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CHAPTER 0-300 - LHWCA COVERAGE (JURISDICTION) AND BENEFITS

1. Purpose and Scope. This Chapter presents a brief, overall summary of the statutory authority for the compensation programs administered by the DLHWC; describes the various types of coverage provided; and, outlines the benefits and services available to eligible workers or their survivors.

2. Basic Eligibility Requirements.

a. Medical Benefits. There are four basic requirements for a worker to be entitled to medical benefits under the Act. The condition requiring medical treatment, services, or appliances must be (1) causally related, at least in part, to (2) an accidental injury or exposure to injurious conditions (3) in the course of covered employment (4) at a covered location.

b. Periodic benefits for disability or death as well as medical expenses are payable if, in addition, the disability or death results at least in part from the condition.

c. Funeral Benefits. To be entitled to an award of contested periodic (or funeral) benefits, there must also have been a timely claim under the Act filed in the DD’s office. Elements (3) and (4) as defined in the Act itself are replaced by other “coverage” determinants under its extensions (e.g., the DBA and OCSLA).

For more detailed information concerning potentially complex issues (e.g., coverage), the CE should also consult other reference materials such as the Longshore Desk Book and applicable Program Memoranda or contact the National Office. These requirements are also discussed further in paragraphs 4-8, below.

3. Presumptions. Section 20 of the Act provides that in any proceeding for the enforcement of a claim for compensation under the Act it is presumed, in the absence of substantial evidence to the contrary --

a. That the claim comes within the provisions of the Act. (Relevant principally to sections 2(2), 2(3), and 3(a) of the Act.)

b. That sufficient notice of such claim has been given. (Relevant to sections 12, 13 and 30 of the Act.)

c. That the injury was not occasioned solely by the intoxication of the injured employee. (Relevant to section 3(c) of the Act.)

d. That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another. (Relevant to section 3(c) of the Act.)

Section 20 of the Act provides the claimant with a presumption in the areas covered which shifts the burden to the employer to rebut the presumption with substantial evidence. In order for the section 20(a) presumption to apply to causation, a claimant must establish a prima facie case by proving that he or she suffered some harm or pain, and that working conditions existed or an accident occurred which could have caused the harm or pain. Once the claimant establishes the two elements of the prima facie case, the section 20(a) presumption applies to link the harm or pain with the claimant's employment. The section 20(a) presumption also applies to the issue of whether an injury arose in the course of employment.

4. Timely Claim. Under the provisions of section 13(a) of the Act and 20 C.F.R. section 702.221, a claim for compensation for disability or death must be in writing and filed with the DD in the compensation district in which the injury or death occurred. The claim need not be filed on a particular form. Any written document will do as long as it discloses an intention to assert a right to compensation. It is not necessary that the written document explicitly state a claim as long as the fact that a claim is being made is inferable from the writing. It is also important to remember that the presumption contained in section 20(b) applies to the filing of a claim. The provisions concerning the timely filing of a claim are as follows:

a. The right to compensation for disability or death shall be barred unless the claim is filed within one year from the time the claimant becomes aware, or in the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment. Such awareness must include recognition of the full nature and character of the injury for the one year period to begin. If, however, the EC has made voluntary payments of compensation pursuant to section 14, a claim may be filed anytime before one year after the last payment.

b. In the case of a hearing loss claim, the time for filing a claim for compensation does not begin to run until the employee has received an audiogram with an accompanying report which indicates that he or she has suffered a loss of hearing related to employment.

c. A claim for death or disability due to an occupational illness which does not immediately result in death or disability will be timely if filed within two years after the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability, or within one year from the date of the last payment of compensation, whichever is later. Thus, the filing period does not begin to run until the employee is disabled, or, in the case of a retired employee, until a permanent impairment exists.

d. In death cases, a separate claim must be filed for section 9 death benefits by the survivor even though a claim for disability benefits was filed by the decedent, and the death claim must be filed within the applicable time requirement.

e. Where a person entitled to compensation under the LHWCA is mentally incompetent or a minor, the time limitation does not begin to run until a guardian or other authorized representative has been appointed. The time limitation begins to run from the date of appointment of the guardian or representative. In the case of a minor who has no guardian appointed before he or she comes of age, time begins to run from the date he/she comes of age.

f. Where a person brings a suit at law or in admiralty to recover damages relative to an injury or death, and recovery is denied on the ground that such person is an employee, that the defendant was an employer within the meaning of the LHWCA, and that the employer has secured compensation to such employee under the LHWCA, the time limitation begins to run from the date of termination of such suit.

g. Where an EC has been given notice of or otherwise has knowledge of an injury or death and fails to file a report with the DD, the time limitations do not begin to run against a claim for benefits until the required report is filed with the DD. (See section 30(f) of the Act.)

h. The failure to file a claim within the appropriate time limitation shall not be a bar to the right to make claim unless objection to such failure is made at the first hearing of the claim in which all parties in interest are given reasonable notice and opportunity to be heard.

