Division of Longshore and Harbor Workers' Compensation (DLHWC)
Region IV Resource Information
Longshore and Harbor Workers’ Compensation Act
- Purpose The Longshore and Harbor Workers’ Compensation Act provides for the regulation of monetary compensation, medical care, and vocational rehabilitation of employees who sustain injuries, including occupational disease, as a result of employment that falls within the jurisdiction of the Act.
- Basic Requirements Once jurisdiction has been determined, the employee or his/her survivor must establish that the injury or the employee’s death was or could reasonably have been causally related to his or her employment, or that a pre-existing injury or illness was accelerated or aggravated as a result of employment. In addition, the employee must submit a claim within the time limits established under the Act, which is one year from the date of the injury or one year from the date in which compensation is terminated for traumatic injuries and two years for occupational injuries. In occupational disease and certain other claims, time begins on the date in which the employee was aware or " ...should have been aware of the relationship between the employment, the disease, and the death or disability...". This claim from the employee is normally submitted on Form LS-203 to the Longshore Office where it is then formally served on the employer/carrier. If an employee’s disability is valid in accordance with the Act, and the LS-203 has been timely filed, then no time or monetary limitations should be imposed on compensation, unless an order is issued. The claimant has an indefinite entitlement to medical care.
- Controversions The employer/carrier has the right to controvert a claim. Such controversions should always be used in good faith. Form LS-207 is used for this function.
- Benefits Available
The Longshore Act is a conventional piece of workers’ compensation legislation in that compensation for wage loss is computed as a percentage of the employee’s wages. Employees covered under the Longshore Act are eligible for four basic types of benefits which apply to any disability or death incurred as a result of an employment-related injury or disease. The four types of benefits are as follows:
- Medical benefits:
The Act provides compensation for any medical service needed to provide treatment to counteract or minimize the effects of any condition, disease, or injury judged to be causally related to employment covered under the Act. There is no limit on the duration medical expenses can be paid, as long as the need for medical treatment can be substantiated and related to the injury or disease sustained on the job.
- Hospital bills
- Doctor bills
- Prescription reimbursement
- Travel to obtain medical treatment
- Disability benefits:
An injured employee is entitled to compensation for wage loss at the rate of 66 2/3 percent of his Average Weekly Wage, following a 3 day waiting period. In cases where disability extends more than 14 calendar days, compensation will then be paid for the 3 day waiting period. Compensation can never be paid at more than the maximum compensation rate. With the exception of a schedule award, compensation should never be paid at less than the minimum.
Compensation may not exceed a dollar amount equal to twice the National Average Weekly Wage which is in effect on the date of injury. Compensation may also not be less than 50 percent of the effective National Average Weekly Wage. The maximum compensation rate as well as the minimum compensation rate are reset effective October 1 of each year. Should the employee’s own average weekly wage fall below the minimum compensation rate, then he or she should be paid at 100% of their average weekly wage.
- Temporary Total (TTD): An employee is considered temporarily and totally disabled if he is totally disabled to perform any type of work for what is anticipated to be a limited period of time.
- Permanent Total (PTD): An employee is considered permanently and totally disabled when, due to the severity of his injury, he is unable to return to any type of employment for an indefinite period.
- Permanent Partial Disability (PPD): An employee is considered permanently and partially disabled when he is partially disabled to perform any type of work for an indefinite period of time. The injury does not prevent the employee from performing some type of employment consistent with the work limitations imposed by the injury. Compensation for a PPD is payable either on the basis of a schedule award (discussed on page 7) or on the basis of a loss of wage earning capacity (LWEC).
- Temporary Partial Disability(TPD): An employee is considered temporarily and partially disabled when he is only partially disabled to perform any type of work for what is anticipated to be a limited period of time.
- Vocational Rehabilitation. The Act provides for the cost of vocational rehabilitation as long as the claimant remains on compensation. The Office has a Rehabilitation Specialist on staff who will determine the needs of the various injured employees and assign the case to a Rehabilitation Counselor who will work directly with the employee toward retraining and job placement.
