The Longshore and Harbor Workers’ Compensation Act, also called the LHWCA or Longshore Act, is a federal workers’ compensation program administered by the U.S. Department of Labor’s Office of Workers’ Compensation Programs (OWCP). The LHWCA provides medical treatment, compensation for lost wages, and vocational rehabilitation services to private-sector maritime employees hurt while engaged in longshore and harbor occupations on the navigable waters of the United States or in adjacent or adjoining areas.
Roughly 500,000 maritime workers have employment-related injury and occupational disease protection under the Longshore and Harbor Workers’ Compensation Act. Each year hundreds of millions of dollars are paid to maritime workers, including longshoremen, stevedores, harbor workers, and shipyard employees, who suffer disability from employment injuries or occupational diseases. These benefits help provide food, shelter, and a certain standard of living to injured longshore and harbor workers.
This article provides an overview of the Longshore and Harbor Workers’ Compensation Act and explains what you can do to increase the likelihood that you and your family receive the benefits you need to survive after an injury at the shipyard, dock, pier, or terminal. If you have any questions, or are looking for legal representation, contact Virginia longshore lawyer Corey Pollard for a free consultation: 757-810-5614 or 804-251-1620.
Working at a busy port, marine terminal, or shipyard is dangerous and difficult work. In 2015 LHWCA insurance carriers and self-insured employers reported more than 23,000 lost-time injuries to the Department of Labor and paid more than $1 billion in cash and medical benefits.
Maritime injury lawyer Corey Pollard can help if you are a longshoreman or harbor worker who has sustained a serious injury on the job or been diagnosed with an occupational disease.
We represent injured employees who work at or for the following private-sector maritime employers and ports in Virginia:
If you are a maritime worker who was hurt while working on the water or a dry dock, terminal, pier, marine railway, or other area customarily used to repair, build, load, or unload a vessel at one of these facilities, Virginia longshore workers compensation attorney Corey Pollard can help.
Any private employer with an employee who works full- or part-time on navigable waters, including in any of the following adjacent areas – piers; wharfs; dry docks; building ways; marine railways; or terminals – is subject to the provisions of the LHWCA.
The LHWCA considers a covered “employee” to be any person engaged in maritime employment, which includes work performed on the navigable waters of the United States or at piers, wharves, terminals, or docks used to load, unload, or work on vessels. Employees in the following occupations are generally covered by the Longshore Act:
Some workers are excluded from coverage under the LHWCA. These workers include:
In addition the following persons are not covered by state workers’ compensation law or the LHWCA, but rather the Jones Act:
Are you a crane operator, dockworker, harbor worker, longshoreman, shipbreaker, shipbuilder, or stevedore? Then you face numerous workplace hazards each day. Loading and unloading cargo and equipment, handling and working with toxic materials, working in confined spaces and awkward positions – these are just some of the activities that increase your risk of injury. Though many employers institute standard safety procedures, these are often not enough to prevent an accident. Here are some of the most common causes of Virginia offshore injuries:
The LHWCA defines an accidental injury or death as one that arises out of or in the course of employment. An injury arises in the course of employment if it happens within the time and space of the employment or while performing an activity related to the employment. This is similar to the definition of an accidental injury or death found in the Virginia Workers’ Compensation Act. The Longshore ACT defines an occupational disease or illness as one that arises naturally out of the employment or that unavoidably results from an accidental injury. An injured longshoreman or harbor worker must prove that he has sustained some injury, harm, or pain caused by work conditions or that an accident at work caused him harm or pain. Once this is proven, the injured longshoreman will receive a presumption that the employment caused the injury.
Longshoremen, martime workers, and shipyard and dock workers are exposed to many of the same risks as other workers we represent, plus many other hazards unique to their employment. In fact employees in the shipbuilding and ship repair industry are injured at a much higher rate than that of other construction workers. Here are common injuries they suffer:
Many, but not all, of these injuries are preventable through appropriate safety measures. But employees are often at the mercy of their maritime employers and third parties to provide and follow through with these safety procedures. A breakdown in safety may cause you serious maritime injury. But experienced Virginia longshore attorney and maritime injury lawyer Corey Pollard can develop a strategy that provides maximum compensation through workers’ comp and the civil litigation process.
The Longshore Act allows injured employees to recover compensation and medical care for an aggravation of a pre-existing condition. So long as an accident at work aggravates or accelerates a prior condition to produce disabiity or death for which compensation is sought under the Longshore Act, the employer will be held responsibile for the entire disability. The Longshore Act does not provide for apportionment of damages between the pre-existing condition and the aggravation.
