The LHWCA Claim Process
All workers’ compensation laws have very specific procedures, and the Longshore Act (the long name for this law is the Longshore and Harbor Workers' Compensation Act) is no different. In this article, we'll spotlight some important tips to keep in mind when you're making a claim under the LHWCA.
Meeting the Notice Deadline
In general, the Longshore Act requires an injured employee to report a work-related injury to his/her employer and to the federal Office of Workers’ Compensation Programs (the office that administers the Longshore Act) within 30 days of the injury. However, there are two important exceptions.
The first exception is in situations where the injury does not immediately result in disability. In that situation, the employee must report the injury within 30 days after the employee is aware, or reasonably should have become aware, that the injury caused a disability or lost time from work.
The second exception is in cases of occupational diseases. In those situations, the employee must report the injury within one year after the employee becomes aware, or reasonably should have become aware, that the occupational disease caused a disability or lost time from work.
Just because these exceptions exist does not mean that you should automatically try to take advantage of them. There are two reasons to stick with the 30-day notice deadline.
First, the law can be unclear. There is no guarantee that a Longshore judge will agree that your case falls under one of the exceptions. Second, when an employee waits weeks or months to report an injury, insurers usually don’t believe that the employee was injured at work and will not willingly agree to pay any benefits. It also becomes far more difficult to convince a judge that you were injured at work when you wait a while to report an injury.
Watch the Statute of Limitations
The statute of limitations is the deadline for filing a Longshore claim. The deadline is one year from the date of the injury. There are some exceptions, but they are complicated, and you should never assume that an exception will apply in your case.
Filing a Claim: The Informal Conference
If the employer’s workers’ compensation insurer starts paying you benefits after the injury, then you don’t need to do anything else. You just take the benefits and try to get better and return to work.
But if the insurer refuses to pay benefits, or if the benefits aren’t the proper amount, then you need to file a claim. You file a claim by filling out a Longshore claim form and requesting an informal conference. You must send the claim form to the federal Office of Workers’ Compensation Programs for your region (there are a number of offices throughout the country) along with the medical records that support your right to workers’ compensation benefits. For example, if you are claiming temporary total disability benefits, you have to submit medical records that state that you:
- suffered an injury on the date that you claim that you were injured, and
- have been totally disabled during the entire time period that you claim that you have been disabled.
Unfortunately, the informal conference generally does not resolve anything. It is just a required step that you must take before requesting a hearing. The Longshore claims examiner who conducts the informal conference has no legal authority to order the insurer to pay you workers’ compensation benefits. He/she can only recommend that your benefits be started.
Requesting a Hearing
So, after getting the claims examiner’s written recommendation, the next step in the Longshore claims process is to request a hearing. Your lawyer will request a formal hearing by sending another form to the Office of Workers’ Compensation Programs and asking that your case be referred to a federal Administrative Law Judge for a hearing.
Before the hearing, each side is entitled to conduct pre-hearing investigation (called “discovery”) just like a regular lawsuit in court. They can send written questions called interrogatories to each other, request that the other side produce documents, and take depositions of the other side and of other witnesses. The discovery period usually lasts several months, and, when the discovery period is over, you are ready for the hearing.
If you haven’t been able to settle your case, a hearing will be held in front of a federal Administrative Law Judge. The usual issues to be decided at a LHWCA hearing are:
- whether the employee suffered a work related injury
- if the employee had a prior injury, whether the current injury was a new injury for which the current employer should be responsible, or an aggravation of an old injury, which would free the current employer from responsibility
- the employee’s average weekly wage
- the extent of the employee’s disability, and
- the reasonableness of the employee’s medical treatment, and whether the insurer should pay the employee’s medical bills.
Attorney Fees Under the LHWCA
An employee who files a claim under the Longshore Act almost never has to pay his/her attorney directly. If the attorney gets the client any benefits either by winning at the hearing or by settling the case, the attorney will submit a fee petition to the Longshore claims examiner or to the Administrative Law Judge, or both, depending on the status of the case at the time that the client gets the benefits.
The claims examiner or judge will review the petition, and, if the petition is approved, will order the insurer to pay the attorney’s fee directly to the attorney.
Learn more about Maritime Worker Injuries.