Thursday, August 18, 2016

Department of Labor Raises Penalty for late filing of the LS202 and other forms


As of August 1, 2016, new maximum civil penalties are in place according to the U.S. Department of Labor.   Announced June 30, 2016, the US Department of Labor unveiled an interim final rule showcasing an increase in civil penalties that can lead to additional penalties under the Longshore & Harbor workers Compensation Act (USL&H), and its extensions the Defense Base Act (DBA), the Outer Continental Shelf Lands Act (OCSLA), and non appropriated Fund Instrumentalities Act (NAFIA).

These penalties were exempt from the prior inflation adjustment act, so the agency’s penalties have not increased since 1990. By applying the 2015 Inflation Adjustment Act for the first time, Congress effectively directed DOL to account for more than 35 years of missed inflation adjustments in one step. Accordingly, adjusting for inflation now results in a substantial increase in one step!

There were even additional adjustments for USL&H penalties as they have not been keeping pace with inflation.  This means that the new civil penalty for “Failure to file first report of injury or filing a false statement or misrepresentation in first report”, the LS202, is now set at a maximum of $22,587!

Wednesday, April 13, 2016

Are You Hiring Your Next Big Claim?



Waterfront employers have a significant disadvantage when hiring.  Delivered by an obscure rule in the Longshore Act referred to as the “last responsible maritime employer”.

Dating back to 1955, the rule makes the last Maritime Employer who exposes and employee to a particular “injurious stimuli” responsible for all the employee’s injuries.  When stated simply, that does not sound too bad.  But, suppose you hire someone who has worked in a noisy environment for many years, and then works for you for a week.  Even if the environment is less noisy, his claim for hearing loss would be yours completely!  Add to that, even if the employee then goes to work on a land based job, the emphasis switches to the word “Maritime” and even then, the claim remains yours. 

Even scarier is the cumulative soft tissue injury!  Even if the job is more sedentary!

So how do you overcome this?  These few simple steps will help:

  • Start with a Job Description – If you do not have time to write one from scratch, there are many good templates offered through the Trade Associations or online that you can easily customize.  The physical needs of that job must be included.  Things like:
    • Must be able to lift 25lbs
    • Job will require long periods of standing…(Be careful to follow ADA rules.  Use one of the online guides or an attorney)
  • Make sure the applicant has had a chance to review the Job Description.  Then a great question is, “Is there anything that would stop you from performing the job described?” a simple yes or no question.
  • A post offer, pre-start medical evaluation really helps.  The key here is to find a doctor who will test to the physical requirements of the position.  These simple steps are a minimal cost to help protect against a huge long term claim potential.

The more new hires, the more this problem multiplies. 

This advice is of course not legal advice.  You should always consult an experienced attorney who can review your particular circumstances and the Federal, State, and local laws applicable to your business, and provide you specific guidance before implementing any such programs.

You want qualified, experienced employees, they can be a tremendous asset to your business.  But, do not also let them be your next big claim, especially when it does not really even belong to you!

Monday, February 8, 2016

CMIP Invitation to Insuring Marine Employers

YOU Are Invited!

Hey All Insurance Professionals!


Just wanted to invite you to our upcoming education event, the CMIP Insuring Marine Employees Seminar!  The seminar will be held this March 14-15, 2016 at the Renaissance Tampa International Plaza Hotel in Tampa Florida.

The Insuring Marine Employees seminar delves deep into the exposures specific to Longshore and Workers Compensation, the regulations that define them, and where there are cross-overs that can cause unexpected exposures.  You will also receive practical “how to” guides on properly insuring them. 

Topics include an in-depth overview of Marine Employees Exposures with analysis of the State Act Workers Compensation, Longshore & Harbor Workers Compensation Act, Outer Continental Shelf Lands Act, and Admiralty Liabilities to Employees; Insurance Policies & Programs will focus on Workers Compensation, Longshore and OCSLA, Maritime Employers Liability, and Protection and Indemnity; and it concludes with the tricky issues of Payroll Allocation, Officer & Owner Exclusions, Modifiers, Auditing Techniques, and the Typical Structure Review.  Now that’s a lot of business knowledge packed into two days!

This dynamic seminar event is a great opportunity to broadening your expertise and network with others in your industry, as insurance professionals from all levels, Agents, Underwriters, Human Resources, Administrative, and Management will be in attendance!

Visit IIMIS.org to register; don’t delay as Group Rates fill fast and Early Bird Registration ends soon!  We look forward to welcoming you at this education event!  See you there!


