Longshore & Harbor Workers Compensation Act vs. Jones Act

Posted on Legal

Introduction

The Longshore and Harbor Workers Act (LHWCA) is a federal law that covers individuals who are injured or become diseased while working on the navigable waters of the United States or in adjoining areas. Employees at U.S. military bases overseas, employees of government contractors working outside the country in public, defense, or military projects, those working on the Outer Continental Shelf of the U.S. in the exploration and development of natural resources, and civilian employees working on military base exchanges as well as morale, welfare, and recreational facilities also have coverage under the LHWCA. Those excluded from coverage include seamen, employees of the U.S. government or any state or foreign government, and employees who willfully caused their own injuries.

The Jones Act 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 Longshore and Harbor Workers Act – Overview
The Longshore and Harbor Workers Act, first enacted in 1927, provides protection to approximately 500,000 workers who sustain injury or contract occupational diseases while working on the navigable waters of the United States, or in adjoining areas, and for certain other classes of workers covered by extensions of the Act.

Three separate federal laws provided extensions of the LHWCA, including 1) the Defense Base Act, which covers employees at overseas military bases of the United States and employees of U.S. government contractors working outside the United States in public work projects or in national defense and military operations; 2) the Outer Continental Shelf Lands Act, which applies to employees working on the Outer Continental Shelf of the United States in the exploration and development of natural resources, such as off-shore oil drilling rigs; and 3) the Non-appropriated Fund Instrumentalities Act, which covers civilian employees of non-appropriated fund instrumentalities of the Armed Forces, such as military base exchanges and morale, welfare, and recreational facilities.

The Jones Act – Overview
The Jones Act was passed in 1920 to give sailors the same provisions that similar legislation already in place provided to railroad workers. The Jones Act, which was updated in 1970 and again in 2006, allows seamen to bring legal actions based on claims of un-seaworthiness and/or negligence against ship owners, rights not provided by common international maritime law.

To be extended coverage under the provisions of the Jones Act, an employee must first be classified as a Jones Act “seaman.” The Jones Act definition of a seaman is an employee who is 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 is known as the “30 Percent Rule.” 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.

An injured seaman must also be working on a Jones Act defined vessel to be afforded coverage under the Act. Courts have interpreted the definition of a Jones Act vessel to include semi-submersible rigs, jack-up rigs, certain production platforms, drill ships, barges, lay barges, passenger ships, freighters, casino boats, container ships, fishing boats, crew boats, supply boats, tugs, tow boats, special purpose vessels, scientists on oceanographic research vessels, and other floating or floating-capable places of work.

The three types of benefits paid under Jones Act claims include maintenance, meaning weekly benefit checks, cure, meaning medical care, and 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.

Jones Act vs. Longshore and Harbor Workers
The fundamental difference between the Jones Act and the Longshore and Harbor Workers Act is who is covered under each. The LHWCA covers individuals who are injured or become diseased while working on the navigable waters of the United States or in adjoining areas, including employees at U.S. military bases overseas, employees of government contractors working outside the country in public, defense, or military projects, those working on the Outer Continental Shelf of the U.S. in the exploration and development of natural resources, and civilian employees working on military base exchanges as well as morale, welfare, and recreational facilities. Seamen are excluded from coverage under the LHWCA, while they are the class of employees specifically covered under the Jones Act.

Coverage
The Jones Act affords protection to a specific group of employees: seamen. 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 Act, an injured seaman must prove that your employer was negligent or at fault regarding an injury suffered in the capacity of employment.

The LHWCA covers employees working in traditional maritime occupations including longshore workers, ship repairers, shipbuilders, ship breakers, and harbor construction workers. Injuries must occur on the navigable waters of the U.S. or in the adjoining areas, including piers, docks, terminals, wharves, and those areas used in loading and unloading vessels. Non-maritime employees may also be covered if they performed their work on navigable waters and their injuries occurred there.

Those excluded from coverage under the LHWCA include seamen (masters or members of a crew of any vessel), employees of the U.S. government or of any state or foreign government, and employees whose injuries were caused by their own intoxication or due to their own willful intention to harm themselves. Since the Jones Act covers only seamen and the LHWCA specifically excludes seamen, there is no overlap in coverage.

