Brictson & Cohn

Is my injury covered by the Longshore and Harbor Workers Act?

Who controls the medical care?

How is temporary disability paid?

How is permanent disability paid?

What are some good sources to research related information?

What is vocational rehabilitation?

How are death benefits paid?

How are disputes in the handling of my case resolved?

What are my settlement options?

How are disputes handled?

Is my injury covered by the Longshore and Harbor Workers Act?

The Longshore and Harbor Workers' Compensation Act provides for medical benefits, compensation for lost wages and rehabilitation services to longshoremen, harbor workers and other maritime workers who are injured during the course of employment or suffer from diseases caused or worsened by conditions of employment. Several other statutes extend the provisions of the Act to cover other classes of private-industry workers. These include workers engaged in the extraction of natural resources of the outer continental shelf, employees on American defense bases, and those working under contracts with the U.S. government for defense or public-works projects, outside of the Continental United States. Civilian employees, compensated from nonappropriated funds, of the Army and Air Force Exchange Service, Army and Air Force Motion Picture Services Navy Ship's Stores Ashore, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and other instrumentalities of the United States under the jurisdiction of the Armed Forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the Armed Forces.

Additional information:

Longshoreman and harbor workers, like those working in Shipbuilding (e.g. Nassco, Southwest Marine, Continental Maritime, etc.), loading or unloading vessels, or at docks, harbors or bays are usually also covered concurrently covered under the State workers’ compensation system, and get more benefits. Those working on defense bases are not covered by the State Act.

The LONGSHORE & HARBOR WORKERS’ COMPENSATION ACT covers:

Persons engaged in maritime work or in maritime occupation –

longshoreman or other person in longshoring operations,

any harbor worker,

ship repair, shipbuilding, shipbreaker, etc.

The DEFENSE BASE ACT covers:

Persons employed by Federal government contractors outside the continental U.S., Alaska or Hawaii.

The OUTER CONTINENTAL SHELF LANDS ACT covers:,

Employees of private industry, conducting certain operations on the Outer Continental Shelf of the United States.

The NONAPPROPRIATED FUND INSTRUMENTALITIES ACT covers:

Civilian employees of nonappropriated fund instrumentalities (post exchanges, etc.) of the Armed Forces.

Not covered are: 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 this Act; Aquaculture workers; Individuals employed to build, repair, or dismantle any recreational vessel under sixty-five feet in length; Small vessel workers if exempt by certification of the Secretary of Labor under certain conditions; A master or member of a crew of any vessel; Any person engaged by a master to load or unload or repair any small vessel under eighteen tons net; and employees of the United States government or of any state or foreign government

Who controls the medical care?

Injured workers are legally entitled to receive ALL medical care reasonably required to cure or relieve the effects of the injury, at no expense. This includes mileage expenses to and from the doctor.

The employee has ONLY ONE free choice physician. If you intend to exert that right, CHOSE CAREFULLY, or leave it to an experienced attorney. Each case and doctor is different. Longshore cases are a unique item, not all doctors know how to handle a workers’ compensation case, not all doctors who know workers’ compensation know Longshore, and not all doctors are working exclusively for the benefit of the injured worker. At Brictson & Cohn we work with a network of doctors who we trust, and who trust us. Some may be willing to provide services, and wait for payment, knowing we are representing you.

How is temporary disability paid?

If your injury prevents you’re to return to work you are entitled to temporary disability benefits to partially replace wages lost as a result of the injury. The weekly benefits are generally designed to replace two-thirds of the lost wages. The use of concurrent benefits is essential for persons earning for than the maximum rate.

Temporary disability benefits are payable every two weeks, on a day designated with the first payment, until the employee is able to return to work or until the employee's condition reaches “maximum medical improvement.” An injury has reached ““maximum medical improvement” when the doctor concludes that additional reasonable medical treatment is not going to make you much better.

How is permanent disability paid?

These benefits are the basis of any settlement. How much money you get when your case is over, and at what rate, depends on what part of your body was injured, and/or whether you can return to your job, and/or how much you gain earn after the injury. An injury that occurs to the arms, hands, legs, feet, ears, or the eyes (parts that might get cut-off) are called "scheduled injuries, meaning a fixed amount will be paid based on a schedule. The current schedule is as follows:

(1) Arm lost, three hundred and twelve weeks' compensation.

(2) Leg lost, two hundred and eighty-eight weeks' compensation.

(3) Hand lost, two hundred and forty-four weeks' compensation.

(4) Foot lost, two hundred and five weeks' compensation.

(5) Eye lost, one hundred and sixty weeks' compensation.

(6) Thumb lost, seventy-five weeks' compensation.

(7) First finger lost, forty-six weeks' compensation.

(8) Great toe lost, thirty-eight weeks' compensation.

(9) Second finger lost, thirty weeks' compensation.

(10) Third finger lost, twenty-five weeks' compensation.

(11) Toe other than great toe lost, sixteen weeks' compensation.

(12) Fourth finger lost, fifteen weeks' compensation.

(13) Loss of hearing:

(A) Compensation for loss of hearing in one ear, fifty-two weeks.

