Longshore & Harbor Workers’ Compensation FAQ
Montagna Klein Camden represents injured workers across Virginia and North Carolina.
What is the Longshore and Harbor Workers’ Compensation Act?
The Longshore and Harbor Workers’ Compensation Act (“LHWCA”) is a federal law that provides for the payment of compensation, medical care, and vocational rehabilitation services to employees workers 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 also provides the payment of survivor benefits to dependents if a work injury causes, or contributes to, the employee’s death. These benefits are typically paid by the self-insured employer or by a private insurance company on the employer’s behalf. The term “injury” includes occupational diseases, hearing loss and illnesses arising out of employment.
Who is covered by the LHWCA?
The LHWCA covers employees in traditional maritime occupations such as longshore workers, ship-repairers , shipbuilders or ship-breakers, and harbor construction workers . His/her injuries must occur on the navigable waters of the United States 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 perform their work on navigable water and their injuries occur there.
What are the Longshore Act Extensions?
Congress extended the LHWCA to include other types of employment. Employees covered by these extensions are entitled to the same benefits, and their claims are handled in the same way as Longshore Act claims. The following are the extensions of the LHWCA:
- Defense Base Act – applying to employment at overseas military bases of the United States and to employees of U.S. government contractors working outside the United States in public work projects or in national defense and military operations;
- Outer Continental Shelf Lands Act – applying to employees working on the Outer Continental Shelf of the United States in the exploration and development of natural resources, for example, off-shore oil drilling rigs;
- Nonappropriated Fund Instrumentalities Act- applying to civilian employees of non-appropriated fund instrumentalities of the Armed Forces (for example, military base exchanges and morale, welfare, and recreational facilities)
Who is excluded from the LHWCA?
The LHWCA specifically excludes the following individuals:
- Seamen (masters or members of a crew of any vessel);
- Employees of the United States government or of any state or foreign government;
- Employees whose injuries were caused solely by their intoxication;
- Employees whose injuries were due to their own willful intention to harm themselves or others.
The LHWCA also excludes the following individuals if they are covered by a state workers’ compensation law:
- Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;
- Individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
- Individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);
- Individuals who (A) are employed by suppliers, transporters, or vendors, (B) are temporarily doing business on the premises of a maritime employer, and (C) are not engaged in work normally performed by employees of that employer covered under the Act;
- Aquaculture workers;
- Individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel or dismantle any part of a recreational vessel in connection with such repair;
- Small vessel workers if exempt by certification of the Secretary of Labor under certain conditions.
What is the Office of Workers’ Compensation Programs (“OWCP”)?
The Office of Workers’ Compensation Programs (“OWCP”) is charged with oversight of four federal workers’ compensation programs, including the LHWCA. Within the OWCP, the Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) administers the LHWCA.
What does the OWCP do for injured Longshore employees?
The OWCP maintains records of injuries and deaths reported under the LHWCA and its extensions. The OWCP reviews each claim to make sure appropriate benefits are paid promptly. The OWCP provides general information about compensation, medical benefits and vocational rehabilitation to employers, insurance carriers, and claimants, and helps injured employees to file claims.
Should 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. The OWCP also provides vocational rehabilitation services to permanently disabled employees in appropriate cases. The OWCP administers the “Special Fund” which pays disability compensation to injured LHWCA employees or their survivors in certain circumstances. See FAQs 40-42 for additional information about the Special Fund.
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Where are the OWCP offices located?
OWCP Longshore district offices are located in Boston, New York, Baltimore, Norfolk, Jacksonville, New Orleans, Houston, San Francisco, Long Beach, Seattle and Honolulu. Office contact information can be viewed on the internet accessed using this link: http://www.dol.gov/owcp/dlhwc/lscontactmap.htm
What are the different types of disability benefits?
