Longshore and harbor workers face a constant risk of injuries on the job. They may develop strains caused by repetitive motions, or they may suffer accidents while working with heavy equipment. Fortunately, benefits for injured workers may be available under a federal law known as the Longshore and Harbor Workers’ Compensation Act. The LHWCA generally covers employees at shipyards, shipping terminals, and docks. Benefits may be available for a permanent total disability, a temporary total disability, a permanent partial disability, or a temporary partial disability. In addition, the LHWCA provides benefits for reasonable and necessary medical costs and transportation costs required to receive medical treatment. If an injury or condition prevents a longshore or harbor worker from going back to their previous job, they will be entitled to receive vocational rehabilitation to help them find a new type of work.
Differences Between LHWCA Benefits and Workers’ Compensation
In some states, an injured worker can pursue both federal LHWCA benefits and state workers’ compensation benefits, but they cannot get a double recovery. The LHWCA usually provides greater assistance, such as a larger amount of temporary total disability benefits. Permanent partial disability benefits, which are available through the LHWCA, are not always offered through workers’ compensation.
To be eligible for LHWCA benefits, an injured worker must have performed maritime work for their employer, and the work must have occurred in a place on, near, or adjacent to navigable waters. These two prongs of eligibility are known as the status and situs tests.
The Status Test for LHWCA Benefits
The status test requires that an employee engage in maritime employment. This covers longshoremen and other people engaged in longshoring operations, as well as people who build, repair, or dismantle ships. The status test also may cover less obvious types of employees, such as people involved in operating or maintaining vehicles used to carry shipping containers away from ships.
Employees who generally do not meet the status test include people employed exclusively to perform office clerical, secretarial, security, or data processing work. Another exclusion applies to captains and crew members of ships, who can pursue Jones Act damages or other distinctive remedies instead. Examples of other excluded groups include aquaculture workers, ship builders who build certain types of small recreational vessels, repairmen for recreational vessels, and certain marina employees who are not involved in building, expanding, or replacing the marina. (Most exclusions other than the exclusion for captains and crew members do not apply if the employee is not covered by workers' compensation.)
The Situs Test for LHWCA Benefits
The situs (location) test means that an employee must typically work on the water or in its immediate vicinity. Anyone who works on a ship or vessel, but cannot be classified as a captain or crew member, would meet this test. Other areas that generally would qualify under the situs test include piers, dry docks, shipping terminals, and similar facilities where a ship might be built, repaired, loaded, or unloaded.
Due to the scale of shipping terminals and shipyards, it can be challenging to determine how far away an employee can be from the water before they might not pass the situs test. However, a useful rule of thumb is that working more than a mile from the water or the edge of the facility probably prevents an employee from getting LHWCA benefits. Each case depends on its specific facts, however, so an injured worker should consult a maritime lawyer if they are unsure whether they are eligible for LHWCA benefits.