Understanding The Longshore And Harbor Workers’ Compensation Act

At ports in Maryland, as well as at ports throughout coastal areas of the United States, longshore and harbor work is some of the most hazardous of all occupational industries in the country. The work conditions, even if meeting regulatory standards, still remain difficult and dangerous. Any number of things can happen without much notice. Equipment is hulky, cumbersome and complicated. A crane can lift cargo that is overweight, causing a chain to snap and the cargo to drop. The crane operator could lose control of the crane. The cargo could drop back on the boat, causing a ripple effect, or it could fall in the water or on the dock, causing other problems. People nearby could be injured or killed. Situations can quickly become disasters. But apart from disasters, there are day-to-day events that happen to workers that cause them to be temporarily disabled, if not permanently disabled.

Initially, however, maritime law’s protections and personal injury benefits covered only “seamen.” Most longshoremen and dock workers do not meet the legal definition of seamen, and therefore, did not qualify for protection. It was nearly a decade after the enactment of the Jones Act that protections were extended to longshoremen and harbor workers who were injured or killed on the job. These protections, found under the Longshore and Harbor Workers’ Compensation Act (LHWCA), allow persons considered to be longshoremen or harbor workers to seek compensation for injuries they suffer during the course of their employment, regardless of whose fault it is.

If you have been injured as a longshoreman or other harbor worker in Maryland, then you may have the right to file a claim. Below, we offer information on longshoremen and harbor workers, their injuries, and means to compensation under maritime law. The law is complex and the information provided below may not be specific to your unique case. If you have questions or want a free consultation, contact Gilman & Bedigian trial lawyers today.

What is the Longshore and Harbor Workers’ Compensation Act (LHWCA)?

The LHWCA, found at 33 U.S.C. §§ 901-950, is workers’ compensation not unlike workers’ compensation provided by most states to all industries on land. Its enactment in 1927 was prompted by state compensation programs’ failure to properly address longshoremen and dock workers’ work environments along with maritime law’s failure to protect the same. The 1927 LHWCA benefits initially covered all employees in maritime employment except the master and crew members of a vessel. Coverage applied to any worker, whether seaman or not, who suffered a work-related injury, disability or death upon navigable water. The law as it was in 1927 is not quite the same law as it is today. The law has changed dramatically over the last nine decades, but three particularly relevant changes include: (1) eligible claimants under the LHWCA; (2) compensation under LHWCA; and (3) status and situs test for qualifying for benefits.

1. Today, who can file a claim under the LHWCA?

Initially, in 1927, to be able to file a claim under the LHWCA, an employee had to be upon navigable waters, thus, as soon as the employee stepped on land — even when conducting the same dangerous work — he qualified only for state compensation. State compensation programs most often provide fewer benefits than the LHWCA. In 1972, Congress addressed the issue by an amendment. Courts then liberally interpreted that amendment to include more workers within the framework of who can file a claim under the LHWCA, but the number of eligible workers expanded well over what was intended by Congress. Just over one decade from the 1972 amendment, the LHWCA was amended again. The 1984 amendment placed a limit on shoreside coverage by specifically denying certain worker types access to LHWCA benefits.

Types of Workers Excluded from the LHWCA

• Employed persons who exclusively perform clerical, secretarial, data processing, security, or other general office tasks.
• Persons who are employed by a retailer, museum, restaurant, club, camp, or recreational operations, even if located in a maritime setting.
• Persons who are employed by a marina but who do not perform any work in construction, replacement or expansion of the marina.
• Persons who are employed by suppliers, transporters, vendors.
• Persons working temporarily at a maritime company.
• Persons who are employed to construct, repair or break down a recreational vessel that is less than 65 feet in length.
• Aquaculture workers.
• U.S government officers or other employees.
• Officers or other employees of foreign governments.
• Maritime workers who otherwise would have been eligible but for the injury occurring while the worker was intoxicated, or because the worker intentionally self-inflicted harm to him or herself.

LHWCA Extended to Additional Types of Workers

Though these exclusions were implemented in 1984, the LHWCA throughout the years has been extended to cover three other types of workers:

1. Non-seamen who work on the outer continental shelf lands for the purpose of exploring, exploiting, removing, and transporting natural resources; coverage is through the Outer Continental Shelf Lands Act (OCSLA).
2. Non-Defense Department civilian workers and contractors who are employed on a U.S. military, air or naval base acquired from any foreign government after January 1, 1940, or persons employed to carry out public work projects outside the United States, including in Afghanistan and Iraq; coverage is through the Defense Base Act.
3. Civilian employees or contractors who work in post exchanges in military bases for the purpose of fostering the morale of U.S. military personnel; coverage is through the Nonappropriated Fund Instrumentalities Act.

