Do I Have a Workers Comp or Jones Act Claim?
Workers’ Compensation is an insurance program — administered by the state — that provides compensation in the form of wages and medical care for employees who are injured within the course and scope of their employment. Workers’ compensation laws, policies, procedures, and benefits vary according to the state in which the employee works. For federal employees, the federal government offers workers compensation through its own insurance program.
The Jones Act, also known as the Merchant Marine Act of 1920, is a federal law that protects the rights of seamen. The Jones Act allows injured sailors to make claims and collect from their employers for the negligence of the ship owner, the captain, or fellow members of the crew. Under the law’s provisions, any person who has spent approximately 30 percent or more of his professional life as a seaman is entitled to compensation under the Jones Act.
The objective of workers’ compensation is to provide monetary awards to those who are injured on the job and in so doing, eliminate the need for litigation. Workers’ compensation is designed to protect workers and their dependents against the hardships from injury or death arising out of the work environment, and is intended to benefit both the employee and employer in the following ways:
• The employee receives non-taxable income on a weekly or biweekly basis, commonly the equivalent of two-thirds their average wage. They also receive medical care for the illness or injury, compensation for any permanent injury, help with the cost of retraining, and benefits to survivors of workers who are killed on the job.
• In exchange for accepting liability that is limited and determined, the employer receives immunity from court actions relating to the injury. Negligence or fault is usually not at issue.
Workers’ compensation can cover injuries that are the result of the employees’ or employers’ carelessness, although there are limits, such as injuries that were self-inflicted or were incurred as a result of the employee’s violation of a law or company policy.
While most employees are covered by workers’ compensation insurance, some classes of employees may be excluded, including independent contractors, business owners, casual workers, volunteers, employees of private homes, farmers and farmhands, maritime and railroad employees, and those who work for employers with fewer than three to five employees. Since federal workers are covered by federal workers’ compensation insurance, they are not covered by state workers’ compensation.
The Jones Act was passed in 1920 to extend to sailors the provisions of similar legislation already in place that allowed for recoveries by railroad workers. The Jones Act, which was updated in 1970 and again in 2006, allows seamen to bring actions against ship owners based on claims of un-seaworthiness and/or negligence, rights not given by common international maritime law.
To be covered by the provisions of the Jones Act, an employee must be classified as a Jones Act “seaman.” The Jones Act definition of a seaman states that the employee will be more or less permanently assigned to a vessel or fleet of vessels in navigation. “More or less permanently” has generally been interpreted to mean that the employee spends at least 30 percent of his working time aboard a vessel or fleet of vessels. This provision has come to be known as the “30 Percent Rule”.
An injured seaman must also be working on a Jones Act defined “vessel” to be afforded coverage. Courts have interpreted the definition of a Jones Act vessel to include:
• Semi-submersible rigs
• Jack-up rigs
• Certain production platforms
• Drill ships
• Lay barges
• Passenger ships
• Casino boats
• Container ships
• Fishing boats
• Crew boats
• Supply boats
• Tow boats
• Special purpose vessels
• Scientists on oceanographic research vessels
• Other floating or floating-capable places of work
Injuries to workers on or off the vessel may be covered. Once a worker establishes his status as a seaman under the Jones Act, the statute’s protections may cover him even when his work activities take him off the vessel and onto the shore.
The three types of benefits included under Jones Act claims include:
• Maintenance, meaning weekly benefit checks
• Cure, meaning medical care
• Personal injury damages, which may include wage and fringe benefit loss, past medical expenses, future medical expenses, rehabilitation, occupational therapy, the cost of retraining, pain and suffering (as well as future pain and suffering), disability, loss of quality of life, and impairment
What’s the Difference between the Jones Act and Workers Comp?
Although some classes of workers are excluded, most employees find coverage under the workers’ compensation program that is mandated by the states, or the workers’ compensation program for federal employees. Workers compensation offers protection to both the employee and the employer: the employee receives compensation in the form of wages and medical benefits for a specified amount of time if they are injured in the course and scope of their employment; the employer receives the benefits of limited liability and immunity from court actions regarding fault.
The Jones Act is a federal law that affords protection to a specific group of employees – seamen. Unlike state and federal workers’ compensation, there is no insurance policy, and no state or federal agency responsible for the administration of Jones Act claims. Its provisions give employees the right to bring a fault-based lawsuit against their employer, something that distinguishes it from workers compensation. Under the Jones Act, an injured worker must prove that the ship owner was negligent or at fault for their injury.
Jones Act settlements are also usually much higher than workers’ compensation settlements, since in addition to receiving wages and medical benefits, injured seamen are also entitled to monetary compensation for all their damages, including physical and mental pain and suffering, dollar-for-dollar loss in earning capacity, and others.
