“Disability” under the Longshore and Harbor Workers’ Compensation Act (LHWCA) means “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment * * *.” § 902(10).

The big disability compensation prize under the The Act is Permanent Total Disability. The benefit is described in Section 908(a) of the Act as follows:

In case of total disability adjudged to be permanent 66 2/3 per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability.

The other type of monetary benefit paid for a permanent injury is Permanent Partial Disability (PPD). Section 908(c).

PPD benefits are paid for two types of injuries, scheduled and non-scheduled. Scheduled injuries, outlined in sections 908(c)(1)-(21) & (23), cover specific body parts. Payment is for a fixed number of weeks paid at two-thirds of the injured worker’s average weekly wage (AWW). (Some scheduled injuries do not appear to match those listed in the sections cited above. For example, a torn meniscus is not listed. However, it is a scheduled injury. Under the A.M.A. Guides to the Evaluation of Permanent Impairment, 6th Edition, the permanent impairment of the left lower extremity for a meniscal tear is 5%. Under section 908(c)(2), a leg lost qualifies for 288 weeks of compensation. While a torn meniscus does not approximate the severity of a lost leg, it is a leg injury nonetheless, making it a scheduled injury. The amount of scheduled compensation for the torn meniscus is figured as follows: 288 (weeks for a lost leg) x .05% (the permanent impairment rating for a torn meniscus) = 14.4 (weeks).)

Scheduled amounts compensate for presumed (as opposed to actual) loss of wage earning capacity. Korineck v. General Dynamics Corporation Electric Boat Division, 835 F.2d 42 (2d Cir.1987).

Non-scheduled injuries, referenced in section 908(c)(21) as “Other cases,” are compensated as follows:

“the compensation shall be 66 2/3 per centum of the difference between the average weekly wages of the employee and the employee’s wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of partial disability.”

Can a claimant go from PPD to PTD? Yes

PPD contemplates that the injured individual has a wage earning capacity after reaching maximum medical improvement (MMI). To establish a prima facie case for permanent total disability, the claimant need only demonstrate that he or she is unable to return to his or former position with the employer. This showing alone is significantly less than establishing a complete lack of wage earning capacity. See Meehan Seaway Service Company v. Director, OWCP, 125 f. 3D 1163 (8th Cir. 1997). Once the prima case is established, the burden shifts to the employer to rebut disability by demonstrating “suitable alternative employment available upon a reasonably diligent search by the claimant.” See DM & IR RY Co. v. Dir., OWCP, 151 F. 3d 1120 (8th Cir. 1998). An employer meets its burden by establishing that “there exists a reasonable likelihood, given the claimant’s age, education, and vocational background that he would be hired if he diligently sought the job.” New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1043 (5th Cir.1981); see also Lentz v. Cottman Co., 852 F.2d 129, 131 (4th Cir. 1988). Once an employer has established suitable alternative employment, the burden shifts to the employee to rebut the employer’s showing of alternative employment by demonstrating a “diligent yet unsuccessful job search.” Edwards v. Director, Office of Workers Compensation Programs, 999 F.2d 1374, 1376 n. 2 (9th Cir.1993); see also Pietrunti v. Director, Office of Workers’ Compensation Programs, 119 F.3d 1035, 1041 (2d Cir.1997); Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 542 (4th Cir.1988); Roger’s Terminal & Shipping Corp. v. Director, Office of Worker’s Compensation Programs, 784 F.2d 687, 691 (5th Cir.1986).

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NOTE: The Longshore and Harbor Workers’ Compensation Act (LHWCA) is a federal law. While the LHWCA covers employees in traditional maritime occupations such as longshore workers, ship-repairers, shipbuilders or ship-breakers, and harbor construction workers, 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 (DBA) – The DBA covers the following employment activities: (1) Work for private employers on U.S. military bases or on any lands used by the U.S. for military purposes outside of the United States, including those in U.S. Territories and possessions; (2) Work on public work contracts with any U.S. government agency, including construction and service contracts in connection with national defense or with war activities outside the United States; (3) Work on contracts approved and funded by the U.S. under the Foreign Assistance Act, which among other things provides for cash sale of military equipment, materials, and services to its allies, if the contract is performed outside of the United States; and (4) Work for American employers providing welfare or similar services outside the United States for the benefit of the Armed Services, e.g. the United Service Organizations (USO).

Outer Continental Shelf Lands Act (OCSLA) – The OCSLA covers 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.

Non-Appropriated Fund Instrumentalities Act (NAFIA) – The NAFIA covers civilian employees of non-appropriated fund instrumentalities of the Armed Forces (for example, military base exchanges and morale, welfare, and recreational facilities).

