Coverage under the Longshore and Harbor Workers’ Compensation Act requires a master-servant relationship between employer and an employee. Crowell v. Bensen, 285 U.S. 22, 54 (1932). The Act defines 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.” 33 U.S.C. § 902(3). The Act also sets out a long list of potential employees who do not fit the criteria: clerical and secretarial workers, marina workers, fishermen, etc.
The issue of employment is usually reached int he context of an alleged independent contractor seeking benefits. Just because an employer has not secured LHWCA coverage for an employee does not mean that that worker is not covered under the Act as an employee. Tanis v. Rainbow Skylights, 19 BRBS 153 (DOL Ben. Rev. Bd. 1986). Continue reading Longshore Employment Defined.
Which workers’ compensation act applies: the Longshore and Harbor Workers’ Compensation Act or the Jones Act? The Jones Act and the LHWCA are mutually exclusive. Thus, when dealing with a “water-based” (as opposed to “land-based”) LHWCA claim, it must be determined if the claim falls within the criteria of LHWCA coverage, or belongs more properly under the Jones Act. Of course, the claim might not belong under either jurisdiction and should be decided under a state workers’ compensation act.
The Jones Act (The Merchant Marine Act, 1920, 46 U.S.C. § 688), in pertinent part, reads as follows:
Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, ... and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury. ... Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.
Admiralty jurisdiction and the coverage of the Jones Act depends only on a finding that the injured was “an employee of the vessel, engaged in the course of his employment” at the time of his injury. The fact that a Jones Act petitioner’s injury occurred on land is not material. 46 U.S.C. § 740; Senko v. La Crosse Dredging Corp., 352 U.S. 370, 373 (1957). Continue reading The Jones Act v. Longshore
The Longshore and Harbors Workers’ Compensation Act (“LHWCA”) covers longshore/harbor workers and other maritime workers. The Act has also been applied to certain other workers under the Defense Base Act.
“Status” and “situs.”
The LHWCA set forth the requirements for coverage. “Status” refers to the nature of the work performed; “situs” refers to the place of performance.
The employee claiming benefits under the LHWCA must be engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, including any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. There are specific exclusion which apply to status (see below). Continue reading Understanding Jurisdiction Under the Longshore Act
The Longshore and Harbor Workers’ Compensation Act provides for medical benefits and disability benefits to an injured worker. An injured employee is entitled to reasonable and necessary medical, surgical, and hospital treatment and other medical supplies and services required by the work-related injury or illness, such as prescription medications, diagnostic tests, physical therapy, prostheses, hearing aids, attendant care, and the cost of travel for such treatment. An injured employee is entitled to select a physician of his/her choice to provide medical treatment for the work injury.
The LHWCA provides for the payment of compensation for the following four types of disability: temporary partial, temporary total, permanent partial, and permanent total. This compensation can not exceed two-thirds of the employee’s average weekly wage during the period of disability, subject to maximums and minimums. 33 U.S.C. § 908 Continue reading Overview of Longshore Benefits
The right to compensation for disability or death is barred unless a claim therefore is filed within one year after the injury or death. 33 U.S.C. § 913. Continue reading The Statute of Limitations in Longshore Claims
It is the claimant’s burden to establish timely notice. Notice of an injury or death for which compensation is payable must be given within 30 days after injury or death, or within 30 days after the employee or beneficiary is aware of, or in the exercise of reasonable diligence or by reason of medical advice should have been aware of, a relationship between the injury or death and the employment. 33 U.S.C. § 912(a). The claimant is provided a presumption that timely notice has been provided. Shaller v. Cramp Shipbuilding & Dry Dock Co., 23 BRBS 140 (1989). Where one injury arises out of an accident has been reported, the claimant does not have to give separate notice of other injuries resulting from the same incident. Thompson v. Lockheed Shipbuilding & Constr. Co., 21 BRBS 94 (1988). Continue reading Notice as a Defense in Longshore Claims