A longshoreman is a worker who loads and unloads cargo onto ships. They are also known as “stevedores.” Longshoremen are an integral part of the shipping and receiving industry. They work long hours in all weather conditions to move cargo containers. Generally, the more senior workers receive high pay, an extensive benefits package, and a flexible schedule. Longshoremen are nearly always employed as part of a labor union, and gaining membership in this union is the crucial step in order to become a longshoreman.
The Longshore and Harbor Workers’ Compensation Act (LHWCA or Longshore Act) is a comprehensive federal workers’ compensation program administered by the U.S. Department of Labor, Office of Workers’ Compensation Programs (OWCP). The act is codified in 33 U.S.C. §§901 et. seq., and provides for compensation and medical care to employees disabled from injuries that occur on the navigable waters of the United States, or in adjoining areas used in loading, unloading, repairing, or building certain vessels. The Act also provides benefits to specific survivors and dependents if the injury causes the employee's death. The term "injury" includes occupational disease arising out of employment.
According to 33 U.S.C. §902(3), “employees” for purposes of coverage, includes all workers employed in maritime occupations, including longshore workers or other persons in longshore operations, and any harbor workers, including ship repairers, shipbuilders, and shipbreakers. The Act excludes certain workers, however, even if they are injured on navigable waters or an area adjoining those waters. E.g. 33 U.S.C. §902(3)(G). These excluded workers include masters or members of a crew of a vessel and any officer or employee of the United States or of any state or foreign government. Specifically, the distinction between a “seaman” and a “maritime worker” is integral to the discussion of coverage under the act. A seaman is not entitled to coverage under LHWCA, but is entitled to bring other actions under the Jones Act and general maritime law.
On the other hand, a maritime worker can obtain coverage under LHWCA, but that is his or her exclusive remedy. Therefore, a maritime worker (longshoreman or harbor worker) cannot maintain an action under the Jones Act or general maritime law. The available remedies are mutually exclusive. In contrast to a “maritime worker,” status as a “seaman” is premised on employment in connection with the performance of work on vessels in navigation. Certain other individuals may also be excluded from coverage under LHWCA, only if they are covered by a state workers’ compensation law.
Generally, a worker covered under LHWCA is entitled to wage (also called indemnity) benefits and medical benefits. Additionally, a longshoreman or harbor worker’s family may be entitled to death benefits if the work injury results in death. The benefit of LHWCA is that the employee and/or his family can start receiving benefits much quicker (relatively speaking), and negligence does not need to be proven.
There are arguably more cons for workers covered under LHWCA. For one, the benefits paid are minimal compared to the actual damages that may be suffered. Additionally, the methods for calculating your wage benefits can be quite confusing, and result in lower benefits being paid if not properly calculated. Additionally, the carrier will attempt to control your treatment by sending you to specific medical providers who are quick to find you at Maximum Medical Improvement and reduce or cut off your benefits. Further, because a claim under the LHWCA is administered by OWCP, there are also several administrative regulations which govern the processing of a claim, and this can sometimes be a bureaucratic nightmare. See 20 C.F.R. §§701-704 & 801-802, and 29 C.F.R. Part 18. For these reasons, many longshoremen and harbor workers want to avoid coverage under LHWCA. However, if you meet the definition of the “employee” under LHWCA, there is very little likelihood you will succeed getting out from under the umbrella of LHWCA coverage.
LHWCA cases are full of nuances and traps which require specialized knowledge to properly navigate claims and if you are under LHWCA coverage, you want to make sure you are receiving the maximum compensation allowed under the law. If you are a seaman and have been injured on in the scope of your work, you need a knowledgeable and competent attorney to guide you through your claim and fight for you. At Michael C. Black, P.A. , our team of Miami maritime lawyers has more than 50 years of combined experience in maritime law and are ready to help you seek damages for your situation. We can be contacted by phone at (305) 964-8792.
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