You may be aware that if you are injured while working as a longshoreman or harbor worker, or if a loved one has been killed while working, you may be entitled to benefits under a federal workers compensation system known as the Longshore & Harbor Workers Compensation Act (LHWCA). Longshoring or working in a harbor can be very dangerous and this program was designed to compensate those hurt on the job.
Congress in the 1920’s created this program as a way to create consistency for injured longshore and harbor workers. Most states did not yet have workers compensation programs in place and this legislation served as one of the earliest workers compensation programs. Over the years it has been amended and expanded to include other types of workers, but in this article we focus on the benefits for injured longshore and harbor workers.
Who Is Covered?
Not everyone who works near the water, or a harbor or marina is covered under this law. The LHWCA defines a covered employee as “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker.” There are many job areas specifically excluded from this coverage, which we will discuss in another article.
Your employer is required by law to carry this specific type of workers compensation insurance. In fact, the name of the insurance carrier should be readily available to all employees.
In Florida, as in most states, compensation under the LHWCA is usually the exclusive remedy. State workers compensation does not apply to you, and generally, you are not able to sue your employer for negligence that contributed to your injury.
There are some notable exceptions to this general rule, such as the fact you do have right to file a lawsuit against the owner of the vessel if they were responsible for the injury. In some instances the owner of the vessel is your employer, but if they were negligent in their capacity as owner, then you may be able to sue for negligence. Another exception exists where your injury was caused by the negligence of a third party, such as a contractor or other party. In that instance you may be able to sue separately from the LHWCA benefits, but your employer and their insurance company may have a claim to some of the recovery under that lawsuit. You need an attorney experienced in LHWCA litigation to ensure you obtain everything to which you are entitled.
“Reasonable & Necessary Medical Treatment”
If you are injured on the job, you are entitled to have the insurance company pay for all “reasonable and necessary medical treatment” to treat your injury. This includes doctor’s visits, surgeries (if necessary) and physical therapy or other type of rehabilitation. You are entitled to treatment from a doctor of your choosing, even if the initial injury was treated by paramedics or an emergency room doctor.
The insurance company does have the right to have their own doctor examine you to ensure there is in fact an injury or condition, but it is not advisable that you use a doctor the insurance company has recommended to you.
The insurance company should also cover the cost of prescription medications, physical therapy, diagnostic tests, attendant care, prostheses, hearing aids and necessary medical equipment, such as walkers or oxygen concentrators. In some cases, it also includes the cost of travel for medical treatment.
Disputes sometimes arise between the injured worker and the insurance company as to what exactly constitutes “reasonable and necessary” treatment, and often those disputes need to be adjudicated by the LHWCA Board. For these disputes, and subsequent hearings, you should be represented by counsel experienced in LHWCA matters.
Another important benefit of the LHWCA is the payment of wages lost while the injured worker is recuperating and unable to work. Generally, you are entitled to 66 2/3% of your average weekly wage (AWW) as compensation for wage loss. The benefit begins 3 days after your injury, but if your injury keeps you out of work for more than 14 days, then you will also be paid for that 3 day waiting period.
Certain types of compensation are considered “wages” for injury claim compensation purposes, others are not. Although the general rule is that if the income is taxable under the IRS rules, it should be considered part of the “wages” calculation, often the insurance companies either (a) don’t know the rules or (b) are reluctant to include said income in the calculation because it boosts the compensation payment.
Some things that are usually considered income for these purposes are:
- Tips, if the employment contract contemplates these as part of the worker’s pay.
- Overtime pay if the overtime is a regular part of the worker’s job.
- Vacation and holiday pay earned prior to the injury, but paid afterward
- Container royalty payments paid to longshoremen as part of their union contracts
- Guaranteed annual income payments paid to longshoremen based on seniority and hours worked.
Some types of income are not considered “wages” for the purpose of calculating the AWW. Fringe benefits that the employee receives, such as employer contributions for health or life insurance, pension contributions, training, social security are NOT considered wages for purposes of calculating the average weekly wage.
It is so critically important to make sure the AWW is calculated correctly so that the injured worker receives the maximum compensation to which they are entitled. Do not rely solely on the insurance company’s calculation, as it may have an agenda different than the worker’s, an incentive to calculate at a lower rate.
If a loved one has been killed in a work-related accident, there may be survivors’ benefits available under the LHWCA. These benefits are similarly based on the worker’s average weekly wage.
There is a great deal more to discuss on the benefits of the LHWCA, including compensation for total or partial disability, permanent or temporary situations and vocational rehabilitation issues. We will continue the discussion on the LHWCA in additional articles over the next few months.
If you have been injured, or a loved one killed, in a work-related accident and you think the LHWCA applies to your situation, you should contact an attorney experienced in this area of law immediately. Navigating through the administrative rules and procedures can be complex and frustrating, and you don’t want to chance not getting benefits to which you may be entitled. There are very strict time frames and procedures for successfully processing your claim under the LWHCA, and an experienced and dedicated attorney can help you through the process.