The Longshore and Harbor Workers' Compensation Act and Crossover Issues With California State Workers' Compensation
| Jurisdiction | California,United States |
| Author | JULIANA GUERRIERO, ESQ. |
| Citation | Vol. 36 No. 1 |
| Publication year | 2023 |
JULIANA GUERRIERO, ESQ.
LONG BEACH, CALIFORNIA
Longshore and harbor workers who are injured at work can pursue both a Longshore and Harbor Workers' Compensation Act (LHWCA) case and a state workers' compensation case. This is called dual jurisdiction. The two claims can be filed concurrently and pursued simultaneously, and the case can be transferred between venues as needed to maximize benefits to the injured worker. However, practitioners must carefully coordinate credit issues between the two cases.
The LHWCA and California state workers' compensation programs intersect at a number of points. Often, however, LHWCA benefits far exceed those under the California Workers' Compensation Act. It is important for any attorney whose practice is limited to workers' compensation at the WCAB to identify crossover cases and refer them to experienced counsel; failure to do so may be a disservice to your client, deprive them of significant benefits and raise potential legal malpractice issues.
The two systems differ from each other in several ways. For example, unlike the California workers' compensation system, the LHWCA provides no medical provider networks. Instead, claimants can select the physician of their choice. The LHWCA has no 104-week limitation on temporary disability, and its temporary disability rates are much higher than the state workers' compensation rates. Unlike at the WCAB, where all work injuries are rated using the Permanent Disability Rating Schedule, injuries under the LHWCA are compensated based on whether they are "scheduled" or "unscheduled" body parts. In addition, permanent disability compensation often far exceeds the value of a state comp permanent disability recovery for a similar injury. In those cases where the LHWCA does not provide permanent disability compensation, a practitioner can transfer the case to the state Workers' Compensation Appeals Board to pursue permanent disability benefits.
LHWCA cases are litigated under the Federal Rules of Civil Procedure; discovery is a much more formal process than in state workers' compensation. Under the LHWCA, the attorneys prepare interrogatories, requests for production and requests for admission. Discovery does not formally open until a case is elevated for trial, and the judge must allow for the issuance of subpoenas. Doctors often testify live at trial in LHWCA hearings, but in workers' compensation cases they always testify through their reports and/or depositions. Jurisdiction in an LHWCA case occurs only if the worker meets a "status" test and "situs" test, as described later in this article; in state workers' compensation, the injury must have arisen out of the employment and in the course of employment.
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The Longshore and Harbor Workers' Compensation Act is a federal workers' compensation program that provides indemnity and medical treatment to maritime employees who do not perform the duties of seamen. The U.S. Department of Labor's Office of Workers' Compensation Plans oversees the administration of benefits.
Section 903 of the LHWCA extends coverage for injuries
occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).
Status v. Situs
A maritime worker must have status and situs to qualify for benefits. Sections 2(3) and 3(a) of the LHWCA establish status and situs requirements. Section 2(3) defines status, or the types of tasks that qualify a maritime worker for coverage, while section 3(a) defines situs, or where the tasks are performed.
Status Test Under the status test, these are typical longshore occupations:
- Longshoremen
- Waterfront crane operators
- Longshore checkers
- Stevedores
- Terminal workers
- Shipyard employees
- Shipbuilders
- Marine construction workers
- Vessel repair workers
Situs Test When the LHWCA was enacted in 1927, it applied only to maritime employees who were injured while working on the navigable waters of the United States. This limited claims to longshoremen who were aboard a vessel when injured. In turn, the limit forced injured workers who had been hurt on land to settle for smaller, state-issued workers' compensation payouts. Thus, Congress amended the Act to include non-seaman marine workers injured on the water and on any of the following:
- Piers
- Wharves
- Dry docks
- Terminals
- Building ways
- Marine railways
- Oil rigs, natural gas drilling platforms and other offshore oil drilling structures
The LHWCA also covers employees who are...
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