Longshore & Harbor Workers’ Compensation Act (LHWCA) Services

The Longshore and Harbor Workers’ Compensation Act (LHWCA)[1] is a federal law that provides for the payment of compensation, medical care, and vocational rehabilitation services to employees injured or disabled by on-the-job injuries on the navigable waters of the United States, or in adjoining areas customarily used in the loading, unloading, repairing, or building of a vessel. The LHWCA is administered by the Office of Workers’ Compensation Programs (OWCP) under the Department of Labor.

A LHWCA case has procedural and substantive differences from a personal injury tried under state tort laws. The LHWCA differs from state workers’ compensation in that it typically covers “maritime” workers, while state workers’ compensation programs typically cover “local” workers. Furthermore, the LHWCA is generally more liberally administered and pays higher benefits than state acts. In some states, like Alaska, Arkansas, California, Connecticut, Georgia, Illinois, Indiana, Kentucky, Minnesota, Montana, New York, Pennsylvania, Rhode Island, South Carolina, Virginia, West Virginia, and Wisconsin, an injury can be covered by both the state workers’ compensation program and by the LHWCA. On the other hand, states such as Florida, Hawaii, Louisiana, Maine, Maryland, Mississippi, New Jersey, Ohio, Oklahoma, Oregon, Texas, and Washington, have ruled injured workers are not covered by the state laws if they are covered by a federal workers’ compensation law.

Qualifying for LHWCA Benefits[2]

An injured employee must provide written notice of the injury to the employer using Form LS-201within 30 days of the occurrence of the injury or within 30 days of when the employee became aware of an injury or disability related to the employment. Injured workers are entitled to choose a physician to treat the effects of their injury.

Besides the LHWCA, an injured worker may be eligible for benefits under the federal Jones Act or under a state workers’ compensation law. The Jones Act and LHWCA are mutually exclusive. Both cover work-related injuries to different categories of maritime employees. Whether an injured employee is covered by the LHWCA or the Jones Act depends on the employee’s connection to a vessel in navigation. To be a seaman covered by the Jones Act, the employee must be doing the ship’s work by contributing to the function of the vessel or the accomplishment of its mission.

The LHWCA does not cover these employees:

• Seaman
• Employees of the United States government or of any state or foreign government
• Employees whose injuries were caused solely by their intoxication
• Employees whose injuries were due to their own willful intention to harm themselves or others

The LHWCA does not cover these employees if they are covered by a state workers’ compensation law:

• Individuals employed exclusively to perform clerical, secretarial, security, or data-processing work
• Individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet
• Individuals employed by a marina who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance)
• Individuals who are employed by suppliers, transporters, or vendors, are temporarily doing business on the premises of a maritime employer, and are not engaged in work normally performed by employees of that employer covered under the LHWCA
• Aquaculture workers
• Individuals employed to build any recreational vessel under 65 feet in length, or to repair any recreational vessel, or to dismantle any part of a recreational vessel in connection with the repair of such vessel
• Small-vessel workers if exempt by certification of the Secretary of Labor under certain conditions

LHWCA Medical Benefits[3]

The employer is responsible for furnishing the medical, surgical, and other attendance or treatment, including medicine and durable medical equipment, for as long as the person is determined to be injured. The employee has the right to choose their attending physician to provide medical care under the LHWCA. If, due to the nature of the injury, the employee is unable to select their physician and the nature of the injury requires immediate medical treatment and care, the employer shall select a physician for that employee. Periodic reports must be submitted to the office of the Secretary of Labor about the medical care being rendered to the injured employee. The Secretary of Labor has the authority to determine the necessity, character, and sufficiency of any medical aid furnished or to be furnished, and may, on his own initiative or at the request of the employer, order a change of physicians or hospital, if it is necessary in the interest of the employer or where the charges exceed those prevailing within the community for the same or similar services. The employee may not change physicians after his initial choice unless the employer, carrier, or deputy commissioner has given prior consent for such change. A change in physician at the employee’s request will be granted on two conditions:

1. If the employee’s initial choice was not of a specialist whose services are necessary for and appropriate to the proper care and treatment of the compensable injury or disease
2. If the employee shows a good cause for the change

If the employee unreasonably refuses to submit to medical or surgical treatment, or to an examination by a physician selected by the employer, the Secretary of Labor or administrative law judge (ALJ) may, by order, suspend the payment of further compensation as long as the refusal continues.

In the event that medical questions are raised in any case, the Secretary of Labor has the power to cause an employee to be examined by a physician the Secretary of Labor has employed or selected to determine an estimate of the employee’s physical impairment. All fees and other charges for medical examinations, treatment, or services shall be limited to the prevailing charges for said treatment and services in the community.

LHWCA Compensation Benefits[4]

If an employee is disabled for more than 3 days, payments are to be issued 14 days from the date the employer first has knowledge of the loss of wages. Payment is not considered overdue until 14 days after that date. An employer has 28 days to issue the first payment. After the initial payment, compensation benefits are to be paid bi-weekly unless the employer or insurance carrier disputes liability for benefits and files a Notice of Controversion (Form LS-207). The Form LS-207 presents the employer’s or insurance carrier’s formal basis for denying the claim.