“Disability” means the inability to earn the same wages that the employee was receiving at the time of injury. The LHWCA provides for the payment of compensation for the following four types of disability: temporary partial, temporary total, permanent partial, and permanent total. Under the LHWCA, the type of disability depends on the answers to two main questions: (1) is the disability temporary or permanent, and (2) is the disability partial or total?
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What is the difference between “temporary disability” and “permanent disability”?
- A disability is “temporary” if the injured employee is unable to return to work for medical reasons and is still recuperating from the work injury. Generally, a medical doctor must certify that the employee is not able to work.
- A disability is “permanent” if the injured employee’s medical condition has become stable and is not expected to improve. A stable condition is often described as having reached the point of “maximum medical improvement,” or “MMI.”
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What is the difference between “total disability” and “partial disability”?
A disability is “total” when the injured employee cannot do any work due to the work-related injury. A disability is “partial” if the injured employee cannot do the same job he or she was doing at the time of the injury but is able to work in a lighter or modified job, either with the same or with a different employer.
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What is the “Average Weekly Wage”?
All compensation benefits are paid based on the employee’s Average Weekly Wage (“AWW”) at the time of injury. In general, the AWW is the average weekly wages the employee was earning when injured. There are several methods to determine the AWW. Each method takes the employee’s average annual earnings and divides that figure by fifty-two (52) to obtain an Average Weekly Wage.
I think the insurance carrier is paying compensation benefits at a lower rate than I am entitled to. What can I do?
The law provides different methods for determining the AWW. If your wages in the 52 weeks prior to injury do not reflect your true earning capacity, for example, due to promotion, reduction in force (RIF), illness, or lack of work, or if the employment has not been permanent and continuous, there are other methods to calculate the AWW. You should contact the district office administrating the claim for more information. Be sure to provide the district office with documentation of earnings in the form of pay stubs, W-2 tax forms, earnings statements, or tax returns.
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What are the “Maximum” and “Minimum” rates?
Compensation payable under the Act is subject to the Maximum (“Max”) and Minimum (“Min”) rates. The Max and Min are determined each year on October 1 based on the National Average Weekly Wage (“NAWW”) determined by the DOL. The NAWW is calculated using national wage data published by the Bureau of Labor Statistics. The Max equals 200% of the NAWW; the Min equals 50% of the NAWW. For current and historical rates, see the NAWW Table at: http://www.dol.gov/owcp/dlhwc/NAWWinfo.htm.
In general, the aggregate weekly compensation payable cannot be higher than the Max in effect at the time of injury. If two-thirds (2/3) of the AWW falls below the Min, compensation is paid at the Min. If the AWW is below the Min, compensation is paid at the AWW. The Min does not apply to compensation paid under the Defense Base Act.
How much compensation do I get when I am temporarily disabled?
- Temporary Total Disability (“TTD”) is compensated at two-thirds (2/3) of the employee’s Average Weekly Wage (AWW), subject to certain minimum and maximum amounts set by the OWCP annually. For example: if the AWW is $600 per week, the TTD benefit rate is $400.00 per week ($600 x 2/3 = $400.00).
- Temporary Partial Disability (“TPD”) is compensated at two-thirds (2/3) of the employee’s loss of earning capacity, calculated based on the difference between the AWW (what the employee earned at the time of injury) and what he/she is able to earn after the injury. For example: if the AWW is $600 per week, and now the employee can only earn $300 per week, the TPD benefit rate is $200.00 per week (($600 – $300) x 2/3 = $200.00).If you have any questions about how your compensation benefits are calculated, contact the local Longshore district office for guidance.
How much compensation do I get when I am permanently disabled?
- Permanent Total Disability (“PTD”) – Compensation is paid at two-thirds (2/3) of the AWW. For example: if the AWW is $600 per week, the PTD benefit rate is $400.00 per week ($600 x 2/3 = $400.00). PTD benefits are paid as long as the disability continues. Benefits may be adjusted annually based on increases in the National Average Weekly Wage.