(B) Compensation for loss of hearing in both ears, two-hundred weeks.

(14) Phalanges: Compensation for loss of more than one phalange of a digit shall be the same as for loss of the entire digit. Compensation for loss of the first phalange shall be one-half of the compensation for loss of the entire digit.

(15) Amputated arm or leg: Compensation for an arm or a leg, if amputated at or above the elbow or the knee, shall be the same as for a loss of the arm or leg; but, if amputated between the elbow and the wrist or the knee and the ankle, shall be the same as for loss of a hand or foot.

(16) Binocular vision or per centum of vision: Compensation for loss of binocular vision or for 80 per centum or more of the vision of an eye shall be the same as for loss of the eye.

(17) Two or more digits: Compensation for loss of two or more digits, or one or more phalanges of two or more digits, of a hand or foot may be proportioned to the loss of use of the hand or foot occasioned thereby, but shall not exceed the compensation for loss of a hand or foot.

(18) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member.

(19) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.

(20) Disfigurement: Proper and equitable compensation not to exceed $7,500 shall be awarded for serious disfigurement of the face, head, or neck or of other normally exposed areas likely to handicap the employee in securing or maintaining employment

However, if the injured worker is totally unable to work after the injury, compensation will be owed as if the injury were unscheduled; i.e., on a wage loss basis.

An "unscheduled" injury is any one that is not on the above schedule; usually the back, neck, brain or any other internal organs. Benefits for unscheduled injuries are upon the injured workers’ post-injury loss of earning capacity.

What are some good sources to research related information?

The law specifically governing these activities:

http://www.law.cornell.edu/uscode/33/ch18.html

What is vocational rehabilitation?

"Give a man to fish, and you have fed him for today. Teach a man to fish, and

you have fed him for a lifetime."

Vocational rehabilitation may include evaluation, testing, counseling, selective placement, and retraining, if the employee is injured and cannot return to the former job. Rehabilitation services may include the cost of tuition, books and supplies, all paid by the Department of Labor, and later taxed to your employer through the Special Fund.

A maintenance allowance not to exceed $25.00 per week is also provided during retraining. However, Brictson & Cohn may be able to compel your employer to pay you while you go to training, either by establishing concurrent jurisdiction with another set of laws, or by establishing the lack of alternate employment.

How are death benefits paid?

The widow or widower should receive 50% of the average weekly wage of the deceased employee for life or until remarriage.

Reasonable funeral expenses are also owed of $3,000. Additional monies are also owed - 162/3% of the employee's average weekly wage - for one or more children. If children are the sole survivors, 50% of the employee's average weekly wage is owed on behalf of the first child. Where more than one child is entitled to benefits, a maximum of 662/3% applies, shared equally.

How are disputes in the handling of my case resolved?

Disability (temporary and permanent) benefits are supposed to be paid within 14 days of the dates they are covering: i.e. once every two weeks, and starting your second week off. The employer is subject to penalties if payments are untimely.

Determination of the injured worker's permanent impairment, limitations and need for medical treatment is made by either the treating physician or medical-legal expert. Medical-legal experts are regularly retained by either the workers’ compensation carrier (and thus tend to say things to help the workers’ compensation carrier) or the injured workers’ attorney (and thus tend to say things to help the injured worker). An AME is a doctor that both the workers’ compensation company and the injured workers’ attorney know from experience is reasonable, and respected by the judges. It is important to note, that both sides always describe their own doctors as “AME Quality”, similar to a car salesman describing the used car as reliable and a great deal. You only really know through experience. Our experience handling Longshore cases in the San Diego began in 1987.

What are my settlement options?

Generally, there are two ways to resolve a workers’ compensation claim, as relates to your permanent disability award:

1. 8(c) Stipulation; or

2. 8(i) Settlement.

The difference between an 8(c) and an 8(i) relate to how you are paid and whether or not you retain your rights for future medical care.

Essentially, the 8(i) Settlement gets you some more money, and all of your money now, but settles your case once and for all. An 8(c) Stipulation provides you small payments over time, but keeps your case open. Although the 8(i) looks attractive, our office does not recommend it, unless you have other group health insurance that will cover your future medical needs, if any. Also, please note that employers are usually unwilling to enter into an 8(i) settlement if you continue to work with the same employer.

8(c) Stipulation

Payments:

Payments made every two weeks until the stipulated sum is paid out. The rate varies per the agreement.

Future Medical Care:

Reasononable and necessary for your injury only.

Rights to Modify:

Within one year of the last payment of compensation; and only if a petition for modification was filed within that time.

8(i) Settlement

Payments:

All in one lump sum and it includes all sums for disability and future medical costs.

Future Medical Care:

None.

Rights to Modify:

None.

DISPUTES & HEARINGS

Whenever there is a dispute, one may ask for a conference before the Department of Labor. If the matter is not resolved there, the matter will proceed for a full blown trial before the Office of Administrative Law Judges.

If you are represented by our office and have received notice of a trial on your case, our office will arrange for a pre-trial meeting between you and the responsible attorney on your case. At that time, the attorney will prepare you for your trial, going over your testimony and the expected cross-examination for the other attorney.