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Longshore and Harbor Workers' Compensation Act (LHWCA)

When a longshoreman or harbor worker is injured or made ill while at work, they have several options for recovering compensation. One option is to recover benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), which is a no-fault system similar to state workers' compensation. Employers are immune from a direct lawsuit and workers do not need to worry who caused the accident. Instead, workers receive benefits quickly—usually without further dispute. In cases where the employer cancels compensation or refuses to pay, the maritime worker will need to involve the Department of Labor. Per the United States Department of Labor, the LHWCA protects approximately 500,000 workers who are hurt or fall ill while working on navigable waters.

"The Act provides for compensation and medical care to employees disabled from injuries that occur on the navigable waters of the United States, or in adjoining areas used in loading, unloading, repairing, or building certain vessels. The Act also provides benefits to specific survivors and dependents if the injury causes the employee's death."

The maritime attorneys at Arnold & Itkin have a successful track record with marine-related cases. We represent longshoremen and harbor workers all along the Gulf Coast in Texas, Louisiana, Mississippi, and Alabama, as well as throughout the United States. We can work to get you the compensation you deserve. By talking to a maritime injury attorney at our firm during a free consultation, you can learn more about your legal rights and how we can help you.

How Do I Know If I Qualify Under the LHWCA?

Like the Jones Act, the LHWCA has a specific set of criteria a worker must meet to qualify for compensation. Answering the following questions will help you determine if you are covered by the LHWCA.

  • Are you a maritime worker?

The LHWCA only covers workers in the maritime industry. This includes longshoremen, harbor workers, and ship workers. Additionally, the LHWCA may also cover workers who repair or maintain equipment that is used for loading and unloading vessels. If you are unsure if you qualify as a maritime worker, you should consult with a lawyer.

  • Did your injury occur on navigable waters or an adjoining area?

The LHWCA covers injuries that occur offshore.

However, that can also include adjoining areas, such as loading docks, ship yards, piers, and wharves. If you did not sustain your injury offshore or in an adjacent area, you will not be covered by the LHWCA.

  • Did your injury occur within the scope of your employment?

This simply means that your injury must have occurred while engaging in activities related to your employment. Generally speaking, if you answered yes to the above questions, you may be covered by the LHWCA. However, it is always best to consult with a maritime attorney to determine whether or not you qualify.

How to File Under the LHWCA

Workers covered by the LHWCA include longshore workers or persons in longshore operations and harbor workers, including ship repairers, shipbuilders, harbor construction workers, and shipbreakers. The LHWCA does not cover seamen covered by the Jones Act and workers covered by state workers' compensation law.

Here are steps an injured harbor or longshoreman should take to file a claim under the LHWCA:

  • Notify a supervisor or employer that you have suffered an injury as soon as possible.
  • Seek medical treatment for your injury as soon as possible.*
  • Give your employer a written notice of injury within 30 days of your accident date. In the case that you had an injury without realizing it, 30 days from initial discovery of the injury.
  • To turn in your written injury notice, use form LS-201.

* As an employee who falls under the LHWCA, you can choose a physician who can take care of your injuries. You will need to fill out a form LS-1, which is a Request for Examination and/or Treatment. If you have a medical emergency, you are entitled to “get treatment now and sign forms later.”

The Office of Workers’ Compensation Programs (OWCP) must be notified of your injury within one year. If an employer is paying workers’ compensation benefits voluntarily, an employee must file a notification with the OWCP within a year of the last payment. To notify the OWCP of either situation, you must fill out form LS-203. The employer or insurance carrier will be the party liable to pay for your claim. If the employer and insurance carrier are bankrupt, the OWCP may pay your benefit from a Special Fund. If you do not have an OWCP file number and are filing a new claim, the claim forms should be sent to New York City DLHWC District Office, which is the designated Central Case Create site for all Office of Workers’ Compensation claims. Once the case is filed, it will be viewable online through the district office with jurisdiction of the claim. If you do have an OWCP file number, you can use Longshore’s Secure Electronic Access Portal (SEAPortal) to send forms or documents to your OWCP case file digitally.

