Definition: Workers’ compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee’s right to sue his or her employer for the tort of negligence. The tradeoff between assured, limited coverage and lack of recourse outside the worker compensation system is known as “the compensation bargain”.
Wikipedia. 7 February 2014. Legal Information Institute – Cornell University Law School.
22 August 2014 http://en.wikipedia.org/wiki/Workers%27_compensation
Click on the links below to read more…
» General description
» Duty to report – Notice of injury
» Medical treatment
» Average Weekly Wage
» Nature and extent of injury
» Return to work – Vocational rehabilitation
» Statute of limitations – Claim for benefits
» Attorney fees and expenses
» Occupational disease
» Third party claims
» Other applications and extensions of the Longshore Act
The Longshore Act traditionally applies to injured workers in the maritime industry, primarily those who are involved with shipbuilding, ship repair work or the loading and unloading of vessels. The Act allows the injured worker to receive medical attention and compensation benefits during the period of disability irrespective of any negligence or fault on the part of the injured worker’s Employer.
If you have been injured on a job that is covered by the Longshore Act there are several important issues that must be addressed to protect and evaluate your rights to benefits:
DUTY TO REPORT—NOTICEOFINJURY
The Longshore Act requires that the injured worker notify his or her employer in writing that an injury has occurred within thirty days after the date of the injury. On many occasions, an injured employee is unsure whether the injury is anything significant and decides to “work it off” until his or her condition worsens. Sometimes, in an effort to avoid filing a compensation claim, Employees might file job injuries under their health insurance coverage. Either of those choices could result in the delay or denial of benefits under the Act. It is usually the best decision to immediately report a job injury to insure the Employer has received prompt notice. The Employer should have this notice in order to properly investigate the claim and to provide appropriate benefits without unnecessary cause for delay or reservation about the claim.
While the Act technically requires a written notice of injury by the Employee, the typical practice is for the Employee to simply tell his or her supervisor that an injury occurred. Most Employers have a policy in place for reporting job injuries. An accident report is usually completed with the person who handles compensation claims for the Employer, which results in compliance with the “written notice” requirement.
An injured Employee should not delay reporting an injury so as to avoid any misconception that the injury occurred on the job. If the injured worker has any doubt that a written accident report has been completed, then he or she should provide written notice that an accidental injury occurred and deliver that notice to the Employer.
The Act states that: “The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the injury or process of recovery requires.” However, the charges for medical treatment must be both reasonable and necessary for the Employer to be responsible for payment. Mileage reimbursement to and from the doctor is also recoverable directly to the injured worker.
One of the most important, and frequently overlooked rights of an injured worker claiming benefits under the Longshore Act is his or her right to select an attending physician. Unfortunately, Employees are not always aware of that right.
The Department of Labor has confirmed that injured workers are frequently not advised of
their right to select a doctor of their choice for medical treatment:
“A random survey of Longshore claimants around the country revealed that most claimants were satisfied with the service provided by our district offices. However, there were some concerns expressed in the following areas:
Claimants are not always being advised by their employers at the time of injury that they have a free choice of physician under the provisions of the Longshore and Harbor Workers’ Compensation Act.”
First and foremost, an injured worker is concerned about being restored to health and returned to work. The healing process is affected by many factors, but one consideration is the trust the patient has in his or her doctor.
Unlike lay witnesses who can only testify about facts, doctors are considered “expert” witnesses, allowing them to provide opinion testimony: that is, a physician can provide admissible evidence based on what he or she “thinks.” For example, the treating physician can state that he thinks an injured worker can return to work at a point in time with or without restrictions and the extent, if any, that the symptoms the patient is experiencing have any relation to the claimed job injury. Consequently, it is critical that the physician chosen to provide that testimony is one with whom the injured worker has trust.
The right to medical benefits is never subject to the statute of limitations
(see STATUTE OF LIMITATIONS); therefore, an injured worker may seek payment of medical benefits from his or her Employer even if the time for filing a claim for compensation benefits has run. The Employee still has to demonstrate the condition for which he or she is seeking treatment is related to an injury that occurred on the job.
Even if the claim only involves the pursuit of medical benefits that have been denied, the injured worker’s attorney can be entitled to an award of fees and expenses from the Employer in addition to the benefits obtained on behalf of the injured worker for payment of the contested medical treatment. (SeeATTORNEY FEES AND EXPENSES)
AVERAGE WEEKLY WAGE
Compensation benefits for the period during which an injured worker is unable to return to work are calculated as two thirds of the worker’s average weekly wage. The section of the Longshore Act that sets out the method of determining average weekly wage and the corresponding amount of weekly compensation benefits is not absolute. Because it allows for different methods to evaluate an injured worker’s compensation rate, the Employee may benefit from legal advice as to whether he or she is receiving the maximum benefit allowed by law.