The LHWCA provides compensation for four types of disability: (1) temporary partial, (2) temporary total, (3) permanent partial, and (4) permanent total. The type of disability depends on the answers to two main questions: is the disability temporary or permanent, and is the disability partial or total?

• A disability is “temporary” if the injured employee cannot return to work now for medical reasons and is still recuperating from the work injury. A medical doctor must certify the employee cannot work.
• A disability is “permanent” if the injured employee’s medical condition has become stable and is not expected to improve. A stable condition is often described as having reached the point of “maximum medical improvement,” or MMI.
• A disability is “partial” if the injured employee has suffered an injury but is not totally prevented from working. Typically, a worker in this category cannot perform the same job they were doing at the time of the injury but can work in a light or modified job, either with the same or with a different employer.
• A disability is “total” if the injured employee cannot return to work for medical reasons and is still recuperating from the work injury. A medical doctor must certify the employee cannot work.

Compensation benefits are based on the employee’s average weekly wage (AWW) at the time of injury. Generally, to determine a worker’s AWW, the employee’s average annual earnings are divided by 52 to obtain a fair and reasonable AWW that represents the injured employee’s pre-injury earnings. Compensation under the LHWCA is limited by maximum and minimum amounts based on the national average weekly wage (NAWW) as determined by the US Department of Labor (USDOL). For federal fiscal year 2024, the NAWW is $963.29, the minimum weekly benefit is $481.65, and the maximum weekly benefit is $1,926.58.[5]

For Temporary Total Disability (TTD), compensation is two-thirds (2/3) of the employee’s AWW, subject to minimum and maximum amounts. For Temporary Partial Disability (TPD), compensation is paid at 2/3 of the employee’s loss of earning capacity, calculated based on the difference between AWW and what the employee can earn after the injury, assuming the employee cannot return to the job he/she had at the time of injury. For Permanent Total Disability (PTD), compensation is 2/3 of the current AWW. For Scheduled Permanent Partial Disability (Scheduled PPD), compensation for permanent impairment or loss of the use of an arm, hand, fingers, leg, foot, toes, ears (hearing), or eyes (vision) is paid for a specified number of weeks and is payable once the employee reaches MMI and is found able to return to work. The schedule and number of weeks of compensation for each body part may be found here: https://www.dol.gov/agencies/owcp/dlhwc/lhwca#908.

Benefits under the LHWCA compensate workers a percentage of average weekly wages. For permanent and temporary disabilities, the worker is compensated at 2/3 of their weekly wages before the injury. For temporary partial disabilities resulting in a decrease of the worker’s earning capacity, the worker is compensated at 2/3 of the difference between the injured employee’s AWW before the injury and his/her wage-earning capacity after the injury in the same or another employment.

Generally, disability compensation is payable for as long as the disability continues. The two exceptions are temporary partial disability benefits, which cannot exceed five years, and the “scheduled” permanent partial disability benefits, which are limited to a fixed number of weeks.

LHWCA Vocational Rehabilitation Benefits[6]

Vocational rehabilitation helps a permanently disabled employee to return to gainful employment as quickly as possible in a job with pay at or near the wages at the time of the injury. An injured worker, or their attorney, can request vocational rehabilitation, or the longshore claims examiner, employer, or insurance carrier may refer an injured worker for vocational rehabilitation if they cannot return to their previous job due to the work injury. Typically, vocational rehabilitation is not offered until injured workers reach MMI and the workers can no longer perform their pre-injury job duties due to permanent medical restrictions related to the work injury. Upon receiving the referral under the LHWCA, RPC’s vocational consultants will review the relevant vocational and medical information for a worker and ask permission to complete a vocational evaluation. The evaluation may include vocational testing to help determine the injured employee’s transferable skills, abilities, aptitudes, and interests. The vocational evaluation will also include a labor market survey to identify and define appropriate jobs in the injured worker’s competitive labor market based on the person’s age, education, work experience, transferable skills, and work abilities, as well as their work restrictions. Once RPC consultants identify jobs, they notify the injured worker of those jobs through written correspondence. If appropriate, the vocational expert will send the physical demands of the identified jobs to the injured worker’s treating doctor(s), through written correspondence, so they can review and approve, or not approve, the jobs based on the physical demands.

Vocational rehabilitation consultants may also provide the worker with additional services, including creating a résumé, formulating a return-to-work-plan, identifying training opportunities, and providing job development and placement services.

RPC’s vocational experts, life care planners, and economists are prepared to provide expert testimony to defend their opinions and have experience providing testimony in front of administrative law judges.

[1] Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901-950 (1927).

[2] Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 903.

[3] Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 907.

[4] Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 906 & 908.

[5] U.S. Department of Labor, Office of Workers’ Compensation Programs, National Average Weekly Wages (NAWW), Minimum and Maximum Compensation Rates and Annual October Increases (Section 10(f)), Division of Federal Employees’ Longshore and Harbor Workers’ Compensation.

[6] US Department of Labor, Office of Workers’ Compensation Programs (OWCP), Division of Federal Employees’ and Longshore and Harbor Workers’ Compensation, “Questions and Answers about the Longshore Vocational Rehabilitation,” https://www.dol.gov/agencies/owcp/dlhwc/FAQ/RehabFAQs#10, accessed March 19, 2024.

For more information, contact Athenna Dill, Personal Injury Case Manager, 512.371.8005, adill@rpcconsulting.com.