Covered employers must either purchase workers’ compensation insurance coverage for the benefit of their employees or self-insure. Unlike Virginia workers’ compensation, the Department of Labor does not establish or regulate the insurance premiums charged by longshore carriers.
The LHWCA provides many types of benefits to injured longshoremen and harbor workers, as well as the survivors of those workers who die on the job. These benefits include the following:
The LHWCA states that the employer must provide the injured employee with reasonable, necessary, and causally related medical treatment, which includes medical, surgical, nursing, counseling, hospitalization, prescription drugs, diagnostic testing, apparatus required for medical care. An injured employee is entitled to reimbursement for necessary costs for travel to and from medical treatment. When it comes to medical treatment, the biggest difference between the Virginia Workers’ Compensation Act and the Longshore Act is that the injured longshoreman or harbor worker has the right to choose his own treating physician. This is one reason why it is important to consult with an experienced Longshore Act lawyer who knows which physicians are better equipped to treat injured longshore workers’ needs. Injured workers cannot count on employers and insurers to advise them of their rights.
The LHWCA identifies four types of disability: (1) permanent total disability; (2) temporary total disability; (3) temporary partial disability; and (4) permanent partial disability.
When a claimant proves that his injury or occupational illness prevents him from returning to his prior job after reaching maximum medical improvement, the burden shifts to the employer to prove that suitable alternate employment exists. Suitable alternate employment is any employment that the injured employee, given his age, education, work background, restrictions, and work limitations could secure, if he tried. The employer must provide actual jobs, not just theoretical jobs. If the employer is able to do so, then the injured worker’s disability will be considered as a permanent partial disability. Compensation is then calculated based on the difference between the injured employee’s pre-injury average weekly wage and what his wage would be in the alternative suitable employment.
Like Virginia workers’ compensation, wage loss compensation paid under the Longshore Act is based on the injured employee’s average weekly wage. The employee’s wage consists of his weekly compensation rate, including the value of room and board, use of a vehicle, and layover fees. The injured’ employee’s wage does not include fringe benefits such as employer contributions to retirement and health insurance
When calculating the average weekly wage under the Longshore and Harbor Workers’ Compensation Act, we look at the employee’s earnings during the 52 weeks prior to the injury. These earnings are divided by the number of days worked to obtain an average daily wage. This wage is then multiplied by 300 for an employee who works six days per week or 260 for an employee who works five days per week to come up with average annual earnings. This figure is divided by 52 to obtain the average weekly wage
Compensation for injury or disease that causes total disability is paid at two-thirds of the average weekly wage. Compensation for partial disability is paid at two-thirds of the difference between the injured worker’s pre and post-injury average weekly wage. Death benefits are paid to widowers with no children at 50% of the decedent’s average weekly wage. Death benefits are paid to children at 16 2/3% of the decedent’s average weekly wage, unless there is no surviving widow, in which case an only child will receive 50% and two or more children will receive two-thirds of the decedent’s average weekly wage, equally divided.
The Longshore Act provides statutory maximum and minimum compensation rates. The minimum compensation rate for total disability is 50% of the national average weekly wage. The maximum, compensation rate for death or disability is 200% of the national average weekly wage.
The LHWCA contains a schedule of cases to be paid when an employee has permanent partial disability (PPD). The Longshore and Harbor Workers’ Compensation Act PPD schedule is as follows:
Loss of arm: 312 weeks
Loss of leg: 288 weeks
Loss of hand: 244 weeks
Loss of foot: 205 weeks
Loss of eye: 160 weeks
Loss of thumb: 75 weeks
Loss of first finger: 46 weeks
Loss of second finger: 30 weeks
Loss of third finger: 25 weeks
Loss of fourth finger: 15 weeks
Loss of great toe: 38 weeks
Loss of toe other than great toe: 16 weeks
Loss of hearing in one ear: 52 weeks
Loss of hearing in both ears: 200 weeks
Disfigurement: One-time payment of $7,500
Virginia longshore workers’ comp lawyer Corey Pollard can help you obtain the appropriate impairment rating for your maritime injury so that you receive the maximum amount of PPD benefits.
Under the LHWCA, an injured employee or his dependent must give written notice to the employer and the Department of Labor within 30 days of the date the accident occurred. For injuries where the employee does not become aware of the relationship between his injuries and the employment until a later date, he must give written notice within 30 days after he becomes aware of the relationship.