Longshoremen, LHWCA, and Third Party Claims

If a longshoreman was injured by a third party that was not their employer or a co-worker, they might have the option of filing a third-party lawsuit to recover damages. Third party cases are covered under Chapter 3-600 of the Longshore Procedure Manual, which provides the injured employee with the following options:

  • File a claim for compensation
  • File a civil suit against the third party for negligence
  • Pursue both above actions simultaneously

There are rules in place to prevent an employee from recovering benefits under the Act as well as proceeds from a successful negligence suit, which would effectively provide double compensation for the same injury. The same rules also protect the employee when they receive a settlement in their negligence action that is less than they would have been entitled to receive in compensation benefits under the LHWCA.

Shore-Based Injuries (905B Claims)

905B claims (shore-based injury claims) are filed against a party other than the employer. Those entitled to these benefits are workers who provide land-based maritime services. These services may include working in a shipyard such as shipbuilding, ship repair, or breaking services. As land-based employees, these workers often come into contact with ships and vessels owned by someone other than their employees. Therefore, if they become injured in conjunction with that vessel, then they may be able to file a claim against the ship's owner.

This type of claim is not available to those who were injured while providing stevedoring services. A stevedore is a dock worker who was employed to load or unload a vessel. Stevedores are responsible for operating many different types of loading equipment, such as cranes and derricks. Stevedores are often contracted out rather than working for the terminal or a vessel operator. The terms stevedore and longshoreman are often wrongly interchanged. This can be confusing since longshoreman may recover compensation under 905B while stevedores would not. Of course, other workers injured by their negligence also will not qualify for a 905B claim, since these claims can only be filed against negligent third-parties. State workers' compensation laws will likely cover those who do not qualify.

Benefits Under the LHWCA

Workers who qualify under the LHWCA are entitled to the following benefits:

  • Medical Expenses – Under the LHWCA, workers are entitled to compensation for required medical treatment resulting from an employment-related injury. This includes the cost of needed surgeries, rehabilitation costs, prescriptions medicines, etc. In some cases, workers can also be reimbursed for other expenses related to medical treatment such as travel costs to and from treatment facilities.
  • Lost Wages – The LHWCA entitles the worker to compensation for a portion of the wages injured workers were unable to earn while injured. Additionally, some injuries are so severe that workers are unable to return to work or only able to return in a reduced capacity. Future wages that would have been earned if not for the injury are covered under the LHWCA as well.
  • Death Benefits – The LHCWA provides death benefits to spouses and surviving children of workers who were killed on the job. The amount will vary in each case, but it is based on the deceased worker's weekly wages. Death benefits can also include up to $3,000 for funeral expenses.

If your employer is refusing any of these deserved benefits, it is strongly advised that you speak with an offshore injury attorney as soon as possible. Your benefits should include a pay rate of 66.66% of your average weekly wage for as long as the injury continues, a rate that is subject to minimums and maximums.

Wrongful Death Benefits Under the LHWCA

In cases when the offshore injury or illness results in death, the Office of Worker Compensation Plans—the division of the Department of Labor that administers the Longshore Act—provides death or survivor benefits. Under the LHWCA, a widow and any surviving children of a deceased longshoreman who dies from a work-related incident are entitled to a portion of the deceased worker's average weekly wage following death.

Weekly Payments

The widow(er) is entitled to 50% of the average weekly wage of the deceased. Additional compensation payments can be made available to those with families that have one or more children. This additional compensation will come at a rate of 16 2/3% of the deceased employee's average weekly wages.

In some cases where a harbor worker dies, they were the only parent of children. Children may be sole survivors after a harbor worker is killed on the job. In these cases, that 50% of the weekly wages may be paid to the children; the same 16 2/3% applies when there is more than one child. This additional percentage is divided equally between all surviving children. There are some cases in which the deceased had no spouse or children. This kind of scenario can warrant payment to surviving parents, siblings, grandparents, and grandchildren.

It is essential to keep in mind the amount of wages that a family is allowed to collect upon death. The average weekly wage cannot be less than the national weekly average wage at the time of that harbor workers death.

To compute the amount, the family will have to take the lesser of these two:

  • 200% of the national weekly average wage
  • An amount that exceeds the workers prior average weekly wage

Upon remarriage, an individual may no longer be able to receive death benefit payments. A widow or widower is not immediately left without payments. Instead, they will receive a two-year lump sum upon remarriage. This will benefit spouses of deceased harbor workers so that they do not get used to living off of additional compensation from death benefits and then suddenly have those benefits taken away.