- Permanent Partial Disability (“Scheduled PPD”) – Compensation for permanent impairment or loss of use of the arm, hand, fingers, leg, foot, toes, ears (hearing) or eyes (vision) is paid for a specified number of weeks. This is commonly called “Scheduled PPD” and is payable even if the employee is able to return to work. The “Schedule” and the number of weeks of compensation payable for each body part may be found in Section 8(c) of the LHWCA at the following website: http://www.dol.gov/owcp/dlhwc/lhwca.htm#908.
- Permanent Partial Disability (“Unscheduled PPD”) -Compensation for permanent loss of wage earning capacity is payable when the injury causes permanent impairment to other parts of the body not listed in the “Schedule” of § 8(c) of the LHWCA. The impairment must limit the employee’s ability to earn wages. Unscheduled PPD benefit is paid at two-thirds (2/3) of the employee’s loss of earning capacity, calculated based on the difference between the AWW (what the employee earned at the time of injury) and what he/she is able to earn after the injury. For example: if the AWW is $600 per week, and now the employee can only earn $300 per week, the PPD benefit rate is $200.00 per week (($600 – $300) x 2/3 = $200.00). Unscheduled PPD benefits are payable as long as the disability continues. These benefits are not adjusted to reflect increases in the NAWW.
- Permanent Partial Disability for Retirees – In cases of permanent disability due to an occupational disease diagnosed after retirement (e.g. asbestosis), PPD benefits are payable based upon a percentage of impairment determined under the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). Contact the local Longshore district office for more information.
Do I have to report earnings to the OWCP while I am receiving compensation benefits?
Your employer, insurance carrier, or the OWCP may require you to report any earnings you receive because your compensation benefits may be based upon your ability to earn. You should report any earnings from employment or self-employment in order to avoid overpayment of benefits. By law, your employer or insurance company can deduct any overpayment from future payments of compensation due.
Is there a limit on how long I can receive compensation for a work-related injury?
Generally, disability compensation is payable for as long as the disability continues. The two exceptions are temporary partial disability benefits, which cannot exceed 5 years, and the “Scheduled” permanent partial disability benefits, which are limited to a fixed number of weeks. The employer or insurance carrier may require medical documentation of your continuing disability. To ensure that you receive benefits without interruption, you should provide the documentation when requested.
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What benefits are available for survivors?
If the work injury causes, contributes to, or hastens the employee’s death, death benefits are paid to certain specified survivors up to an aggregate of two-thirds (2/3) of the deceased employee’s Average Weekly Wage. Funeral expenses up to $3,000 are also payable.
A widow or widower receives one-half (1/2) of the decedent’s AWW for life or until remarriage. Additional compensation at one-sixth (1/6) of the AWW is payable for one or more children. If there is no widow or widower, 1/2 of the AWW is paid for one child, or two-thirds (2/3) of the AWW if there are two or more children. Benefit payments to children terminate when they reach age 18 but may be extended to age 23 if the beneficiary is a full-time student. Death benefits may be paid to an adult “child” who is totally disabled and incapable of self-support.
If there is no surviving spouse or child, death benefits may be payable to other dependents at various rates fixed by law. The death benefit is adjusted annually for cost-of-living as calculated by the DOL. Call Montagna Klein Camden for help during this stressful time. We’ll file all the paperwork.
What is the Special Fund and why is it paying me instead of the insurance company?
The “Special Fund,” also known as the “Second Injury Fund”, pays certain types of claims and expenses authorized by the LHWCA. The OWCP’s Longshore National Office processes payments from the Special Fund, and the U.S. Treasury issues the compensation benefit checks. In certain circumstances, an employer or insurance company may be responsible to pay your compensation benefits for only the first 104 weeks of permanent disability. The Special Fund then pays disability compensation for the duration of your entitlement. However, the employer or insurance company remains liable for paying for your medical treatment related to your injury, and the employer retains the right to challenge the employee’s continuing disability even if the Special Fund is paying the claim.