Generally, if your employer employs at least three to five workers and you are not part of a class of employees that is excluded from workers’ compensation coverage in your state, you have workers’ compensation coverage. If you are a federal employee who was injured while in the course and scope of your employment, you are covered by federal workers’ compensation.
If you are a “seaman” and your employer qualifies as a “ship owner” as defined in the Jones Act, and you have spent roughly one-third of your career as a seaman, you may be covered under the Jones Act. To recover under the Jones Act, you must prove that your employer was negligent or at fault regarding an injury you suffered in the capacity of your employment.
The workers’ compensation department of each individual state determines compensation rates; however, wage replacement is usually two-thirds of the worker’s average wage, with a fixed maximum amount. Workers’ compensation benefits are not taxed.
If an employee sustains a permanent injury on the job, and can no longer perform the duties of that job, they may also be eligible for long-term or lump-sum workers’ compensation benefits. The amount of these benefits will be determined based upon the nature and extent of the injuries. Permanently disabled employees may also apply for Social Security Disability; however, it is much more difficult to be declared disabled according to the standards set forth by Social Security, which require that:
• The disabled employee is unable to perform any substantial, gainful work, not just the work they used to do
• The injuries must last at least one year or result in death
Under a valid Jones Act claim, injured seamen are able to collect any damages that are directly related to their injury. Maintenance is usually a daily allowance of about $10-$40 per day to cover the cost of food and shelter that the seaman would normally receive aboard the vessel if not for their injury. Cure is the employer’s obligation to pay for the injured seaman’s medical care, hospitalization, and rehabilitation up to the point where the employee reaches maximum medical improvement, even if his injury is permanent and he will never be able to return to work. Compensation is not given until the injured seaman proves, in a court of law, that his employer was at fault for his injury, with the exact specifications and amount of compensation determined by a jury.
While most injured workers recover quickly in a workers’ compensation claim, those with more serious injuries or those who have difficulty dealing with their employers may find it necessary to file the claim with the workers’ compensation board in their state. In most states, settlement conferences are held before a workers’ compensation case is scheduled for a hearing. If a settlement cannot be reached during the conference, the case will be set for hearing before a workers’ compensation judge.
Workers’ compensation hearings are generally less formal than a court trial, and the rules of evidence are more lenient. At the hearing, both parties present evidence in the form of witnesses and documents, and based upon the evidence, the judge will make a decision that is considered final unless a timely appeal is issued. In workers’ compensation cases, attorney fees are limited by statute, and statutes of limitation vary according to state.
Ordinarily, an employee who qualifies for workers’ compensation benefits is barred from filing a personal injury lawsuit in trial court against their employer, unless:
• Their employer intentionally caused their injury, or
• Their employer is required to carry workers’ compensation insurance but has failed to do so.
Cases brought under the Jones Act typically proceed in much the same way as any other personal injury or wrongful death lawsuit. Injured seamen or their representatives have the right to obtain legal counsel and bring a lawsuit for damages with the right to a trial by jury. Jurisdiction in such actions is with the court of the district in which the defendant employer resides or where his principal office is located. An injured seaman who seeks to file a lawsuit under the Jones Act must have been a citizen or permanent resident alien of the United States at the time the injury occurred. The statute of limitations for a maritime injury suit is three years from the date of the incident according to the Federal Employees Liability Act, which governs the Jones Act.
General Case Expectations
The likelihood of prevailing in either a workers’ compensation case or one brought under the Jones Act depends upon the facts of the case and the strength of the evidence. In a workers’ compensation case, the injured employee will typically demonstrate the circumstances surrounding his injury as well as their seriousness and duration, but fault is not usually an issue.
Claims brought under the Jones Act must prove that the employer was at fault for the injury due to his own negligence or the unseaworthiness of the vessel. The likelihood of winning a Jones Act claim depends upon factors such as the strength of the evidence, the effectiveness of legal counsel, the judge, the reliability of the witnesses, and the composition of the jury. Workers’ compensation and Jones Act cases may go on for months or even years, depending upon the medical condition of the injured party, court calendars, the complexity of the evidence, and many other factors that are unique to each case.
Most injured employees will find coverage under state or federal worker’ compensation programs, but the inherent dangers involved with a career aboard a ship gave rise to the Jones Act. The Jones Act is a federal law that protects seamen and gives them the ability to bring a fault-based lawsuit against their employer should they be injured due to the negligence of a ship owner, captain, or crew member.
While workers’ compensation is essentially an insurance plan that benefits both employers and employees, provides modest benefits to injured employees, and is designed to avoid litigation, an injured seaman’s rights under the Jones Act can be recovered only through fault-based litigation that may result in a much larger payout.