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Longshore & Harbor Workers Compensation

 

What is the Longshore & Harbor Workers Compensation Act? 

Workers who are injured while working in certain occupations around and over bodies of water may be covered by the Longshore and Harbor Workers Compensation Act. In the beginning, the  Act was  intended to cover a only  maritime workers employed by a maritime employer.  If such an employee sustained an injury on the Navigable waters of the United States, the employee may be covered by the Longshore Act.  As the law has develped,  benefits have been extended to types of employees who were not so directly connected to maritime activity.   The Act is and has always been regulated by the U.S. Department of Labor but has changed dramatically over the years with regard to the types of benefits that can be paid, the process for an injured worker's payments and the way that disputes are handled.  In addition, the Act has moved toward including more workers that worked on the land but around navigable waters. 

In addition, to injuries that occur over navigable waters, the Act also governs work injuries that arise in other circumstances such as:

The Longshore & Harbor Workers Compensation Act  also governs other work related injuries such as: 

A. Defense Base Act The Defense Base Act (DBA) came into law on August 16, 1941. The Act extended essentially the same coverage longshoreman enjoyed to contractors employees who performed work pursuant to contracts with the United States Government. The Act is referenced in short as the "DBA".  The DBA has been amended on a number of occasions and covers all contractor employees who work any place on earth outside of the United States.  The fact that employees employed as contractors essentially are "at work" all the time and the typical types of work involved have led Courts to offer very broad interpretations of who is covered under the Act. 

B. Outer Continental Shelf Lands Act The Outer Continental Shelf Lands Act (OCSLA) is similar to the DBA in that it is an extension of benefits available to Longshoreman for a very select group of workers whose employment involves extraction, transportation and other activities related to natural resources that are discovered on the outer Continental Shelf.  Oil workers who perform their work in the ocean are specifically addressed by the Act and its interpreters.  Employees who perform work on fixed oil platforms greater than 3 miles beyond the water's edge are covered.  Within the three mile area, injured workers are covered by workers compensation systems administered by the contiguous State.  In some cases that do not involve fixed oil platforms,  workers can elect to be covered by OCSLA or the Jones Act.

C. Employees working on United States Military bases throughout the world who are not paid with funds extended by Congress may be covered by the Nonappropriated Fund Instrumentalities Act. A broad range of facilities are covered including facilities managed by the Marine Corp, Navy, Army and Airforce. This Act extends the type of benefits offered to Longshoremen.  

Who is covered by the Longshore Act? 

There are three requirements for an employee to be covered by the Longshore Act:

  1. Situs
  2. Status
  3. Must be employed by a maritime employee
  4. Must not be specifically excluded by the Act

Situs 

Situs means that the injury occurred on the Navigable waters of the United States or any:

  1. Adjoining Pier
  2. Wharf
  3. Dry Dock
  4. Terminal 
  5. Building way
  6. Marine railway
  7. Other adjoining area used by an employer loading, unloading repairing, dismantling or building a vessel. 33 U.S.C. § 903(a)-(d).

Different tests have been developed by different Courts which has lead to non-uniform application of the Act. We are in the 4th Circuit which has adopted what some consider to be the most restrictive test.  Situs specifically does not include: 

  1. An officer or employee of the United States or any of its agencies
  2. An employee of any state
  3. An employee of any municipality
  4. An agent of any foreign government
  5. An employee whose injury is caused solely by his intoxication
  6. An employee whose injury occurs solely as a result of his attempt to injure or kill himself or another
  7. If the Secretary of Labor so certifies, an employee working at the facility of an employer who is engaged exclusively in the business of building, repairing or dismantling small vessels, defined as commercial barges under 900 light-ship displacement tons and commercial tugboats, crew boats, supply boats, fishing vessels, or other vessels under 1,600 tons gross, unless:
    1. The injury occurs on the navigable waters of the United States or while on any adjoining pier, wharf, dock, facility over land for launching vessels, or facility over land for launching vessels, or facility over land for hauling, lifting or drydocking vessels
    2. The facility receives Federal maritime subsidies
    3. The maritime employee is not covered under a State workers' compensation act
    4. The facility constructs noncommercial vessels such as military patrol boats even though they meet the size limitations. 33 U.S.C. § 903(b), (c) & (d)

Status 

“Status” refers specifically to maritime employment and is specifically defined as:

  1.  Any person performing maritime work who injured landward of the Jensen line on a maritime site fulfills the ‘status' requirement if he works for a maritime employer and is not specifically excluded.
  2. Any longshoreman or other person not a longshoreman, engaged in longshoring operations including
    1. Winch operators;
    2. Hold men;
    3. Clerks and checkers;
    4.  Dock men;
    5.  Forklift operators;
    6.  Warehousemen performing tasks peripheral to longshoring operations.
  3. Any harbor-worker including but not limited to:
    1. (1) Ship repairmen;
    2. (2) Shipbuilders;
    3. (3) Ship-breakers;
    4. (4) Pile-drivers and workers constructing piers, wharves, sewer outfalls, or any facility used as an aid to navigation or maritime commerce. 33 U.S.C. § 902 (3).
  4. The following do not have "Status"
    1. Office clerical, secretarial, security, or data processing personnel who exclusively perform non-maritime tasks.
    2. Personnel working for a club, camp, recreational operation, restaurant, museum, or retail outlet; there is no distinction between profit making and non-profit making clubs;
    3. Personnel employed by a marina including those taking reservations, servicing boats, preparing and serving food and performing routine maintenance;
    4. Personnel working for suppliers, transporters or vendors temporarily doing business on the premises of a maritime employer, but who are not engaged in work normally performed by the employees of the maritime employer
    5. Aquaculture workers which include personnel who clean, process or can fish and fish products; a commercial enterprise involved in the controlled cultivation and harvest of aquatic plants and animals
    6. Personnel working on the construction, repair or dismantling of any recreational vessel under sixty-five feet in length
    7. 1-6 are only excluded if the employee would otherwise be eligible for State Workers Compensation benefits. 
    8.  A master or member of a crew of any vessel. 33 U.S.C. § 902(3)(G);
    9. Any person engaged by a master to load or unload or repair any small vessel under eighteen tons net. 33 U.S.C. § 902(3)(H).

Maritime Employment 

Maritime Employer An employer whose employees are employed in maritime employment is a maritime employer. If an employee is engaged in a maritime occupation, his employer automatically meets the definition of a maritime employer. 33 U.S.C. § 902(4).

What benefits are offered by the Longshore Act and what must be proven? 

Fact of an Injury & Presumptions

An injured worker must prove the "fact of an injury".  Once the "fact of an injury" is proved, the harm caused by the injury is entitled to a presumption that links the harm with the employment.  Of course, the accident must have occurred in the "course of employment". In other words, the accident must have occurred in the time and space boundaries of the employment and/or during an activity that is related to the work. 

Medical Treatment

When an employee is injured, the employer must offer to the injured worker medical treatment which allows the employee to seek medical treatment. Medical treatment available is very broad under the Act.  In addition, the range of medical providers available for treatment is quite broad including, but not limited doctors of medicine, surgeons, dentists, psychologists etc.  Unlike some workers compensation systems, the injured worker is free to choose the doctor of his or her choice subject to the doctor having not been disciplined by the Department of Labor.  Like most workers compensation cases, other issues often arise regarding an injured workers medical treatment including, but certainly not limited to, when and how a change in physicians is warranted, when an employee may or may not refuse medical treatment and how much a doctor can charge.

Wage Loss 

Temporary Total & Temporary Partial Wage Loss

When an employee, as a result of an injury, has the inability to earn any wages for a temporary  time period, the employee is entitled to 2/3 of the employee's "average weekly wage". If an employee earns less has some earnings but the earnings are less than the pre-injury average weekly wage as  result of the injury, the employee is entitled to 2/3 of the difference between the post injury earnings for up to five years. 

Permanent Total Disability

If there is no improvement in the injured worker's medical condition and no alternative employment can be secured leaving the employee unable to earn any wages, the employee is entitled to 2/3 of his pre-injury average weekly wage. If an employee has lost both hands, both feet, both arms, both feet, both legs, both eyes, or any two of these body parts, the employee is presumed to be permanently and totally disabled.  At this point, the burden shifts to the employer/carrier to prove that the employee can perform some other employment or make efforts to vocationally rehabilitate the employment within the employee's medical limitations. 

Permanent Partial Disability

Many times an injured worker remains partially disabled and the partial disability is permanent.  Payment under this circumstance depends on whether the injury is a "scheduled" or "unscheduled" injury.  If the injury is a scheduled injury, the amount that the injured worker can obtain is governed by a specific number of weeks for that scheduled injury. Legs, feet, hands and other body parts are "scheduled" injuries.  Back and neck injuries are non-scheduled injuries and can leave the injured worker entitled to a partial payment for an extended period of time.

This article only only skims the surface of the laws governing the Longshore & Harbor Workers Act.  It is important for the injured worker to understand that the Act has specific regulations for giving notice to the employer, statutes of limitation, the manner in which wages are calculated and how attorneys fees are paid.  While many claims are straightforward, some claims are very complex.  Please do not hesitate to contact our law office to discuss your claim.

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