Written by attorney Morgan J Gray

Longshore & Harbor Workers Act vs. Mass Workers Compensation

According to the United States Department of Labor, the Longshore and Harbor Workers Act (LHWCA) provides employment-injury and occupational-disease protection to approximately 500,000 workers who are injured or contract occupational diseases while working on the navigable waters of the United States, or in adjoining areas, and for certain other classes of workers covered by extensions of this Act. Massachusetts workers compensation coverage provides medical benefits, cash benefits, and vocational rehabilitation benefits to injured workers in the state. All injury-related medical costs will be paid by the insurance company, and an injured worker may receive a weekly cash payment up to 60% of their average weekly wage for temporary disability. Lifetime workers compensation benefits may be available to someone who is permanently and totally disabled. The tradeoff is that workers covered by workers compensation waive their right to sue their employer for job related injuries, except in limited circumstances. Definitions & Applications Since the LHWCA was enacted in 1927, Congress has extended it to include other types of employment and workers to the same benefits and claims processing as the Longshore Act. The following are the extensions of the LHWCA: • Defense Base Act • Outer Continental Shelf Lands Act • Non-appropriated Fund Instrumentalities Act

Those excluded from coverage under the LHWCA include seamen (masters or members of a crew of any vessel, employees of the U.S. government or of any state or foreign government, employees whose injuries were caused by their own intoxication or due to their own willful intention to harm themselves. Massachusetts workers compensation law covers most employees in the state. Massachusetts General Law c. 152, Sec. 1 (4) states that an employee is "every person in the service of another under any contract of hire, express or implied, oral or written." Exceptions include but are not limited to: • Railway workers

· Seamen engaged in interstate/foreign commerce • Salesmen of real estate or consumer goods who work on a commission, or buy/sell basis, other than in a retail establishment, (with a written contract stating they are not treated as an employee under federal tax law) • Taxi drivers who lease their cabs on a fee basis not related to fares collected (and who are not treated as an employee under federal tax law) • Persons engaged in interstate/foreign commerce that is covered by federal law for compensation for injury or death. Massachusetts employers are required to notify their employees of the name of the workers compensation insurance carrier, and a “Notice to Employees" poster must be posted in a common area of the workplace in English and other appropriate languages. Failure to post this information may subject the employer to a fine of $100. In Massachusetts, the Department of Industrial Accidents (DIA) is responsible for overseeing the workers compensation system. What’s the difference between the LHWCA and Workers Comp? In order to qualify for benefits under the LHWCA, an employee must be or have been a longshore or harbor worker who suffers from a work-related injury or illness; a widow or widower whose deceased family member died due to a work-related injury; or an employee or survivor as defined in the extension to the Act. All employers in Massachusetts are required by law to have workers compensation insurance for their employees, with a few exceptions. Employees who have work-related injuries or illness are eligible for workers compensation benefits. Coverage starts the first day on the job. Undocumented workers are eligible. Am I covered under Mass Workers Compensation, or do I have a LHWCA case? The LHWCA covers employees in traditional maritime occupations including longshore workers, ship repairers, shipbuilders, ship breakers, and harbor construction workers. Injuries must occur on the navigable waters of the U.S. or in the adjoining areas, including piers, docks, terminals, wharves, and those areas used in loading and unloading vessels. Non-maritime employees may also be covered if they performed their work on navigable waters and their injuries occurred there. The LHWCA compensates for lost wages, medical benefits, and rehabilitation services to longshore, harbor and other maritime workers who are injured during their employment or who contract an occupational disease related to employment. All employees in Massachusetts are entitled by law to have workers compensation insurance coverage.

