Longshore and Harbor Workers’ Act Compensation Claims
The Longshore and Harbor Workers’ Compensation Act (LHWCA) is a federal law that provides injury and occupational disease protection for individuals who perform work on the navigable waters of the United States, or on adjoining areas used in loading, unloading, repairing or building of certain vessels. Protection under the Act is afforded to workers employed in the maritime occupations, including longshore workers and persons involved in longshore operations as well as harbor workers. Those occupations included ship repairers, shipbuilders, and ship breakers. Coverage is afforded an injured worker regardless of fault.
- Temporary Total Disability (TTD) Benefits
An injured employee that is unable to work is entitled to receive compensation at the rate of 66 2/3 percent of the employee’s average weekly wage during the period that the employee is unable to work because of his / her injuries. The injured employee’s average weekly wages is determined by reviewing his/her income during the 52 weeks prior to the accidental injury. The amount of that compensation is subject to specified maximum and minimum rates.
- Medical Benefits
An injured employee is entitled to have his/her medical expenses paid for treatment related to his/her injuries. This includes payment for injury related medical, surgical and hospital treatment. Prescription medications are also covered. In addition, the injured employee is entitled to be reimbursed for cost of travel and mileage incidental to such medical treatment. The injured employee may obtain medical treatment from a physician of his or her choice.
- Permanent Disability Benefits
An injured employee may also be entitled to compensation for certain types of permanent disabilities.
- Scheduled Loss Injuries – An injured employee may be entitled to receive compensation for permanent injuries to body parts that are known as “scheduled members.” These body parts include eyes, arms, hands, fingers, legs, feet and toes. Each body part is assigned a certain number of weeks of benefit compensation. A weekly benefit is then paid based on the percentage of disability to the particular scheduled member. Those benefits are paid at the rate of 66 2/3 percent of the injured employee’s average weekly wage. For example, under the LHWCA an arm is assigned 312 weeks of compensation benefits. If a determination is made that an injured employee has a 20% disability to his/ her arm, he/she would be entitled to 62.4 weeks of disability benefits (312 x 20% = 62.4). Those benefits would be paid on a weekly basis at the rate of 66 2/3 percent of his/ her average weekly wage.
- Industrial Loss Injuries – An employee who sustains an injury to the head, neck, back and shoulders is entitled to receive disability benefits for any permanent impairment to his/her earning capacity. Compensation will be paid at 66 2/3 percent of the determined loss of earning capacity for the duration of that loss. For example, an employee had an average weekly wage of $1,000.00 per week at the time of an accident. Because of a back injury, he/she is only capable of earning $500.00. That individual would be entitled to a weekly benefit in the amount of $333.00 as long as he/she remains disabled ($1,000.00 - $500.00 = $500.00 x 66.66 % = $333.00.
- Vocational Rehabilitation
If the employee is unable to return to his/her prior employment because of an injury, he/she may be entitled to vocational rehabilitation. This may include evaluation, testing, counseling, and job placement.
Claim Filing Requirement
A claim for compensation must be filed with the U.S. Department of Labor’s Office of Workers’ Compensation Programs (OWCP) within one year from the date of the accident giving rise to the employee’s injury. In a situation where compensation is paid by the employer without a claim being filed (see below), the injured employee has one year from the last date compensation was paid to file a claim. In addition, the injured employee is required to provide notice of the injury within 30 days of its occurrence. Failure to provide that notice will not bar the claim if there is a determination that the employer was aware of the injury or that it did not suffer prejudice as a result of the employee’s failure to provide notice. Claims for occupational diseases must be filed within 2 years from the date when the injured employee knew or should have known of the causal relationship between the disease and his / her employment.
Payment of Compensation
An employer is required to pay compensation under the LHWCA once it knows that its employee has sustained an on-the-job injury and is disabled from work. That payment is due 14 days from the date the employer received notice of that injury. There is no requirement that a claim for compensation must be filed or that the employer be ordered to commence the payment of benefits. The employer has the right to dispute the payment of benefits by formally notifying the OWCP within the 14-day period. The employer then has 30 days to either withdraw its controversion and pay the benefits or have the claim proceed to a formal hearing. (See below) Once an employer has started the payment of compensation benefits, it cannot terminate those payments without notifying the OWCP.
- Informal (Prehearing) Conference & Recommendation
Once a dispute arises with regard to a claim, either party can request an informal (prehearing) conference. That conference is held before the District Director of the OWCP who will issue a written recommendation concerning the dispute after each side presents its case.
- Formal Hearing & Order
The recommendation by the District Director is non-binding and either party can controvert it. If the dispute cannot be resolved at the informal conference, either party can then request that the District Director issue a Form LS-18 (Prehearing Statement). Once the parties have completed their Form LS-18, the District Director then refers the claim to an administrative law judge for a formal hearing. At that hearing, each party has the opportunity to present evidence in support of its case. This can include providing live testimony from medical doctors. After hearing each party’s case, the administrative law judge will issue a written order setting forth his/her findings concerning the dispute.