United States Longshore & Harbor Workers’ Act

The United States Longshore & Harbor Workers Act is a federal statue that dictates the
benefits that will be provided by the employer (or insurance carrier) in the event the
injured worker is deemed to be a Longshoreman. To be considered a Longshoreman
the injured worker must have situs and status. The law is invoked in workplaces that
provide services on, near or adjacent to navigable waters of the United States. Workers
that are injured on the Outer Continental Shelf have automatic situs and status.
Workers injured in federal waters usually enjoy this coverage. Workers in Shipyards
are deemed Longshoreman. Workers injured in other areas have to look to the location
and circumstances of the work to enjoy Longshoreman classification.

Situs: The site or location where the accident occurred must be on, over or adjacent to
or otherwise near navigable water. The situs may include any adjoining pier, wharf,
dry dock, terminal, building way, marine railway or other adjoining area commonly
used in the loading, unloading, repairing, or building of vessels. Situs has also been
found a few miles from navigable water when that was the only suitable land for the
Longshore employer’s purpose.

Status: Traditionally, Longshore status involves employees who load or unload
vessels, build or repair ships, stevedoring, ship breaking and related services. Office
and clerical workers (who are employed exclusively as such), individuals employed by
a club, camp recreational operation, restaurant, museum or retail outlet fall outside of
the Act and would probably be covered by State workers’ compensation, However,
courts have found other occupations to be covered when the work is “integral” to the
Longshore business and is performed regularly. Examples include security guards
performing safety functions, maintenance and repair personnel and carpenters.
The Outer Continental Shelf Lands Act (OCSLA). Under this Act, employees who
work in the Gulf of Mexico on the Outer Continental Shelf (beyond three miles of the
Louisiana coats) are specifically covered under the Longshore Act, provided they do
not qualify as seamen under the Jones Act.

The benefits for USLH coverage are significantly higher than land act (state act) rates
and therefore the premiums paid for such are much higher. For that reason injured
workers often pursue legal action to enjoy the determination of being a Longshoreman
and the corresponding federal higher benefit levels.
Note that unlike state workers’ comp, corporate officers cannot be excluded from
Longshore coverage.

Waiting Period

The waiting period is three (3) days commencing on the first day of disability. It is
paid to the employee after the fourteenth (14) day after the employer has knowledge of
the injury. (33 U.S.C. § 906(a) & 4(b).

Average Weekly Wage (AWW)

The Average Weekly Wage is determined by 3 ways:

1) if the employee worked in the same employment substantially the whole year (37 wks), his average annual earnings
shall consist of 300 times the average daily wage or salary for a 6-day worker or 260
times the average daily wage or salary for a 5-day worker. (33 U.S.C § 910(a)

2) If the employee worked in the same employment substantially less than the whole year (or 1
day hired for permanent position), the AWW is based on the wages of an employee of
the same classification, computed in the same manner as stated above. (33 U.S.C. §
910(b))

3) If the employee’s work is seasonal (part-time,) or if there is insufficient
wage information for a calculation by either of the 2 previously stated methods, the
AWW takes the actual earnings for one year prior to the injury and divides them by 52
weeks. Periods in which the employee was laid off, disabled, or on strike are deducted
from initial 52-week divisor. (33 U.S.C. § 910 (c) & (d).

Compensation Rate (TTD or TT rate)

The TTD rate is 66 2/3 of the employee’s AWW subject to the annual maximum rate.
(33 U.S.C § 908 (b). The compensation is paid based on a 7 day week. At the time of
the first payment, form LS 206 Payment of Compensation without Award is sent to the
DOL with a copy with the payment to the employee. (33 U.S.C. § 9l4(c) If any
changes are made in the AWW, an amended form LS 206 is sent. (33 U.S.C. § 914 (c).
Failure to pay compensation as it becomes due adds 10% to the amount of the
installment due. (33 U.S.C. § 914(e)) Compensation payments should be made every
two weeks unless the DOL directs otherwise. (33 U.S.C § 9l4(b)) Minimum rate is
50% of the national AWW; the exception is if an employee’s AWW is less than 50% of
the national AWW, then the employee receives the actual AWW. (33 U.S.C. § 906
(b)(2)) The maximum compensation is 200% of the national AWW. (33 U.S.C § 906
(b)(l)) Employer/carrier must file a form each time that TTD is ceased LS-208 Notice
of Final Payment or Suspension. (33 U.S.C. § 914( c) Within 16 days after final
payment of compensation, employer/carrier must notify deputy commissioner of date
of final payment, total amount of compensation paid, date of injury &/or death, and
name of employee via form LS-208 Notice of Final Payment or Suspension (33 U.S.C.
§ 9l4(g).