Today, if you are a maritime worker, specifically a longshoreman or any type of harbor or dock worker, but not a seaman and not characterized under one of the exceptions, then you can likely file a claim under the LHWCA.

2. How do I qualify for compensation under the LHWCA?

To qualify for compensation under the LHWCA, you must be a maritime, non-seaman employee. But to say you are a maritime worker is not enough. You must fulfill certain requirements established under sections 2(3) and 3(a) of the LHWCA. Section 2(3) describes the types of work a maritime employee must perform in order to qualify for coverage while section 3(a) outlines where the work must have been performed. These requirements were first set out by the 1972 Amendment and are known as the “status” and “situs” tests, Congress’ way of narrowing who could and can file a claim and recover compensation under the LHWCA.

Status Test

As noted above, the LHWCA does not cover all maritime workers. For an injured maritime worker to benefit from the LHWCA, he or she must have been injured while performing qualifying tasks. Job descriptions that qualify for benefits under the LHWCA include:

• Longshoremen
• Workers who un/load vessels
• Waterfront crane operators
• Longshore checkers
• Stevedores
• Terminal workers
• Shipyard employees
• Shipbuilders
• Ship Repairers
• Ship Breakers
• Marine construction workers
• Vessel repair workers.

Situs Test

Prior to the 1972 amendment, benefits under the LHWCA were available only to longshoremen aboard vessels while on navigable waters. The 1972 amendment expanded that narrow qualification. Now, a maritime injury qualifies if it occurred on, at or in:

• Navigable waters
• Piers
• Wharves
• Terminals
• Drydocks, floating drydocks
• Building ways
• Marine railways
• Any adjoining area used for loading, unloading, repairing, or building a vessel
• Oil rigs
• Natural gas drilling platforms
• Other offshore structures under OCSLA jurisdiction.

It is unclear if marine workers on offshore wind farms will qualify for compensation under the LHWCA because the OCSLA covers those workers employed to explore, extract, transport mineral resources, and it is debatable if wind resources qualify. This is, of course, of particular importance in Maryland, where the country’s largest offshore wind farm has been approved and has started construction.

3. What compensation is available under the LHWCA?

Monetary benefits are available for temporary total disability, temporary partial disability, permanent total disability, and permanent partial disability. Benefits can materialize in different ways under the LHWCA.

General LHWCA Benefits

Benefits include (1) weekly payments equal to 66 ⅔% of the worker’s average weekly wage up to $1,047 but at least $261.70; and (2) payment of or reimbursement for reasonable and necessary medical expenses, including appointments, treatment, therapy, transportation costs to/from medical appointments as well as prescription medication, nursing assistance or other services, and/or medical supplies like crutches, prostheses, and hearing aids.

Compensation will be provided for the duration of the injured party’s disability. If, however, the disability is permanent, compensation may be provided for a set time period depending on the nature of the disability and if it is total or partial.

Section 905(b) Negligence Lawsuit

In addition, it is possible for an injured LHWCA-covered employee to seek a negligence claim, but generally a negligence claim against a third party and not the employer. Prior to 1972, injured parties were able to recover both under the LHWCA and the doctrine of unseaworthiness, which meant employers had to pay for workers’ compensation in addition to full tort claims without any balancing or offset. That changed when the LHWCA was amended in 1972. The amendment to the LHWCA prevented injured parties from suing vessel owners — regardless if the vessel owner was also the employer — for unseaworthiness.

Today, you can still file a negligence claim against a vessel owner, but it must be through § 905(b) of the LHWCA, and the qualifiers are narrow. This section provides that a vessel owner is liable for a longshoreman’s damages if the owner’s negligence caused the injuries. To make a claim under 905(b), you must file a lawsuit in federal court. At trial, you must prove that (1) you suffered loss due to the accident or incident; and (2) the vessel owner was negligent. If your lawsuit is successful, you can recover damages for past and future earnings (remember under workers’ compensation, you are paid only a third of your regular, average weekly wage), loss of future earning capacity, treatment and rehabilitation, and pain and suffering.