5. Coverage. The requirements for coverage under the LHWCA are defined in section 3(a). Besides the requirement for an injury which arises out of and in the course of employment, section 3(a) requires that the injured worker must be an "employee" (as defined by section 2(3)) and that the injury must have occurred "upon the navigable waters of the United States" (as defined by section 3(a)). These two requirements have come to be known as the "status" and "situs" tests, respectively. Prior to the enactment of the 1972 Amendments, the Act contained only a situs test; recovery was limited to those injured on the navigable waters, including any dry dock (construed by case law to include marine railways, building ways, graving docks and similar structures actually located on land). The term "employee" was not affirmatively defined, did not require maritime employment of the employee, and therefore, did not constitute a status test. Recognizing that modern cargo-handling techniques had moved much of the longshoring duties off the vessel and onto land, the 1972 Amendments expanded the covered situs and added the status test, limiting coverage to "maritime employees."

a. Status. Section 2(3) contains a definition of the term "employee" which describes those workers who are covered by the Act and therefore have employment status. This definition includes: harbor workers, ship repairmen, shipbuilders, shipbreakers, longshoremen and others engaged in ship loading or unloading operations and traditional maritime employment (see LHWCA MEMO No. 58). Section 2(3) also contains a list of specified exclusions which are explained further in subparagraph 5.c, below.

b. Situs. Section 3 specifies which locations are covered by the Act. These covered locations are:

(1) The navigable waters of the United States.

(2) Adjoining areas which include any adjoining pier, wharf, drydock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, building or breaking a vessel. Section 3 also contains a list of exclusions which are explained further in subparagraph 5c, below.

c. Exclusions.

(1) As defined by the Act, section 2(3), the term employee does not include a master or member of a crew of any vessel, or a person engaged by the master to load or unload or repair any small vessel under 18 tons net. The 1984 Amendments expanded these exclusions to include:

(a) Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;

(b) Individuals employed by a club, camp, recreational operation, restaurant, museum or retail outlet;

(c) Individuals employed by a marina and who are not engaged in construction, replacement or expansion of such marina (except for routine maintenance);

(d) Individuals who (1) are employed by suppliers, transporters, or vendors, (2) are temporarily doing business on the premises of a covered employer, and (3) are not engaged in work normally performed by covered employees;

(e) Aquaculture workers; and

(f) Individuals employed to build, repair, or dismantle any recreational vessel under sixty-five feet in length.

These exclusions only apply if the workers otherwise excluded are covered by a state workers' compensation law.

(2) Section 3 of the Act specifically excludes the following groups of employees:

(a) An officer or employee of the United States, or any agency thereof, or of any State or foreign government, or subdivision thereof.

(b) An employee whose injury was occasioned solely by intoxication or by the willful intent to injury himself or another.

(c) The 1984 Amendments expanded the section 3 exclusions to include any employee of a facility certified by the Secretary to be engaged in work on exclusively small vessels. (See PM 4-400.13.)

d. Extensions. The Act (with its extensions) provides compensation to:

(1) Workers employed by private employers carrying on employment within the District of Columbia. (District of Columbia Workmen's Compensation Act). This extension applies to injuries sustained prior to July 26, 1982. The administration of these claims was transferred to the Government of the District of Columbia in July 1988.

(2) Workers engaged in employment on overseas defense bases and employment under contracts with the United States, or an agency thereof, for public work to be performed outside the continental United States. (The Defense Base Act).

(3) Workers involved in the exploration, development, removal, and transportation of natural resources from the seabed and subsoil of the Outer Continental Shelf. (The Outer Continental Shelf Lands Act).

(4) Civilian employees of nonappropriated fund instrumentalities of the Armed Forces. (The Nonappropriated Fund Instrumentalities Act).

