Public Law 92-576 92nd Congress, S. 2318 October 27, 1972

An Act

To amend the Longshoremen's and Harbor Workers' Compensation Act, and for other purposes.

86 STAT. 1251

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That this Act may Longshoremen's be cited as the "Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972".

COVERAGE

and Harbor Workers' Compensation Act Amendments of 1972.

SEC. 2. (a) Section 2(3) of the Longshoremen's and Harbor Work- Definitions. ers' Compensation Act (44 Stat. 1424, 33 U.S.C. 902) is amended to read as follows:

"(3) The term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.”

(b) Section 2(4) of such Act is amended by striking out “(including any dry dock)" and inserting in lieu thereof "(including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)":

(c) Section 3(a) of such Act is amended by striking out "(includ- 44 Stat. 1426. ing any dry dock) and if recovery for the disability or death through 33 USC 903. workmen's compensation proceedings may not validly be provided by State law", and inserting in lieu thereof "(including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)".

STUDENT BENEFITS

SEC. 3. (a) Section 2 of the Longshoremen's and Harbor Workers' Definitions. Compensation Act is amended by redesignating paragraph (19) as paragraph (20) and adding a new paragraph (19) as follows: "(19) The term 'student' means a person regularly pursuing a fulltime course of study or training at an institution which is

"(A) a school or college or university operated or directly supported by the United States, or by any State or local government or political subdivision thereof,

(B) a school or college or university which has been accredited by a State or by a State recognized or nationally recognized accrediting agency or body,

"(C) a school or college or university not so accredited but whose credits are accepted, on transfer, by not less than three institutions which are so accredited. for credit on the same basis as if transferred from an institution so accredited, or

"(D) an additional type of educational or training institution as defined by the Secretary,

but not after he reaches the age of twenty-three or has completed four years of education beyond the high school level, except that, where his twenty-third birthday occurs during a semester or other enrollment Feriod, he shall continue to be considered a student until the end of such semester or other enrollment period. A child shall not be deemed

85 STAT. 1252

52 Stat. 1164. 33 USC 902.

70 Stat. 654. 33 USC 906.

75 Stat. 203.

to have ceased to be a student during any interim between school years if the interim does not exceed five months and if he shows to the satisfaction of the Secretary that he has a bona fide intention of continuing to pursue a full-time course of education or training during the semester or other enrollment period immediately following the interim or during periods of reasonable duration during which, in the judgment of the Secretary, he is prevented by factors beyond his control from pursuing his education. A child shall not be deemed to be a student under this Act during a period of service in the Armed Forces of the United States."

(b) The last sentence of section 2(14) of such Act is amended to read as follows: "Child', 'grandchild', 'brother', and 'sister' include only a person who is under eighteen years of age, or who, though eighteen years of age or over, is (1) wholly dependent upon the employee and incapable of self-support by reason of mental or physical disability, or (2) a student as defined in paragraph (19) of this section."

TIME FOR COMMENCEMENT OF COMPENSATION

SEC. 4. Section 6(a) of the Longshoremen's and Harbor Workers' Compensation Act is amended by striking out "more than twenty-eight days and inserting in lieu thereof "more than fourteen days".

MAXIMUM AND MINIMUM LIMITS OF DISABILITY COMPENSATION AND
ALLOWANCE

SEC. 5. (a) Section 6 of the Longshoremen's and Harbor Workers' Compensation Act is amended by striking out subsection (b) and inserting in lieu thereof the following new subsections:

"(b) (1) Except as provided in subsection (c), compensation for disability shall not exceed the following percentages of the applicable national average weekly wage as determined by the Secretary under paragraph (3):

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"A) 125 per centum or $167, whichever is greater, during the period ending September 30, 1973.

"(B) 150 per centum during the period beginning October 1, 1973, and ending September 30, 1974.

"(C) 175 per centum during the period beginning October 1, 1974, and ending September 30, 1975.

"(D) 200 per centum beginning October 1, 1975.

"(2) Compensation for total disability shall not be less than 50 per centum of the applicable national average weekly wage determined by the Secretary under paragraph (3), except that if the employee's Post, p. 1258. average weekly wages as computed under section 10 are less than 50 per centum of such national average weekly wage, he shall receive his average weekly wages as compensation for total disability. "(3) As soon as practicable after June 30 of each year, and in any event prior to October 1 of such year, the Secretary shall determine the national average weekly wage for the three consecutive calendar quarters ending June 30. Such determination shall be the applicable national average weekly wage for the period beginning with October 1 of that year and ending with September 30 of the next year. The initial determination under this paragraph shall be made as soon as practicable after the enactment of this subsection.

36 F. R. 347.

"(c) The maximum rate of compensation for a nonappropriated fund instrumentality employee shall be equal to 6623 per centum of the maximum rate of basic pay established for a Federal employee in grade GS-12 by section 5332 of title 5, United States Code, and the minimum rate of compensation for such an employee shall be

October 27, 1972

- 3.

Pub. Law 92-576 80 STAT. 1253

equal to 6625 per centum of the minimum rate of basic pay established for a Federal employee in grade GS-2 by such section.

