Longshore & Harbor Workers' Compensation Act (LHWCA)
Benefits for Injured Longshoremen & Harbor Workers
When a longshoreman or harbor worker is injured or becomes ill while at work, they have several options for recovering compensation for medical care and lost wages. One option is to recover benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), which is a no-fault system similar to state workers' compensation. Per the United States Department of Labor, the LHWCA protects approximately 500,000 workers nationwide.
"The Act provides for compensation and medical care to employees disabled from injuries that occur on the navigable waters of the United States, or in adjoining areas used in loading, unloading, repairing, or building certain vessels. The Act also provides benefits to specific survivors and dependents if the injury causes the employee's death."
Under the Longshore and Harbor Workers’ Compensation Act, employers are immune from direct lawsuits and workers do not need to prove that someone else caused the accident. Instead, workers receive benefits regardless of fault. These benefits are limited to medical treatment and a percentage of lost wages, however, and some employers may attempt to deny or delay compensation. When this happens, workers can feel as though they have nowhere to turn.
The maritime attorneys at Arnold & Itkin have an unmatched track record with offshore injury and maritime cases. We represent longshoremen and harbor workers all along the Gulf Coast in Texas, Louisiana, Mississippi, and Alabama, as well as nationwide. As trial lawyers who have successfully handled some of the biggest maritime cases in history, we understand the ins and outs of the LHWCA and how to assert workers’ rights under all applicable state and federal laws.
Contact our attorneys today for a free consultation. We have won more than $20 billion for our clients; we're ready to see how we can help you.
Table of Contents
How Do I Know If I Qualify Under the LHWCA?
Like the Jones Act, the LHWCA has a specific set of criteria a worker must meet to qualify for compensation.
Answering the following questions can help you determine whether you are covered:
- Are you a maritime worker? The LHWCA only covers workers in the maritime industry. This includes longshoremen, harbor workers, ship repairers, shipbuilders, and ship-breakers. Additionally, the LHWCA may also cover workers who repair or maintain equipment that is used for loading and unloading vessels.
- Did your injury occur on navigable waters or an adjoining area? The LHWCA covers injuries that occur offshore. However, that can also include adjoining areas, such as loading docks, shipyards, piers, and wharves. If you did not sustain your injury offshore or in an adjacent area, you may not be covered by the LHWCA.
- Did your injury occur within the scope of your employment? This simply means that your injury must have occurred while engaging in activities related to your employment or job duties.
Generally, if you answered yes to the above questions, you may be covered by the LHWCA. If you are unsure of whether you qualify, consult with a lawyer who has experience with LHWCA claims.
Filing an LHWCA Claim
An injured worker should take the following steps to file a claim under the LHWCA:
- Notify a supervisor or employer that you have suffered an injury as soon as possible.
- Seek medical treatment for your injury as soon as possible.*
- Give your employer a written notice of injury within 30 days of your accident date. In the case that you had an injury without realizing it, give notice within 30 days of your initial discovery of the injury.
- To turn in your written injury notice, use Form LS-201.
*As an employee who falls under the LHWCA, you can choose a physician who can take care of your injuries. You will need to fill out Form LS-1, which is a Request for Examination and/or Treatment. If you have a medical emergency, you are entitled to “get treatment now and sign forms later.”
The Office of Workers’ Compensation Programs (OWCP) requires notification of an injury within one year. If you're already receiving benefits, you must inform the OWCP within a year from the last received payment. This is done by submitting Form LS-203. In cases of injury, the responsibility to pay your claim typically falls on your employer or their insurance carrier. However, if they are bankrupt, the OWCP's Special Fund may cover your benefits.
For new claims without an existing OWCP file number, you should send the claim forms to the New York City District Office of the Division of Longshore and Harbor Workers’ Compensation (DLHWC). This office serves as the central processing location for all new OWCP claims. After filing, your case becomes accessible online.