What other types of payments are made by the Special Fund?
The Special Fund also may pay compensation and medical benefits when both the responsible employer and its insurance carrier are insolvent or are out of business. Additionally, the Special Fund pays the cost of vocational rehabilitation services authorized by the OWCP in appropriate cases.
Where do I file a change of address if I am paid by the Special Fund?
If you currently receive benefits from the Special Fund and need to report a change of address, you should contact your local district office because it maintains your claim records. When contacting the district office, you must supply your full name, address, your OWCP claim number or social security number (the deceased employee’s social security number if you are receiving death benefits), and a day-time telephone number. Additional information for Special Fund recipients is available at the following link: http://www.dol.gov/owcp/dlhwc/lssfpage.htm.
Can I receive state workers’ compensation benefits and Longshore benefits at the same time?
In some states, the LHWCA allows you to receive compensation for the same injury under both a state workers’ compensation system and the LHWCA. However, any amounts you receive under the state system reduce what your employer must pay under the LHWCA. You cannot receive any more than the weekly compensation rate under whichever statute would pay you the larger weekly benefit.
Other states prohibit receiving compensation under the state workers’ compensation system if LHWCA benefits are payable. This is true for Virginia as of July 1, 2012.
Can I receive Social Security Administration (“SSA”) benefits and Longshore benefits at the same time?
The Longshore Act does not prohibit the receipt of both SSA and Longshore benefits. However, SSA may reduce the benefits it pays to you based on the amount of workers’ compensation payments you receive. You should notify SSA if you receive both SSA and Longshore benefits to ensure that you have not been overpaid.
Do I have to pay income tax on my compensation benefits?
A person who receives workers’ compensation benefits must declare the funds received as compensation for an occupational sickness or injury. The IRS exempts these payments from taxation if they are paid under a federal or state workers’ compensation law. The tax exemption also applies to survivors’ benefits. For additional information, please refer to IRS Publication 525 or contact your local Internal Revenue Service Office.
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What medical benefits are available under the LHWCA?
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. An injured employee is entitled to select a physician of his/her choice to provide medical treatment for the work injury.
Is there a time limit to claim medical benefits?
There is no time limit to request medical treatment for a work injury; however, you should request treatment as soon as it is necessary. Even if the employee does not file a claim for compensation within the time required by the LHWCA to receive compensation benefits, he/she still has the right to medical care related to the LHWCA injury.
Is there a time limit to how long medical benefits are paid?
There is no time limit for receiving medical treatment necessary for the work-related injury. The injured employee is entitled to medical care related to the injury for as long as the nature and extent of injury or the process of recovery may require. This includes conditions which may arise from the injury, or from treatment related to the injury, after the initial period of treatment.
How do I obtain medical treatment for my injury?
Before receiving medical treatment other than emergency treatment, you must request authorization from the employer or from the insurance claim adjuster. Once authorized by the employer or insurance company, your treating physician may refer you for diagnostic testing and non-surgical treatment as necessary.
Do I have to select a doctor from an approved list of medical providers?
There is no enrollment program or network of approved medical providers under the LHWCA.
What kinds of doctors are allowed to treat my injuries?
The LHWCA defines the term “physician” to include doctors of medicine (“M.D.s”), surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. It is important to select a physician whose specialty is appropriate to your injury.
Is there any type of doctor that is not authorized to be my treating physician?
Naturopaths, faith healers, and other health care providers not listed in FAQ #52 are not “physicians” defined under the Act, even if they are licensed under state law. They may provide treatment under a prescription from an authorized treating physician. Chiropractors may only provide treatment consisting of manual manipulation of the spine to correct subluxation shown by x-ray, but they may not provide treatment for any other body part except the spine. You may choose any physician you wish to treat you, but your employer or insurance company may not be responsible for the physician’s medical bills if you choose a physician who is currently debarred by the DOL. If you have questions regarding medical treatment authorization, contact your local Longshore district office.