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Contact us at 305-758-4900 or by email to learn your legal rights. We handle our LHWCA cases on a contingency fee basis, which means that we do not charge any attorney’s fees or cost up front, and are only paid upon a successful outcome.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

The Longshore and Harbor Workers’ Compensation Act (LHWCA) and Florida’s Workers’ Compensation Act are statutory systems established to handle the provision of benefits to injured workers. The LHWC covers persons engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. The 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. Importantly, 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 (DBA); Outer Continental Shelf Lands Act (OCSLA); and Non-Appropriated Fund Instrumentalities Act (NAFIA).

The LHWCA specifically excludes seamen (masters or members of a crew of any vessel, typically, employees working aboard ships, tugs, fishing boats, barges, and dredges, who would be covered by the Jones Act), and employees of the United States government or of any state or foreign government. ;

Most of the rest of Florida employees will fall under Florida’s workers’ compensation system.

While the LHWCA and Florida’s system share many of the same concepts, some of the differences between them, especially as to the quality and quantity of available benefits, are significant. For the most part, the LHWCA is more generous to injured workers. This blog will set out some of the more important differences.

Jurisdiction. The LHWC is a federal law. Jurisdiction lies with the U. S. Department of Labor Office of Workers’ Compensation Programs Division of Longshore and Harbor Workers’ Compensation. Florida workers’ compensation cases are governed by state law. Jurisdiction lies with the State of Florida Division of Administrative Hearings.

Dispute Resolution. While very different from one another, both systems function relatively well. Florida’s system is somewhat more detailed and precise. Hearings and mediations must be completed within specific time periods and its electronic filing system/database is state of the art. The federal system is more ambiguous.

Compensability. Compensability concerns whether a claim is covered or denied. While both systems are what is known as “no-fault,” meaning injured employees are not required to establish fault to be compensated, each has defenses available to employers and their insurance carriers to deny claims. Florida workers’ compensation, in particular, has two potent and popular defenses:

• Major contributing cause (MCC). The language for this defense is located in section 440.09(1), Florida Statutes:

“The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries. For purposes of this section, “major contributing cause” means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought.”

The language can prove problematic for injuries superimposed on preexisting conditions such as degeneration and prior injuries. However, it is not uncommon for a work-related accident to aggravate a preexisting condition. Even if the accident-related injury does not total more than 50% of the overall medical condition, the employer/carrier (E/C) are responsible for treating the aggravation until it becomes less than the 50% of the reason for why treatment is necessary. For example, a person with a preexisting back condition that has required fusion surgery, but is otherwise doing well, may suffer an aggravation of the condition from a work related incident. If the aggravation results in the need of medical care, the E/C is responsible for the care. However, once the aggravation subsides, typically when the treating workers’ compensation doctor decides that the aggravation has reached the point known as maximum medical improvement (MMI) — 440.02(1) — compensation for further medical care and lost wages will end.

The main downside of the MCC defense comes when a work-related injury falls below the 50% level for aggravation or permanency. In this circumstance, the E/C is not responsible for any related medical or wage loss benefits. The LHWCA does not have a similar all-or-nothing standard. Benefits can be payable regardless of whether or not the work-related injury is the MCC.

• Drug and alcohol defense. Each system authorizes this defense. Florida’s statutory language is contained in sections 440.09(3) & (7). The LHWCA’s language is located at Title 33 Chapter 18 Section 903(c) of the United States Code.

440.09(3): “Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician….”

903(c): “No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee….”

Off the bat, the highlighted language shows a dramatic difference between the two standards. It is much easier for employers to establish “occasioned primarily” than “occasioned solely.” Making matters significantly worse is the following language from section 440.09(7)(b), which creates a presumption in favor of the employer that, in most cases, is exceedingly difficult to overcome:

“If the employee has, at the time of the injury, a blood alcohol level equal to or greater than the level specified in s. 316.193, or if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.”

The LHWCA has no such presumption. To the contrary, the LHWCA provides that “a claim for compensation . . . shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the injury was not occasioned solely by the intoxication of the injured employee.” 33 U.S.C. § 920(c). “[T]he employer may rebut the presumption . . . by presenting substantial evidence that is specific and comprehensive enough to sever the potential connection between the disability and the work environment.” Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642, 651 (9th Cir. 2010). This is a difficult burden for the employer to meet.

Presumption of Compensability. The two systems address this issue quite differently.

Section 920 of the LHWCA provides:

In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary —

(a) That the claim comes within the provisions of this Act.

(b) That sufficient notice of such claim has been given.

(c) That the injury was not occasioned solely by the intoxication of the injured employee.

(d) That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another.

