It’s fairly safe to say that in any area of law there are rules of law, and there are exceptions to those rules. The exceptions exist to ensure fairness and so that individual or unusual circumstances do not preclude recovery. The same is true with the Longshore & Harbor Workers Compensation Act. There are exceptions to the general rule about this Act being your exclusive right to any recovery.
Generally, when you have been injured on the job, the workers compensation program that is in place is the only recourse you have for obtaining compensation for those injuries. It will provide you with medical care for the injuries and some compensation for lost wages. These programs were put in place so that employers would be shielded from defending continuous lawsuits and the employees would be compensated for the injury. It is a type of no-fault system; if you are injured on the job, you are compensated. For the most part, this works to keep the wheels of businesses turning smoothly.
The exception to this general rule for the Longshore and Harbor Workers Compensation Act, and, by extension, the Defense Base Act is found in the Section 905 b claim of the Act and sets out specifics for these types of claims.
905b Claim
These types of claims are similar to negligence tort claims and are a lawsuit filed in court. In a third party situation, if the vessel was negligent and somehow responsible for all or part of your injury, you may make this type of claim. The term “vessel” includes the actual owner, agent, operator, charterer or bare boat charterer, master, officer, or crew member. For instance, if a crewmember created the condition that caused your injury, you might have grounds for a 905 b claim against that vessel. To prevail in this claim, you would have to prove elements of negligence just like a tort case. First you must prove that the owner of the vessel owed a duty to protect from a hazard, second that they somehow breached that duty, that there was an actual injury, and that the injury was proximately caused by the negligence.
If your employer was also the vessel owner, and there was negligence that contributed to your injury, then you may have a claim against them under the 905 b claim rules. The statute treats the employer in its capacity as owner almost like a separate entity for these purposes. For instance, if there was a duty imposed to keep a certain area free from hazards and they failed to do so, and you were injured, you may have a 905 b claim.
Time to File Claims
A 905 b claim must be filed within three years of the incident. This time limit, known as the statute of limitations, is the same as any claim filed under maritime law.
A HUGE caveat here, though. Sometimes the claim is more properly brought under state tort laws, and the state time limits will apply. If you have waited too long, your claim might be precluded. The defense attorneys on the other side will try to use this strategy to get the claim thrown out, so it is important to pursue these claims right away.
Most attorneys experienced in a 905 b claim are well aware of this, so they will try to get the claim filed within a year. This strategy preserves your rights, whether the claim is a state claim or a valid 905 b claim.
Damages Under A 905 b Claim
One of the reasons it is so important to consider whether you might have a 905 b claim is the damages that are available under these claims. Compensation under the LHWCA and DBA provides for medical treatment and a percentage of wage loss recovery. This is somewhat limited in scope.
With a 905 b claim, or regular tort claim, you are also entitled to pain and suffering damages, compensation for your full lost wages and lost future wages, lost benefits, loss of enjoyment of life, loss of personal services to your family and any other damages you may have suffered. It can provide a more complete recovery for the losses due to your injury.
Does Not Affect Your LHWCA Claim
You can pursue your workers compensation rights under the LHWCA and collect benefits while also pursuing a 905 b claim case. If the third party is your employer, and you are successful in your 905 b claim, then they or their insurance company may be entitled to credit for any amounts they have paid under the LHWCA claim. An insurance company that has paid under the workers compensation program may be entitled to reimbursement from any settlement or judgment received from this claim. The various rights of the insurance companies can be confusing, and are best explained by a skilled LHWCA/DBA attorney.
Caution
These types of claims are very complex because of the restrictions on what type of workers are and are not allowed to make these claims. They are subject to all sorts of defenses, and defense strategies. There is also the “insurance dance” to consider. We have really only scratched the surface in this discussion, as there are other issues to consider with a 905 b claim.
Make sure if you have been injured on the job, and you are subject to the Longshore & Harbor Workers Compensation Act, or the Defense Base Act that you seek out an attorney who is very experienced in these types of claims. Especially if you think the injury is the result of negligence of a third party and/or the vessel owner, they will be able to assess the situation and determine if you have an additional claim under 905(b).