The maritime work environment is significantly more dangerous than other types of employment. Work accidents and occupational illnesses are not uncommon.
If you or a family member have been injured on the job it is important that you recover the money needed to survive and get better.
The LHWCA requires most all attorney’s fees to be paid by your employer and its insurance carrier so that injured workers can keep all the benefits they are entitled to.
What is the Longshore and Harbor Workers’ Compensation Act (LHWCA)?
The LHWCA is a workers’ compensation remedy available to only maritime workers.
Maritime workers who do not qualify for seaman status are not permitted to file suit against their employer except in limited circumstances.
Instead, maritime workers injured on the job are required to file a workers’ compensation claim under the LHWCA.
The LHWCA was passed in 1927. Prior to the law’s passage, maritime workers had limited ability to recover money or pay their medical expenses if injured on the job.
The LHWCA provides two primary benefits:
- Compensation benefits to make up for lost wages
- Medical expenses
The LHWCA also provides other benefits including vocational retraining.
One of the main benefits of the LHWCA is that the maximum compensation rate available to injured maritime workers tends to be much higher than the compensation rates available under state workers’ compensation laws.
This is good news for many maritime workers because the law may require your employer to pay more compensation benefits to you.
The LHWCA is also extended to cover other types of workers including workers on offshore platforms in the Gulf of Mexico and contractors working on defense bases.
Who Qualifies as a Maritime Worker?
An injured employee is entitled to LHWCA benefits if he or she satisfies what is called the status and situs tests.
Status simply means that you are engaged in some form of maritime employment.
Maritime employment simply means work that supports maritime commerce.
The most common work tasks performed by maritime workers include:
- Loading or unloading a vessel
- Repairing a vessel
- Vessel maintenance
- Constructing or building a vessel
- Deconstructing or breaking down a vessel
- Work on a fixed platform offshore
- Longshore or stevedoring work
- Vessel work when you do not qualify as a seaman
Importantly, any worker who qualifies as a seaman is specifically excluded from receiving LHWCA benefits. To be a seaman, you need to work in the service of ship or group of ships at least 30% of their work time.
There are several types of workers who almost always qualify for LHWCA benefits. These include:
- Longshoremen: These workers tend to work adjacent to navigable waters on docks and piers assisting with the loading and unloading cargo.
- Stevedores: These workers tend to work on the ship’s loading and unloading cargo.
- Shipbuilders: These workers work at maritime facilities building, overhauling, or repairing vessels.
- Shipbreakers: These workers work at maritime facilities breaking down or decommissioning vessels.
A maritime worker also needs to satisfy the “situs” test. This means the worker needs to generally work on, near, or next to navigable waters.
Longshoremen, stevedores, shipbuilders, and shipbreakers satisfy this test without question because their work requires them to work on or next to the water.
Other workers who tend to work in or near a maritime installation like a port, terminal, dock, or pier will also be covered as long as their work assists or furthers maritime commerce.
Some examples of workers who likely qualify for LHWCA benefits include:
- Truck drivers delivering or taking away shipping containers
- Workers at a grain elevator on the river
- Workers assembling or repairing shipping containers
- Mechanics repairing equipment near a pier
In short, if your work regularly takes you near navigable waters you may be entitled to benefits under the LHWCA. If you are unsure if you are covered, you should speak with an experienced maritime attorney.
Injuries and Illnesses Covered by the LHWCA
The LHWCA covers all injuries and illnesses that are caused or contributed to from maritime employment.
Sudden Accidental Injuries
This is the most common type of Longshore claim.
This includes any type of injury you may get when there is an accident at work that directly causes an injury.
An example of this type of work injury would be a broken leg when cargo falls over onto your leg.
Bodily Injuries Over Time
Some bodily injuries do not occur suddenly.
For example, your work may cause your spine or vertebrae to slowly wear down.
These types of claims are often called cumulative trauma injuries. For example, your job may require you to repeatedly stoop down and move heavy items.
Long-term work like this can cause your spine to wear down causing terrible medical conditions like disc herniations or nerve damage.
Claims like this are harder to prove.
You will likely need the assistance of a qualified attorney and medical expert to prove a cumulative trauma claim.
Many maritime workers are exposed to harmful substances that cause terrible and oftentimes deadly diseases.
Some examples of these substances include asbestos, silica, benzene, and other harmful substance.