Death Benefits

In the event that the injured worker dies due to the accident or incident, § 909 of the LHWCA outlines who beneficiaries are and the schedule of benefits that these beneficiaries can recover under the Act. Generally speaking, the decedent’s spouse and children are able to recover under the LHWCA. In lieu of a spouse and/or children, the decedent’s siblings can recover if the were dependent on the decedent. Typical benefits to the spouse are 50% of the average wage of the decedent on a weekly basis up until that spouse remarries. Typical compensation to children is 66 ⅔% the average wage of the decedent up until the child turns 18 unless the child is disabled or in school. A certain amount of funeral expenses are also provided.

What is Your Employer’s Responsibility under the LHWCA?

Under the LHWCA, an employer must obtain coverage and the Act provides two methods an employer may do so: (1) through an authorized insurance carrier; or (2) by becoming an authorized self-insurer. Though the coverage requirement is the primary responsibility of the employer, its responsibilities do not end there. An employer must also:

• If insured by an insurance carrier, post a current LS-241 form for employees to see at each place where the employer conducts business.
• If self-insured, post a current LS-242 form for employees to see at each place where the employer conducts business.
• Include specific information on its respective forms LS-241 and LS-242, such as: name and address of insurance carrier, policy number, designated person to receive the employees’ notices of injury, and address of the Office of Workers’ Compensation Programs (OWCP) central mail receipt site, which is:

U.S. Department of Labor
Office of Workers’ Compensation Programs
Division of Longshore and Harbor Workers’ Programs
400 West Bay Street, Suite 63A, Box 28
Jacksonville, FL 32202.

• If a work-related injury occurs, it must notify the insurance carrier in due time.
• If the injured worker requires medical attention, authorize it immediately.
• Submit Form LS-202 to the OWCP within 10 days, either (1) if the injured party requests it; or (2) after learning of the injury and said injury caused the worker to lose one or more shifts.

Penalty for Failure to Comply

If the employer fails to comply with the requirements of the LHWCA and a claim arises, the employer will be subject to imprisonment up to one year and/or a fine of up to $10,000.

If the employer is a corporation, in addition to the corporation being subject to the latter penalty, the president, secretary, and treasurer of the corporation may also be subject the same prison term and/or fine. Corporate officers are personally liable, jointly and severally, with the corporation, and this includes responsibility for any compensation that an injured worker may accrue under the LHWCA.

Do you need a lawyer to file an LHWCA claim or a 905(b) lawsuit?

Not necessarily, but it is extremely advised. As with state compensation programs, employers are often worried about their bottom lines as much as the insured is worried about its bottom line: profits. Your claim or lawsuit can impact their profits, even if the impact is indirect. They arm themselves with attorneys and adjusters whose goal is to either deny or devalue your claim.

If you are injured on the job, your employer is required to make payments in accordance with the LHWCA, but your employer may try to make life difficult for you. If you are injured and are trying to recover, the intimidation and tactics of an employer or insurance carrier can compound the pain and suffering you may be experienced. An experienced lawyer in maritime personal injuries can help you through the process by aggressively protecting and advocating your rights through negotiations — and possibly — litigation with your employer, the insurance adjusters, their attorneys, and possible third parties. With the burden of dealing with your employer and insurance company off your shoulders, you can focus on recovering.

But to obtain the best legal representation for your case, you should contact an experienced maritime lawyer in Maryland as soon as possible. You must file a notice of the claim to your employer within 30 days of the incident that caused your injury, and one year to file the claim. Then, if your employer disputes the claim, your case will be heard by an administrator with the Department of Labor.

Compassionate, Comprehensive LHWCA Lawyers in Maryland

If you or someone you love has been injured or killed while working as a longshoreman or other harbor or dock worker, then you may qualify for compensation. There are different laws that cover different workers and different forms of compensation that may be sought. As it is, maritime law is confusing, and even if your claim falls solely under the Longshore and Harbor Workers’ Compensation Act, there are different qualifications that can make you eligible to file a lawsuit against a third party. The whole process can be daunting.

We, at Gilman & Bedigian, try to simplify matters for you. We do the legwork and the legal work while you do the work of healing. We always communicate clearly with you about your legal options, and we always advocate on your behalf. Contact Gilman & Bedigian trial attorneys online or call our law office at (800) 529-6162 for a free consultation, and remember: you do not pay us until we help you secure a successful claim or lawsuit in your favor.