(5) Civilian employees of contractors engaged in work covered by the DBA and exposed to war risks. (The War Hazards Compensation Act).

Please refer to PM 0-200.6 for more information on the extensions of the Act.

6. Employment-Relatedness of the “Injury”.

a. Arising Out Of and In The Course Of. A medical condition qualifies for benefits under the Act if it results at least in part -- by way of direct causation, aggravation, precipitation of symptoms, or acceleration -- from an “injury.” Under the LHWCA, injury is defined as an accidental injury or death arising out of and in the course of employment, and an occupational disease or infection that arises naturally out of such employment or naturally or unavoidably results from such accidental injury.

The phrase "arising in the course of employment" relates to elements of time, place and work activity. To occur in the course of employment, an injury must occur at a time when the employee may reasonably be said to be engaged in the employer's business, at a place where the employee may reasonably be expected to be in connection with the employment, and while the employee was reasonably fulfilling the duties of his or her employment or engaged in doing something incidental thereto. This alone is not sufficient to establish entitlement to compensation. The concurrent requirement of an injury "arising out of the employment" must be shown. The phrase "arising out of employment" relates to the element of causal connection, the requirement being that a factor of employment caused the injury.

b. Injury. The term “injury” has been further defined as a physical or psychological harm or pain (i.e, something wrong with the human frame). A prima facie claim for compensation is established where the claimant shows that he or she sustained such harm or pain and that an accident occurred in the course of employment, or conditions existed at work, which could have caused that harm or pain. The Act stipulates, however, that compensation shall not be payable for injuries caused solely by the intoxication of the employee or for injuries which are deliberately self-inflicted (section 3(b)).

7. Causal Relationship of the Disability or Death. A disability or death is compensable if it results, even in part, from an employment-related injury (medical condition). An exception arises when the injured worker’s intentional post-injury conduct, rather than a natural consequence of the employment-related injury, is an “intervening cause” leading directly to the worsened disability. An example of an intervening cause would be a game of volleyball during which an injured worker breaks an arm which had only been strained by a employment-related injury.

8. Benefits. Employees and their authorized dependents or survivors are entitled to benefits under the LHWCA in case of injury, disability or death as set forth in sections 6, 7, 8, and 9 of the Act. Definitions contained in section 2 of the Act, this PM Chapter, referenced opinions and decisions of the BRB and Courts, and Part 3 of the Procedure Manual contain guidelines and procedures for determining eligibility for benefits and services.

a. Medical Services.

(1) Under the provisions of the LHWCA, the employer is responsible for providing medical, surgical, and other attendance or treatment, nursing and hospital services, medicine, crutches, and apparatus for the duration of the injury or as long as the process of recovery may require. Sections 702.401-.422 of the regulations and Part 5 of the Procedure Manual further describe the medical services available to an injured employee and the procedures governing them.

(2) The 1972 Amendments to the LHWCA provided that the injured employee shall have the right to choose an attending physician authorized by the Secretary to provide medical care under the Act.

(3) Fees paid to such physicians or to others furnishing approved medical services are limited by the Act to the charges prevailing in the community for such treatment, and are subject to regulation by the Secretary under section 7(g) of the Act and 20 C.F.R. section 702.413.

(4) While all medical services and supplies must be furnished by the EC from the moment the injury or illness occurs, the injured worker must be at least partly unable to earn his or her full usual pay for at least three days before being entitled to compensation. If the injured worker returns to full work at any time up to seventy-two hours from the time the injury was incurred, the coverage provided is for medical services and supplies only, unless a permanent, partial disability covered by the section 8(c) schedule results.

b. Disability Benefits. The LHWCA provides compensation for several types of disability which are described below:

(1) Temporary Total Disability (TTD). When the employee loses pay in excess of three days, compensation for TTD is paid until the employee is able to return to work or is found eligible for permanent total or permanent partial benefits. This disability is compensated at 66 2/3 percent of the employee's average weekly wage (AWW) prior to the injury, subject to a weekly maximum. No compensation is paid for the first three days unless the disability lasts more than fourteen days. In such cases compensation is paid from the first day of disability (sections 6(a) and 8(b)).

(2) Temporary Partial Disability (TPD). If an employee returns to less than full-time, regular employment prior to reaching maximum medical improvement, that employee is entitled to weekly compensation payments at the rate of 66 2/3 percent of the wage loss during the period of reduced wages, not to exceed five years (section 8(e)).

