WORKER’S CLAIMS UNDER THE LONGSHORE ACT AND RELATED LAW
Longshoremen and other harbor workers receive worker’s compensation benefits for their workplace injuries under the Longshore and Harbor Worker’s Act (LHWCA). Such injuries may also include occupational injuries, such as asbestosis. Spouses and families of workers who die from work place injuries also may receive compensation. The LHWCA is a federal law found in Title 33 of the United States Code, beginning at section 901. The law is administered by the Office of Worker’s Compensation Programs (“OWCP”), of the United States Department of Labor. Administrative law judges from the United States Office of Administrative Law Judges decide case under the LHWCA. In California and some other states, the United States Department of Labor and state worker’s compensation courts have concurrent jurisdiction over longshore and harbor worker’s cases. In many or most cases, the LHWCA is more favorable to injured workers than its California counterpart.
The LHWCA extends coverage to maritime workers on or adjacent to “navigable waters of the United States,” including persons that load and unload ships (commonly called “longshoremen”), ship repairers, shipbuilders, shipbreakers and other harbor workers. Certain workers are excluded from coverage, including masters and members of ship’s crew. Masters and members of ship’s crews receive compensation for their work injuries under the Jones Act and related maritime law. The Jones Act is discussed elsewhere on this website, and is found in Title 46 of the United States Code, beginning at section 30104.
Whether a worker is covered by the LHWCA, Jones Act, or state worker’s compensation systems, can be a close question. Sometimes a worker laboring around ship loading and unloading operations can be found to be a member of a ship’s crew and covered by the Jones Act and not the LHWCA.
In addition to such “coverage questions,” there are other differences between these various statutory schemes including but not limited to burdens of proof and benefits provided. An injured worker under the Jones Act, for example, can recover pain and suffering damages. This is not true under the LHWCA. A knowledgeable attorney can help you determine whether your claim is a LHWCA claim or a Jones Act claim, and to describe the differences between these laws. Such differences can be critical, and prevent an injured worker from recovering full compensation if they are not understood and identified by counsel.
Related Statutory Schemes
There are a number of federal worker’s compensation laws that extend LHWCA-like coverage to non-maritime workers. The Non-Appropriated Funds Instrumentality Act extends coverage to employees of “non-appropriated funds instrumentalities.” These are entities that provide goods and services typically to United States military personnel on military bases within the United States, and can include military exchanges (sometimes called “px’s”), convenience markets, gas stations, hotels, golf courses, and similar facilities. This law is found at United States Title 10, section 1587.
The Defense Base Act likewise incorporates LHWCA terms and coverage for employees of contractors providing goods and services to the United States military and its bases overseas, including but not limited to such places as Iraq and Afghanistan. This law appears at United States Title 42, beginning with section 1651.
Finally, the Outer Continental Shelf Lands Act extends LHWCA protections to workers on drilling platforms on the outer continental shelf off the coast of the United States as set forth in Title 43 of the United States Code, section 1333(c).
Responsible Third Parties
The possibility that a non-employer, third party might be responsible for a worker’s injury should be considered to maximize his or her recovery. Such a third party might be responsible for pain and suffering and other damages far beyond the limitations of the LHWCA. A knowledgeable personal injury attorney should be consulted to determine whether there is a “third party case.” Ideally an attorney with substantial experience and expertise in both LHWCA and personal injury should be consulted, such as the Law Offices of Matthew Witteman. (See the article entitled “The Importance of Identifying Responsible Third Parties in Work Place Injury” elsewhere on this website).
To Initiate a Claim and Retain an Attorney
To initiate a claims for benefits under any of these statutes often can be done informally by lodging a notice of claim with employers or their agents, disability and medical benefits often being paid without further formal action. Employers are required under the LHWCA to report a workplace injury to the OWCP within 10 days of its occurrence or the employer notice of the injury. Formal claims and action, however, sometimes become necessary to secure the full extent of benefits due a worker. Such formal claims require the submission of a form LS-203 to the OWCP. Attorneys are sometimes engaged at this point in the process. Normally, the attorney’s fee in these instances is paid by the employer on the successful resolution of all or part of an employee’s claims.
