Longshore Act vs. Virginia Workers’ Compensation
If you were hurt working on or beside the water in Virginia, the Longshore Act or Virginia workers’ compensation covers the injury, but not both. Since July 1, 2012, Virginia Code § 65.2-101 excludes from its definition of “employee” anyone for whom the Longshore Act or the Jones Act has jurisdiction, so if federal law reaches your injury, the state law does not.
That is the short answer, and it changes what the fight is about. Before 2012 a Hampton Roads shipyard worker could file claims under both systems and choose to pursue whichever paid more. Now the question is whether the Longshore Act has jurisdiction over your injury at all, because that answer decides everything else. This page compares the two systems benefit by benefit so you can see what it turns on and which is better for your case. It does not explain who qualifies for the Longshore Act; that is on the Longshore and Harbor Workers’ Compensation Act page. Start here if you already know you were hurt while working at a shipyard, terminal, pier, or dry dock and want to know what the jurisdiction question is worth.
Hint: The Longshore Act usually provides better benefits than the Virginia Workers’ Compensation Act.
Can both laws cover the same injury?
No, unless you were injured before July 1, 2012.
In American Original Foods, Inc. v. Ford, 272 S.E. 2d 187, 190 (Va. 1980), the Virginia Supreme Court held “that both the federal and the state governments are constitutionally competent to provide workmen’s compensation remedies to workmen who are killed or injured on navigable waters in Virginia.” This decision followed the United States Supreme Court’s opinion in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980), which held that the 1972 landward expansion of the Longshore Act supplements state compensation law.
A state, therefore, may apply its own workers’ compensation law to a local injury even when the federal Longshore Act also covers it. 33 U.S.C. § 902 supports this holding. This statute excludes eight categories of employees from Longshore Act coverage; however, the exclusion applies to only six categories if state workers’ compensation law covers them.
Virginia used to allow injured or killed workers covered under both systems to choose whether to pursue their (or their deceased family member’s) claim under the Longshore Act or the Virginia Workers’ Compensation Act. That changed in 2012, when the legislature amended the Virginia Code to exclude state workers’ compensation coverage to any person injured on or after July 1, 2012, for which jurisdiction also exists under the Longshore Act or the Merchant Marine Act.
Two takeaways from this change.
First, the case law from the United States and Virginia Supreme Courts defers to the legislature on whether the Longshore Act and the Virginia Workers’ Compensation Act can have concurrent jurisdiction. The General Assembly can amend the code to change it back to its pre-2012 status.
Second, the inability to claim concurrent jurisdiction now means you must pay closer attention to how you frame your claim if you prefer to file under one system but anticipate a jurisdiction fight.
Who is covered by which
The Longshore Act reaches an injured or killed worker who satisfies both a location test and a job test.
Section 903(a) covers injuries on navigable waters of the United States, including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or area that the employer customarily uses to load, unload, repair, dismantle, or build a vessel.
Section 902(3) covers a person “engaged in maritime employment,” naming longshoremen, ship repairers, shipbuilders, and ship-breakers.
Virginia workers’ compensation generally covers Virginia employees, and § 65.2-307 makes it the exclusive remedy against your employer once it applies. State workers’ comp covers the majority of Virginia employees.
Two groups fall outside both. Masters and crew members of a vessel are excluded from the Longshore Act by § 902(3)(G) and are seamen, whose remedy is the Jones Act rather than either compensation system. Civilian employees of the United States are excluded by § 903(b) and are covered by the Federal Employees’ Compensation Act, 5 U.S.C. § 8101 and following, instead.
How the § 903(e) credit works
Neither the Longshore Act nor the Virginia Workers’ Compensation Act permits “double dipping” – i.e., a double recovery.
Section 903(e) says that any amount paid for the same injury under another workers’ compensation law “shall be credited against any liability imposed by this chapter.”
In practice the federal claim tops you up rather than paying you twice. Say the employer’s carrier treats your injury as a Virginia claim by mistake and pays you under state law for ten months before you file under the Longshore Act and establish federal jurisdiction. Section 903(e) gives the Longshore carrier credit for every dollar paid under Virginia law, and it owes you the difference between that and the higher federal rate.
The credit does not reduce what you are owed. It only prevents the same loss from being paid twice.
