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.
When 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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