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Longshore and Harbor Workers’ Compensation Act (LHWCA): The Basics

What is the LHWCA?

The Longshore and Harbor Workers’ Compensation Act was passed in 1927 to provide compensation to injured longshoremen and other harbor workers who suffered an injury or lost a family member on the job. Injured maritime employees or their dependents may receive death or disability benefits due to an injury that occurs on navigable waters of the United States. The Act ensures payment for medical care, disability compensation, and maintenance allowance during rehab training. Death benefits to dependents include payment for funeral expenses and compensation. Before this Act was passed, state workers’ compensation programs only applied to injuries on land, and the Supreme Court had ruled that states could not extend such benefits to cover maritime workers over navigable waters.

Locations that are generally covered include:

  • Wharves
  • Piers
  • Dry docks
  • Terminals

Unlike Jones Act claims, receiving damages under LHWCA does not hinge on whether the employer is at fault. Benefits also can include disability, medical treatment, rehabilitation and payments to survivors, if a maritime worker dies because of injuries related to the job. You may benefit by consulting a Jones Act attorney who can explain your rights if you have been injured or lost a loved one.

Who Qualifies for Longshore and Harbor Workers’ Compensation?

Any employee who works in a longshore operation or on a harbor on navigable U.S. waters may qualify for workers’ compensation under this law if he or she is injured or develops a job-related condition or ailment.

Examples of workers who could qualify for workers’ compensation under the LHWCA include:

  • Shipbuilders
  • Ship repair workers
  • Longshoremen
  • Workers who unload or load vessels

Some workers are not eligible for benefits under the Longshore and Harbor Workers’ Compensation Act.  These workers include:

  • The masters or members of the crew of any vessel (covered by the Jones Act)
  • Officers and employees of the United States or a foreign government.
  • Any employee who was injured because of his or her own intoxication while on the job.
  • Any employee who intentionally tries to injure or kill himself or herself or another person.
  • Employees who build, repair, or dismantle exclusively small vessels (as defined by the law) unless the injury occurs while upon the navigable waters of the United States or while upon any adjoining pier, wharf, dock, facility over land for launching vessels, or facility over land for hauling, lifting, or drydocking vessels.
  • Clerical and administrative workers.

Typically, LHWCA does not cover employees who strictly perform clerical or similar office work or workers at a restaurant or store on the harbor. Further, seamen on vessels are not covered under this law. These workers are usually covered by state workers’ compensation laws or Jones Act law.

Benefits Under the Longshore and Harbor Workers’ Compensation Act

Disability benefits compensate workers a percentage of average weekly wages. These are two-thirds of weekly wages prior to the injury if the worker is classified as having “permanent and temporary total disability,” and two-thirds weekly lost income if classified as “temporarily partially disabled.”

A permanent partial disability is compensated based on a schedule outlined in the LHWCA. Injured workers may also recover benefits for medical treatment for the injury and even vocational rehabilitation services.

The LHWCA also provides death benefits to a worker’s surviving spouse and dependents if the worker is killed on the job. These survivor benefits compensate the spouse at a rate of 50 percent of the worker’s average weekly wage for a lifetime, or until the spouse remarries. It also provides up to $3,000 in funeral expenses.

Victims or their families who struggle to recover fair compensation based on the injury may seek consultation from a Louisiana Jones Act lawyer who can help workers with such claims.

Longshore Act Extensions and Amendments

Congress has extended the LHWCA through several separate acts to cover additional types of workers:

  • Defense Base Act (DBA): Extends the LHWCA to provide coverage for civilian employees working outside the United States on U.S. military bases or under a contract with the U.S. government for public works or national defense.
  • Outer Continental Shelf Lands Act (OCSLA): Extends the LHWCA to employees working on the Outer Continental Shelf of the United States in the exploration and development of natural resources, such as offshore oil drilling.
  • Non-Appropriated Fund Instrumentalities Act (NAFIA): Extends the LHWCA to civilian employees of non-appropriated fund instrumentalities of the Armed Forces, such as military base exchanges and recreational facilities.
  • War Hazards Compensation Act (WHCA): Extends the DBA to provide coverage for injury, death, capture, or detention resulting from a war-risk hazard for employees working outside the United States under a U.S. government contract.

This Act came about as a response to the Pearl Harbor Attack in WWII when military demands required contractors to extend operations into places not covered by the Defense Base Act. The arrangements were informal and did not provide equality or consistency. Therefore, the War Hazards Compensation Act was passed in December of 1942.

