Recently in Longshore and Harbor Workers' Compensation Act Category

June 2, 2014

Is Suicide Covered Under the Longshore and Harbor Workers' Compensation Act?

1396818_fishing_nets_4 sxchu username babykrul.jpgAs a Washington longshoreman or harbor worker, you may have heard of the Longshore and Harbor Workers' Compensation Act (LHWCA) and understand that you can potentially recover benefits under the Act. Benefits include damages for injury or illness, but they also include benefits for the family members of longshoremen in the event of a fatal accident. The federal Eleventh Circuit Court of Appeals, which hears cases from federal Washington district courts, has previously assessed whether a longshoreman's attempted suicide is covered under the LHWCA.

In Kealoha v. Office of Workers Comp. Programs, the Court reviewed an appeal by the injured longshoreman from the Administrative Law Judge's determination that the injuries from a suicide attempt were not compensable under the LHWCA because it was pre-planned. The Benefits Review Board had overturned the initial ALJ decision but remanded for further consideration and affirmed the ALJ's second denial of the longshoreman's claim. The Eleventh Circuit Court of Appeals ultimately agreed with the injured longshoreman and held that a pre-planned suicide does not necessarily prevent compensation under the LHWCA. The Court ruled that the question left for inquiry is whether the work-related injury led to the attempted suicide. If there is a direct and unbroken chain of causation between the work-related injury and the suicide attempt, recovery may be possible.

The longshoreman pursuing the claim had previously fallen and sustained injuries as a result of the fall. Two years after the accident, the longshoreman shot himself in the head in an attempt to kill himself and sustained severe head injuries. The expert witness diagnosed the longshoreman with major depressive disorder and attributed it to multiple traumas, chronic pain, PTSD, and cognitive stress disorder. The doctor reasoned that the longshoreman's mental health worsened as a result of the fall and caused him to become more depressed, angry, and anxious.

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September 27, 2013

Federal Court of Appeals Clarifies Definition of Seaman Under Jones Act

The Federal Court of Appeals in Maryland issued a decision this week, Dize v. Association of Maryland Pilots, that declined to allow a maritime worker recovery under the Jones Act. The decision hinged upon the definition "seaman", because the Jones Act allows specifies recovery for "seamen", which were traditionally those who worked onboard during a voyage, but has been extended to include those who partially work on land.

262068_7849.jpgIn this case, the injured maritime worker contracted silicosis of the lungs. He initially filed a claim against the Association of Maryland Pilots (Association), alleging that they were negligent by failing to provide adequate equipment during a sandblasting project in 2007 to protect him from the tiny particles found in his lungs. The injured worker filed a claim under the Jones Act which provides recovery in the form of maintenance (daily living expenses) and cure (medical related expenses) for crew members when there is negligence by the ship owner or fellow crew members.

The Association did provide him with safety suits, masks, and helmets to perform the task, but the injured worker was claustrophobic, and unable to wear the gear provided. The injured worker was ultimately given the choice of participating in the sandblasting project, or losing his job, so the worker participated, wearing the gear as much as possible. The maritime worker was diagnosed with silicosis of the lungs in 2008, and filed suit against the Association.

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April 10, 2013

Washington's Port of Tacoma Under Investigation After Two Longshoremen Deaths

Last month, longshoremen walked off the job twice at Port Tacoma, Washington, following the deaths of fellow workers. One gentleman died from blunt force trauma while working atop a crane. Another longshoreman died after working from a ladder near an electrical cable. Initial reports indicate the second longshoreman died of natural causes. However, the longshoremen walked off on both occasions out of respect for their co-worker and concerns for their own safety.

Longshoremen are an essential part of dock labor as highly skilled and productive workers who load and unload containers from shipping vessels that make their way across the country on trucks and trains. The intense physical labor puts dock workers at higher risk for serious accidents that can lead to injury or death. The federal government enacted the Longshore and Harbor Workers' Compensation Act in 1927 to provide workers' compensation coverage for dock workers. The Act is designed to provide benefits for disability due to an injury or an employment-related occupational disease that happens in the navigable waters of the U.S.

dock.jpgWhen a longshoreman is injured on the job, under the Act he or she can be compensated for the longshoreman's medical bills, including hospital services and supplies. A longshoreman can also receive compensation for disability at 66 2/3 percent of his or her weekly salary while recovering from the injury. If the injury becomes permanent, then the percentage of impairment is determined through a medical examination. The percentage of permanent impairment is then used in a calculation to determine how much compensation is needed to make the injured worker whole.

If a work-related accident results in the death of a longshoreman, then compensation for funeral expenses and lost wages of the longshoreman are also available for the widow, widower, or other eligible survivors. A surviving spouse may receive up to 50% of the average weekly wage of the longshoreman for life or until remarriage. Surviving children may receive benefits until they turn 18, but may have their benefits extended if they are unable to provide for themselves.

Correct classification of an injury is important to maximize the compensation an injured longshoreman receives. Injuries are categorized as either temporary or permanent and total or partial. The type of disability impacts whether the employer or the Office of Workers' Compensation Program (OWCP) pays for the injury. This past year the Ninth Circuit Court of Appeals issued a decision regarding the question of whether or not a partial "permanent" disability may be re-characterized as "temporary" during a period of recuperation.

In this case a longshoreman injured her neck and back and was considered permanently partially disabled. Her compensation was initially funded by her employer for the first two years and then the OWCP. The longshoreman's injuries worsened till surgery was required. Following surgery, her physical condition stabilized, but ultimately became permanent and total after nine months. The OWCP argued that this 9-month period was a period of "recuperation or healing", and should be characterized as a temporary disability.

The 9th Circuit Court of Appeals assessed the definition of temporary disability under the LHWCA and reaffirmed that a disability is temporary so long as there is a chance of improvement through normal or natural healing. Once there is no chance of normal or natural healing, then maximum medical improvement has been reached and the disability is considered to be permanent instead of temporary. The Court acknowledged that they have not previously questioned when a disability changes from permanent to temporary, but ultimately agreed with the prior determinations that the period following surgery is a period of recovery that can be classified as a temporary disability. This transferred responsibility of payment for the longshoreman's injuries from the OWCP back to the employer.

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