Tuesday, December 1, 2015

Disclose or Risk Marine Insurance Coverage

Recently, the US Court of Appeals for the Eighth Circuit reviewed a case on appeals regarding the necessity to act with the utmost good faith, also known as the uberrimae fidei defense.  In the matter of St. Paul Fire & Marine Insurance Co. v. Abhe & Svoboda Inc., the court found the insured withheld relevant information, which called into question the vessels prior claims of being seaworthy and watertight.  After the insured barge sank in Narragansett Bay, an investigation by St Paul Fire & Marine Insurance Company revealed a survey in November 2010 had been done which showed the barge had pinholes in the deck and the barge was not watertight. The submitted application from the insured used a different application dated from May 2010.  St Paul Fire & Marine Insurance Company raised the defense of uberrimae fidei, stating that failure to disclose the survey breached the duty to act in good faith and withholding the relevant information affected the issuance of the marine insurance policy.  

Under a defense of uberrimae fidei, both the insured and marine insurer have a duty to act in the utmost good faith when dealing in matters of marine insurance. The court held the insurer must demonstrate reliance the information that was withheld to void a policy.  In this instance, the information withheld from the insurer was vital to the issuance of the marine insurance policy. Failure to disclose a prior survey that showed the vessel might not be as watertight as previously thought breaches that duty to act in good faith, as the policy would not have been issued had the contents of the prior survey been known.

Additionally, the court held that Marine insurance coverage requires that all relevant information to the policy be disclosed at the time the policy is created.  Failure of the client to provide this information is grounds for a denial of claim.  Again, in this instance the insured failed to provide information to the provider of marine insurance, which would have had a direct impact on the insurers knowledge of risk associated with underwriting the vessel.  The burden of the relevance of the information rests in the hands of the insurer, but the information does not need to be requested specifically from the insuring agent or company.  The full and open disclosure by the insured is expected under the uberrimae fidei doctrine, which outlines that that both parties should deal in good faith.  Failure to act in good faith is frowned upon by the courts, as the eighth district demonstrated in the recent ruling.  Again, the court holds the failure to request specific information by the insurer does not relieve insurer of liability, the information must be provided regardless of whether the a specific inquiry was made.

To avoid a denial of claim, all information relevant to the marine liability insurance policy must be provided to the insurer.  The consumer is protected as well, as the insurer has the duty to review the information and make the determination that it was actually material to the issuance of the policy.  Simply ask, would the policy have been issued given the withheld information?  If the answer is yes, the policy would have been issued and should not be found void, and the insurer has not passed their burden as outlined by the eighth district.  Without a reliance that we all deal in good faith uncertainty and costs will increase.  This is a wake up call for both sides of the marine insurance business.  It is important to note that good faith and fair dealings are crucial to a thriving industry.

Tuesday, September 8, 2015

Largest Pay Hike In Decades For ILWU Workers

The ILWU contends the following chart is misleading as it only looks at the most skilled union workers but it still reflects an amazing level of pay for a group that had their largest pay rises in years after successive labor disputes late last year.



Some job classifications guarantee 50 hours of pay each week for 40 hours of work. Marine clerks, steady foremen and steady crane drivers are guaranteed 50 hours of pay when they work 40 hours in a week, the report stated. About 30 percent of the ILWU work force was paid 2,600 or more hours in 2014, according to the PMA.   For more information see http://www.pmanet.org/the-ilwu-workforce

Wednesday, August 26, 2015

Florida 2016 WC Rates To Be Reduced

The Florida Office of Insurance Regulation said, August 21st  2015, that it has received the 2016 Florida workers’ compensation rate filing by NCCI which proposes a statewide average premium decrease of 2.2%

This includes a statewide average rate decrease of 1.9% and a reduction of the fixed expense cost applicable to every workers’ compensation policy in Florida from $200 to $160. The new rates would become effective Jan. 1, 2016.

We have yet to see a copy of the filing, but we are told this includes an average 7.7% reduction in the Longshore rates!  If true this could be quite significant!

Watch this space for more information as it develops.

Monday, July 27, 2015

City not immune to Jones Act

In the most recent instance of the Jones Act in the news, a NYPD counter-terrorism detective has filed a claim under the Act, claiming injuries that occurred during a rescue.  The $106 million lawsuit alleged the city failed to provide him with safe tools, equipment, and a “competent” crew of fellow officers. 

Under the Jones Act, the employer/employee relationship is spelled out to allow for recovery from personal injury claims due to the employer’s negligence.  The employee must also meet the requirement of spending at least 30% of his time in the service of said vessel or fleet of vessels on navigable waters. 

Here, the NYPD officer’s claims arise from the rescue of a capsized boat on the East river.  The officer was injured while pulling those in the capsized boat to safety.  As a member of the NYPD Harbor Unit, the officer will likely satisfy the requirement that he spend at least 30% of his time in the service of the fleet, even if it is not on a specific vessel.  


The damages can accumulate quickly and are often negotiated for when settling a case like the one mentioned above.  Permitted damages include: medical expense, pain and suffering, lost wages, loss of support to dependents or widow, loss of value of household services, and funeral services to name a few.   The suit alleges severe physical pain and mental anguish, including back and neck pain for which he seeks to recover.