Temporary Partial Disability (TP or TPD)

This is a partial reduction, of 66 2/3% of the difference between the employee’s pre-
injury AWW and current AWW, not to exceed five years or 260 weeks of actual paid benefits. (33 U.S.C. § 908 (e).

Death Benefits

Widows/widowers receive 50 of the decedent’s AWW and each child receives an
additional 16 2/3 of the AWW (33 U.S.C. § 909(b). Various dependent family
members are defined in the Act and might be entitled to varying amounts. (33 U.S.C. §
909 (c)(d) The total death benefit cannot exceed 66 2/3 of the decedent’s AWW If the
widow/widower remarries, he/she receives a lump sum payment equal to 2 years of
benefits. Upon remarriage by or death of a widow/widower, the children of the
decedent would then share in equal parts 66 2/3 of the decedent’s AWW The minimum
compensation will not be less than the AWW of the deceased. (33 U.S.C § 909 (e))

The maximum compensation for death is 200 of the national AWW on figured 10/1
annually. (33 U.S.C § 906 (b)(l)) If death is caused by a combination of pre-existing
permanent disability and an injury causing death, the Special Fund assumes
responsibility for payments on the 105th week (33 U.S.C. § 908 (f) & 44 (I) (2)) If an
employee, receiving scheduled PPD per Section 8 ( c) (1)-(22) but not including
Section 8 (c) (21), dies from causes unrelated to his work injury, his dependents will
receive the balance of his award. (33 U.S.C. § 908 (d).

However, deaths before 9/28/84 unrelated to a work-related injury for which the
decedent was receiving PPD per Section 8 (a) or 8 ( c) (21) will be compensable and
survivors can file a claim for death benefits. If there are no survivors, the Special Fund
receives 1) death following injury, $5000 will be paid (33 U.S.C. § 944 (c)(l)) or 2)
death unrelated to injury while receiving a scheduled PPD, the balance of the award
will be paid. (33 U.S.C. § 908 (d)(3))

Funeral Benefits

The law calls for reasonable expenses not to exceed $3000 upon receipt of a certified
statement for services. The dependent may submit a form LS-265 Certification of
Funeral Director’s Burial Expenses. The funeral expenses for all deaths before 9/28/84
is $1000. (33 U.S.C. §909(a))

Medical Treatment

The employer must furnish the employee with the form LS-1 Request for Examination
&/or Treatment, authorizing the employee to seek treatment as required and reasonable
costs of travel. (33 U.S.C. § 907(a), #20 CFR 702.401, 402, 412 (b)) The employee has
free choice of initial physician in all cases, except he may not select from a list of
debarred doctors, as listed by the Secretary of Labor. The employer/carrier or
employee may thereafter request a change of physician; however the employee must
seek the prior consent of the employer, carrier or deputy commissioner. (33 U.S.C. §
907(b) (c), #20 CFR 702.406) If an employee obtains medical care for an injury
without requesting such from the employer/carrier and the employer has no knowledge
of the injury, it is considered self-procured and the sole responsibility of the employee. (33 U.S.C. § 907 (d))

Special exams – an employer/carrier may request an exam by a
physician of its choice at reasonable intervals. (33 U.S.C. § 907(d) If an employee
refuses to submit to a special exam requested by the employer/carrier or deputy
commissioner or surgery, the employer/carrier may petition the deputy commissioner
to request issuance of an order suspending further compensation and treatment until
the employee becomes available for the exam or treatment. (33 U.S.C. §907(d), (k)(2)
IME – may be appointed by deputy commissioner, cost is charged to employer/carrier.
If any party is dissatisfied with the IME results, another exam may be ordered by the
deputy commissioner. (33 U.S.C. §907 (e)(f)(g), #20CFR 702.408, 409, 410, 411, 412)

Medical Records

If the employer/carrier authorizes medical care and the physician fails to submit a
medical report to the deputy commissioner and the employer/ carrier within 10 days
following 1st treatment, this will act as a bar to the enforcement of any claim for
treatment made against the employer/carrier, unless the Directory excuses this in the
interest of justice. (33 U.S.C. §907(d)(2), $20 CFR 702.422)

Vocational Rehabilitation

Voluntary, if started, the employer/carrier is obligated to file form LS-222 Carriers
Report of Rehab accompanied by medical reports. (20 CFR §702.502) If rehab is
recommended by the treating physician, employee requests it, or employer/carrier
believes it will restore the employee to meaningful employment, the case may be
referred to the OWCP rehab specialist or a private vendor. If the OWCP specialist
refers the employee to a vendor, all costs of the exam will be paid by the Special Fund.
If a training program is approved by the OWCP specialist, the costs will be paid by the
Special Fund. (33 U.S.C. §939(c)(l)(2), #20 CFR 702.502.503,504,505) Ongoing
payments to the employee should continue while in rehab.