Why can’t I have a chiropractor as my treating physician?
Chiropractors are recognized as physicians under the LHWCA only under limited circumstances. A chiropractor may be a treating physician only if the injury caused a spinal subluxation, verified by x-ray, which can be treated by manual manipulation of the spine. Thus, if the work injury is to other body parts besides the spine, a chiropractor may not be your treating physician.
How do I change doctors?
Once you have selected a treating physician for your injury, you may not change doctors without the permission of the employer or insurance company or the OWCP. In general, if specialty care is required for your injury, your treating physician will refer you to the appropriate specialist. If the employer or insurance company objects to the referral or to your request for a change of physician, the Longshore District Director may order a change of treating physician if good cause exists for the change. The employer or insurance company may also request that your treating physician be changed for good cause. Again, such change will be made by the District Director after considering the reasons from both sides.
Is there a limit on what my doctor may charge for medical treatment under the LHWCA?
Medical fees are paid at the customary rate for the area in which you live. If a dispute arises between the employer or insurance company and the medical provider over the rate charged for a medical service, the OWCP will use the State’s fee schedule or the OWCP Medical Fee Schedule as a guide to resolve the disputed fee. The OWCP Medical Fee Schedule may be found at: http://www.dol.gov/owcp/regs/feeschedule/fee.htm.
I want specialized medical care available only at a location hundreds of miles from my home, and the insurance carrier will not authorize my request. What can I do?
The employer and insurance carrier are required to provide reasonable and necessary medical treatment for the injury by a physician selected by you. Medical care must also be reasonable in terms of distance, so if the necessary care or treatment is available locally, the carrier may decline to pay for the treatment located outside your area. If you have questions about authorization of medical care, contact the local district office for guidance.
What happens when there is a dispute about medical treatment?
If a dispute arises concerning the necessity of treatment, the frequency of treatment, the type of treatment provided, or the amount of fees billed, the OWCP District Director will attempt to resolve the dispute informally. If the parties cannot agree on an acceptable result, then, at the request of any party, the District Director will refer the dispute for a formal hearing by an Administrative Law Judge.
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How do I get reimbursed for prescription medications that I paid for out of my pocket?
Normally, the insurance carrier prefers that the pharmacy bill them directly. This is something you should discuss with your claim adjuster in advance. However, if the treating physician or other authorized provider prescribed medication for your work injury and you paid for it yourself, you may submit the itemized receipts to the insurance carrier with a written request for reimbursement. Keep copies of such requests and copies of your itemized receipts for your records.
Can I get reimbursed for the cost of transportation to medical appointments and, if so, how much?
Reasonable transportation expenses necessary for treatment of the work injury, including mileage, parking, and toll, are reimbursed at cost. Mileage is reimbursed at the rate in effect at the time travel costs were incurred according to the mileage rates for privately owned vehicles set by the Federal General Services Administration (“GSA”). The past and current rates are listed on the GSA website at: http://www.gsa.gov/portal/content/100715
What form do I use to request mileage reimbursement?
There is no special form required to request mileage reimbursement under the LHWCA. Some insurance companies have their own form which they may ask you to use. To claim mileage reimbursement, you must provide accurate documentation including the date of the travel, the destination (doctor’s office, physical therapy facility, pharmacy, etc.), and the mileage to and from that destination. While the LHWCA does not impose a time limit for filing mileage reimbursement requests, it is recommended that you submit your requests to the insurance carrier on a regular basis and keep copies for your records.
My employer’s insurance company has scheduled a medical appointment for me with a doctor I don’t know. Do I have to go?
The insurance carrier may schedule a medical evaluation with a doctor of its choice at a reasonable distance from your residence. If you refuse to attend a medical examination scheduled by your employer or its insurance carrier, your compensation may be suspended until the medical examination is completed. The OWCP also has the authority to schedule a medical examination, and the employee must attend or risk suspension of his/her compensation.
