The first chapter of my new book – “Longshore and Harbor Workers’ Compensation Act and Defense Base Act Claims 2011 Edition” is off to the publisher and we are finalizing the cites and references for the 2011 edition. The publication will ship in April 2011(note references below). Here’s a sneak preview of the introductory chapter:
Introduction
The Longshore and Harbor Workers’ Compensation Act (“LHWCA”) was enacted in 1927 to provide no-fault workers’ compensation benefits to longshoremen injured in the navigable waters of the United States. These benefits extend to longshoremen injured within three miles of shore which includes the docks along the shore. In the last year for which such statistics are available, there were 27,000 new claims filed and $764M in benefits issued under the LHWCA. Since its inception in 1927, the LHWCA has been amended many times, usually to extend the benefits available under the Act to more workers.
Who is a Longshoreman?
The LHWCA covers employees in traditional maritime occupations such as longshore workers, ship-repairers, shipbuilders or ship-breakers, and harbor construction workers. 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. 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.
Who else qualifies for benefits under the LHWCA?
Congress extended the LHWCA to include other types of employment. Employees covered by these extensions are entitled to the same benefits, and their claims are handled in the same way as Longshore Act claims. The following are the extensions of the LHWCA:
- DEFENSE BASE ACT – applying to employment at overseas military bases of the United States and to employees of U.S. government contractors working outside the United States in public work projects or in national defense and military operations;
- OUTER CONTINENTAL SHELF LANDS ACT – applying to employees working on the Outer Continental Shelf of the United States in the exploration and development of natural resources, for example, off-shore oil drilling rigs;
- NONAPPROPRIATED FUND INSTRUMENTALITIES ACT – applying to civilian employees of non-appropriated fund instrumentalities of the Armed Forces (for example, military base exchanges and morale, welfare, and recreational facilities).
Who is specifically excluded from benefits under the LHWCA?
The LHWCA specifically excludes from eligibility for benefits the following individuals:
- Seamen (masters or members of a crew of any vessel);
- Employees of the United States government or of any state or foreign government;
- Employees whose injuries were caused solely by their intoxication;
- Employees whose injuries were due to their own willful intention to harm themselves or others.
We cover these exclusions in depth in our chapter on Defenses. The LHWCA also excludes the following individuals if they are covered by a state workers’ compensation law:
- Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;
- Individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
- Individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);
- Individuals who (A) are employed by suppliers, transporters, or vendors, (B) are temporarily doing business on the premises of a maritime employer, and (C) are not engaged in work normally performed by employees of that employer covered under the Act;
- Aquaculture workers;
- Individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel or dismantle any part of a recreational vessel in connection with such repair;
- Small vessel workers if exempt by certification of the Secretary of Labor under certain conditions.
What benefits are available under the LHWCA?
The LHWCA 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 maximum and minimums.
About this Book
This book is designed to be a “plain English” practical and up-to-date guide to handling claims under the Longshore and Harbor Workers’ Compensation Act (and Defense Base Act claims).
The chapters in this book are designed to follow the natural timeline of a LHWCA compensation claim: We begin with initial reporting requirements, establishing jurisdiction, and we address ‘compensability.’ We then discuss the benefits available to an injured worker: medical treatment, wage replacement, and special handling considerations for specific types of claims. Finally, the ending chapters in this book discuss trial considerations, types of settlements, judgment and appeal, and related considerations (HIPAA, Medicare Secondary Payer, etc).
Writing a book on Longshore and Harbor Workers’ Compensation Law is like trying to hit a moving target. The law is evolutionary. As this book goes to press in April 2011, we are confident that it represents the most up-to-date edition we have ever published.