- Death benefits including:
Death benefits are payable to dependent survivors as defined in Section 9 of the Act.
Death benefits also include reasonable funeral expenses up to a maximum of $3,000.00.
- Funeral expenses
- Survivor’s compensation
- Medical benefits: The Act provides compensation for any medical service needed to provide treatment to counteract or minimize the effects of any condition, disease, or injury judged to be causally related to employment covered under the Act. There is no limit on the duration medical expenses can be paid, as long as the need for medical treatment can be substantiated and related to the injury or disease sustained on the job.
The Act provides for limited term payments in cases where an employee suffers an anatomical loss of or loss of uses of parts of the body listed in Section 8(c). A schedule award can be paid even if the claimant returns to work. If an employee returns to active medical treatment which results in an additional period of temporary total disability, the schedule award should be suspended during the period of TTD and then reinstated once the employee returns to MMI.
- Maximum Medical Improvement (MMI) Before a schedule award can be considered, the injured employee must reach maximum medical improvement (MMI) as determined by his treating physician. Any disability that an employee has after MMI is permanent.
- Permanent Impairment After an injured employee has reached MMI, the physician will provide a rating of permanent partial impairment (PPI). PPI is a medically based determination of physical functioning. PPD is an economically based determination of loss of earning capacity. Under the Longshore Act, the determination of permanent impairment should be made by the physician through consultation with The American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition (commonly known as the AMA Guides). These guidelines provide the medical rationale for the various degrees of permanent impairment and are broken down into sections addressing the parts of the body. Once the appropriate medical reports are received, the Longshore Office will verify the figures and write to the employee with a copy to the employer/carrier and provide an explanation of the percentage of PPI and the number of weeks of the schedule award.
- Section 8 Schedule
Under Section 8(c)(1) through (20) of the Longshore Act, the schedule for permanent impairment is listed. (This section has also been placed at the back of the Task Book.) The schedule provides the number of weeks paid for 100 percent loss or loss of use of the listed body member. For example, a 100 percent loss or loss of use of the leg would result in a payment of 288 weeks of compensation. To determine the number of weeks due for a 50% permanent impairment to the leg, multiply 50% X 288 for a total of 144 weeks.
- Hearing Loss Hearing loss cases are listed in two different ways under Section 8(c). Fifty-two weeks are paid for 100 percent loss of hearing in one ear (monaural hearing loss) and 200 weeks are paid for 100 percent loss of hearing in both ears (binaural hearing loss). Audiograms administered by a licensed or certified audiologist or by a physician who is certified in otolaryngology are considered presumptive evidence of the amount of a hearing loss.
- Loss of Phalanges Section 8 further indicates that: "Compensation for more than one phalange (joint) of a digit shall be the same as the loss of the entire digit."
- Amputated arm or leg Compensation for an arm or a leg, if amputated at or above the elbow or knee, shall be the same as for the loss of the arm or leg; but if amputated between the elbow and the wrist or the knee and the ankle shall be the same as for the loss of the hand or foot.
- Disfigurement Under Section 8(c)(20) "Proper and equitable compensation not to exceed $7,500 shall be awarded for a serious disfigurement of the face, head, or neck or other normally exposed areas likely to handicap the employee in securing or maintaining employment." Based upon the interpretation of the law for face, neck and hand injuries the entitlement is established once the disfigurement is determined to be serious. In the case of other normally exposed areas, the disfigurement should be determined to be both serious and likely to handicap the employee in securing or maintaining employment. The maximum money amount paid in a disfigurement case is $7,500.00. The DOL Claims Examiner will schedule an Informal Conference in disfigurement cases, or the parties may submit photographs in order for the Claims Examiner to make a recommendation for a reasonable money figure to compensate the claimant for his disfigurement.
Loss of Wage Earning Capacity
Section 8(c)(21) of the Act provides for compensation if, upon the claimant’s return to employment, he suffers a reduction in income as a result of his work injury. " In all other cases in the class of disability, the compensation shall be 66 2/3 per centum of the difference of such weekly wages of the employee and the employee’s wage-earning capacity thereafter in the same employment or otherwise, payable during the continuation of partial disability."