What is vocational rehabilitation?
Vocational rehabilitation is the process that helps a permanently disabled employee return to gainful employment as quickly as possible in a job with pay at or near the wages at the time of injury. Vocational services may include vocational assessment and skills testing, counseling, job development, modification of the previous job, limited training when required, and job placement assistance.
Who is eligible to receive vocational rehabilitation services?
If a work injury prevents an employee from returning to his/her pre-injury employment, he/she may be eligible for vocational rehabilitation services. The OWCP must determine whether the employee is permanently disabled and whether vocational rehabilitation is appropriate. The OWCP may begin considering whether vocational rehabilitation is appropriate when the medical record shows that the employee is likely to have some degree of permanent disability.
Who pays for vocational rehabilitation services?
Services are provided by the OWCP out of the Special Fund at no cost to employees. The employer or insurance carrier may also pay for vocational rehabilitation services in individual cases, although they are not required to do so under the law.
How do I obtain vocational rehabilitation services?
You, your attorney, the employer, or insurance company may request that the OWCP district office evaluate you for vocational rehabilitation services as soon as your doctor determines that you will be unable to return to your previous job and that you are medically able to participate in vocational rehabilitation activities. You may ask for services by contacting the district office where your claim is administrated. A complete list of the contact information for the district offices can be found at: http://www.dol.gov/owcp/dlhwc/lscontactmap.htm.
Is vocational rehabilitation mandatory?
No, participation in vocational rehabilitation services is entirely voluntary. However, if you decide not to take advantage of these free services, the employer or insurance company may ask that you be evaluated by a vocational rehabilitation counselor to determine if there are jobs in the open labor market that you can perform. Your compensation may be reduced on the basis of this evaluation.
How do I support myself and my family if I pursue vocational rehabilitation?
If you are accepted into an OWCP-sponsored vocational rehabilitation program, you may be entitled to receive total disability compensation for the duration of the rehabilitation program if your full participation in the program prevents you from working full-time or part-time.
Does the Department of Labor regulate insurance premium rates?
The DOL has no authority to regulate insurance premium rates. All authorized carriers are regulated by the insurance commissioners in the states in which they operate.
How does my company become an authorized Longshore Insurance Carrier or Self-Insured Employer?
The OWCP is responsible for the authorization of insurance carriers and self-insured employers. Each employer or insurance carrier must be separately authorized for each Act administered by this office. The Code of Federal Regulations, Title 20, Part 703, contains detailed information on how to apply for authorization, and can be found at Title 20 Part 703.
What is an employer or insurance carrier required to do in order to remain authorized?
Authorized self-insured employers and insurance carriers are required to maintain security deposits and submit various financial reports as specified by the OWCP. The Code of Federal Regulations, Title 20, Part 703 contains detailed information on the requirements for continuing authorization and can be found at Title 20 Part 703.
How do I contact the OWCP regarding insurance authorization and compliance with insurance regulations?
All insurance-related matters are handled by the DLHWC National Office, Branch of Financial Management, Insurance and Assessment, located in Washington, DC. Address inquiries to the address shown at: http://www.dol.gov/owcp/dlhwc/lscontac.htm.
DISCLAIMER: The OWCP Longshore Frequently Asked Questions and responses (“FAQs”) were created solely to assist employees and employers in gaining a general understanding of portions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) and its extension acts. These FAQs may not constitute the complete or official opinion of the Department of Labor, the Office of Workers’ Compensation Programs, or the Division of Longshore and Harbor Workers’ Compensation on any subject. This page does not necessarily contain an exhaustive or current treatment of the LHWCA and its extension acts and should not, under any circumstances, substitute for a party’s own research into the statutory, regulatory, and case law authorities on any given subject addressed by the following FAQs. The FAQs are an informational tool, not a final authority, and should not be cited or otherwise considered an authoritative statement of agency policy.