Longshoremen, the LHWCA & Third-Party Lawsuits
If a longshoreman was injured by a company or individual other than an employer or a co-worker, they might have the option of filing a third-party lawsuit to recover damages.
Third-party cases are covered under Chapter 3-600 of the Longshore Procedure Manual, which provides the injured employee with the following options:
- File a claim for compensation
- File a civil suit against the third party for negligence
- Pursue both above actions simultaneously
There are rules in place to prevent an employee from recovering benefits under the Act as well as proceeds from a successful negligence suit, which would effectively provide double compensation for the same injury. The same rules also protect the employee when they receive a settlement in their negligence action that is less than they would have been entitled to receive in compensation benefits under the Longshore and Harbor Workers’ Compensation Act.
Shore-Based Injuries (905B Claims)
905B claims (shore-based injury claims) are filed against a party other than the employer. Those entitled to these benefits are workers who provide land-based maritime services.
These may include working in a shipyard such as shipbuilding, ship repair, or breaking services. As land-based employees, these workers often come into contact with ships and vessels owned by someone other than their employers. If they are injured in conjunction with that vessel, they may be able to file a claim against the ship's owner.
This type of claim is not available to those who were injured while providing stevedoring services. A stevedore is a dock worker employed to load or unload a vessel. Stevedores are responsible for operating many different types of loading equipment, such as cranes and derricks, and are often contracted out rather than working for the terminal or a vessel operator. The terms stevedore and longshoreman are often wrongly interchanged. This can be confusing since longshoremen may recover compensation under 905B, while stevedores would not.
Benefits Under the LHWCA
Workers who qualify under the LHWCA are entitled to the following benefits:
- Medical Expenses: Under the LHWCA, workers are entitled to compensation for required medical treatment resulting from an employment-related injury. This includes the cost of needed surgeries, rehabilitation, medicine, and more. In some cases, workers may be reimbursed for travel costs to and from treatment facilities.
- Lost Wages: The LHWCA entitles a worker to benefits for a portion of the wages they were unable to earn while injured. Additionally, some injuries are so severe that workers are unable to return to work or only able to return in a reduced capacity. Wages that would have been earned if not for the injury are covered under the LHWCA as well.
- Death Benefits: The LHCWA provides death benefits to spouses and surviving children of covered workers who were killed on the job. The amount of such benefits will vary in each case, but it is based on the deceased worker's weekly wages. Death benefits can also include up to $3,000 for funeral expenses.
If your employer is refusing any of these deserved benefits, it is strongly advised that you speak with an attorney as soon as possible. Your benefits should include a pay rate of 66.66% of your average weekly wage for as long as the injury continues, a rate that is subject to minimums and maximums.
LHWCA Death Benefits
In cases when the offshore injury or illness results in death, the Office of Worker Compensation Plans—the division of the Department of Labor that administers the Longshore Act—provides death or survivor benefits. Under the LHWCA, a widow and any surviving children of a deceased longshoreman who dies from a work-related incident are entitled to a portion of the deceased worker's average weekly wage following death.
Weekly Payments
The widow(er) is entitled to 50% of the average weekly wage of the deceased. Additional compensation payments can be made available to those with families that have one or more children. This additional compensation will come at a rate of 16 2/3% of the deceased employee's average weekly wages.
In instances where a harbor worker or longshoreman who was the sole parent passes away, their children might be the only survivors eligible for benefits. In such cases, the children may receive 50% of the worker's weekly wages. If there is more than one child, an additional 16 2/3% is added and divided equally among all the surviving children. In situations where the deceased worker had no spouse or children, other family members like parents, siblings, grandparents, or grandchildren may be eligible for compensation.