Presumptions and Advantages of LHWCA
Workers enjoy a number of presumptions under the LHWCA that they have sustained a compensable injury. These appear in section 920 of the LHWCA and are commonly referred to as the “Section 20 presumption” or presumptions. It is therefore “presumed in the absence of substantial evidence to the contrary that (a) that the claim comes within the provisions of [the LHWCA], (b) that sufficient notice of such claim has been given, (c) that the injured was not occasioned solely by the intoxication of the injured employee, and (d) that the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another.” In order to take advantage of these presumptions, however, a worker must a “prima facie case,” or an initial showing that he or she suffered some harm or pain, and that an accident occurred or working conditions existed which could have caused the harm.”
The section 20 presumption represents an advantage of the LHWCA to other worker’s compensation schemes, For example, a showing that a person’s condition or illness was caused by toxic exposure may be easier to make under the LHWCA than the Jones Act. (See “Resources,” “Successful Decisions, a Sample:” Snoops v. Lyon Associates, Inc. (Agent Orange recovery from exposure in Vietnam)) A knowledgeable attorney can explain this and other advantages of the LHWCA.
Disability benefits under the LHWCA and related law are typically both temporary and permanent. Temporary disability benefits are paid up to and until the time a worker is deemed to have reached a point of being “permanent and stationary,” or “maximum medical improvement:” that is, where the worker’s condition has stabilized and the condition is not likely to improve or deteriorate significantly in the foreseeable future. Total temporary disability benefits are paid at 66 2/3 percent of a worker’s “average weekly wage” or “AWW.” Partial temporary disability benefits are 66 2/3 percent of the difference between pre-injury and post-injury AWW. In the case of total disability, there are statutory minimum and maximum limits. There are a number of ways for determining a worker’s AWW, but typically it is determined by looking at a worker’s wages in the 52 weeks preceding his or her injury and applying a formula to that wage to determine the AWW.
If there is permanent disability, a worker will be paid permanent disability benefits under the LHWCA and related law. If a worker’s has a “scheduled injury” as defined by the LHWCA, which is essentially any injury other than a spinal, shoulder, [other – check] injury, the American Medical Association’s Guide to Permanent Disability is consulted to determine a percentage impairment of the worker. A permanent disability payment is then made based on a schedule setting forth a set number of weeks of compensation at an AWW rate for the particular injury and percentage impairment. There may be multiple body parts injured in the same accident giving rise to multiple scheduled injury awards.
In the case of unscheduled injuries, such as spine, back, neck, and shoulder, permanent disability benefits require an evaluation of whether there has been a loss of “wage earning capacity.” Such a loss of “wage earning capacity” is typically measured by evaluating the AWW of a worker pre-injury, and comparing it to the actual or potential AWW of a worker post-injury. An injured worker is entitled to 66 2/3 percent of the difference between his pre-injury and post-injury AWW. Vocational rehabilitation experts are sometimes used to establish potential AWW of a worker post-injury. Knowledgeable attorneys can retain such experts and help maximize an injured worker’s permanent disability benefits.
In the case of death, the surviving spouse and/or family are entitled to benefits. A surviving spouse, for example, is entitled to 50% of the AWW of his or her deceased partner.
The LHWCA and related law also entitle an injured worker to medical benefits that are both reasonable and related to a work place injury. These laws also provide for vocational rehabilitation benefits for qualified workers. Vocational rehabilitation benefits can include education and vocational training to re-train a worker for another career. These are benefits provided by the OWCP itself. Temporary disability benefits are provided during the time a vocational rehabilitation plan is being followed.
Wrongful Denial of Claims and Right to an Attorney
From this writer’s perspective, there has been an increase in longshore claims wrongly denied by employers over the last 15 years. This may be attributable to a decrease in the number of administrative law judges – which can greatly lengthen the time in which claims can remain unpaid – or to other reasons. Whatever the reason, however, workers are entitled sometimes to statutory penalties for such wrongful denials, as well as an attorney to push their claims forward as rapidly as possible and maximize their recovery. Normally the employer must pay the cost of an attorney.
If you have any question about your benefits and whether you are receiving all of the benefits to which you are entitled, do not hesitate to contact the Law Offices of Matthew Witteman.