Cost The LHWCA requires that maritime employers, including sole proprietors who are employees of their own company, obtain insurance for all employees. The insurance commissioners in the states in which they operate regulate all authorized carriers, and coverage costs vary. The Massachusetts Division of Insurance sets rates for job classifications based on the likelihood of injury. The rates are paid on each $100 of weekly wages. Many businesses are also "experience rated," meaning that yearly premiums are adjusted by the number of claims or the amount of losses. Workers compensation insurance can be purchased through any insurance agent or broker who handles business insurance or through a direct writer of insurance. Compensation All compensation benefits paid under LHWCA are based on the employee's average weekly wage at the time of injury. There are several methods used to determine the AWW; each method takes the employee's average annual earnings and divides that figure by fifty-two (52) to obtain an average weekly wage. If wages in the 52 weeks prior to injury do not reflect the claimant’s true earning capacity because of promotion, reduction in force (RIF), illness, or lack of work, or if the employment has not been permanent and continuous, there are other methods to calculate the average weekly wage. Compensation payable under the LHWCA is subject to the maximum (max) and minimum (min) rates. The max and min are determined annually on October 1 and are based on the national average weekly wage determined by the DOL using national wage data published by the Bureau of Labor Statistics. The max equals 200% of the NAWW; the min equals 50% of the national average weekly wage. If two-thirds (2/3) of the average weekly wage falls below the min, compensation is paid at the min. If the average weekly wage is below the min, compensation is paid at the average weekly wage. The min does not apply to compensation paid under the Defense Base Act. Under the LHWCA, the employer or insurance carrier is required to pay compensation within 14 days of receiving Notice of Injury, except in cases where the employer or insurance carrier disputes liability for benefits and files a Notice of Controversion, Form LS-207.

A workers compensation case is established through filings from employers, insurance companies, attorneys and third party providers under the provisions of MGL c. 152. When an employee is incapable of earning full wages for five or more full or partial calendar days due to an occupational injury or illness, the employer must file the original Employer\'s First Report of Injury or Fatality (Form 101) with the DIA and send a copy to their insurance carrier, a copy to the injured worker and a copy for their records. This form must be sent within seven calendar days (not including Sundays and legal holidays) from the fifth day of full or partial disability. Once the insurer receives the form, they have 14 calendar days to pay benefits on an Insurer\'s Notification of Payment (Form 103) or notify the employee and the DIA that they are denying the claim by sending an Insurer\'s Notification of Denial (Form 104). The insurance company can pay on a claim for up to the first 180 days following the initial injury or illness without accepting liability for the claim. During this 180 day "Pay Without Prejudice" period, the insurer can stop or modify the payments after giving a seven-calendar day notice to the injured worker and the DIA. The insurer, with the consent of the injured worker and approval of the DIA, can extend the initial 180-day period for another 180 days on an Agreement to Extend 180-Day Payment Without Prejudice Period (Form 105). After the initial 180-day period has passed, the insurer can stop or reduce payment only for reasons specified by the Workers’ Compensation Act and regulations. Under Massachusetts workers’ compensation law, injured workers receive an insurance card with a claim number to use when they receive workers\' compensation medical treatment. Workers have the ability to choose their own doctor. Cash benefits are paid by check or direct deposit. Workers\' compensation benefits are not taxable. Conclusion LHWCA is a federal law that provides for the payment of compensation, medical care, and vocational rehabilitation services to workers disabled from injuries on the job and that occur on the navigable waters of the United States, or in adjoining areas customarily used in the loading, unloading, repairing, or building of a vessel. The LHWCA also provides survivor benefits to dependents if a work injury caused, or contributed to, the employee\'s death. LHWCA benefits are typically paid by the self-insured employer or by a private insurance company on the employer\'s behalf. The term injury includes occupational diseases, hearing loss and illnesses arising out of employment. All employers in Massachusetts are required to carry workers compensation insurance covering their employees, including themselves if they are an employee of their company. This requirement applies regardless of the number of hours worked in any given week, except that domestic service employees must work a minimum of 16 hours per week in order to necessitate coverage. Only two types of employees, seafarers and railway workers, are exempt from Massachusetts workers compensation laws and thus, able to sue employers for job injuries.

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