Longshoreman & Harbor Workers Compensation Act – (LHWCA)
If a dock worker or stevedore is injured while unloading a ship or his injuries occurred on a offshore drilling rig platform, then his compensation may be governed under the Longshoreman & Harbor Workers Compensation Act (LHWCA). The Longshore and Harbor Workers’ Compensation Act, administered by the U.S. Department of Labor, provides medical benefits, compensation for lost wages and rehabilitation services to longshoremen, harbor workers and other maritime workers who are injured during the course of employment or suffer from diseases caused or worsened by conditions of employment. The Act is a federal law that was enacted to provide for those employees in occupations having a traditional relationship to maritime employment injured while loading or unloading vessels, or those involved in the construction or repair of ships. Any worker who is injured on a pier, dry dock, wharf or shipping terminal may be compensated under the Act. Workers injured near these facilities may also be compensated if their normal occupation involves loading, unloading, building or repairing ships.
If you are a seaman and have been injured on a ship or vessel and your employer is not paying your medical bills, refusing to send you to a medical specialist or not paying you maintenance, then call us for a FREE CONFIDENTIAL CONSULTATION at 1-800-468-4878.
What Does the LHWCA State?
The act was initially passed by the United States Congress in 1927, and provided coverage to longshore workers working upon navigable waters of the United States in instances in which no state workers compensation law applied. However, in 1984, Congress amended the LHWCA in an attempt to give all longshore and harbor workers the same type of protection. This new amendment allowed coverage to the Act to be dependent upon the location of where the employee was working, and dependent upon whether or not the type of work performed had a traditional relationship to maritime employment. The LHWCA provides the injured worker medical care and income benefits. If an injured longshore worker is unable to work because of his or her injury, then temporary disability benefits are paid monthly. The employee should receive 66 2/3 percent of his or her average weekly wage at the time of the injury.
The Longshoreman’s Act also allows the injured employee the right to choose his or own treating doctor. The primary function of the Longshore compensation program is to act as a mediator in resolving disputed claims. By means of an informal conference claimants and their employers discuss the issues and voluntarily resolve their disputes. Lacking this informal mechanism for resolving controversies, the parties must request a formal hearing before an Administrative Law Judge.
For purposes of the Act, the term “employee” means:
- Any longshoreman (or other person engaged in longshoring operations)
- Dock men
- Harbor workers
- Ship repairmen
- Ship breakers
- Forklift operators
- Winch operators
Other workers who are injured on, near or adjacent to U.S. navigable waters, including adjoining docks, piers, wharfs, terminals, and other structures and platforms customarily used by the worker’s employer for loading and unloading vessels or the constructing and repairing ships are also covered by the LHWCA.
Under the LHWCA, the term “employee” does NOT include:
- Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work
- Individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet
- Individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance)
- Individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of an employer described in paragraph (4), and (iii) are not engaged in work normally performed by employees of that employer under this Act
- Aqua culture workers
- Individuals employed to build, repair, or dismantle any recreational vessel under sixty-five (65) feet in length
- A master or member of a crew of any vessel
- Any person engaged by a master to load or unload or repair any small vessel under eighteen tons net
What Compensation and Benefits are Available Under the LHWCA?
The LHWCA provides medical care and income benefits to the injured longshore worker as well as death benefits to eligible survivors of a deceased employee. When an employee is unable to work because of his or her injury, temporary disability benefits are paid on a monthly basis. Under the LHWCA, employees are entitled to receive 66 2/3% of their average weekly wage at the time of the injury. If a worker is permanently disabled he or she may be able to receive total or partial disability payments for life.
Workers covered under the LHWCA are also entitled to receive compensation for reasonable and necessary medical treatment. While an employer may try to force a worker to see a company physician, the LHWCA permits workers to choose their own doctors to treat their injuries and illnesses. If your employer is trying to restrict your ability to see your own doctor, an experienced offshore maritime injury lawyer can help you get the proper medical care that you are entitled to receive.
Can Longshoremen File an Action Against the Vessel Owner?
Injured workers often ask if they can file a legal action against other parties who may be responsible for their injuries. When an injured worker seeks to bring a negligence lawsuit against the owner of the vessel who is not the employer, the worker must proceed under section 905(b) of the LHWCA.
In Scindia Stream Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), the United States Supreme Court outlined three avenues, in the form of duties owed by the vessel owner to a worker, under which a worker can pursue an action against the vessel owner. If the vessel owner breaches one or more of these three duties and the breach meets the causation requirements, the injured worker will be entitled to recover damages in the case:
- Turnover Duty. The vessel owner must exercise reasonable care to turn over the ship and all equipment in reasonably safe condition for stevedoring operations.
- Active Control Duty. Once stevedoring operations are underway, the vessel owner must use reasonable care to prevent injuries to longshore workers in areas that are within the active control of the vessel owner.
- Duty to Intervene. If a vessel owner has actual knowledge of a hazardous condition and knows that workers may potentially work in the face of the hazard, the owner has a duty to intervene to stop the work.
Notice To All Injured Longshore & Harborworkers
You must file a Longshoreman and Harbor Workers’ accident claim within ONE (1) year from the date of accident or injury by filing a blue form LS-203 with the U. S. Department of Labor. For more information on the Longshore Harbor Workers’ Compensation Act, contact the U.S. Department of Labor at 1-866-4-USA-DOL or visit their website.
Legal Actions For Longshoremen – Third Party Lawsuits
Longshoremen, harbor workers and ship repairmen generally receive longshoreman and harbor workers’ compensation or state workers’ compensation benefits, but may have a 3rd party cause of action for injuries caused by dangerous conditions on board the vessel or negligence of someone other than their own employer. If you have been seriously injured as a result of the negligence of a third party and would like to speak to a lawyer, then call 1-800-468-4878 for a free confidential consultation.
What Do I Need to Do to Protect My Longshoreman Rights?
In order to protect and preserve your longshoreman rights, below are a four important actions that you should immediately take if you are injured while working on the job:
- File Notice of Your Injury or Illness
- Seek Experienced Legal Counsel
- Refuse to Give Any Interviews or Sworn Statements
- Choose Your Own Physician
If you are injured you should file notice of your injury or illness as soon as possible. Under the LHWCA, injured employees are generally required to report an injury or accident to their employer and the federal Office of Worker’s Compensation Programs within 30 days of the accident. While exceptions to the thirty-day deadline exist, the exceptions are limited and it may be difficult to convince a judge that your situation meets the required criteria.
Be Careful of Employers Trying to Limit Your Compensation
While your employer may promise that the company is going to take care of you, it is important to discuss your situation with a lawyer who has extensive experience handling offshore accidents and LHWCA claims. Attorney David Willis has been helping injured maritime workers and longshoremen for over thirty years. He knows that when workplace accidents arise, it is rare for the company to voluntarily provide injured workers with the compensation, medical care and other services they need to recover from their injuries. Attorney Willis will guide your through the process, protecting your rights and helping you to receive the maximum benefits you are entitled to obtain under the law.
When you are injured in an accident, your employer is likely to ask you to submit to an interview and give a sworn or recorded statement about the incident. You should never agree to provide a statement or be interviewed until you have spoken with your attorney first and decide is an interview is in your best interest.
Employers are smart. Regardless of how severe your injuries may be, your employer is probably going to try to send you to a company doctor so that you can get back on the job. Under the LHWCA you have the right to seek medical care and treatment from a qualified physician of your own choosing. If your employer is pressuring you to see the company doctor, we will step in and make sure that you find a qualified medical specialist who can properly evaluate and treat your injuries.