The average weekly wage cannot be less than the national weekly average wage at the time of that worker's death. To compute the amount, the family will take the lesser of these two:
- 200% of the national weekly average wage
- An amount that exceeds the worker's prior average weekly wage
Upon remarriage, an individual may no longer be able to receive LHWCA death benefits. A widow or widower is not immediately left without payments, however. Instead, they will receive a two-year lump sum upon remarriage. When it comes to children, benefits cease at age 18, with some exceptions. If the children are in school, their benefits may be able to carry through until they graduate—up to when they turn 23 years old.
The LHWCA & Disability Compensation
The LHWCA views a disability as a worker's inability to earn the same wages as they did before the injury.It categorizes disabilities in different ways:
- Temporary Disability: The injured employee cannot return to work and is still recovering.
- Permanent Disability: The injured employee's condition is stable and will no longer improve.
- Total Disability: The injured employee cannot perform any work.
- Partial Disability: The injured employee can still work, but only under modified conditions.
Per LHWCA § 908, disability compensation is paid as follows:
- Temporary Total Disability (TTD): Injured employees will receive two-thirds of the Average Weekly Wage (AWW), subject to annual minimums and maximums. A worker with an AWW of $600/week would have a TTD of $400/week.
- Temporary Partial Disability (TPD): Injured employees will receive two-thirds of their loss of earning capacity, calculated by subtracting what they earn after the injury from their AWW. If a worker with an AWW of $600/week is only able to earn $300/week after the injury, the difference is $300, and their TPD benefit rate would be $200/week.
- Permanent Total Disability (PTD): Injured employees will be compensated at two-thirds of their AWW, to be paid as long as the worker has the disability. In cases of PTD, the disability is considered to be permanent.
- Permanent Partial Disability (PPD): Injured employees with a permanent impairment will receive compensation for a specified number of weeks; this is commonly referred to as "scheduled PPD," payable even if the employee returns to work. The LHWCA lays out a schedule for compensation depending on which body part is impaired.
- Unscheduled Permanent Partial Disability: If a permanent impairment is suffered by a body part that is not listed in the LHWCA schedule for compensation explained above, injured employees will be compensated at precisely two-thirds of their loss of earning capacity. This is also referred to as "unscheduled PPD."
The injured employee will receive disability compensation as long as his or her disability continues. However, this does not apply in cases of TPD, which cannot exceed five years, and scheduled PPD, which is limited to the number of weeks allowed for specific cases (for example, 88 weeks for a leg lost).
The LHWCA & Rehabilitation Services
When a longshoreman or harbor worker suffers a traumatic injury, they may need ongoing therapy and rehabilitation services to restore them (as close as possible) to the level of functioning they had before the accident.
Many people choose occupational therapy to restore lost function after a serious injury. Even if a worker can no longer work because the extent of their injuries is so severe, occupational therapy should still be utilized to help the individual cope with everyday life. Especially if an injured worker must now use a prosthetic or other assistive device, occupational therapy can be a valuable tool in teaching an injured worker how to utilize it.
Vocational Rehabilitation
Most states have a department of rehabilitation in place to help employees gain back and retain their status as workers: vocational rehabilitation. This differs from regular rehabilitation in that workers are rehabilitated with the goal of performing their job duties again. One of the first things this will include is counseling.
During vocational therapy, a professional will likely assess your need and determine a goal and a path to get to that goal. In some cases, it may even be possible to obtain transportation and personal assistance at your job site. Moreover, the goal of vocational rehabilitation is to get workers back to performing their job functions. This can be made possible through several different avenues that may be available to you as an injured harbor worker.
Call Arnold & Itkin Today for Your Free Consultation
Time is of the essence when initiating a claim for benefits under the Longshore and Harbor Workers' Compensation Act. An injured employee must notify his or her employer of the injury or illness within 30 days of its occurrence, and a formal claim for benefits must be filed within one year of the date of the harm the worker has suffered. Our team is aggressive, experienced, and ready to fight for you. If you or a loved one has been injured and you believe that you may have the right to benefits, we can review the matter to determine exactly how we can assist you.
For help after a longshore or harbor accident, contact Arnold & Itkin. Your consultation is free.