This is a liberal view, which favors workers. Florida’s position, as contained in section 440.015, is quite different. In pertinent part, the section provides as follows:

“[I]t is the intent of the Legislature that the facts in a workers’ compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. Additionally, the Legislature hereby declares that disputes concerning the facts in workers’ compensation cases are not to be given a broad liberal construction in favor of the employee on the one hand or of the employer on the other hand, and the laws pertaining to workers’ compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer.”

Medical Benefits. Generally, LHWCA employees have”the right to choose an attending physician ….”, Section 907(b), while Florida workers’ compensation claimants do not. Section 440.13, Florida Statutes. Circumstances can alter these rules in either direction. Doctor selection often means everything in a case. There’s a reason why Florida workers’ compensation insurance carriers select the same handful of doctors time and again … and it’s not because those doctors put their patients first.

Compensation. Both systems set maximum rates of compensation for injured workers. The amount a claimant is eligible to receive is largely a function of his or her weekly earnings. In our experience, longshore and harbor workers typically earn more than many other types of workers. Perhaps in recognition of this, the LHWCA max rate (see section 906) is nearly double the Florida workers’ compensation max rate for any given year.

The systems also have similar categories of indemnity (money) benefits, ranging from temporary partial disability (TPD) to permanent total disability (PTD, which vary depending on work status and the stages of recovery from injury. Yet, while the categories between the systems may share similarities, the quality and quantity of the benefits and the ability of claimants to recover them, are substantially more favorable under the LHWCA than under Florida’s workers’ compensation system. The various categories:

• § 908. Compensation for disability [LHWCA]
• § 440.15 Compensation for disability [Florida WC]

Attorney’s Fees. Both systems have attorney’s fee provisions — LHWCA – § 928; Florida WC – 440.34 (caveat: 440.34 was modified significantly in 2016 by the Florida Supreme Court case Castellanos v. Next Door Company). Our firm handles longshore and Florida workers’ compensation cases on a contingency fee basis, meaning that no fee is due unless and until a recovery is made. Under some circumstances, the E/C may be required to pay all or a portion of the attorney’s fee. Fees payable under the LHWCA from the E/C and the claimant are limited to hourly fees; fees on a percentage basis are not allowed. Florida’s system (section 440.34) allows both hourly and percentage fees, however, only carriers may pay hourly fees. (The exception is for quantum meruit fees awarded to a discharged or withdrawn attorney.) Otherwise, claimant-paid attorney’s fee are limited to the contract or statutory percentage, whichever the court decides is reasonable. (In Miles v. City of Edgewater, 190 So.3d 171 (Fla. 1st DCA 2016), the court held that claimants may contract to pay attorney’s fees in excess of the statutory formula. Before Miles, such agreements were prohibited.) Importantly, all attorneys fees in both systems must be approved as reasonable by an administrative law judge.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com) to learn your legal rights. Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Each Act covers a different set of workers. With exceptions, the Longshore and Harbor Workers’ Compensation Act, which is Federal law, applies to “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker….” Section 902(3). One of the most important exceptions is for “a master or member of a crew of any vessel.” Section 902(3)(G). The rights of these individuals are governed by the Jones Act and Admiralty Law.

Florida’s workers’ compensation laws are contained in Chapter 440 of Florida’s Statutes. They govern the rights of almost every other type of worker employed in the state. Federal employees do not fall under Florida’s workers’ compensation system.

While the LHWCA and Florida’s Chapter 440 are strikingly similar in many respects, one significant difference involves physician selection. Under Section 907(b) of the LHWCA, “[t]he employee shall have the right to choose an attending physician….” In contrast, the employer/carrier selects the treating physicians in Florida’s system. Section 440.13 Florida Statutes.

This is an issue of significant consternation for injured workers and their lawyers in Florida workers’ compensation cases. Most of the doctors selected by the employers/carriers derive a sizeable portion of their income from workers’ compensation cases. Since their opinions determine how much the employer/carrier will spend in a case, their views, naturally, tend to favor the source of their income.

To make matters worse, “[a]n employee who reports an injury or illness alleged to be work-related waives any physician-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation….” Section 440.13(4)(c) Florida Statutes. In essence, this provision allows employer/carrier representatives, including lawyers and insurance adjusters, to engage in ex-parte communications with the injured worker’s doctors.

Once upon a time, Florida’s workers’ compensation system compared favorably with the LHWCA with regard to protecting injured workers. That has changed dramatically over the past twenty years with the Governor’s office and the Legislature being controlled by Republicans. Under their rule the interests of injured workers have taken a backseat to those of insurance and industry, resulting in the LHWCA being more worker friendly today than Florida’s system. The doctor selection issue discussed here is just one example of the many changes that have occurred over the years which have carved away workers’ rights.

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Contact us toll free at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.