5 USC 5332

“(d) Determinations under this subsection with respect to a period note. shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.“

(b) Section 2 of such Act as amended by this Act is further amended. Ante, p.1251. by redesignating paragraph (20) thereof as paragraph (21) and by inserting immediately after paragraph (19) the following:

“(20) The term 'national average weekly wage' means the national "National aver average weekly earnings of production or nonsupervisory workers on age weekly wage.' private nonagricultural payrolls."

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44 Stat. 1429. 33 USC 908.

(c) Section 8 (d) of such Act is amended to read as follows: (d) (1) If an employee who is receiving compensation for permanent partial disability pursuant to section 8(c) (1)–(20) dies from 44 Stat. 14273 causes other than the injury, the total amount of the award unpaid 70 Stat. 655; at the time of death shall be payable to or for the benefit of his survivors, as follows:

"(A) if the employee is survived only by a widow or widower, such unpaid amount of the award shall be payable to such widow or widower,

"(B) if the employee is survived only by a child or children, such unpaid amount of the award shall be paid to such child or children in equal shares,

"(C) if the employee is survived by a widow or widower and a child or children, such unpaid amount of the award shall be payable to such survivors in equal shares,

Post, p. 1255.

"(D) if there be no widow or widower and no surviving child or children, such unpaid amount of the award shall be paid to the survivors specified in section 9 (d) (other than a wife, husband, Post, p. 1258. or child); and the amount to be paid each such survivor shall be determined by multiplying such unpaid amount of the award by the appropriate percentage specified in section 9(d), but if the aggregate amount to which all such survivors are entitled, as so determined, is less than such unpaid amount of the award, the excess amount shall be divided among such survivors pro rata according to the amount otherwise payable to each under this subparagraph.

"(2) Notwithstanding any other limitation in section 9, the total amount of any award for permanent partial disability pursuant to section 8(c) (1)–(20) unpaid at time of death shall be payable in full in the appropriate distribution.

"(3) If an employee who was receiving compensation for permanent partial disability pursuant to section 8(c) (21) dies from causes other than the injury, his survivors shall receive death benefits as

provided in section 9(b)-(g), except that the percentage figures Post, pp. 1257, therein shall be applied to the weekly compensation payable to the 1258.

employee at the time of his death multiplied by 1.5, rather than to

his average weekly wages.

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"(4) An award for disability may be made after the death of

the injured employee. Except where compensation is payable under section 8(c) (21), if there be no survivors as prescribed in this section, then the compensation payable under this subsection shall be paid to the special fund established under section 44(a) of this Act."

(d) The first phrase of section 9 of such Act, preceding the first 33 USC 909. colon, is amended to read as follows:

"If the injury causes death, or if the employee who sustains permanent total disability due to the injury thereafter dies from causes

86 STAT. 1254

75 Stat. 203. 33 USC 914.

74 Stat. 900. 33 USC 907.

Physician, selection.

Authorized physicians.

Report.

Pub. Law 92-576

4

October 27, 1972

other than the injury, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following:"

(e) Section 14 of such Act is amended by striking out subsection (m).

MEDICAL SERVICES

SEC. 6. (a) Section 7 of the Longshoremen's and Harbor Workers' Compensation Act is amended to read as follows:

MEDICAL SERVICES AND SUPPLIES

"SEC. 7. (a) The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the injury or the process of recovery may require.

"(b) The employee shall have the right to choose an attending physician authorized by the Secretary to provide medical care under this Act as hereinafter provided. If, due to the nature of the injury, the employee is unable to select his physician and the nature of the Injury requires immediate medical treatment and care, the employer shall select a physician for him. The Secretary shall actively supervise the medical care rendered to injured employees, shall require periodic reports as to the medical care being rendered to injured employees, shall have authority to determine the necessity, character, and sufficiency of any medical aid furnished or to be furnished, and may, on his own initiative or at the request of the employer, order a change of physicians or hospitals when in his judgment such change is desirable or necessary in the interest of the employee. Change of physicians at the request of employees shall be permitted in accordance with regulations of the Secretary.

(c) The Secretary may designate the physicians who are authorized to render medical care under the Act. The names of physicians so designated in the community shall be made available to employees through posting or in such other form as the Secretary may prescribe. "(d) An employee shall not be entitled to recover any amount expended by him for medical or other treatment or services unless he shall have requested the employer to furnish such treatment or services, or to authorize provision of medical or surgical services by the physician selected by the employee, and the employer shall have refused or neglected to do so, or unless the nature of the injury required such treatment and services and the employer or his superintendent or foreman having knowledge of such injury shall have neglected to provide or authorize the same; nor shall any claim for medical or surgical treatment be valid and enforceable, as against such employer, unless within ten days following the first treatment the physician giving such treatment furnish to the employer and the Secretary a report of such injury and treatment, on a form prescribed by the Secretary. The Secretary may, however, excuse the failure to furnish such report within ten days when he finds it to be in the interest of justice to do so, and he may, upon application by a party in interest, make an award for the reasonable value of such medical or surgical treatment so obtained by the employee. If at any time the employee unreasonably refuses to submit to medical or surgical treatment, or to an examination by a physician selected by the employer, the Secretary may, by order, suspend the payment of further compensation during such time as such refusal continues, and no compensation shall be paid at any time during the period of such suspension, unless the circumstances justified the refusal.