If you're a maritime worker, you're employed in one of the most dangerous industries in the world. On-the-job injuries are an all-too-common occurrence. If a work-related injury happens to you, how can you get compensation, and what are your rights? In this article, we'll discuss the ins and outs of the Longshore and Harbor Workers' Compensation Act.
What is the LHWCA?
The Longshore and Harbor Workers’ Compensation Act (also called the "Longshore Act" or "LHWCA") is a federal program that provides compensation to maritime employees for on-the-job injuries. It's similar to a typical workers’ compensation statute in that it's meant to provide a full and exclusive remedy for maritime workers who have been hurt in a work-related incident.
What Benefits Are Available Under the LHWCA?
As long as they meet the qualifying criteria (more on these later), an injured worker can recover for a number of different losses stemming from an on-the-job injury, including:
- lost wages/income
- medical expenses, and
- vocational rehabilitation (including retraining for different work).
Compensation is based on the average weekly wage the employee was earning at the time of the injury, and on whether the disability is total, partial, temporary, or permanent. The Longshore Act also provides for wrongful death and survival benefits to dependents of workers whose employment circumstances caused or contributed to the employee’s death.
Who Is Covered Under the LHWCA?
In a certain sense, you have to be the right person in the right place to be covered under the Longshore Act.
Workers engaged in what are typically considered maritime occupations are covered under the LHWCA. An injured employee may request benefits if the injury occurs in the course and scope of employment. Injured employees must show:
- they work for a covered employer, and
- they meet both the "status" and "situs" requirements.
In simplified language, you need to be an employee (status) working on navigable waters (situs). The Longshore Act gives injured workers the benefit of the doubt and errs in favor of coverage when determining whether they have the requisite status. However, seamen are not covered under the LHWCA; they're covered under the Jones Act. Let's take a closer look at these two requirements.
To satisfy the maritime status test, the employee seeking benefits must be engaged in maritime employment.
Longshoremen and harborworkers -- such as ship repairmen, shipbuilders, and shipbreakers -- will almost always qualify for coverage. Other employees whose work contributes to the movement of cargo or passengers on navigable waters will also usually be covered when their activities are an integral part of loading or unloading a vessel. The worker must spend a substantial amount of time working on navigable waters. The employee does not need to be engaged in maritime employment at the time of the injury if he or she spends at least some of his/her time in “indisputably longshoring” operations.
With some exceptions, disability or death benefits are payable for an injury “occurring upon the navigable waters of the United States,” including some adjoining shore areas used to load, unload, repair, dismantle, or build a vessel.
Piers, wharfs, dry docks, terminals, building ways, and marine railways will almost always pass the situs test. Other adjoining areas will only satisfy the situs test if they have a connection to an activity on navigable waters. Some adjoining areas are covered only when customarily used by a maritime employer, but it is not required that the maritime employer be the injured employee’s employer.
When an employee is only fortuitously on navigable waters at the time of injury, that's not usually enough to grant employee status under the LHWCA.
Other workers who might otherwise be covered by the Longshore Act because they meet the situs test are excluded if they are covered by state workers' compensation statutes. For example, clerical workers and staff on a floating casino would not be covered under the LHWCA, but instead would make a workers' compensation claim.
A Covered Employer
To qualify as an employee under the Longshore Act, the worker must be engaged in maritime employment. If an employer knows or should have anticipated that its workers would be covered under the Longshore Act, it has reasonable notice that it needs to acquire Longshore Act insurance. An employer must either obtain insurance coverage under the Act or otherwise qualify as a self-insurer. If the employer does not obtain coverage or qualify as a self-insurer, the employee may choose to either seek benefits under the Longshore Act or file a civil lawsuit.
Starting an LHWCA Claim
An employee must give written notice of an injury to a covered employer within 30 days. Additionally, within one year, the worker must notify the Office of Workers’ Compensation Programs in order to receive compensation payments.