The Longshore and Harbor Workers’ Compensation Act (LHWCA) is a federal law protecting harbor workers, longshoremen, shipyard workers, and other maritime workers who are injured, disabled or contract an occupational disease due to an on-the-job incident. Workers covered under the LHWCA can recover compensation for medical expenses, rehabilitation services, and lost wages from their employer.
The LHWCA is administered by the United States Department of Labor through its Office of Workers’ Compensation Programs (OWCP). Their mission statement reads as follows:
“The Longshore and Harbor Workers’ Compensation Act and its extensions, administered by the U.S. Department of Labor’s Employment Standards Administration, Office of Workers’ Compensation Programs, provide medical benefits, compensation for lost wages, and rehabilitation services to employees who are injured during the course of employment or contract an occupational disease related to employment. Survivor benefits are also provided if the work-related injury causes the employee’s death.”
An employer must report all lost-time injuries to the OWCP within 10 days of the accident and failure to comply may result in penalties. Once the OWCP has been notified and the claim has been filed and processed, the injured worker will receive benefits if no disputes about the claim arise. Benefits for injured workers covered by the LHWCA are generally much more generous than state workers’ compensation statutes.
An important, and often overlooked, distinction between the LHWCA and most state workers’ compensation statutes is that an injured worker covered by the LHWCA has a right to choose his/her treating physician. Regardless of whether the employer has scheduled and/or directed the injured worker to see a specific physician, the injured worker still has the right to choose his own physician. However, if an injured worker visits a physician on more than 2 occasions, that physician (even if chosen by the employer) will be deemed the worker’s physician of choice. In most instances following an on the job accident, the employer will quickly arrange for the injured worker to see the EMPLOYER’S physician of choice. Accordingly, if you are injured on the job and covered by the LHWCA, it is important that YOU schedule an appointment with a physician of your choice.
To Whom Does the LHWCA Apply?
The LHWCA applies to maritime and harbor workers who sustain an injury or illness related to their maritime employment, including occupations such as:
- Waterfront Crane Operators
- Longshore Checkers
- Terminal Workers
- Shipbuilders/Shipyard Workers
- Marine Construction Workers
To qualify for coverage under the LHWCA, a worker must have been injured: (1) on navigable waters (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway), or (2) on an adjoining area customarily used by an employer to load, unload, repair, dismantle, or build a vessel; and engaged in maritime employment. If your occupation is not listed above, you may still qualify for coverage under the LHWCA if you were engaged in an integral part of the loading, unloading, repairing, building, or disassembling of a vessel.
As simple as it may sound, there are instances where disputes will arise between the injured worker and his/her employer. Whether it is about continuing benefits, choice of treating physician, and/or termination/denial of benefits, the administrative process can quickly become complicated. Whatever the case may be, Gilman & Allison, LLP has a great deal of experience handling LHWCA cases on behalf of injured longshoremen and maritime workers to ensure the worker receives all the benefits he/she is entitled.
Third-Party Cases against the Vessel – § 905(b) of the LHWCA
In addition to receiving benefits from his/her employer, an injured worker covered by the LHWCA may also have a third-party claim against a vessel and/or its owners, managers, operators, or charterers for negligence pursuant to Section 905(b) of the LHWCA. A vessel and/or her owners, operators, managers, etc. may be liable for negligence if such negligence was the cause of the injury. In these cases, Courts have defined three specific “duties” that a vessel and/or her owners, managers, operators, or charterers owe to longshoreman and other maritime workers. If the vessel breaches one of the “duties,” and was the cause of the resulting injuries and damages, the vessel could be held liable for negligence. In this regard, a vessel and/or her owners, managers, operators, or charterers may be held liable:
- if the vessel owner fails to warn the stevedore on “turning over” the ship of hidden defects of which he should have known;
- for an injury caused by hazards under the “active control” of the ship; or
- if the vessel owner fails to “intervene” in the stevedore’s operations when he has actual knowledge both of the hazard and that the stevedore, in the exercise of obviously improvident judgment, means to work on in the face of it and therefore cannot be relied on to remedy it.
A claim pursuant to Section 905(b) is a maritime tort, entitling an injured longshoreman and/or maritime worker to pecuniary and non-pecuniary damages, which include past and future medical expenses, past and future economic loss, past and future pain and suffering, physical disfigurement, mental anguish, loss of society/consortium, and pre-/post-judgment interest.
Most accidents and injuries arising under Section 905(b) happen on board foreign-owned vessels calling to U.S. ports. These vessels are generally in port for only 1 to 3 days and it may be months or years before the vessel returns to the U.S. As a result, it is important to retain an attorney early to preserve evidence, conduct an investigation, and/or arrest the vessel to prevent it from escaping U.S. waters and jurisdiction.
Gilman & Allison, LLP has handled numerous third-party cases on behalf of injured longshoremen and maritime workers against vessels and vessel interests. If you have been injured (or a loved one has been killed) while working on board a vessel in port or during vessel cargo loading/unloading, vessel repairing, or vessel construction operations; or if you would simply like to learn more about the LHWCA and whether your case falls under Section 905(b), contact us for a free consultation and evaluation.
The attorneys at Gilman & Allison, LLP are well versed in LHWCA law and subject matter, and we can help.