A Brief History
In 1927, Congress adopted the Longshore and Harbor Workers Compensation Act (LHWCA) to provide no-fault workers compensation to injured longshoremen in the navigable waters of the United States. This federal law was enacted to provide a consistent approach to compensating injured longshore and harbor workers.
Over the years this act has been amended and expanded a few times to include more types of workers. In discussions about this particular law, you may hear references to the Defense Base Act, the Outer Continental Shelf Lands Act and the Non-appropriated Fund Instrumentalities Act. These are all extensions of the Longshore and Harbor Workers Compensation Act and cover other types of employees. We will discuss these in other articles; however, f or this article, we focus on the coverage of longshore and other harbor workers.
Who Is Covered Under The Longshore and Harbor Workers Compensation Act?
The Longshore and Harbor Workers Compensation Act defines a covered employee as “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker.”
As the maritime industry has evolved there have been many cases determining who should and should not be included in this coverage. It is a complex area, and if you or a loved one has been injured, and you THINK you might be covered under this law, you should consult with an attorney experienced in this field of law.
Keep in mind that in most states, including Florida, coverage under the Longshore and Harbor Workers Compensation Act is the exclusive remedy for an injured worker in these circumstances. State workers compensation does not apply here, and in most cases, you are not able to sue your employer. (See Longshore and harbor workers compensation act compliance laws)
Exceptions to the Rule
One exception to the rule that this workers compensation program is the exclusive remedy is considered in section 905(b) of the Longshore and Harbor Workers Compensation Act. This provides you have a right to file a third party claim against the owner of any vessel that may be responsible for your injury. This may include your employer IF they are also the owner of the vessel and you are suing them in that capacity.
Another exception to this rule is found in section 933 of the statute. This provides that if a third party’s negligent action, such as something improperly installed by a contractor, caused the injury, the claimant can sue that third party. This can get complex, because the employer and insurance company also have certain rights in this scenario.
This is a very technical area of the law, and the exceptions are fairly narrow. You need to always consider the possibility of third party suits if you are injured on the job, but you should have the assistance of qualified legal counsel to help you determine whether this is a valid claim.
Who Is NOT Covered Under The Longshore and Harbor Workers Compensation Act?
The statute lists some specific job exclusions from the definition, however, so just because you work on or near the water does NOT mean you are covered under this 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 (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of an employer described in paragraph (4), and (iii) are not engaged in work normally performed by employees of that employer under this 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 to dismantle any part of a recreational vessel in connection with the repair of such vessel;
- a master or member of a crew of any vessel (seamen); or
- any person engaged by a master to load or unload or repair any small vessel under eighteen tons net;
These exclusions apply if the workers listed above are subject to coverage under a state workers’ or federal workers’ compensation law. Most of them are covered by one or the other, so the exclusion does apply.
There are some other important job exclusions that apply. For instance, if you are an employee of the United States, any state government or other foreign government, you are not covered under this law. This is because an assumption is made that you will be covered under another workers’ compensation program. If the injury occurred solely as a result of your intoxication or substance use, you will not be covered. Also, if the injury occurred due to your own willful intention to harm yourself or others, you will not be covered. (There have been some interesting cases surrounding this exclusion that we will talk about another time!)
What Benefits Are Available?
If you have been injured or a loved one has died as a result of an on-the-job accident, you are entitled to compensation. An injured worker is entitled to reasonable and necessary medical treatments, including doctors’ treatments, surgeries (if necessary) and rehabilitation. The benefits also include payment for prescription medications, physical therapy, diagnostic tests, attendant care, prostheses, hearing aids and necessary medical equipment, such as walkers or oxygen concentrators. In some case, in also includes the cost of travel for medical treatment.
There is also payment of compensation for lost wages based on the type of disability: temporary partial, temporary total, permanent partial and permanent total disability. Generally, this amount cannot exceed two-thirds of the worker’s average weekly wage, subject to minimum and maximum amounts.
The spouse and family of a worker who has been killed in a work-related accident are entitled to compensation as well. The amount of compensation is determined by the number of dependents the worker left behind. Funeral expenses of up to $3,000 are to be paid by the employer to lessen the burden on the family. There are different calculations applied depending on circumstances.
“We’ve Only Just Begun”
This introductory piece really only scratches the surface of the intricacies of the Longshore and Harbor Workers Compensation Act and there is much more to discuss in upcoming articles. There are very specific time limitations within which to file your claim, or you might waive your right to do so. It is very important to keep track of these time limitations. Also, it is often a puzzle as to whether these laws even apply to your situation – are you covered under Longshore and Harbor Workers Compensation Act or some other type of workers compensation program?
If you or a loved one has been injured in a work-related accident, and you think the Longshore and Harbor Workers Compensation Act applies to you, you should consult with an attorney experienced in this area of law as soon as possible. You want to ensure that you get all the compensation to which you are entitled – don’t try to go it alone – seek dedicated, experienced help!