Longshore and Harbor Workers Compensation Act

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 What Is Workers Compensation?

Workers’ compensation is a state-mandated insurance program which provides compensation to employees who are injured while on the job. An employee who is injured on the job is guaranteed benefits regardless of who was at fault.

However, in return for workers’ compensation benefits, employees generally forfeit their right to sue their employer in court for damages for their injuries. This is one way in which the rules governing workers’ compensation are significantly different than for other personal injury matters.

To reiterate, workers’ compensation provides benefits to injured workers regardless of whether the injury was the employer’s or the employee’s fault. What this means is that as long as your injury is work-related, it is generally covered under workers’ compensation. Examples include:

  • Repetitive stress injuries;
  • Illnesses or diseases that are a gradual result of working conditions;
  • Traumatic physical injuries;
  • Repeated trauma injuries;
  • Mental injuries when they are associated with physical injuries; and
  • Occupational diseases.

Examples of injuries that remain uncovered include:

  • Self- inflicted injuries, such as when you cause a fight;
  • Injuries resulting from the commission of a serious crime;
  • Injuries caused when your conduct violates company policy;
  • Injuries received while you were intoxicated or under the influence of illegal drugs; and
  • Injuries when you were acting in a reckless manner.

Additionally, several classes of workers are not entitled to receive workers’ compensation benefits. The following are employees who are not covered by workers’ compensation:

  • Business owners;
  • Independent contractors;
  • Federal employees;
  • Domestic employees in private homes;
  • Farm workers;
  • Maritime workers;
  • Railroad employees; and
  • Unpaid volunteers.

Workers’ compensation benefits generally include:

  • Replacement income;
  • Medical expenses;
  • Rehabilitation;
  • Long-term or lump sum pension if you are permanently unable to work from the injury; and
  • Temporary disability pension while you are unable to work.

In order to satisfy workers’ compensation requirements, you must be an actual employee of your employer. What this means is that you cannot be an independent contractor. Additionally, your injuries must be work related.

In order to receive workers’ compensation, you must:

  • Promptly report your injury to your employer. Some states require notice within 2-30 days following the injury. If an injury or illness manifests over time, you must report it as soon as you realize that it was actually caused by your work;
  • Obtain medical treatment and follow the doctor’s instructions;
  • File your claim with your employer’s insurance carrier, as your employer must provide insurance claim forms; and
  • Save copies of all paperwork throughout the process.

What Is The Longshore And Harbor Workers Compensation Act?

The LHWCA is a federal law that provides for worker compensation for those who are injured while on the job. LHWCA specifically provides for workers whose job injuries occurred on the navigable waters of the U.S. or on adjoining areas where:

  • Loading;
  • Unloading;
  • Repairing; and/or
  • Building of water vessels generally occurs.

If such a worker is killed while on the job, or suffers an injury that contributes to their death, survivor benefits may be available for their spouses and children. Such benefits are generally paid by the self-insured employer or a private insurance company on the employer’s behalf. The Office of Worker Compensation Programs (“OWCP”) is who provides oversight for the LHWCA.

Traditionally, the following workers were the only employees who were covered by the Act:

  • Longshore workers;
  • Ship-repairers;
  • Shipbuilders;
  • Ship-breakers, and
  • Harbor construction workers.

Over time, Congress has extended coverage to other workers, including:

  • Private employees and other contract workers on land that is used by military operations outside of the U.S.;
  • Workers who are injured while exploring or developing natural resources outside of the U.S.; and
  • Certain civilian employees of the Armed Services.

Similar to workers compensation, qualified workers who are injured solely as a result of their own intoxication or their intention to injure themselves or others are not covered by the Act. Additionally, there are other workers who are not covered due to being eligible for a state workers compensation program, or other programs under OWCP.

In order to qualify under LHWCA, an injured worker must be doing a job that meets the maritime job requirements; in comparison, state workers compensation funds provide coverage for a variety of jobs. To further compare the two compensation programs, LHWCA offers payments for partial disabilities while many state workers compensation funds do not.

What Types Of Disabilities Does The LHWCA Provide For? What Should I Do If I Am Injured On The Job And Want To Receive LHWCA Compensation?

In a legal context, disability means the inability to earn the same wages that the person earned before they were injured. As long as the injury occurred at an eligible place, and is caused by a working condition or the result of a job-related task, the injury or disease may be covered.

Under the LHWCA, injured workers can receive benefits for four types of disabilities:

  1. Temporary Partial Disability: The worker is still recuperating from the injury, and is unable to return until they are healed. Their injury does not prevent them from working at all; rather, they cannot do the same job as they could before;
  2. Temporary Total Disability: The worker is still recuperating from the injury, and is unable to return until they are healed. The worker is unable to work at all for the time being;
  3. Permanent Partial Disability: The worker’s injury is stable and is not likely to improve; however, the injury does not prevent the worker from working at all. Rather, they cannot do the same job as before; or
  4. Permanent Total Disability: The worker’s injury is stable and not likely to improve. Additionally, the worker is unable to work at all.

If you were injured on the job and would like to receive LHWCA compensation, you will need to take the following steps:

  1. Report any injury, including a new illness or disease that you believe is related to your work duties, to your employer immediately. This should be done in writing. Failing to report the injury on time may prevent you from filing your claim;
  2. Get medical treatment for your injury and maintain copies of all medical records associated with your injury; and
  3. File a claim with the OWCP within one year of the injury.

When an injury has prevented you from working for three days, payments should begin within 14 days of when your employer has knowledge of your lost wages due to the injury. After the initial payment, you should begin receiving benefits bi-weekly. Compensation under the LHWCA is calculated using the Average Weekly Wage (or, AWW) of the worker before the injury incurred. Total disabilities are paid at two-thirds of the worker’s AWW.

Partial disability compensation may use a schedule based on the percentage of the ability of the worker, or based on the body part that is now disabled. Some amounts of compensation are subject to a minimum and maximum benefit amount determined and published each year.

A Notice of Controversion must be filed with OWCP if the employer or their insurance carrier is denying your claim. If your claim is denied, gather your documentation of work history with the employer and medical documentation of your injury and contact the OWCP. The OWCP may then make a recommendation.

If you are still denied by the employer, request a hearing with an Administrative Law Judge who can hear the case and decide whether benefits should be granted to you. It is illegal for your employer to retaliate against you based solely on your filing of a workers compensation claim.

Do I Need A Lawyer For Help With The Longshore And Harbor Workers Compensation Act?

A workers compensation lawyer can help you understand your legal rights and options when attempting to obtain compensation under LHWCA. If your claim has been denied, your lawyer can help prepare your case for review with the OWCP, as well as a hearing with an Administrative Law Judge.


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