Longshoreman and Harbor Workers

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Longshore and Harbor Workers’ Compensation Act

The Longshore and Harbor Workers’ Compensation Act (LHWCA) is a federal legislative workers’ compensation program enacted in 1927 that provides benefits for certain types of maritime employees. At the start, it only supplied coverage for employees hurt while working on navigable waterways of the US, however it currently provides protection to many other maritime workers. The LHWCA covers longshoremen, harbor workers, and most other individuals that work on docks and in shipping terminals or shipyards. In 1972, the LHWCA was expanded to provide coverage to landward maritime workers.

Injury & Notice Requirements of LHWCA

The term “injury” is statutorily defined as accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.

Notice of an injury or death must be given within 30 days after the date of incident, or 30 days after the worker or family member has knowledge, or by reason of medical advice should have been cognizant of a connection between the injury and the employment. If the claim is an occupational disease, notice shall be given within 1 year after the worker becomes cognizant of the connection between the injury and the duties of employment. Notice shall be in writing and contain a narrative of the incident with time, place and cause , shall contain the name and address of the employee and a statement of the time, place, nature, and cause. Failure to give notice shall not bar any claim if the employer or insurance company had knowledge of the injury or death. Additionally, the deputy commissioner can determine that the employer or carrier has not been prejudiced by failure to give such notice, or excuse failure to provide Notice on the ground that was given to an official of the employer or the employer’s insurance company. It is highly recommended that any claimant provide written Notice and not rely on the Deputy Commissioner.

Qualification for Benefits

LHWCA benefits are only provided to maritime workers who meet the so-called “status” and “situs” tests.

The Status Test

The “Status Test” requires that some of the duties performed by the claimant for their employer must be “maritime” related. This means that some significant part of the employee’s work has to have something to do with water or marine transport. The main classes of employees eligible for benefits under the LHWCA are longshoremen and other people who assist in loading and unloading vessels, shipbuilders, ship-breakers and ship repairman. Operators of vehicles, and their mechanics, that move shipping containers from the docks are eligible for benefits under the LHWCA as their work is considered “maritime” related duties.

In order to qualify as a “maritime” employee under the LHWCA, one has to actively engage in maritime employment. For this reason, employees of a stevedore or marina who perform exclusively office or secretarial work do not meet the status test. The LHWCA also specifically excludes other types of employees from coverage to include recreational shipbuilders and mechanics (below 65 ft) unless the injury occurs while upon the navigable waters of the US or while upon any dock, facility over land for launching vessels, or facility over land for hauling, lifting, or drydocking vessels, employees whose duties not related in the construction, replacement, or expansion of the marina, and aquaculture employees.

No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another. Captains and crew members are eligible for benefits under the Jones Act.

The Situs Test

The second test is the situs/location test where the worker generally performed their duties for their company. Only maritime workers who work on, near, or adjacent to navigable water are eligible for benefits under the LHWCA. “On, near, or adjacent to navigable water” means on the water (i.e., on a ship or vessel excluding crew members) or in close proximity and workers who perform some of their duties on piers, wharves, dry docks, terminals, or other locations utilized by maritime companies to load, unload, repair, dismantle, or build a vessel will usually qualify under the situs test. However, shipyards and shipping terminals are expansive and may cover a large area. Historically, if a worker is working more than approximately one mile from either the navigable US waterway or the perimeter of the shipyard or terminal, the LHWCA judge will probably find that the worker is no longer working “on, near, or adjacent to navigable water.”

Benefits Under the LHWCA

The LHWCA provides medical and financial benefits to injured workers:

Medical – Under the LHWCA, a qualifying injured worker is entitled to reasonable and necessary medical treatment and can be reimbursed for reasonable transportation related expenses (parking, tolls, etc.) for travel for the medical treatment.

Financial – an injured worker is entitled to temporary compensation benefits equaling two-thirds of their average weekly compensation while be being treated medically for their work related injury. Upon reaching maximum medical improvement, the worker is then entitled to a scheduled award for injury to body parts or two-thirds of the workers’ loss of wages or wage earning capacity. If the injury results in a disability, there are four separate categories of disability: temporary total, temporary partial, permanent total, and permanent partial. The determination between the types of disability benefits will hinge upon whether the individual’s medical permanency, and whether they can return to his pre-injury position or return to work in a suitable alternative position. If it appears likely that the injured worker will not be able to return to his/her previous line of work, the Act also requires the insurance company to provide vocational rehabilitation benefits to the worker.

No compensation shall be allowed for the first 3 days of the disability unless the injury results in disability of more than 14 days. Compensation for disability or death shall not exceed an amount equal to 200 per centum of the applicable national average weekly wage, as determined by the Secretary. 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 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.

It is unlawful for any employer to dismiss/fire or in any other manner discriminate against a worker as to his employment because such worker has filed or attempted to file a claim for a work related injury, or because the worker has testified or is about to testify in a proceeding related to an injury. However, the discharge or refusal to employ a person who has been adjudicated to have filed a fraudulent claim for compensation is not a violation of this section.

DEATH BENEFITS UNDER LHWCA

The LHWCA provides a death benefit designed to provide for the family members if the worker died while performing his job duties. There is a payment of up to $3,000 to cover is the funeral costs. The family members may also be entitled to weekly payments.

If applicable, the widow(er) is entitled to half of the average weekly wage of the deceased but will be canceled upon remarriage. If the surviving family consists of one or more children, the family will be entitled to an additional 2/3% of the deceased employee’s average weekly wages. Children may be sole survivors and would be entitled to 50% of the weekly wages and the same 16 2/3% applies when there is more than one child. If there are no spouse or children payment can be made to the surviving parents, siblings, grandparents, and grandchildren.

As noted above, a widow(er) will lose weekly payments upon remarriage, however they will receive a two-year lump sum payment upon remarriage. Children’s benefits cease at age 18 unless they are in school or college which all allows them to receive benefits through college up to age 23

State Workers Compensation and LHWCA

In 1980, the U.S. Supreme Court held that the Longshore Act did not supplant state workers’ compensation laws, but supplemented them. Therefore, LHWCA allows injured workers to file claims under the LWWCA and their state’s workers compensation laws. The worker can then proceed through both systems but cannot receive double benefits. However, there are states where the law explicitly excludes coverage for individuals that are entitled to benefits under LHWCA. Benefits pursuant to the LHWCA are commonly more beneficial to the injured worker.

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