“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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• 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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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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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.

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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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.

• 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.

• 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.

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.

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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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.

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.

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.

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.

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.

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.

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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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.

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.