Similarly, the Virginia Workers’ Compensation Commission has interpreted Virginia Code § 65.2-520 to give employers a dollar-for-dollar credit for any payments made under the Longshore Act if the state compensation law ends up having jurisdiction. This situation rarely arises, however, since the 2012 amendments to the Virginia Act. See Barnette v. Norfolk Shipbuilding & Drydock Corporation, VWC File No. 158-82-57 (August 24, 1998).
Longshore Act and Virginia workers’ compensation, line by line
| What is compared | Longshore Act | Virginia workers’ compensation |
|---|---|---|
| Rate and maximum | 66 2/3 percent of average weekly wages, capped at 200 percent of the national average weekly wage, § 908 and § 906(b)(1) | 66 2/3 percent of average weekly wages, capped at 100 percent of Virginia’s average weekly wage, § 65.2-500 |
| Average weekly wage | 300 times the daily wage for a six-day worker, 260 for a five-day worker, § 910(a) | Earnings for the 52 weeks before the injury divided by 52, § 65.2-101 |
| Temporary total | Paid during the continuance of disability with no aggregate week cap, § 908(b) | Paid during incapacity, inside the 500-week aggregate in § 65.2-518 |
| Temporary partial | Two-thirds of the wage loss, capped at five years, § 908(e) | 66 2/3 percent of the wage loss, inside the same 500-week aggregate, § 65.2-502 |
| Permanent partial schedule | Arm 312 weeks, leg 288, hand 244, foot 205, eye 160, plus an unscheduled wage-loss award under § 908(c)(21) | Arm 200 weeks, leg 175, hand 150, foot 125, eye 100, ear 50, § 65.2-503(B) |
| Permanent total | Paid during the continuance of total disability, § 908(a) | For life under § 65.2-503(C), which § 65.2-518 exempts from the 500-week cap |
| Medical | For as long as the injury requires, with your choice of authorized physician, § 907 | Lifetime for the accepted injury, with your choice from the employer’s panel, § 65.2-603 |
| Death benefits | Half of average wages to a spouse, plus 16 2/3 percent per child, capped at 66 2/3 percent, § 909 | 66 2/3 percent to dependents for 400 or 500 weeks, § 65.2-512 |
| Cost of living | Automatic October increase for permanent total and death only, § 910(f) | Conditional supplement tied to your federal disability benefits, § 65.2-709 |
| Third-party claims and the lien | No forced election, but a formal award assigns the claim after six months and the employer credits the recovery, § 933 | You keep the claim and the employer holds a statutory lien, § 65.2-309 |
| Attorney fees | Shifted to the carrier when it denies and you win, § 928(a) | Approved and awarded by the Commission, § 65.2-714 |
| Who decides | District director, then a Labor Department judge, then the Benefits Review Board, § 919 and § 921 | The Virginia Workers’ Compensation Commission, § 65.2-201 |
| Deadlines | Notice in 30 days, claim in one year, § 912(a) and § 913(a) | Notice in 30 days, claim in two years, § 65.2-600 and § 65.2-601 |
Where the two systems diverge most
Three lines in that table do most of the work for a Hampton Roads worker.
- The neck or back injury. Virginia’s schedule in § 65.2-503(B) lists members, which are injured body parts for which you can receive permanent partial disability benefits, and the back and neck are not included. The Longshore Act pays an unscheduled wage-loss award under § 908(c)(21) for exactly that injury, which for a worker with a lumbar fusion can be a significant payment.
- The 500 weeks. Virginia caps the total amount of indemnity compensation at 500 weeks under § 65.2-518, with permanent total and medical benefits allowed longer. The Longshore Act has no equivalent aggregate cap for indemnity, so a worker still out at week 501 is in very different positions under the two systems.
- The ceiling on your check. Virginia caps the weekly payment at 100 percent of the Commonwealth’s average weekly wage, and the Longshore Act caps it at 200 percent of the national average weekly wage. A skilled tradesman with high earnings often hits the Virginia ceiling and not the federal one.
What this page does not cover
If a vessel’s negligence caused your injury, you may also have a claim against the vessel under § 905(b), which is separate from both compensation systems and is covered on its own page. If you are a seaman, neither system applies to you and your remedy is the Jones Act. And if you are still working out whether the Longshore Act covers you at all, start with the coverage page linked at the top.
No workers’ compensation system is perfect or can make you whole. But it’s important that you determine which system is better, and whether it has jurisdiction over your work injury.
Call my firm at 757-810-5614 to discuss your legal rights if you were injured at a Virginia shipyard.