A “war-risk hazard” is one arising during a war in which the U.S. is engaged during an armed conflict. It does not matter whether or not war has been declared. The DBA provides reimbursement through the Federal Employees’ Compensation Program to insurers and self-insured employers for losses they paid under the DBA once their claim is determined to be a war risk hazard.

These extensions ensure that workers’ compensation benefits are available to a broader range of workers who are exposed to the unique risks associated with their specific jobs, even if they are not traditional maritime workers covered by the original LHWCA.

LHWCA Amendments

Amendments of 1972

These amendments, enacted in October of 1972, extended coverage to workers employed in shore-side areas, such as wharves, piers, terminals, dry docks, marine railways, building ways, or any other area adjoining places customarily used in loading/unloading, repairing, and/or building a vessel. Other changes had to do with maximum and minimum benefit rates, student benefits, death benefits, annual increases, fees for services, a Benefits Review Board, claimant assistance, third-party liability, annual adjustment of benefits, and other miscellaneous provisions.

Amendments of 1984

Primary changes include:

  • Compensation for unrelated death was eliminated.
  • Additional safeguards provided for fraudulent activity by employees to obtain benefits.
  • A method for calculating compensation for victims of latent disabilities due to an occupational disease that becomes evident following retirement was established.
  • Uninsured employers and carriers unauthorized to write insurance under the Act are now prohibited from receiving second injury relief.

Claiming Benefits from Longshore and Harbor Workers’ Compensation

When a longshore or harbor worker sustains an injury, they must notify their employer within 30 days. Additionally, the worker must also file an official claim for benefits through the Department of Labor within 12 months of the injury, and the employer must then begin remitting benefits to the worker within 14 days of the claim’s filing or may dispute the claim.

Workers also may choose to file a lawsuit against a person or entity that was negligent or at fault in causing their injuries. They may not, however, sue their employer. The Jones Act law allows workers to sue an employer for negligence. Injured workers can contact a Louisiana Jones Act lawyer to review legal options under this and other laws.

Why Longshore and Harbor Workers’ Compensation May Be Denied

Under the Longshore and Harbor Workers’ Compensation Act, when workers suffer injuries during the course of employment in a longshoring or harbor operation, they are due a number of benefits.

Unlike the Jones Act, this workers’ compensation program does not require determining fault. The worker simply must notify their employer and file a formal claim with the Department of Labor. Workers should begin receiving benefits within two weeks.

Unfortunately, sometimes claims get denied, and injured workers are not afforded the benefits they are rightly due. In such cases, a Louisiana maritime attorney may help.

Some of the reasons for a claim denial include:

  • Inadequate documentation: In order to accept and pay the claim, there needs to be paperwork to support the injury, the wages lost, the treatment required and more.
  • Ineligibility: Workers may not be eligible for benefits if they do not qualify as a longshore or harbor worker or if they are covered by the Jones Act or workers’ compensation through a state program.
  • Not on navigable waters: To qualify for LHWCA benefits, a worker must work in a maritime location on U.S. navigable waters. If these qualifications are not met, they may be unable to seek benefits.
  • Timing: Injured workers must notify the employer within 30 days of the injury and file a claim for benefits within one year. If they fail to follow these schedules, the claim may be denied.

When a claim is denied, the worker will receive a Notice of Controversion. This should detail the reasons the claim was denied, as well as instructions for disputing the denial. Any worker who has received a claim denial or a Notice of Controversion can contact a Louisiana maritime attorney for help.

The Louisiana maritime lawyers at The Young Firm can help with the Jones Act or workers’ compensation benefits under the LHWCA. Our attorneys can guide workers through the dispute process, as well as the general Longshore and Harbor Workers’ Compensation Act claims process if necessary.

Can You File a Claim Against a Third Party if You’re Receiving Longshore Benefits?

The answer to that question is yes, absolutely.

If you’re injured and your employer is a longshore employer, they owe you benefits under the Longshore Act. Typically, this will happen if you’re a dock worker or a fixed platform worker out in the Gulf of Mexico. In this case, you’ll receive benefits from your longshore company.

Sometimes, however, a third party (a separate entity or a different company) does something wrong that causes or contributes to your injury. In the Gulf of Mexico, this may happen on platforms when workers transfer to or from vessels and the vessel does something wrong that results in an accident. If this is the case and you are injured, then it may be possible for you to file more than one claim. In those situations, the employee is going to get longshore benefits from their employer, but they can then file a third-party suit against the vessel owner with the help of an attorney.