For occupational disease claims brought under the Longshore Act, the injured employee has one year to provide written notice
Under the Longshore Act, each maritime employer must designate an individual to receive the notice of injury or death in the event that a claim for death benefits is filed
A failure to give notice within the time prescribed by the Longshore and Harbor Workers’ Compensation Act does not automatically bar an injured worker from receiving compensation and benefits. If the employer or its LHWCA insurance carrier had knowledge of the injury or death, written notice is not necessary. Further, the administrative law judge hearing the claim has discretion to excuse untimely notice so long as the employer was not prejudiced
We recommend consulting with a maritime injury lawyer prior to speaking with your employer’s insurer.
An injured worker must file a claim in the Office of the District Director within one year after the injury, or one year from the date he or she becomes aware or should ahve become aware of the relationship between the employment and the injury. Payment of compensation without a formal award, however, extends the period allowed for filing. An injured worker has one year from the date of the last voluntary payment to file a formal claim.
A different statute of limitations applies to claims for occupational disease under the Longshore Act. Occupational disease victims have two years from the date they become aware, or should have become aware through reasonable diligence or by reason of medical advice, of the relationship betewen their disease, employment, and disability
The statute of limitations may be extended in cases. For example, when the employer or its LHWCA insurance carrier has received knowledge of the work injury but fails to file applicable paperwork with the Department of Labor, the time limit for the injured worker to file a claim is extended. This section of the Longshore Act is particularly useful for injured employees whose claim is otherwise time-barred. Further, an injured employee who files a lawsuit against his employer under the Jones Act will have additional time to file a Longshore claim. This is because the statute of limitations in that situation does not begin to run after the Jones Act lawsuit is terminated
Even if you are concerned that too much time has passed for you to receive benefits under the LHWCA, you should still contact Virginia Longshore lawyer Corey Pollard for a free consultation. The exceptions to the statute of limitations may apply to your case.
The parties to a LHWCA claim may reach a settlement. If the settlement is for a claim involving permanent disability, the lump sum amount is typically equal to the present value of the expected future compensation benefits. If the settlement is for a claim with expected future medical treatment, the parties will usually negotiate an amount equal to the present value of expected future medical care required. The U.S. Department of Labor or the administrative law judge assigned to the case must approve settlement.
The maritime employer and its LHWCA carrier become liable for attorney fees if they refuse to pay compensation or furnish medical treatment on or before the thirtieth day after receiving written notice of the injury claim. This is another major difference between the Longshore Act and the Virginia Workers’ Compensation Act, which rarely provides for an assessment of attorney’s fees in contested claims.
Likewise, an employer and insurance carrier that voluntarily pay compensation and provide medical treatment, but dispute a later issue, must accept the recommendation of the OWCP claims examiner following a conference with the Department of Labor within 14 days after the recommendation is made, or else they become liable for attorney’s fees if the injured employee is successful.
The Department of Labor must approve attorney’s fees. These Longshore and Harbor Workers’ Compensation Act attorney’s fees are based on an hourly rate, not a contingency fee contract. An attorney representing a claimant under the Longshore Act cannot charge a contingency fee.
The Department of Labor (DOL) decides whether a maritime worker is eligible for benefits under the LHWCA and, if so, the amount of benefits.
After the filing of a claim, the employer or its insurance carrier may respond and controvert the claim. If they do not, then the DOL will arrange for payments to be made.
If the employer disputes any part of the longshore claim, then the DOL will schedule an informal conference, either by phone or in person, between the injured worker and the employer. The goal is to resolve the dispute. If the informal conference fails to resolve all pending disputes, then the claim is referred for a formal hearing.
Any party may appeal the decision reached at the formal hearing to the Benefits Review Board (BRB). The BRB consists of five appointed by the Secretary of Labor.
If either party is unhappy with the BRB’s decision, then they may file a petition with the U.S. Court of Appeals.
Virginia longshore lawyer and harbor workers’ compensation act attorney Corey Pollard represents dock workers, harbor workers, longshoreman, and other maritime employees who are injured while working on piers, wharves, docks, dry docks, terminals, shipyards, marine railways, and other adjoining areas used to load, unload, repair, or build a ship. Injured longshoremen, stevedores, and shipyard workers in Norfolk, Virginia Beach, Portsmouth, Newport News, and Hampton can call longshore attorney Corey Pollard at 757-810-5614 or 804-251-1620 for a free consultation.
