Longshore and Harbor Workers’ Compensation Act and The Defense Base Act
Certain workers are protected by two Federal Statutes: the Longshore and Harbor Workers' Compensation Act (LHWCA) and the Defense Base Act (DBA).
The LHWCA protects those individuals who work on or near the waterfront in the maritime industry who are not seaman. Typically workers who are protected under this Act include workers who load and unload vessels as well as those workers who build or repair vessels. Another group of worker who is protected under LHWCA include are those who work at the stores on military bases such as the commissary at the Naval Air Station. One of the unique features of a Longshore claim is the concept of scheduled versus non-scheduled injuries. Scheduled injuries are considered less serious and are assigned a certain number of weeks depending on the specific body part that is affected.
One of the primary focuses of an injury involving a longshore client is the amount of benefits that may be available. Many injuries involve the neck or back and those are both “non-scheduled” injuries.
Under the Longshore system the first calculation is the amount of the average weekly wage (AWW) and the compensation rate (two-thirds of the AWW). The calculation of the AWW is based on the earnings during the 52 weeks prior to the injury. Once the injured worker is able to return to work, the next question is how much can the person earn. Under the Longshore system this is often referred to as the loss of wage-earning capacity (LWEC). The vast majority of the litigation in this area centers on the LWEC.
Once the worker demonstrates that he or she cannot return to his former employment, the burden then shifts to the employer/carrier to establish the injured worker’s earning capacity. This is typically done through labor market surveys. In order to qualify for listing in the labor market survey the job must be able to be performed within the medical limitations that are determined by the treating physician(s). The carrier is responsible for continued benefits as long as the injured worker cannot return to his or her former job and is unable to earn his or her pre-injury wage.
Some specific body parts that fall into the "scheduled injury" category and their corresponding number of weeks are listed below:
Leg - 288 weeks
Arm - 312 weeks
Hand - 244 weeks
Foot - 205 weeks
Fingers: Thumb - 75 weeks , First Finger - 46 weeks, 2nd, 3rd and 4th fingers - 30, 25, and 15 weeks respectively.
For instance if the worker sustains an injury to his or her knee only this type of injury would fall under the "Leg" injury category. If the worker receives a ten percent (10%) impairment rating for the knee injury, the worker would receive 28.8 weeks of compensation benefits regardless of whether or not the worker returned to work.
If the worker sustained an injury that is non-scheduled (neck, back, hips) the worker would receive benefits until he was at his pre-injury wage and there is no corresponding weekly cap. In the context of a non-scheduled injury and assuming that the worker returned to work, the worker would receive two-thirds of the difference between his pre-injury earnings and his return to work earnings.
The DBA protects workers who work as contractors (usually for the military) in remote locations. An example of this type of worker may include a person who operates a drone for the military in the Middle East. This worker is typically assisting the military in a combat role but are not part of the military.
The Statutes mirror each other and the application of both Acts falls under the Department of Labor. The medical benefits that are provided are identical and the method to calculate the appropriate compensation rate is identical. Additionally, the case law surrounding the issues that arise under either Act are used in both situations.
My office has been handling these types of claims for many years and if you have any questions about this type of claim, please do not hesitate to contact my office.