The same situation applies to dock workers. If they are hurt on board a vessel and it is the fault of someone or something on the vessel, then they have the right to file a third-party claim against the vessel owner.

One of the reasons it’s very important to pursue any third-party claims is because, under a third-party claim, you actually receive lost wages, pain and suffering, and all medical expenses. Typically, the damages in a third-party claim are much higher than what you can get under the Longshore Act.

Under your longshore claim with your employer, you are only going to receive longshore benefits, which can be extremely limited. You’re also only going to receive medical benefits. There’s no pain and suffering damages or loss of future wage component.

Even if you’re receiving longshore benefits, you can absolutely pursue any responsible third party for your claim.

Your Employer Must Approve Any Third-Party Settlement Under the Longshore Act

If you’re a longshoreman and a third-party company is responsible for your injury such as a boat company that may have been transporting you, or a third-party service company on your fixed platform, you may have serious rights against that third party to collect a lot of your damages. However, you cannot accept any money from that third party without the approval of your employer. If you do so, you’ll be giving up all of your rights against your employer under the Longshore Act. This is a very technical part of the Longshore Act law, and it’s very important for you to understand it.

For example, we worked with a client who was injured on a vessel when it was transporting him. He’s a longshoreman, and he has a very good suit against the vessel company. However, he cannot and will not settle the third-party case until his employer approves it or we reach a settlement with his employer at the same time.

Can an Injured Longshoreman File Suit Under the Jones Act and the Longshore Act at the Same Time?

The short answer is yes, and there are a few reasons why you may want to do that.

There’s a whole category of workers that may fall under the Longshore Act, but it’s also possible that they may fall under the Jones Act. In those situations, it’s always best to file suit both under the Longshore Act to protect your rights in case you’re a longshoreman, and at the same time, file suit under the Jones Act in case you can prove that you’re a Jones Act seaman. A lot of times, you don’t know whether you’re going to fall under the Longshore Act or under the Jones Act until a court actually makes that determination.

We also encourage our clients if they’re not sure they want to file suit under both the Longshore Act and the Jones Act to file under the Jones Act first to protect their rights. Nine times out of ten, you’re going to collect a lot more money and you’re going to get a better recovery if you can prove that you’re a Jones Act seaman. There are a lot of times when you want to file suits under both statutes, but you want to pursue your Jones Act case first. That’s going to give you the most recovery most of the time.

How Much Compensation Can I Get from a LHWCA Claim?

The amount of compensation you could receive from a LHWCA claim depends on the severity and duration of the disability the work-related injury or illness caused, as well as your pre-injury wages and other factors. Under the LHWCA, you may be eligible for the following benefits:

  • Medical benefits: All reasonable and necessary medical expenses related to the injury or illness are covered.
  • Temporary total disability (TTD) benefits: If you are unable to work due to your injury, you can receive 2/3 of your average weekly wage (AWW) during this period.
  • Temporary partial disability (TPD) benefits: If you can return to work but earn less due to your injury, you can receive 2/3 of the difference between your pre-injury and post-injury wages.
  • Permanent partial disability (PPD) benefits: If you have a permanent impairment, you can receive 2/3 of your AWW for a specific number of weeks, depending on the body part affected and the severity of the impairment.
  • Permanent total disability (PTD) benefits: If you are permanently unable to work due to your injury, you can receive 2/3 of your AWW for the duration of the disability.
  • Death benefits: If a worker dies due to a work-related injury or illness, their surviving dependents can receive compensation.

The maximum weekly compensation rate is set at 200% of the national average weekly wage (NAWW) as determined by the Department of Labor.

You must consult an experienced LHWCA attorney to assess your case and determine the appropriate compensation.

Contact an Experienced LHWCA Attorney Today

If you or a loved one sustained serious injuries during the course of your maritime employment, you likely qualify to receive various benefit payments and compensation. The claims process is complex and requires the skills and resources of an experienced maritime accident attorney.

The LHWCA lawyers at The Young Firm have decades of experience helping injured employees throughout Louisiana. We can review your claim at no cost and advise you of your rights and options to recover compensation and seek additional compensation from third parties and other sources, if applicable. You can rely on us to work diligently to help you file the appropriate claims and advocate for you throughout the process to increase your chances of getting the best possible outcome.

Contact us today for a free consultation and learn how we can help.

More Resources on the LHWCA:

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