Can I pursue a claim under my state’s Workers Compensation program & LHWCA?
First, if you are working overseas and are injured, then the Defense Base Act is your workers’ compensation program. State programs do not apply to you, and your employer should have a DBA policy in place. For this article, we are discussing the LHWCA.
Because states differ on their approaches to the issue of concurrent jurisdiction over these types of claims, there is no easy answer to this question – the best answer is “it depends.” In Florida, the answer is clear – no, you cannot. Some states allow claims to be made under both programs, but you still cannot “double dip” on the benefits. If you are paid under the state workers’ compensation scheme, that amount can be offset to amounts paid under the LHWCA. Other states, like Florida, specifically exclude from state coverage any worker who is covered under the LHWCA. In Florida, the state workers’ compensation law states “No compensation shall be payable with respect to disability or death of any employee covered by the Federal Employers Liability Act, the Longshore and Harbor Workers’ Compensation Act, or the Jones Act.”
The concept of this concurrent jurisdiction is available in 18 states, including Alaska, California and New York. Even in those states where concurrent jurisdiction over an injured worker’s claim is allowed, it can be extremely difficult to unwind the case law which determines which workers can and which can’t avail themselves of this benefit. Many injured workers try to sort this puzzle out themselves, and sometimes end up losing their proper claim. It takes a knowledgeable and experienced attorney to determine the best course of action to maximize an injured worker’s benefits.
For example, some states only allow a benefit of 60% of the injured worker’s weekly pay. The LHWCA provides payment of 66 2/3% of a worker’s average weekly wage. (Florida Workers’ Compensation provides for payment of this same 66 2/3% – Learn More) In this case, you would want to make sure you have claimed under the LHWCA in order to maximize your benefits, even if your state has concurrent jurisdiction rules. Obtaining the higher weekly benefit is obviously better for you & your family. However, other benefits may be available to you under a state compensation program that are not provided under the LHWCA.
Finally, much confusion can arise when determining whether a worker is covered under the LHWCA or not. For instance, a person may work for a shipping company, located in a marina or near the water, but if their work consists of entirely office work, they will not be covered under the LHWCA. Compensation from this program (LHWCA) is reserved for those workers those who are engaged in maritime work on the navigable waters or adjacent waterfront. However, state compensation laws will apply.
There are other job exclusions to the LHWCA. Those employed by a club, camp, recreational operation, restaurant, museum or retail outlet are also not covered by the LHWCA. Nor are those working for a marina who are not engaged in construction, replacement or expansion of the marina covered. Also not covered are those working to load, unload or repair small vessels, defined as one weighing under 18 tons. There are other exclusions listed in the LHWCA, and those engaged in those excluded jobs should be covered under a state workers compensation program.
Is your head swimming yet? The question becomes when is a harbor worker not a harbor worker for LHWCA purposes? Answering that question requires expertise. These scenarios create all sorts of questions, and it is best to let an experienced professional sort it all out. A law firm with experience in both LHWCA/Defense Act claims and state workers’ compensation laws will be able to guide you through the maze of criteria, laws, and requirements for pursuing a compensation claim.