Notice as a Defense 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).

Notice in occupational disease cases.

In the case of an occupational disease which does not immediately result in disability or death, notice must be given within one year after the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice, should have been aware, of the relationship between the employment, the disease, and the death or disability. 33 U.S.C. § 912(a). Thus, the period does not begin to run until the employee is disabled. It is possible for an employee to bring an occupational disease claim post-retirement. Lewis v. Todd Pacific Shipyards Corp., 30 BRBS 154 (1996). In a post-retirement occupational disease claim, the claimant will be required to show that the retirement was involuntary in that the allegedly occupationally-related condition caused him to leave the workforce. Morin v. Bath Iron Works Corp., 28 BRBS 205 (1994), citing Johnson v. Ingalls Shipbuilding Div., Litton Sys., Inc., 22 BRBS 160, 162 (1989).

​Giving the report of loss.

The injured worker can provide notice to:

  1. The first-line supervisor (including foreman, hatch boss or timekeeper), local plant manager, or personnel office official;
  2. Any partner, if the employer is a partnership; or
  3. Any authorized agent or officer, therefore, upon whom legal process may be serviced or person in charge of business at the place of injury if the employer is a corporation. ipbuilding Div., Litton Sys., Inc., 22 BRBS 160, 162 (1989).
    7 33 U.S.C. § 912(c).

Notice as a defense.

Notice to the employer is a requirement. Therefore, the lack of notice to the employer can be a defense to a claim.

Does Longshore Coverage Apply

We defend employers and carriers in workers’ compensation claims arising under the Longshore and Harbor Workers’ Compensation Act in litigation before the U.S. Department of Labor and the U.S. Office of Administrative Law Judges.

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Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com