Should You File a Claim Under the Longshore Act or Workers’ Compensation Act?

Should You File a Claim Under the Longshore Act or Workers’ Compensation Act?Living in Florida provides people with excellent opportunities to work and live near water. As with any occupation, those jobs near water sometimes will involve injuries to the workers. When a worker is injured, there is always the question as to how the injuries will be covered and if they fall under the Longshore and Harbor Worker’s Compensation Act or Florida’s Workers’ Compensation Laws.

Both sets of law provide for the payment of medical treatments and certain disabilities for the injured worker, but that is where the similarities end. In many situations there are arguments that can support coverage under either set of laws, but it is important to determine which area your case should fall under if you have been injured.

Determining Eligibility for Longshore Act Benefits

Longshore benefits are only available to maritime employees who meet the status and situs tests.

  • Situs Test: This simply means location where the employee most often worked for the employer. Maritime employees who only work on, adjacent, or near navigable water, and on adjoining dry docks, terminals, piers, wharfs, and other areas used for loading and unloading, repairing, building, or dismantling a vessel are eligible for benefits under the Longshore Act. How far away from the water is considered adjacent, however, is sometimes debatable. Typically, if you are working more than a mile or more away from the water or the border of the terminal or shipyard, the judge is likely to consider you ineligible under the Longshore Act.
  • Status Test: This test is regarding the type of work the employee performs for the employer. To be eligible under the Longshore act, an employee must either assist in loading or unloading vessels; or build, repair, or break down ships. The Longshore Act also has specifications about which employees are excluded from the laws even if they are eligible under the Situs Test. Those employees that are excluded include shipbuilders who build vessels smaller than 65 feet long; employees who are no working for construction, replacement, or expansion of the marina; mechanics and repairmen for recreational vessels; aquaculture worker (i.e. fish farmers); and captains and crew members of any type of boat or ship since these workers fall under the Jones Act.

Common Types of Longshore Worker Injuries

Longshore workers are exposed to a variety of dangers in their every day work. Although they are provided with equipment to protect them such as training and safety gear, accidents still happen from time to time. The following list includes many of the most common types of injuries that longshore workers suffer.

  • Back Injuries: This is one of the most common injuries among longshoremen due to the heavy lifting and falls that frequently occur as part of their work. Even minor back injuries can cause health problems and some injuries may even require surgery to correct.
  • Pleural Diseases: Because longshoremen often are exposed to toxic chemical used during the job, they may develop pleural disease which results in a thickening or hardening of the lining inside the lungs.
  • Burns: Longshoremen may be injured by fire on the job due to the flammability of the fuel used for their equipment and due to explosions that sometimes occur due to the fuel’s flammability.
  • Loss of Limb: Accidents as a result of heavy equipment, ropes, and cargo may result in longshoremen losing limbs such as feet, hands, fingers, arms, and even legs.
  • Drowning: Because this type of worker does his or her job next to large bodies of water, a simple slip or fall can result in drowning or near drowning.
  • Brain Injuries: Traumatic brain injuries can occur because of violent shaking or a blow to the head. This can result in neck or head injuries and brain damage.
  • Spinal Injuries: A variety of accidents can lead to spinal cord damage and damage to the spinal cord may cause partial or complete paralysis.

How Long do I Have to File a Claim?

If you have been injured in a work-related accident, it is important to make sure you meet the statute of limitation for filing a claim. An injured longshoreman has, in most cases, one year from the date of the injury to file a claim. If your claim is due to an occupational disease such as exposure to chemicals or hearing loss, you may file your claim up to two years from the date you first became aware of the relationship between your disease and occupation. Of course, as with almost any law, there may be exceptions to these rules. That is why it is always important to talk to an attorney experienced in Longshoreman Act claims.

Why Longshore Act Benefits Instead of Workers’ Compensation Benefits?

You may wonder what difference it makes whether you file for benefits under one instead of the other. Although both provide medical treatment and disability payments to an injured worker, they each have different type and amounts of benefits. An injured worker may file claims for benefits under the Longshore Act and WorkersCompensation Act simultaneously, although you will only receive benefits from one.

If you can get Longshore coverage, in general, it provides slightly better benefits than Floridas WorkersCompensation system. Total Temporary Disability (TTD) benefits under the Longshore Act are two-thirds of the employees average weekly wage. This amount is typically greater than the average states TTD benefits.

The downside to the Longshore Act system is that it typically takes longer to get the benefits started. It is sometimes advantageous to collect benefits from the state temporarily until your Longshore Act benefits begin. When the Longshore Act hearing comes up, they will likely pay back pay as well, and simply deduct the benefits that you have been paid from the state.

Contact an Experienced Attorney if You Have Been Injured

Although you can file for these benefits yourself, insurers often try their best to keep from paying benefits entitled to injured employees. If an insurance carrier has told you that the statute of limitations has passed or that you are not eligible to receive benefits, you need to contact an attorney experienced in maritime law who can help you receive the benefits and compensation you deserve.

Rarely will an employee who files for benefits under the Longshore Act have to pay his or her own attorney fees. Typically, when the attorney gets the client benefits, the Judge or Longshore claims examiner will order that the insurer to pay the attorneys fees directly to the client. You have nothing to lose but the compensation and benefits that you deserve. The attorneys at Brill & Rinaldi have over 40 years of experience helping their clients receive the outcomes they need and deserve.