Cost
Under the LHWCA, employers of covered employees are required to secure payment of compensation and medical benefits, either by purchasing insurance from a commercial insurance carrier authorized by the Department of Labor, or obtain Department of Labor authorization to self-insure. Authorized insurance carriers and self-insured employers pay all benefits to claimants under the LHWCA, except in limited circumstances in which a Special Fund administered by the Department of Labor pays them.

The Jones Act is not an insurance policy, there are no premiums to be paid by the employer, and no state or federal agency is responsible for the administration of claims. Instead, the provisions of the Act give employees the right to bring a fault-based lawsuit against their employer, and damages can include compensatory wages and medical benefits as well as monetary compensation for physical and mental pain and suffering, and dollar for dollar loss in earning capacity.

Compensation
Compensation payable under the LHWCA is subject to the maximum (max) and minimum (min) rates. The max and min are determined annually on October 1 and are based on the national average weekly wage (NAWW) determined by the DOL using national wage data published by the Bureau of Labor Statistics. The max equals 200% of the NAWW; the min equals 50% of the national average weekly wage. If two-thirds (2/3) of the average weekly wage falls below the min, compensation is paid at the min. If the average weekly wage is below the min, compensation is paid at the average weekly wage. The min does not apply to compensation paid under the Defense Base Act.

The LHWCA also provides that an injured employee is entitled to reasonable and necessary medical, surgical, and hospital treatment and other medical supplies and services required by the work-related injury or illness, such as prescription medications, diagnostic tests, physical therapy, prostheses, hearing aids, attendant care, and the cost of travel for such treatment. Survivor benefits are also provided if the work-related injury or disease causes the employee’s 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 but for the 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.

Litigation Process
Cases brought under the Jones Act typically proceed in much the same way as any other personal injury or wrongful death lawsuit would. 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.

Under the LHWCA, after receiving notice of an injury and disability, if the employer or insurance carrier denies responsibility to provide benefits, they are required by law to state the reasons for the denial by filing Form LS-207, Notice of Controversion of Right to Compensation, with the OWCP. The OWCP will send a copy of that form to the employee with instructions on what to do if the employee disagrees with the denial.

When claim disputes arise, the OWCP assists the parties to resolve the disputes by conducting informal conferences and making written recommendations on benefit entitlement. If the parties cannot resolve their differences and any party requests a formal hearing before the Office of Administrative Law Judges, the OWCP refers the case for a formal hearing.

Although the district office may issue a written recommendation based upon the evidence submitted, that recommendation is not binding on the parties, and if either party disagrees with the recommendation, the next step is a formal hearing before a Department of Labor Administrative Law Judge. Either party may request a hearing by submitting Form LS-18, (Pre Hearing Statement) to the district office with a copy to all other parties. The district office will review the LS-18 before referring the case to the Office of Administrative Law Judges for hearing.

General Case Expectations
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. Jones Act claims 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.

The insurance claims adjuster may deny a LHWCA claim because they do not have documents necessary to pay benefits. The injured employee may need to contact the claims adjuster to ask what additional information the adjuster needs to accept and pay the claim. If the claimant disagrees with the reasons for the denial, they may also write to the OWCP giving the reasons why they disagree. The claimant should also provide the OWCP with documents to support their claim, including a statement of how the injury occurred, their earnings records or wage statements, and medical reports from the doctor.

Conclusion
The Jones Act is a federal law that protects seamen and gives them the ability to bring a fault-based lawsuit seeking monetary damages against their employer should they be injured due to the negligence of a ship owner, captain, or crew member. Compensation under the Act is not given until the injured seaman proves, in a court of law, that his employer was at fault for his injury. A jury determines the specific type and amount of compensation.

The Longshore and Harbor Workers Compensation Act is a federal law that provides for the payment of compensation, medical care, and vocational rehabilitation services to workers (and their survivors in the case of a work-related death) disabled from injuries on the job and that occur on the navigable waters of the United States, or in adjoining areas customarily used in the loading, unloading, repairing, or building of a vessel. The LHWCA requires that maritime employers, including sole proprietors who are employees of their own company, obtain insurance for all employees.