When it comes to the children, benefits cease at age 18. However, there are exceptions. If the children are in school, their benefits may be able to carry through until they are done—up to 23 years old.

The LHWCA & Disability Compensation

The LHWCA views disability as a worker's inability to earn the same wages as they did before the injury.

The LHWCA categorizes disabilities in different ways:

  • Temporary Disability: Injured employee cannot return to work and is still recovering
  • Permanent Disability: Injured employee's condition is stable and will no longer improve.
  • Total Disability: Injured employee cannot perform any work.
  • Partial Disability: Injured employee can still work, but only under modified conditions.

Per LHWCA § 908, disability compensation is paid to maritime employees as follows:

  • Temporary Total Disability (TTD) - Injured employees will receive two-thirds of Average Weekly Wage (AWW) in compensation, which is subjected to annual minimum and maximum amounts. A worker with an AWW of $600/week would have a TTD benefit rate of $400/week.
  • Temporary Partial Disability (TPD) - Injured employees will receive compensation at precisely two-thirds their loss of earning capacity, which is calculated by subtracting what they earn after the injury from their AWW. For instance, if an individual has an AWW of $600 per week and is only able to earn $300 after the injury, the difference is $300, and their TPD benefit rate would be $200/week.
  • Permanent Total Disability (PTD) - Injured employees will be compensated at precisely two-thirds of Average Weekly Wage (AWW). This compensation will be paid as long as the worker has the disability. In cases of PTD, the disability is considered to be permanent.
  • Permanent Partial Disability (PPD) - Injured employees with a permanent impairment will receive compensation for a specified number of weeks; this is commonly referred to as "scheduled PPD," which is payable even if the employee returns to work. The LHWCA lays out a precise schedule for compensation depending on which body part is impaired (read it here).
  • Unscheduled Permanent Partial Disability - If a permanent impairment is suffered by a body part that is not listed in the "Schedule" explained above, injured employees will be compensated at precisely two-thirds their loss of earning capacity; this is known as "unscheduled PPD."

The injured employee will receive disability compensation as long as his or her disability continues. This does not apply in cases of TPD, which cannot exceed five years, and scheduled PPD, which is limited to the number of weeks allowed for specific cases (for example, 88 weeks for a leg lost).

Compensation Benefits: Rehabilitation Services

Every employer is responsible for the safety of their employees. The same is true for longshoremen and harbor workers. Even though these workers may not qualify under the Jones Act or another type of maritime law, they are still entitled to particular rights in the event of an accident that causes injury. If they suffer a traumatic injury that forces them to miss work for an extended period, they will likely need rehabilitation services to restore them back close to the level of functioning they were at before they had the accident.

Many people choose occupational therapy to restore lost function.

The job of an occupational therapist is to treat a patient so they can go back to what they were doing before the accident. Even if a worker can no longer work because the extent of the injuries was so severe, occupational therapy should still be utilized to help the individual cope with everyday life. Especially if an injured worker must now use a prosthetic, occupational therapy can be a valuable tool in teaching an injured worker how to utilize it.

Vocational Rehabilitation

Most states have a department of rehabilitation that state vocational rehabilitation is put in place to help employees gain back and retain their status as workers. This differs from regular rehabilitation in that workers are rehabilitated for the goal of performing their job duties again. One of the first things this will include is counseling.

Someone will likely assess your need and determine a goal and a path to get to that goal. In some cases, it may even be possible to obtain transportation and personal assistance at your job site. Moreover, the goal of vocational rehabilitation is to get workers back to performing their job functions. This can be made possible through a number of different avenues that may be available to you as an injured harbor worker.

Call Arnold & Itkin Today for Your Free Consultation: (888) 346-5024

Time is of the essence when initiating a claim for benefits under the Longshore and Harbor Workers' Compensation Act. An injured employee must notify his or her employer of the injury or illness within 30 days of its occurrence, and a formal claim for benefits must be filed within one year of the date of the harm the worker has suffered. Our team is aggressive, experienced and ready to fight for you. If you or a loved one has been injured and you believe that you may have the right to benefits, our firm can review the matter to determine exactly how we can assist you.

Have you or a loved one been injured? Contact a maritime injury lawyerat our firm today!

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