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
What happens immediately after the alleged injury occurs?
- The employee must notify the employer immediately. If medical treatment is sought the employer must provide the claimant with Form LS-1, which authorizes treatment by a doctor of the employee’s choice. Unless otherwise noted, as of publication, all forms to be filed with the OWCP Division of Longshore and Harbor Workers’ Compensation can be found at http://www.dol.gov/owcp/dlhwc/lsforms.htm.
- The claimant will then receive medical treatment.The claimant must provide written notice of the injury within 30 days to the employer on Form LS-201. 33 U.S.C. § 912(a). Notice of death must also be given within 30 days. Additional time is provided for certain hearing loss and occupational disease claims.
- (Elective – does not happen in all cases). To obtain permanency and some other benefits under the Act, the injured worker must file either Form LS-203 or a written statement identifying the alleged injury and stating that the identified claimant is seeking benefits. This must be filed within one year after injury, or, if the employer or its insurer has made voluntary payments, within a year after the last payment. If the alleged condition is an “occupational disease” rather than a specific accident, the filing period is two years from the date it was recognized as employment-related and disabling character.
Forms & Procedure – Controverting claims
An employer contesting the right to compensation must file a Notice of Controversion of Right To Compensation with the District Director on or before the fourteenth day, after knowledge of the alleged injury or death (from the date the claimant files Form LS-207). Following the filing of a Notice of Controversy, an informal conference will be scheduled at the District Office and a Longshore claims examiner will preside over an informal conference to discuss and potentially resolve the dispute. This conference will be held approximately one to three months following the filing of the request.
The informal conference can take place over the phone or in the district office where the case is venued.
If the issues cannot be resolved informally at the informal conference, the parties will be directed to file a Pre-Hearing Statement. The Pre-Hearing Statement is form LS-18, and can be submitted electronically (through SEAPortal). The case will then be referred to the Office of Administrative Law Judges for a formal hearing. An Administrative Law Judge will issue a formal decision and order regarding the benefits claimed.
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.
We analyze whether Longshore jurisdiction applies, defend claims, and pursue lien recovery. Contact us.
The Longshore and Harbor Workers’ Compensation Act covers employees in traditional maritime occupations such as longshore workers, ship-repairers, shipbuilders or ship-breakers, and harbor construction workers. 33 U.S.C. § 902(3). The term “Longshoreman” typically refers to maritime workers responsible for unloading or loading ships and who are not a master or member of the ship’s crew. Seamen (masters or members of a crew of any vessel) are specifically excluded from coverage under the LHWCA. The injuries must occur on the navigable waters of the United States or in the adjoining areas, including piers, docks, terminals, wharves, and those areas used in loading and unloading vessels. Non-maritime employees may also be covered if they perform their work on navigable water and their injuries occur there. Continue reading Qualifying for Benefits under the Longshore Act
Settling Workers’ Compensation Cases Involving the World Trade Center Health Program
Where a claimant has a New York or New Jersey or Longshore workers’ compensation claim and is entitled to benefits under the James Zadroga 9/11 Health and Compensation Act of 2010 (“Zadroga Act”) you can obtain a Section 32 (NY WCL § 32), Section 20 (N.J.S.A. 34:15-20) or 8(i) LHWCA (33 U.S.C. 908[i]) lump-sum dismissals of state or Federal workers’ compensation benefits if the secondary payer rights of the WTC Health program are considered.
The Zadroga Act and the World Trade Center Health Program.
The James Zadroga 9/11 Health and Compensation Act of 2010 (“Zadroga Act”) establishes the World Trade Center Health Program (“WTC Health Program”) administered by the Department of Health and Human Services. The Act also extends the September 11th Victim Compensation Fund (VCF), initially operated from 2001 to 2004. The WTC Health Program provides medical monitoring and treatment for emergency responders, recovery, and cleanup workers, and volunteers who helped after the terrorist attacks on September 11, 2001 and for people who were present in the dust or dust cloud on 9/11 or who worked, resided, or attended school, childcare, or adult daycare in the New York City disaster area for a period of time on 9/11 or during the following months.
Continue reading Settling Cases Involving the World Trade Center Health Program
In a recently-decided case the Benefits Review Board considered the “dollar for dollar” credit due to an employer/carrier for prior injury. This case is interesting because the claimant’s examining physician actually found less disability in the claimant’s affected body part than was previously found, but under the dollar-for-dollar credit system, the employer still would be exposed to pay more for the “new” injury.
In Myshka v. Electric Boat, the claimant alleged hand injuries resulting from his work as a welder with Pequot River Shipworks. He obtained his own physician’s report, which found a 14% permanent disability to his hands. In 2001 the case was settled in a lump-sum paid pursuant to 33 U.S.C. 908(i) amounting to $9,400. This joint, lump-sum settlement disposed of both the Federal and State claims (there was a claim pending under the Connecticut Workers’ Compensation act as well). He collected his award and went back to work as a welder in 2002, resuming the use of welding and grinding tools. Continue reading Calculating Credits for Pre-Existing Disability Under the Longshore Act
New Jersey Excludes Longshoremen from Coverage.
New Jersey is one of the few exclusionary states: pursuant to New Jersey’s Workers’ Compensation Act, specifically section 36 (N.J.S.A. 34:15-36), if a petitioner has claim under the Longshore and Harbor Workers’ Act she can not make a claim for benefits under New Jersey’s Act. The state judge lacks have the discretion to decide whether or not the Federal claim is valid. Even if the state judge could, once the claimant accepts Longshore benefits, the New Jersey court loses jurisdiction as per Section 36.
Section 36 of the New Jersey Act sets forth definitions for eligibility for benefits, and specifically carves our “anyone eligible for benefits under the Longshore Act” by defining employees as
any natural person exclusive of . . . employees eligible under the federal “Longshore and Harbor Workers’ Compensation Act,” 44 Stat. 1424 (33 U.S.C.s.901 et seq.), for benefits payable with respect to accidental death or injury, or occupational disease or infection.
Therefore, understanding the basics of how jursidiction is established for a Lonsghore claim is essential in defending cases in New Jersey, with its long coastline, many maritime employments, and one of the largest and most active ports in the world.
How is jurisdiction established under the LHWCA?
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.
The jurisdictional trigger for a claim under the LHWCA is an injury upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel). Jurisdictional questions based on issues of situs are fact-sensitive.
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