What Is a 905(b) Claim?

The Longshore and Harbor Workers’ Compensation Act (LHWCA) provides benefits for maritime workers injured on the job that are not covered under state workers’ compensation law and do not qualify as a seaman under the Jones Act. LHWCA is a federal statute similar to state workers’ compensation programs in that the LHWCA bars injured employees from filing a lawsuit against their employer. However, there is an exception under the LHWCA which permits the injured worker to bring a tort claim in addition to workers’ compensation. This exception is 905(b) of the LHWCA.

What Can a Person Be Compensated for with a 905(b) Claim?

As mentioned above, the LHWCA is essentially a form of workers’ compensation for workers. Using it, a person can only seek compensation for the medical treatment of their injuries and a percentage of their wages. While helpful for regular work injuries, this type of compensation is not always what a person severely injured by negligence deserves.

Those suffering from serious injuries often have much more to worry about in addition to medical bills and lost wages. Often, they need ongoing care, the full extent of their wages, and compensation for lost future wages because of a decreased ability to work as before.

Damages a person can recover with a 905 (b) claim include:

• Lost wages
• Past, present, and future medical bills
• Pain and suffering
• Lost ability to work
• Funeral costs

A 905(b) claim enables workers to seek the compensation they need for the full scope of their injuries if they were caused by the negligence of a vessel owner or employer. Other negligent parties can include operators, charterers, officers, and crew members of a vessel.

LHCWA Wrongful Death Claims

If a person was killed who would have qualified for injury benefits from the LHWCA, their family can likely file a wrongful death claim on their behalf. Importantly, the process for this compensation must start quickly. Families should speak to a lawyer as soon as possible if they think they might be eligible for an LHWCA wrongful death claim.

Understanding When a 905(b) Is Possible

A 905(b) claim allows for injured workers to file a third-party tort claim against a vessel if the injury was caused, at least in part, by negligence. Under 905(b) the third-party vessel owner may also include the injured workers’ employer “in its capacity as a vessel owner” if the injured employee was not employed for the purpose of shipbuilding, repairing or breaking services.

Negligence for a 905(b) claim most often occurs in situations where:

1. The vessel has a defect or
2. The vessel owner or crew was directly involved in causing or contributing to the injury.

Importantly, vessel negligence does not include a longshoreman injured on a vessel by another longshoreman engaged in providing services to the vessel.

Elements of a successful 905 (b) claim include:

• Duty: The negligent party was legally required to protect a work from harm.
• Breach: The negligent party failed to uphold this their duty.
• Injury: A worker sustained injuries caused by the breach of duty.
• Causation: The at-fault party could have prevented the accident.

Adding to the complexity of LHWCA 905(b) claims are the limited situations in which the vessel owners are responsible for a worker’s injury.

Three factors for vessel owner negligence include:

• What condition the ship was in when the owner of a vessel handed it off to the employer of an injured worker. This is called turnover duty.
• Dangerous characteristics of a vessel that the owner could have fixed. This is called the duty to intervene.
• How responsible a shipowner was for causing the accident a worker was injured by. This is called active-control duty.

Can I Get LHWCA Benefits While Pursuing a 905(b) Case?

Yes. An injured worker can get the benefits they need from the workers’ compensation aspect of the LHWCA as they try to obtain compensation using a 905(b) claim. If a worker’s claim is successful after collecting benefits, the other party might receive a credit for the costs of benefits a person has already received. This can vary depending on each case, and an offshore injury lawyer can help you determine how your case might go.

Hiring the Right LHWCA Lawyer Is Critical

Identifying 905(b) claims can be difficult since they are very narrowly defined. That is why it is essential that you consult with an experienced and skilled attorney who specializes in maritime law. Many injured workers may assume that their only recourse is through workers’ compensation, but that is not always the case. Understanding this exception is important, as it provides an additional avenue for seeking compensation for an injury.

Arnold & Itkin is one of the leading maritime law firms in the country. We’ve represented injured workers from all over the U.S. against some of the country’s largest companies. In fact, our firm represented more Deepwater Horizon crew members than any other firm. Our team was there to fight for them, and we can be there to fight for you.

We offer free consultations to injured maritime workers to help them identify all of their avenues for legal recourse. If you have been injured, contact our team of maritime attorneys today to learn how we can help you at (888) 346-5024.