Longshore and Harbor Workers Compensation Act Claims

When maritime industry workers are hurt on the job, the LHWCA often provides injury-related benefits.

By , J.D., University of San Francisco School of Law

The Longshore and Harbor Workers' Compensation Act is a federal law that provides benefits for employees who've been injured while working in the maritime industry. Here's what to know at the outset:

  • The LHWCA covers many (but not all) maritime workers, depending on the nature and location of their job.
  • A variety of injury-related benefits are available under the LHWCA, including disability payments, medical care, and reimbursement of qualifying expenses.
  • Injured workers may need to file a claim and request a hearing in order to get a fair result.

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, some state workers' compensation acts pay only 60% of an employee's average weekly wage for total temporary disability (TTD) benefits, while TTD benefits under the LHWCA are two-thirds of the employee's average weekly wage.

Another significant advantage of the LHWCA is that injured workers are entitled to permanent partial disability benefits, and some states' workers' compensation systems don't provide that type of disability benefit.

Because LHWCA benefits are often better than state workers' compensation benefits, it's typically wise to try to get LHWCA benefits if your employment had anything to do with the water. But this brings up an important threshold question.

What Workers are Entitled to LHWCA Benefits?

LHWCA benefits are available only to maritime employees who meet the so-called "status" and "situs" tests.

(Note: Due to a complex interplay of federal laws, certain non-maritime employees are covered under the LHWCA—including civilian workers on military bases, under a federal law called the Defense Base Act.)

The LHWCA "Status" Test

The status test has to do with the nature of the work the employee performs for the employer. 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. 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:

  • longshoremen and other workers who assist in loading and unloading vessels
  • ship repairers
  • shipbuilders, and
  • ship-breakers.

Even the drivers of trucks that take shipping containers away from 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 meets the status test. In order to qualify, an employee has to actively engage in maritime employment. So, workers who perform exclusively office or administrative work for a maritime employer do not meet the status test.

The LHWCA also specifically excludes other types of employees from coverage:

  • shipbuilders who are employed to build recreational vessels smaller than 65 feet long
  • marina employees who are not engaged in the construction, replacement, or expansion of the marina (except for routine maintenance)
  • mechanics or repairers for recreational vessels
  • aquaculture (i.e., fish farming) workers, and
  • captains and crew members of vessels (on any type of boat or ship; these individuals are entitled to protection under a separate federal law called the Jones Act.)

The LHWCA "Situs" Test

The second test for coverage under the LHWCA is the "situs" (meaning location) test, which has to do with the location of the employee's work. 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, you're likely no longer working "on, near, or adjacent to navigable water" for purposes of the LHWCA

How to File an LHWCA Claim

If your employer's workers' compensation insurer starts paying you benefits after your injury according to LHWCA rules, 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 by filling out a Longshore claim form (from the federal Office of Workers' Compensation Programs).

Are You Eligible to File an LHWCA Claim?

If you're entitled to LHWCA benefits under the job/duties requirements we discussed above, the biggest issue in terms of eligibility is timing.

In general, the Longshore Act requires an employee to report a work-related injury within 30 days of its occurrence. The injury must be reported:

There are important exceptions to this 30-day reporting rule. You'll likely be entitled to more time if the injury doesn't immediately result in disability, and in cases involving "occupational illness" (like a medical condition resulting from exposure to harmful chemicals in the workplace).

Your next consideration is the statute of limitations, which sets a one-year deadline for filing a Longshore claim. There are some exceptions, but they're complicated. With occupational illness, you typically have two years to file an LHWCA claim, beginning from the day on which you learn (or should have figured out, in the eyes of the law) that your illness is linked to your job.

If you run into issues with LHWCA claim eligibility, it might make sense to talk with an experienced attorney.

Starting the LHWCA Claim

You must send the claim form to OWCP 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.

Next, you (or your employer, or the insurer) can request an informal conference, where a Claims Examiner will attempt to resolve any conflicts, and will issue a recommendation for action on your claim.

If any of the parties aren't happy with the recommendation, they can ask for a hearing before the Office of Administrative Law Judges.

LHWCA Pre-Hearing Discovery

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 (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.

LHWCA Hearings

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 might 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.

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 their reasonable and necessary medical treatment paid for, and can also receive mileage and other reasonable transportation expenses (parking, tolls, etc.) for travel to and from the medical treatment.

If it appears likely that the injured worker will not be able to return to their 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 you're in. An injured employee may be able to file a claim under the LHWCA and under their state's workers' compensation system, based on the same injury. The key here is that you can't receive double benefits.

Next Steps for LHWCA Claimants

The maritime industry is filled with potentially dangerous jobs, and the LHWCA is meant to protect injured workers.

If you're injured, your best first step is reporting the incident as soon as possible, so that your employer and their insurer can get you the right compensation benefits.

If you need to take additional action under the LHWCA, like requesting an informal conference or a hearing, you can try handling things on your own. But if you can't get a fair result or you're running into roadblocks, it might make sense to discuss your situation (and your options) with an experienced legal professional.

Learn more about getting help from an injury lawyer. You can also use the features on this page to connect with an attorney in your area.

Attorney's Fees and the LHWCA

It's important to note that you'll almost never have to pay your attorney directly. If your attorney gets you LHWCA benefits—either by winning at the hearing or by settling the case—the attorney will usually submit a fee petition to the Longshore claims examiner or to the Administrative Law Judge, or both, depending on how far the claim has progressed. If the petition is approved (it typically is) the insurer will be ordered to pay the attorney's fee directly to the attorney.

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