For Example: If a claimant earns $300.00 per week pre-injury, and as a result of his employment injury, is now working in a lesser paying job at $200.00 weekly, his loss of wage earning capacity would be 66 2/3 % of $100.00 or $66.67. ($300.00 - $200.00 = $100.00 X 66 2/3 % or $66.67). The employer/carrier would be responsible for the $66.67 and the employee would be considered to be receiving PPD.
AVERAGE WEEKLY WAGE
Section 10(a) and 10(b) can be considered if the injured employee’s work is continuous and regular. The most commonly applied computation involves dividing all payroll earnings received during the year preceding the injury by 52.
A percentage of the employee’s AWW is the compensation rate, subject to minimum and maximum compensation rate established under Section 6.
The AWW on the date of injury remains constant, whether the claimant is receiving TTD, TPD, PPD, or PTD.
The AWW is determined at the time of injury.
In occupational disease cases, where disability is not immediate, the time of injury is the date the employee became aware of the disability or loss in WEC.
Calculations under 10(a) and 10(b) are similar in that they are both a theoretical approximation of what the employee could be expected to earn, thus tending to give a higher figure than what he actually earned.This only applies to employment that is continuous and permanent.
Section 10(a) looks to actual wages - an average daily wage must be established and 10(a) cannot be applied if documentation cannot be established. This section presupposes work would be available each day.
Section 10(a) is not applicable if the claimant is self-employed in the year prior to the injury.
Section 10(a) applies only when the employee worked substantially the whole of the year preceding the injury. Empire United Stevedores v. Gatlin 936 F.2d 819, 25 BRBS 26 (CRT)(5th Cir. 1991), Duncan v. Washington Metro Area Transit Auth. 24 BRBS 133, 136 (1990).
In Duncan the Board considered 34.5 weeks of work to be substantially the "whole of a year" where work was characterized as "full time," "steady," or "regular."
Both the nature of work and the amount of time worked must be balanced in making the determination. Time lost due to strikes, illness, personal business, or other reasons, is not deducted. Duncan.
On balance, time lost due to voluntary withdrawal from the labor market is deducted in calculating a proper AWW. Geisler v. Continental Grain Co. 20 BRBS 35, 38 (1987).
The Board considered 42 weeks to be substantially the whole of a year in Hole v. Miami Shipyards Corp. 12 BRBS 38 (1980). Also work for 2 different employers, where skills used are highly comparable may be considered. Therefore wages earned in employment other than in employment under the LHWCA may fall within Section 10(a). Roundtree 13 BRBS @ 866 n. 6.
Section 10(a) application can be distorted when the employee has not worked substantially the whole of a year and therefore should not be applied over 10(b) and 10© where the application would yield an unfair and unreasonable approximation of the claimant’s annual WEC. Gilliam v. Addison Crane Co., 21 BRBS 91, 93 (1987), Lozupone v. Lozupone & Sons, 12 BRBS 148, 156-157 (1979).
To calculate 10(a), divide claimant’s actual earnings by the number of days actually worked to determine the Average Daily Wage (ADW). Then multiply by 300 for a 6 day worker or 260 for a 5 day worker and divide the product by 52 in accordance with Section 10(d) to determine the AWW.
Annual Earnings $7,912.40 - 241 (days worked) = $32.83 (ADW) x 260 (5 day worker) = $8,535.80 (average annual earnings substantially more than he actually earned) - 52 = $164.15 (AWW) x 2/3 = $109.43 (CR). LeBatard v. Ingalls 10 BRBS 317, 324 (1979).
If Section 10(a) is inapplicable, 10(b) must be explored before resorting to 10©.
Section 10(b) applies to employees who worked in permanent or continuous employment, but did not work for substantially the whole of the year. Section 10(b) applies if the worker had recently been hired after having been unemployed or after having a lower paid position.