Permanent Partial Disability (PPD)

Scheduled injuries — compensated for loss of or loss of use of an affected body pan.
The employee receives 66 2/3 % of AWW for a number of weeks not to exceed the
entitlement listed below next to each member (33 U.S.C. §908(c) (1)-(20)) There are
other details in the Act about partial amputation of body parts, vision loss, total loss of
use but not amputation, amputation or loss of use of more than one member. Reduction
in scheduled permanent disability is allowed if the employee has been previously
compensated by the LHWCA for disability to the same member, however benefits paid
by any other jurisdiction will not be deducted.

Lost Member Weeks
Arm 312
Leg 288
Hand 244

Foot 205
Eye 160
Thumb 75
First (index) finger lost 46
Great toe 38
Second (middle) finger 30
Third (ring) finger 25
Toe, other than great toe 16
Fourth (little) finger 15
Loss of Hearing
1 ear 52
2 ears 200

Disfigurement up to $7500.00

Non-scheduled injuries – for any member or condition not listed in the schedule. It is
computed on the basis of loss of wage-earning capacity and is 66 2/3 of the difference
between the AWW and his wage-earning capacity after his RTW in the same or other
employment. (33 U.S.C. §908(c)(21)

Permanent Total Disability (PTD)

This is defined as the inability to earn any wages possibly for life until there is an
improvement in the medical impairment or until alternative employment can be found,
entitling the employee to 66 2/3 of the AWW. Claims for PTD may be based on a
scheduled injury (33 U.S.C. §908(c)(l)-(20), unscheduled (33 U.S.C. §908(c)(21) or
any combination of injuries that render the employee unable to work in any suitable
and gainful employment. There is an annual cost of living allowance every 10/1,
which is limited to the lesser of the 1) a percentage equal to the difference between the
national AWW and the national AWW for the preceding year or 2) five (5) (33U.S.C §
910 (f) The employee must show his inability to earn any wages in his “usual
employment.”

Once the employee has met this burden of proof, the burden shifts to the
employer/carrier to prove that the employee can return to his job or another job with
the same employer or other suitable alternate employment.

Second Injury Fund

Generally limits employer/ carriers liability to 104 weeks, for PPD & PTD & death.
(33 U.S.C § 908(f)) Employer submits LS-141 Notice of Informal Conference and
show

1) pre-existing PPD

2) the existing PPD must contribute to the subsequent PPD

3) the existing PPI must be manifest to employer. Employer/carrier remains liable for
reasonable, necessary related medical.

USL & H Workers’ Compensation Forms:

LS-1 Request for Exam &/or Treatment
LS-18 Pre-hearing Statement
LS-33 Approval of Compromise of Third Person Cause of Action
LS-141 Notice of Informal Conference
LS-200 Report of Earnings
LS-201 Notice of Employee’s Injury or Death
LS-202 Employers’ First Report of Injury or Occupational Illness
LS-203 Employee’s Claim for Compensation
LS-204 Attending Physician’s Supplementary Report
LS-206 Payment of Compensation Without Award
LS-207 Notice of Controversion of Right to Compensation
LS-208 Notice of Final Payment or Suspension of Compensation Benefits
LS-210 Employer’s Supplementary Report of Accident or Occupational Illness
LS-215a Notice to Employer and Insurance Carrier that Claim has been Filed
LS-222 Carrier’s or Self Insurer’s Report on Rehabilitation to Deputy Commissioner
LS-262 Widow’s, Widower’s, &/or Children’s Claim for Death Benefits
LS-263 Other Dependents’ Claim for Death Benefits
LS-265 Certification of Funeral Director’s Burial Expense
LS-266 Application for Continuation of Death Benefit for student
LS-280 Memorandum of Informal Conference
LS-462 Stipulation of Facts
LS-464 Compensation Order/Award of Compensation
LS-465 Compensation Order-Approval of Agreed Settlement-Section 8(1)
LS-521 Notice to Insurance Carrier or Self-Insured Employer
LS-226a Subpoena Duces Tecum
SSA-7050 Request for Social Earnings Information
RS-4506 Request for Copy of Tax Form



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