Even if the claim only involves the pursuit of an underpayment of incorrectly calculated benefits, the injured worker’s attorney can be entitled to an award of fees and expenses from the Employer in addition to the amount owed to the Employee for obtaining payment of the corrected compensation amount. (See ATTORNEY FEES AND EXPENSES)
NATURE AND EXTENT OF INJURY
Job injuries can result in lost time from work or otherwise have an impact on an employee’s ability to earn a living. The “nature and extent” of disability considers a combination of medical and economic factors, as well as the duration (temporary or permanent) and magnitude (total or partial) of the injury.
Some injuries entitle the injured worker to compensation irrespective of whether he or she can return to work while other injuries, to be compensable, must result in an impact on the injured worker’s ability to earn.
Issues having to do with the nature and extent of injury are often the most difficult to ascertain. However, they are usually the most critical in determining the amount of compensation that is owed to an injured worker.
RETURN TO WORK—VOCATIONAL REHABILITATION
Under the best of circumstances, an injured worker realizes a full and complete recovery following his or her injury and is able to return to the same job at the same rate of pay. Unfortunately, in many instances the injured worker is left with permanent restrictions that preclude returning to work in the same employment.
By working closely with the Office of Workers Compensation Programs and its Vocational Rehabilitation Services, clients have the opportunity at no expense to them or their employer, to seek retraining, job placement and otherwise enhance their ability to earn a decent wage despite the severity of their injuries.
In the past, injured workers could only utilize OWCP sponsored Vocational Rehabilitation Services while receiving compensation benefits. Now, permanently disabled workers can qualify for vocational services under the Longshore Act whether or not they are receiving benefits or even if they have settled their claim.
Department of Labor Notice No. 113, issued August 5, 2003 provides:
“Effective immediately, permanently disabled workers who settle their Longshore claims may continue to receive rehabilitation services after settlement. If there is an approved rehabilitation plan already in effect, services covered under the plan may continue until completion or until case closure by the OWCP rehabilitation Specialist. At the discretion of the district director, new rehabilitation services may be initiated after settlement of the claim, if the services are reasonable and necessary to assist a permanently disabled worker to return to the workforce in a suitable job.”
Consequently, any permanently disabled worker who desires to enhance his or her earning capacity through re-education, retraining or other appropriate vocational services, may call upon the Department of Labor to do so.
STATUTE OF LIMITATIONS—CLAIM FOR BENEFITS
In the event of a sudden accidental injury where the injured worker readily knows the date and time it occurred, he or she has one year from the date of injury within which to file a written notice of claim with the Employer and the Department of Labor. Failure to do so could result in the forfeiture of any compensation benefits otherwise owed to the injured worker. If the injured worker receives compensation benefits, the year begins to run from the last payment of compensation. A claim for death or disability due to an occupational disease, which does not immediately result in disability or death, 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. In an occupational disease claim, 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. The right to reasonable medical treatment necessitated by the job injury is not subject to the statute of limitations.
If the injury results in death, the appropriate survivors for death benefits must make a separate claim, even if the injured worker had filed a claim for compensation prior to death.
Filing a written Claim for Benefits is distinguishable from providing Notice of Injury. The Claim for Benefits must be made in writing and clearly state that the injured worker is claiming all benefits to which he or she is entitled under the Longshore Act for injuries received on a specific date with a particular Employer. The Claim for Benefits should be delivered to the Employer and the Deputy Commissioner in the District where the claim occurred. The addresses for the various Districts can be found here. The form recognized by the U.S. Department of Labor, Office of Workers Compensation Programs, for the purpose of filing the Employee’s Claim for Compensation is called an LS-203. A claim for death benefits is filed on form LS-262.
ATTORNEY FEES AND EXPENSES
The decision to seek legal representation often involves the cost/benefit issue of having a lawyer involved with dispute resolution. Unlike most compensation statutes, the Longshore Act allows the attorney who successfully prosecutes a claim on behalf of an injured worker to assess attorney fees and costs against the Employer in addition to the benefits owed to the injured worker. Attorney’s who represent injured workers under the Longshore Act do not claim a percentage of the benefits paid to their clients, as is the case with most State compensation litigation.
Attorneys claiming fees and expenses under the Longshore Act are required to submit an hourly fee application that itemizes the nature of the work performed and the corresponding time involved with resolving issues on behalf of their clients. The law also allows an attorney to claim his time as a lien against the Employee’s compensation. No attorney fees can be assessed or paid without the written approval of the Department of Labor.
If you have questions having to do with Hearling Loss, Asbestosis, Silicosis and/or symptoms from exposure to Welding Rod fumes, please contact usdirectly for specific information about your rights and remedies.
THIRD PARTY CLAIMS
In the event that an injury is caused by the negligence of a person or entity other than the injured worker’s Employer, there may be a remedy against a Third Party. Unlike the recovery for compensation under the Longshore Act, claims against third parties can include damages such as pain and suffering.
Please contact us directly for further information about your rights and remedies for Third party Claims.
OTHER APPLICATIONS AND EXTENSIONS OF THE LONGSHORE ACT
The provisions of the Longshore Act can apply to other types of employment:
- Defense Base Act
- Outer Continental Lands Shelf Act
- Non-Appropriated Funds Instrumentalities Act
Disclaimer: “No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.”