If you are a maritime worker who has contracted a disease, you may be entitled to compensation for your condition.
Occupational Hearing Loss
Most maritime work takes place in a loud environment.
The LHWCA provides generous benefits to workers who have sustained a hearing loss from exposure to loud noise.
Many workers will begin to notice significant hearing loss as they get closer to retirement.
You may be entitled to up to 200 weeks of additional compensation benefits and medical treatment for your hearing loss.
Benefits Under the LHWCA
Injured maritime workers are entitled to compensation benefits and medical expenses.
What Compensation Benefits Are You Entitled To?
Understanding the type and amount and type of compensation benefits you are entitled to can be difficult.
First off, the amount of weekly compensation benefits that you receive is normally 66% of your average weekly wage, which is based on your average weekly earnings.
Injured workers are normally classified in one of a few different ways: Temporary and totally disabled; Temporary and partially disabled; Permanent and totally disabled; and Permanently and partially disabled.
Below is a breakdown of each of these classifications:
Temporary and Totally Disabled
If you are injured on the job and are unable to work at all you are considered to be temporary and totally disabled.
In this situation, you will be entitled to 66% of your average earnings until you reach maximum medical improvement (“MMI”) or are released to work a different job.
MMI means that your medical condition has improved as much as expected and you need a doctor to assess you for permanent disability benefits.
Temporary and Partially Disabled
An injured worker receives temporary and partial disability benefits (“TPD”) when he or she is able to continue to work a different job.
Most of the time a job injury leaves a worker unable to work a different job with their employer.
However, some employers have what is called “light duty” programs where they let you work a less strenuous job while recovering from your injuries.
If the light-duty job does not pay as much as your regular job, you will receive TPD benefits to help make up the difference.
Most employers do not offer suitable light-duty jobs.
If your employer offers is attempting to have you cleared for a light-duty job, you need to be sure that your physician understands the requirements of the job and the full extent of your medical condition.
Permanent and Totally Disabled
Once an injured worker reaches MMI, they need to be assessed for permanent disability.
A permanent disability addresses several different concepts.
For one, it addresses your physician’s opinion about the extent you are impaired under medical guidelines.
It also addresses whether your physical limitations prevent you from working your regular job or any job at all.
If you are unable to work any job due to your job injuries, you are permanently and totally disabled and will be entitled to full compensation benefits for the remainder of your life.
Proving that you are PTD is often hotly contested and requires the assistance of vocational experts in addition to medical experts.
If you believe you are permanently and totally disabled, you should consult with a qualified attorney.
Permanent and Partial Disability
It is more common for workers to recover permanent and partial disability benefits (“PPD”) once you reach maximum medical improvement.
To recover PPD benefits you need a qualified doctor to assign you an impairment rating based on applicable medical guidelines.
For example, if you tore a ligament in your elbow you will likely first undergo surgery and then a period of physical therapy to improve your condition as much as possible.
When you reach MMI, your doctor will conduct an evaluation to determine your physical limitations.
Based on your limitations, your doctor will assign an impairment rating for the part of your body that has been injured.
An impairment rating is important because the LHWCA provides injured workers with a schedule of additional compensation benefits based on the injured body part.
For example, someone with an injured arm is entitled to up to 312 weeks in PPD benefits.
Under this formula, if you have a 50% impairment, you will be entitled to an additional 156 weeks in compensation benefits.
The Importance of Unscheduled Injuries
The LHWCA does not provide a schedule of additional benefits for PPD for each body part.
The most common unscheduled body parts are the back, neck, and spine, which are some of the most common job injuries.
If you have an unscheduled injury that prevents you from returning to your regular job, you are entitled to compensation benefits based on your lost earning capacity for the rest of your life.
For example, let’s assume you are a 50-year-old male who earns $100,000.00 as a crane operator.
You seriously injure your lumbar spine on the job.
After surgery, it is determined that you can now only earn $40,000.00 in a light-duty job and that you have lost earnings of $60,000.00 per year.
Since you had an unscheduled injury, you would be entitled to PPD benefits of $40,000.00 per year (two-third of your lost earnings).
These benefits will likely be paid for the remainder of your life or until you enter into a lump-sum settlement with your employer’s insurance carrier.