(3) Permanent Total Disability (PTD). Employees who sustain injuries (including occupational diseases) which totally disable them for an indefinite period of time are said to be permanently totally disabled. Certain anatomical losses, described in section 8(a) of the Act, also qualify an employee to receive compensation for PTD, in the absence of conclusive proof to the contrary. Compensation for such PTD is paid at 66 2/3 percent of the employee's AWW (established at the time of the injury), subject to the statutory weekly maximums. These payments are adjusted annually, effective October 1 (section 10(f)), to reflect the increase in the National Average Weekly Wage (NAWW). (See PM 3-202.)

(4) Permanent Partial Disability (PPD).

(a) Schedule Disabilities. The Act contains a schedule (section 8(c)(1)-(20)) which provides benefits for various types of permanent partial impairments based on a number of weeks of compensation payable at 66 2/3 percent of the injured worker's AWW. These benefits are called a schedule award. The schedule covers total or partial loss or loss of use of the extremities and the functions of hearing and vision. Partial loss or loss of use of a part of the body listed on the schedule is compensated for a period of weeks proportional to the partial loss. For example, a worker with 10 percent loss of use of an arm receives 31.2 weeks of compensation (10 percent of 312 weeks). Payment of a schedule award is not contingent on actual wage loss.

(b) Partial Loss of Earning Capacity. Where the injury is not covered by a schedule award but permanently reduces the worker’s earning capacity on the open labor market, compensation is paid at the rate of 66 2/3 percent of the loss of wage earning capacity (section 8(c)(21)). The most common type of injury in this category is a back injury.

(c) Retiree Impairments from Occupational Diseases (section 8(c)(23)). The 1984 Amendments created a third category of permanent partial disability benefits. These benefits are for employees who have an occupational disease which did not immediately result in disability and which became manifest after the employee had voluntarily retired. Benefits are based upon the claimant's AWW (or the NAWW) and are based upon the percent of whole person impairment found in the American Medical Association’s Guides to the Evaluation of Permanent Impairment. (See 20 C.F.R. sections 702.601-603 and PM 3-400.)

c. Death Benefits.

(1) Death benefits are payable to certain dependents of those covered under the LHWCA if the injury causes death. Compensation includes reasonable funeral expenses up to $3,000. In addition, a widow or widower receives 50 percent of the decedent's average weekly wages subject to a maximum of 200% of the National Average Weekly Wage. Upon remarriage, the widow/widower receives a lump sum payment of two years' compensation, and children's benefits are increased as of the date of remarriage. (See PM 3-302.)

If there is one or more children, an additional 16 2/3 percent is provided up to the maximum 66 2/3 percent of the employee's average weekly wage. If there is no widow or widower, the rate is 50 percent of the decedent's wages, for one child, increased by 16 2/3 percent for any additional children. The maximum benefit is limited to 66 2/3 percent of the decedent's average weekly wage. All children share the benefits equally (section 9(a) and (b)). The right to death benefit compensation is not affected by the subsequent adoption of the child or children of a deceased employee who had a statutory compensable death. There is no provision in Section 2(14) of the Act which could terminate a child's right to continued payments in this instance.

(2) Other eligible survivors include dependent brothers, sisters, grandchildren, parents, and grandparents. The first three types of beneficiaries are entitled to receive 20 percent, and the latter two, 25 percent. However, those beneficiaries are subordinate to the widow/widower and children, and can only receive an amount not more than the maximum percentage allowable. Thus, a widow and child would preclude any other beneficiaries. A widow/widower only would decrease a dependent brother's share from 20 percent to 16 2/3 percent (section 9(d)).

(3) Compensation to a surviving spouse terminates upon death or remarriage. Awards to children, brothers, sisters, and grandchildren terminate when they reach eighteen years of age or cease to be a full-time students under age 23, whichever is later (PM 3-202.5). Such compensation may be extended, however, if the child is incapable of self-support by reason of physical or mental handicap.

d. Attendant Allowance. Certain money may be paid for an attendant when the employee is seriously injured and unable to care for personal body needs or functions. Such allowance may be paid directly to the person providing the service.

e. Rehabilitation Services. The rehabilitation program provides permanently disabled employees with early referral to and the benefit of needed medical or vocational rehabilitation programs for their early return to work. (See Part 5 Chapter 12, and OWCP Rehabilitation Procedure Manual.)