Working at a busy port is dangerous and difficult work. Maritime lawyer Corey Pollard helps longshoremen who sustain serious injuries in work accidents, and represents stevedores and other longshoremen injured at Norfolk International Terminals (NIT), Portsmouth Marine Terminal (PMT), Newport News Marine Terminal (NNMT), Virginia International Gateway (VIG) at Portsmouth, the Virginia Inland Port, Port of Richmond, and Ceres Marine Terminal. Call 804-251-1620 or complete the online contact form for a free consultation with Virginia longshore lawyer Corey Pollard. And continue reading for more information on your rights under the Longshore and Harbor Workers’ Compensation Act.
Virginia Longshore Lawyer and Harbor Workers’ Compensation Act Attorney
Longshore and Harbor Workers Compensation Act Overview
Employees Covered under the Longshore and Harbor Workers’ Compensation Act
The LHWCA considers an “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:
- Winch operators
- Dock men
- Forklift operators
- Ship repairmen
- Pile drivers
- Harbor workers constructing piers, sewer out falls, piers, or any other facility that will aid navigation or maritime commerce
Some workers are excluded from coverage under the LHWCA. These workers include: employees and officers of the federal government; employees of any state or municipal government; and, administrative and clerical staff who perform only non-maritime tasks. The Longshore Act also excludes coverage for injuries, occupational disease, or death suffered by a master or member of a crew of any vessel. Occupational injuries and disease suffered by these thypes of employees are covered under the Jones Act.
Injuries Covered under the Longshore Act
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. A Virginia Longshore Act lawyer can help prove that your injuries should be covered under the Longshore Act.
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.
Medical Treatment under the Longshore Act
The LHWCA provides 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.
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.
Maximum and Minimum Compensation Rates
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 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.
Some injured under the Longshore and Harbor Workers’ Compensation Act are paid pursuant to a schedule where the injured employee loses the use of a body part. The body parts covered under the Longshore Act include the arms, legs, hands, feet, eyes, toes, fingers, and hearing. Once the injury or loss of use to a scheduled member becomes permanent, the employee is entitled to receive a specific number of weeks of compensation depending on the severity of the permanent impairment and the body part injured.
Written Notice of Your Longshore Accident
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.
Statute of Limitations under the Longshore Act
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.
Settlements under the Longshore and Harbor Workers’ Compensation Act
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.
Attorney’s Fee in LHWCA Cases
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.
Longshore Lawyer and Harbor Workers Compensation Act Attorney across Virginia
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 804-251-1620 for a free consultation.