Entitlement to Medical Expenses
The second primary benefit under the LHWCA is medical treatment. Your employer is only obligated to pay for medical expenses related to your work injury.
The LHWCA only requires your employer to pay for medical treatment that is reasonable and necessary.
While this may sound simple, many employers and insurance carriers will battle over whether the treatment recommended by your doctor is reasonable or necessary.
Sadly, insurance companies often withhold much needed medical treatment to an injured worker to try to force a reduced lump-sum settlement. If you are being denied medical treatment, you should likely call an attorney.
You are entitled to choose your own physician for each area of medicine necessary to treat your condition.
For example, if you have a serious spine injury, you may need a primary care physician, orthopedic surgeon, radiologist, pain management specialist, and physical therapy.
You are permitted to select the physician of your choice for each specialty.
We always recommend rejecting any physician recommended by your employer. Accepting your employer’s choice of physician is one of the fastest ways to derail your claim.
What Are Attorneys Fee in Longshore Claims in New Orleans?
The LHWCA shifts the responsibility to pay an injured workers’ attorney’s fees onto the employer and its insurance carrier.
The LHWCA also does not permit an attorney to take a contingency fee from the injured workers’ compensation recovery.
Instead, the law requires the employer and insurance carrier to pay reasonable attorney’s fees if additional compensation is recovered for the injured worker.
In short, you should not come out-of-pocket to pay attorney’s fees.
Reasons to Hire an Attorney For Your LHWCA Claim
Hiring an attorney for your claim has a little risk because you should not be personally responsible for payment of attorney’s fees.
There are a number of situations that signal that the employer and carrier in your claim intend to fight hard to limit the benefits you are entitled to.
- You are asked to provide a written statement immediately after the incident.
- You are pressured to receive treatment from a physician recommended by your employer or their insurance carrier.
- The insurance company gets a nurse case manager involved in your claim.
- The insurance company is communicating with your doctor.
- A nurse case manager or insurance adjuster is trying to get your doctor to release you to work before you are ready.
- You are sent for a vocational evaluation.
Again, hiring an attorney should be a little risk to you since you should never be personally responsible for attorney fees.
Third-Party Negligence Cases
A maritime worker who is entitled to LHWCA benefits is not permitted to sue their employer except in the following circumstances:
- The employer did not obtain proper workers’ compensation insurance
- The employer owned the vessel on which the worker was injured, and the worker can prove the employer did not turn the vessel over in a reasonably safe condition.
- The employer engaged in intentional tort.
Injured workers should always investigate the cause of the job accident to see if there is a third-party other than your employer to sue for damages.
For example, let’s say a truck enters into the restricted area of a port an accidentally hits a longshoreman riding a forklift. In that situation, you may have a claim for damages against the truck driver.
Similarly, Section 33 of the LHWCA permits a maritime worker to sue the owner of a vessel who failed to disclose a dangerous condition that ultimately caused someone to get hurt or killed.
This claim for vessel negligence extends to the worker’s own employer if the employer-owned or operated the vessel.
The benefit of filing a negligence lawsuit is that the injured worker may ultimately recover significantly more damages than through a workers’ compensation claim alone.
Tips if You Become Injured on the Job
Report Immediately: If you are injured on the job, report it to your supervisor immediately. If no action is taken by your supervisor, report it to another manager and be sure that you make your claim in writing.
Select Your Own Physician: If your employer recommended a doctor for you to see, politely tell them you will find your own physician.
Many employers and insurance carriers will recommend doctors who are primarily concerned about limiting financial exposure and less concerned about taking care of you.
Get Witnesses: Get the names and contact information of anyone who witnessed the accident or injury.
Right A Statement When You Are Ready: An employer may ask you to write a statement of what happened immediately after an accident.
Often an injured worker does not fully understand how the accident occurred.
If you feel that you are not able to provide a complete statement, you should politely refuse and tell your employer you will provide a statement when you are ready.
Hire an Attorney: If you are getting any type of resistance with your claim you probably need to consult with an attorney.
Most experienced workers’ compensation attorneys can increase your recovery substantially.
Reach Out to An Experienced Offshore Injury Attorney in New Orleans
If you are a maritime worker who has been injured on the job it is important that you get the compensation and medical treatment that you need.
If you feel you are being treated unfairly, call us immediately to speak with an attorney for free.
Our experienced maritime attorneys are ready to help you today.