides that notice of an injury shall be given within 30 days after the injury date or 30 days after the employee is aware or should have been aware of the relationship between the injury and the employment. However, this period is extended to one year in cases involving occupational diseases that do not immediately result in a disability.

In many claims arising under the Defense Base Act, claimants do not file their claims for compensation until years after termination of their employment with the employer against whom the claim is brought. This typically prompts an employer/carrier to argue that the claimant’s claim was not timely noticed, arguing that the claimant was aware or should have been aware of the aforementioned relationship.

While this argument focuses on a claimant’s awareness of the injury and its relationship to their employment and disability, a claimant may contend that even if they were aware of said injury and relationship, they were not adequately informed about their right to bring a claim for their alleged injury. When making this argument, claimants often address an employer’s failure to sufficiently post information informing an employee of their rights under the DBA.

Employers Must Advise Its Employees What to Do When Injured at Work

The U.S. Department of Labor published an Employment Law Guide, in which it sets forth an employer’s responsibility to advise its employees what to do when they are injured at work. The DOL states that at minimum, “employees must be instructed whom to notify in case of injury,” and “notices must be posted in a conspicuous place or places at each worksite.” The notice, which is Form LS-241 for employers insured by an insurance company and Form LS-242 for self-insured employers, must[CW1] :

• designate by name/title, location and phone number of the employer’s official responsible for receiving all notices of injury/death from employees or survivors; and
• state that the employer has secured its payment of compensation under the Defense Base Act. (Employment Law Guide)

20 C.F.R. § 702.211 (b)(3) requires the posting to be “part of the general posting requirement, done on a form prescribed by the Director, and placed in a conspicuous location. Posting must be done at each worksite.” Subsection (b)(4) adds that an employer’s failure to properly provide notice of an employee’s rights to bring a claim for an injury “shall constitute satisfactory reasons for excusing the employee/claimant’s failure to give notice.”

Employer’s Failings May Excuse an Employee’s Untimely Notice

In Sokoli v. The AIM Group, 2020-LDA-02450 (Mar. 9, 2021), Employer filed a Motion for Partial Summary Decision on the grounds that Claimant’s notice and filing for compensation were untimely under Sections 12 and 13 of the LHWCA. Claimant resigned from his employment with Employer in February 2011 but did not file his claim for compensation until November 30, 2019. Employer argued that Claimant knew or should have known his injury impaired his earning capacity after his initial visit with a physician on October 4, 2011, when he was diagnosed with a stress disorder.

Claimant’s position is that Employer failed to provide substantial evidence to rebut the presumption of compensability afforded to Claimant under the Act because it failed to establish an exact date Claimant was actually aware of the full character, extent and impact of his psychological condition and the causal connection between his injury and employment. Claimant alternatively argued that Employer failed to post a Form LS-241 in a conspicuous place which would have advised Claimant of his rights and responsibilities for filing a claim for compensation, thus contending that any delay in filing shoulder be excused on the ground of equity.

While the Court did not directly opine on the issue of Employer’s failure to post a Form LS-241, as the motion was denied for other reasons, the Court cites the requirements and implications of an employer’s failure as laid out in 20 C.F.R. § 702.211 (b)(3) and (b)(4).

The significance of an employer’s failure to adequately inform an employee of how to notice an injury is discussed further in Khan v. Alliance Project Services, 2021-LDA-01643 (May 24, 2023). In this matter, the Court held that Claimant’s untimely notice of injury was excused because Employer failed to comply with its posting requirements, again citing 20 C.F.R. § 702.211 (b)(4).

The Necessity for Proper Record Keeping When Responding to Discovery

As discussed above, an employer has a duty to post an LS-241 or LS-242 or risk a court excusing a claimant’s untimely notice of injury. This issue is often disputed through formal discovery, before the claim is brought before a judge. In formal discovery, claimants may request employer’s admission or denial that such postings were made, and record production may be sought to demonstrate such postings were made. An employer’s admission of its own failure to make such a posting or its failure to substantiate the position that such a posting was made may result in a court deeming the admission admitted, excusing a claimant’s untimely notice of injury.

In Popalzai v. Mission Essential Personnel, 2022-LDA-05139 (Feb. 11, 2025), Claimant filed a motion to compel Employer/Carrier to produce documents and further respond to other discovery requests. Of the admission requests by Claimant to Employer/Carrier, one specifically request Employer/Carrier to admit they have no evidence of Form LS-241 in Claimant’s workplace. Employer/Carrier objected on the basis that Claimant’s request is immaterial and irrelevant to the issues involved in the claim and has no “material effect on the outcome as the case does not involve any form of negligence.”

In addition to their objection, Employer/Carrier further denied Claimant’s request. The Court overruled Employer/Carrier’s objection, holding that the information sought is relevant, and the Court further held that Employer/Carrier’s response was an unqualified denial under 29 C.F.R. § 18.63 (a)(4). If a matter is not admitted, then 29 C.F.R. § 18.63 (a)(4) requires the answer to “specifically deny it or state in detail why the answering party cannot truthfully admit or deny it,” adding that “a denial must fairly respond to the substance of the matter.”

The court in Ondoga v. Aegis Defense Service, 2023-LDA-00540 (Dec. 5, 2023) discusses the implications flowing from such admissions being admitted. In Ondoga, the Court maintained that Employer/Carrier’s failure to respond to Claimant’s requests for admissions results in said requests being deemed admitted. Therefore, the Court found that Employer failed to conspicuously post and maintain the Form LS-241 at Claimant’s job locations during Claimant’s employment.

What Is an Employer to Do?

It is necessary for employers to properly post the forms required under the LHWCA and DBA informing its employees of their right to notice an injury sustained at work and bring forth a claim. Failure to do so may excuse a claimant’s untimely notice of injury and permit the claim to move forward in litigation, ultimately excusing what would otherwise bar a claimant’s recovery for disability benefits.

However, an employer’s responsibility does not stop there, as employers should employ business practices and document retention policies to substantiate a position that proper postings as prescribed by the Act were available at the worksite. Otherwise, employers may find themselves in a precarious position when responding to a claimant’s discovery requests, risking a court’s conclusion that such postings were not made and that the claimant’s claim, while untimely noticed, is excused on the grounds of equity.