Section 10(b) looks to wages of similar employees in the same employment situation and directs that the AWW should be based on an employee of the same class that worked substantially the whole of the year preceding the injury. Where wages of a similar employee do not "reasonably and Fairly approximate the pre-injury capacity of the claimant, resort to Section 10©. Palacios v. Campbell Indus. 633 F.2d 840, 12 BRBS 806 (9th Cir. 1980), Lozupone (supra). Where there are no employees of the same class who have worked substantially the whole of a year, resort to Section 10©. Walker v. Washington Area Transit Auth. 793 F.2d 319, 321, 18 BRBS 100 (CRT). The Record must contain evidence of similar employee’s wages.
An application of 10(b) does not require the claimant to be available for work in the open labor market during every part of the year preceding the injury (claimant in prison) Daughtery v. Los Angeles Container Terminals, 8 RBS 363 (1978).
To calculate 10(b) divide earnings of employee by number of days employee actually worked during 52 week period to determine the ADW. Multiply by 260 for 5 day worker and 300 for 6 day worker and divide the product by 52 for the AWW.
The objective of wage calculation is to arrive at a fair and reasonable approximation of the claimant’s probable future earning capacity. Disability reaches into the future, not the past. Klubnikin 16 BRBS 182, 187
When a claimant is unable to work due to a non-work related injury in the year preceding an injury, that factor must be taken into consideration before dividing by 52. Klubnikin (Supra).
Wages in all jobs may be included in the calculation of AWW. Wayland 25 BRBS @ 59; Stutz v. Independent Stevedore Co., Inc. 3 BRBS 72; Lawson v. Atlantic & Gulf Grain Stevedore Co. 6 BRBS 770, 777 (1977); Wise 7 BRBS 1052. However, if the claimant had 2 jobs, and only could not perform the Longshore job, the only wages used in computation of the AWW would be for the Longshore job. Harper v. Office Movers 19 BRBS 130.
Section 10(c) is the catch all when 10(a) and 10(b) cannot be applied. This should be used when actual earnings during the year preceding the injury do not reasonably and fairly represent pre-injury WEC. Gilliam v. Addison Crane Co. 21 BRBS 91 - 93 (1987).
Section 10(c) is used in the following situations:
- Employment is seasonal, part-time, intermittent, or discontinuous (such as longshoremen). Empire 25 BRBS 26 (CRT) (5th Cir. 1991).
- Insufficient evidence to make a determination of the ADW under Section 10(a) or (b). Sproull 25 BRBS 100, 104 (1991).
- When Section 10(a) or 10(b) cannot reasonably or fairly be applied and don’t yield an AWW that reflects the claimant’s WEC at the time of injury. Empire supra. Section 10(a) or 10(b) would result in over compensation. Duncanson-Harrellson Co., v. Director OWCP 21 BRBS 93
- Claimant had various employments in the years prior to an injury. Hayes v. P & M Crane Co. 23 BRBS 389, 393 (1990); Roundtree 13 BRBS 862 (1981).
- Where wages or hours worked increased shortly before the injury. Hastings
We may consider actual annual earnings, average annual earnings of other employees, earning pattern over a period of years, typical wage rate multiplied by a time variable, all sources of income, including overtime, vacation or holiday pay, commissions, and probably future earnings.
Actual wages are used where the claimant shows an unwillingness to work at higher levels and/or voluntarily leaves the labor market. Geisler v. Continental Grain Co., 20 BRBS 35 (1987).
Other applicable cites
Overtime - Bury 13 BRBS 694
Vacation/Holiday - Sproull 25 BRBS 100 (1991)
Commissions - Wayland 25 BRBS 53, 59 (1991)
Probable future earnings - Walker 18 BRBS 100 (CRT)
Time lost due to strikes/layoffs - Hawthorne 21 BRBS 22 (CRT)
Gilliam 21 BRBS 91, 93 (1987)
Pay raise shortly before injury - Mijangos 19 BRBS 15 (1986)
To calculate AWW in 10(c) divide the annual earnings by 52.