The Longshore and Harbor Workers’ Compensation Act is a federal workers’ compensation act that provides benefits for certain types of maritime employees and for civilian employees on military bases worldwide.
With respect to maritime employees, the LHWCA covers longshoremen, harbor workers, and most other people who work on docks and in shipping terminals or shipyards. With respect to civilian employees on military bases, their workers’ compensation benefits are provided under the Act pursuant to a separate federal law called the Defense Base Act. Read on to learn more about the LHWCA and how it helps protect injured workers.
LHWCA Benefits vs. State Workers’ Compensation Benefits
LHWCA benefits are generally more advantageous to the injured worker, compared with the benefits provided by many state workers’ compensation acts.
For example, state workers’ compensation acts often pay only 60% of an employee’s average weekly wage for total temporary disability (TTD) benefits, whereas TTD benefits under the LHWCA are 2/3 of the employee’s average weekly wage. Another significant advantage of the LHWCA is that injured workers are entitled to permanent partial disability benefits, whereas some states’ workers’ compensation acts do not provide that type of disability benefit.
Because LHWCA benefits are often greater than state workers’ compensation benefits, a wise workers’ compensation attorney will try to get his/her client on LHWCA benefits if the client’s employment had anything to do with the water. But what types of workers are entitled to LHWCA benefits?
The answer is that LHWCA benefits are available only to maritime employees who meet the so-called “status” and “situs” tests.
The Status Test
The status test has to do with the nature of the work that the employee performed for the employer. The key is performing “maritime” work. In order for an employee to be eligible for benefits under the LHWCA, “maritime” duties must comprise at least some of the employee’s work for the employer. This means that some significant part of the employee’s work has to have something to do with the water or marine transport.
There are several classes of employees who are almost always eligible for benefits under the LHWCA. These are longshoremen and other people who assist in loading and unloading vessels, ship repairmen, shipbuilders, and ship-breakers. Even the drivers of the trucks that take shipping containers away from the ships, and the mechanics who repair those trucks, meet the status test because they also contribute to the maritime nature of their employer’s business.
But not everyone employed by a “maritime” employer such as a stevedore or a marina meets the status test. In order to qualify as a “maritime” employee under the LHWCA, one has to actively engage in maritime employment. For this reason, employees of a stevedore or marina who perform exclusively office or secretarial work do not meet the status test.
The LHWCA also specifically excludes the following other types of employees from coverage:
- shipbuilders who are employed to build recreational vessels smaller than sixty-five feet long
- people employed by a marina and who are not engaged in the construction, replacement, or expansion of the marina (except for routine maintenance)
- mechanics or repairmen for recreational vessels
- aquaculture (i.e., fish farming) workers, and
- captains and crew members of vessels (any type of boat or ship). (These individuals are entitled to protection under a separate federal law called The Jones Act.)
The Situs Test
The second test for coverage under the LHWCA is the situs (meaning location) test. The situs test has to do with the location where the employee generally worked for the employer. Only maritime employees who work on, near, or adjacent to navigable water are covered under the LHWCA.
“On, near, or adjacent to navigable water” means on the water (i.e., on a ship or vessel, as long as the employee is not a crew member of the vessel) or very close to it. So, people who work at least part of the time on piers, wharves, dry docks, terminals, or other areas customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel will generally meet the situs test.
The next question is naturally how far away can a “maritime” employee get from the water and still be adjacent to it? Many shipyards and shipping terminals are quite large. The front entrance of some big shipyards and terminals might be as much as half a mile from the water. Other marine terminals might even sprawl into the adjoining neighborhoods, meaning that non-maritime offices and residences are in between parts of the terminal.
The answer is that, in general, if you are working more than about a mile or so away from either the water or the border of the shipyard or terminal, the LHWCA judge is likely to rule that you are no longer working “on, near, or adjacent to navigable water.”
What Benefits are Available Under the LHWCA?
The LHWCA provides the following types of monetary benefits to injured workers:
- temporary total disability
- temporary partial disability
- permanent total disability, and
- permanent partial disability.
Under the LHWCA, an injured employee is entitled to have all of his/her reasonable and necessary medical treatment paid for, and can also receive mileage and other reasonable transportation expenses (parking, tolls, etc.) for his/her travel to and from the medical treatment.
If it appears likely that the injured worker will not be able to return to his/her previous line of work, the Act also requires the insurance company to provide vocational rehabilitation benefits to the worker.
Can You Proceed Under Both the LHWCA and Workers' Comp?
It depends on what state the injured worker is in. An injured employee may be able to file a claim under the LHWCA and under a state workers’ compensation act for the same injury, although he/she cannot receive double benefits. However, not all states allow an injured employee to proceed under both systems. Some states’ workers’ compensation laws specifically exclude from state coverage any employee who is entitled to LHWCA coverage.
Learn more about Maritime Worker Injuries.