Written by attorney Morgan J Gray

The Longshore and Harbor Workers Act vs. The Defense Base Act

Overview: Jurisdiction and DefinitionThe Longshore and Harbor Workers’ Compensation Act (LHWCA) LHWCA is a workers’ compensation program administered by the Office of Workers’ Compensation Programs (OWCP). It protects approximately 500,000 workers who are injured or become ill while working on the navigable waters of the United States. The LHWCA provides employment injury and occupational disease protection in the form of benefits paid from a special fund administered by the Division of Longshore and Harbor Workers’ Compensation, Office of Workers’ Compensation Programs in the U.S. Department of Labor. The Defense Base Act (DBA) The Defense Base Act covers workers on military bases and reservations outside the United States. Almost any contract with an agency of the U.S. government for work outside the country, whether military or not, likely requires Defense Base Act coverage. All government contracts contain a provision that requires bidding contractors to carry necessary insurance, and the failure to do so will result in fines and possible loss of contract. The U.S. Department of Labor, Office of Workers’ Compensation Programs, and the Division of Longshore and Harbor Workers’ Compensation administer the Defense Base Act. Who is Covered? LHWCA covers workers employed in maritime occupations, such as longshore workers and harbor workers, specifically shipbuilders, ship repairers, and ship breakers. The LHWCA also excludes certain workers from coverage, such as masters or members of a crew of a vessel and any officer or employee of the U.S. or of any state or foreign government. Workers who are covered by their state’s workers’ compensation law are also excluded. Excluded workers are not covered under the LHWCA even if they are injured on navigable waters or an area adjoining navigable waters. The Defense Base Act covers the following employees: •Those working on a military base or reservation outside the U.S. •Those engaged in U.S. government-funded public works business outside the U.S. •Those engaged in a public works or military contract with a foreign government which has been deemed necessary for U.S. National Security •Those that provide services funded by the U.S. government outside the jurisdiction of regular military channels •Subcontractors involved in a government contract Coverage Comparison Disabled employees who are covered under the LHWCA are compensated at two-thirds of their average weekly wage, subject to specified weekly minimum and maximum amounts, for as long as the effects of their injury continue. Current compensation rates may be found at the U.S. Department of Labor website. Certain permanent impairments are also compensable under the LHWCA. If a covered employee is killed in a work related accident, the surviving spouse receives benefits at the rate of 50 percent of the worker’s average weekly wage, and if there are surviving children, another 16 and two-thirds percent each is payable for them. The LHWCA also provides that injured employees are entitled to have their employer pay for all reasonable and related medical expenses, and vocational rehabilitation may also be compensable.

The Defense Base Act provides disability, medical, and death benefits to covered employees who are injured or killed while in the course and scope of their employment, even if the injury occurred outside work hours. Total disability is compensated at two-thirds the employee’s average weekly wages, not to exceed $1,030.78 per week, and compensation is also available for partial loss of earnings. Death benefits to the surviving spouse or one child amount to one-half of the employee’s average weekly salary, and two-thirds for two or more survivors, up to the current weekly rate. Permanent benefits are payable for life and are eligible for cost-of-living adjustments. No minimum compensation rate has been established. The injured employee also receives medical treatment by their provider of choice as the injury requires. Key Areas of Overlap The provisions of the LHWCA are incorporated into several other statutes providing workers’ compensation for other types of employees, including the Defense Base Act, which covers employees of U.S. contractors working outside the United States. Benefits through the LHWCA may be received concurrently under state and federal workers’ compensation systems, but any benefits paid for the same injury, disability, or death are offset against payments made under the Act. Similarly, benefits received under the Jones Act for a seaman’s disability or death are also offset against Longshore payments. Where: Difference Between Where the Injury Occurs The LHWCA protects workers who suffer injury or disease while working on the navigable waters of the United States, while the Defense Base Act covers government contract workers on military bases outside the United States. Reporting Requirements There are reporting requirements for employers, self-insured employers, insurance companies, claimants, and medical providers under the provisions of the LHWCA: •Employers must file the Employers First Report of Injury or Occupational Illness form within 10 days of the incident or knowledge of it, unless the injury or illness did not cause the employee to miss at least one day or shift of work. Employers must also keep records regarding injuries sustained by employees, make these records available for inspection by the OWCP, and retain them for three years after the date of the injury. Employers are also required to file an Employer’s Supplementary Report of Accident or Occupational Illness in certain circumstances. The Longshore Act also requires employers to report compensation paid to injured workers to the district director of the OWCP. •Self-insured employers are required to file two reports, a Report of Payments and Report of Injury Experience, annually with the OWCP. These reports summarize the employer’s Longshore Act liabilities. •Insurance companies are required to submit any report the OWCP requests, each contract of insurance it issues to cover an employer’s liabilities under the LHWCA, and a Report of Payments and Report of Injury Experience, annually with the OWCP. •Claimants must file a written Notice of Employee’s Injury or Death which describes the cause and effects of the injury. They must also file a written Notice of Claim with the OWCP district director. Employees must also file a Report of Earnings at the request of the employer, insurance carrier, or the Department of Labor. •Medical providers who provide medical care to the insured worker are required to file a report of the injury to the employer and OWCP within 10 days of the first medical treatment. They may also be asked to provide additional reports concerning the medical care given to the employee. Under the Defense Base Act, the employer should notify its insurance carrier, or if self-insured the claims administrator, as soon as they have knowledge of the injury. Medical treatment should be authorized immediately. If the injury causes the loss of one or more work shifts, an Employer’s First Report of Injury must be filed with the proper OWCP district office within 10 days of the injury. Additional forms, notices, and medical reports should also be filed with the OWCP as required. A written claim for benefits must be filed with the OWCP district director within one year of the injury or last payment of compensation, whichever is later. Receiving Coverage Longshore and Harbor Workers’ Act Under the LHWCA, employers of covered employees are required to secure payment of compensation and medical benefits, either by purchasing insurance from a commercial insurance carrier authorized by the Department of Labor, or obtain Department of Labor authorization to self-insure. Authorized insurance carriers and self-insured employers pay all benefits to claimants under the LHWCA, except in special circumstances in which a Special Fund administered by the Department of Labor pays them. The employer or insurance carrier is required to pay compensation payments periodically, promptly, and directly to the person entitled to benefits under the Act. If an installment of compensation is not made within 14 days of when it comes due, an additional 10 percent will be added to the unpaid installment, according to the provisions of the Act. If an employer contacts the OWCP and demonstrates that the payment could not be made within the necessary time period for reasons out of his control, the penalty may be waived. Defense Base Act The OWCP district office oversees the payment of compensation and medical care to ensure compliance with the provisions of the Defense Base Act, and provides technical assistance to employers, insurance carriers, and benefit claimants for the timely delivery of benefits. If claim disputes arise, OWCP claims examiners conduct informal conferences to help the parties resolve their disputes through mutual agreement or compromise to avoid formal litigation. In undisputed claims, the district director has authority to approve settlements and issue compensation awards. If the parties are unable to resolve their disputes informally, the claim may be referred to the Office of Administrative Law Judges for formal hearing. Decisions of the administrative law judge may be appealed to the Benefits Review Board, and thereafter to the U.S. District Court or to the U.S. Court of Appeals. Conclusion The LHWCA and the Defense Base Act are two separate Federal laws providing benefits to two distinct groups of workers: maritime employees working on the navigable waters of the U.S., and employees of government contractors working on a military base or reservation outside the U.S. They are somewhat related as most rules covering the administration of the Defense Base Act come from the Code of Federal Regulations written regarding The LHWCA .

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