Rights of Injured Dockworkers & Shipbuilders: The Longshore and Harbor Workers' Compensation Act

Workers' compensation acts require employers to provide various types of insurance benefits for their employees who were injured in the course of their employment. The Longshore and Harbor Workers' Compensation Act (LHWCA) is a federal workers' compensation act that primarily governs workers' compensation for maritime employers and employees, but also covers civilian employees on military bases worldwide (under a federal law called the Defense Base Act).

With respect to maritime employees, the Longshore Act covers longshoremen and harbor workers, as well as most people who work on docks and in shipping terminals or shipyards. This article will discuss the maritime nature of the Longshore Act and some of its important aspects.

Eligibility For Longshore Act Benefits

Longshore benefits are available only to maritime employees who meet the so-called "status" and "situs" tests. Let's take an in-depth look at each of these eligibility tests.

The Status Test. The status test has to do with the nature of the work that the employee performed for the employer. The key is performing "maritime" work. In order for an employee to be eligible for benefits under the Longshore Act, "maritime" duties must comprise at least some of the employee's work for the employer.

The main classes of employees eligible for benefits under the Longshore Act are:

• longshoremen and other people who assist in loading and unloading vessels
• ship repairmen
• shipbuilders, and
• ship-breakers.

Even the drivers of the trucks that take shipping containers away from the ships, and the mechanics who repair those trucks, are entitled to benefits under the Longshore Act because they also contribute to the maritime nature of their employer's business.

But the Longshore Act allows only people who actively engage in maritime employment to obtain benefits under the Act. Therefore, dock or marina employees who perform exclusively office or secretarial work for a maritime employer do not qualify for benefits under the Longshore Act. Other classes of employees that are specifically excluded from coverage under the Longshore Act are:

• shipbuilders who are employed to build recreational vessels smaller than sixty-five feet long
• people employed by a marina and who are not engaged in the construction, replacement, or expansion of the marina (except for routine maintenance)
• mechanics or repairmen for recreational vessels
• aquaculture (i.e., fish farming) workers
• captains and crew members of vessels (any type of boat or ship), since the Jones Act applies to these workers.

The Situs Test. The situs (meaning location) test has to do with the location where the employee generally worked for the employer. Only maritime employees who work on, near, or adjacent to navigable water are covered under the Longshore Act. "On, near, or adjacent to navigable water" means on the water (i.e., on a ship or vessel, as long as the employee is not a crew member of the vessel), and on adjoining piers, wharfs, dry docks, terminals, or other areas customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.

But how far away can you get from the water and still be adjacent to it? Some shipyards and shipping terminals are pretty large and even sprawl into the adjoining neighborhoods. In general, if you are working more than about a mile or so away from either the water or the border of the shipyard or terminal, the Longshore judge is likely to rule that you are no longer working "on, near, or adjacent to navigable water."

The Longshore Act vs. State Workers' Compensation

The federal Longshore Act allows injured employees to file claims under the Longshore Act and a state workers' compensation act for the same injury. The employee can then proceed through both systems simultaneously, although he/she cannot receive double benefits. However, not all states allow an injured employee to proceed under both systems. Some states' workers' compensation laws specifically exclude from state coverage any employee who is entitled to Longshore coverage.

But why bother with the federal Longshore Act if you can get benefits under your state's workers' compensation system? Most employees will benefit from Longshore coverage because, in general, the Longshore Act provides slightly better benefits than most state workers' compensation systems . For example, some states' workers' compensation systems pay only 60% of an employee's average weekly wage for total temporary disability (TTD) benefits. Also, under the Longshore Act, TTD benefits are 2/3 of the average weekly wage. Some states do not even have permanent partial disability benefits; the Longshore Act does.

However, the Longshore system also goes more slowly than most state's systems. So it may be advantageous to file claims under both systems, get to a hearing in the state system first, and collect some benefits, and then, when the Longshore hearing comes up, collect the full amount of the (greater) Longshore benefits (less whatever was previously paid under the state system).