in a recent case (decided June 20, 2011) the claimant worked for a long time in foreign combat environments. He then took a "safer" job working on the United States Army Kwajalein Atoll in the South Pacific. In 2008 he sustained a neck injury and was admittedly entitled to medical and lost time (indemnity) benefits. The administrative law judge (“ALJ”) had to determine the average weekly wage. The ALJ determined that Claimant’s rate of pay at the time of his injury on the Atoll, a non-hostile environment, would form the basis of his wage calculation under 33 U.S.C. § 910. The claimant appealed, arguing he had earned more when working in more dangerous environments previously.

The Benefits Review Board (“BRB”) upheld the ALJ’s average weekly wage calculation, finding that because the Claimant’s pre-Atoll jobs were performed under different conditions, they would not form the basis for calculating his current wages.

Interestingly, this case is the exact opposite of the typical war zone cases, where a claimant is working in a high-danger job, often at a premium for any hazardous duty, and often for a short time before the disabling accident occurs - in which case the claimant gets the benefit of the higher wages (even if only briefly earned) in establishing his wage rate for the purposes of compensation.

Defining Wages.

The LHWCA defines the term "wages" as the money rate at which the service rendered by an employee is compensated by an employer under the contract of hiring in force at the time of the injury, including the reasonable value of any advantage which is received from the employer and included for purposes of any withholding of tax under subtitle c of the Internal Revenue Code of 1954 (relating to employment taxes). The term "wages" does not include fringe benefits, including (but not limited to) employer payments for or contributions to a retirement, pension, health and welfare, life insurance, training, social security or other employee or dependent benefit plan for the employee's or dependent's benefit, or any other employee's dependent entitlement. 33 U.S.C. § 902(13). This definition does include housing and meals in the calculation of a claimant's wages provided that they were not fringe benefits except in the Ninth Circuit, which holds that the the IRS criteria for deciding whether non-monetary compensation counts as wages. (For more on the definition of "wages" see Chapter 8 of my book, Longshore and Harbor Workers' Compensation Law, 2011 edition.)

Calculating Wages.

In the case where the claimant worked substantially the same employment as the employment he was engaged in at the time of the injury, whether for the insured or another employer, for most of the year the Act provides:

. . . his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed. 33 U.S.C. § 910(a).

Making this determination requires knowledge of whether the claimant was six- or five-day worker. Next, a wage statement should be obtained, with daily and weekly wages if available.
If the claimant did not work in the employment or a similar employment for “substantially the whole part of the year” then his wages will be based on a co-employee of “the same class working the whole of such immediately preceding year in such employment in the same or neighboring place” using the same 260- or 300-day multiples. 33 U.S.C. § 910 (b).

If neither of these metrics fit the fact situation (for example, a new hire working on a new project without a similar project in a neighboring locale) then the wages will be based on the previous earning of the claimant, the reasonable value of the services provided if the claimant was engaged in self-employment, and the wage experience of similar workers.

Wages in Traumatics versus Occupationals

The LHWCA calculates the claimant's average weekly wage differently based on the type of injury sustained.

Traumatic Cases

In a trauma case the employee's average weekly wage "at the time of the injury" is used to compute the claimant's compensation. LeBlanc v. Cooper/T. Smith Stevedoring, Inc., 130 F.3d 157 (5th Cir. 1997). This is relatively easy to do. In a traumatic case where the injury is to the low back, neck, head, shoulder, or psyche, the AWW is very important as the unscheduled disability award will be based on the claimant’s pre- and post-injury earnings. In all cases, claimants will receive more benefits for higher wages, subject to the statutory maximums in place at the time of loss.

Occupationals

In an occupational case the time of injury, is when the claimant became aware of, "or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability.” Therefore, the wage earned by the claimant at that time (time of discovery) is used. This can be higher than during the period of actual exposure or employment.

Rates: a key the difference between Longshore and the Defense Base Act.

All Longshore compensation rates are based on a calculation of the claimant’s weekly wage. In every case, the actual benefit amount requires reference to the National Average Weekly Wage as a "maximum" on the possible benefits. For accident occurring now (Aug 2011) the maximum is $1,256.84 and the minimum is $314.21. Although the benefits available under the DBA are identical to the LHWCA, there is one key distinction: minimum compensation rates. While the minimum compensation rate under the LHWCA is 50% of NAWW, there is no minimum weekly compensation rate under the DBA.

New Case: Calculating wages under the Defense Base Act.

In a recent case (decided June 20, 2011) the claimant worked for a long time in foreign combat environments. He then took a "safer" job working on the United States Army Kwajalein Atoll in the South Pacific. In 2008 he sustained a neck injury and was admittedly entitled to medical and lost time (indemnity) benefits. The administrative law judge (“ALJ”) had to determine the average weekly wage. The ALJ determined that Claimant’s rate of pay at the time of his injury on the Atoll, a non-hostile environment, would form the basis of his wage calculation under 33 U.S.C. § 910. The claimant appealed, arguing he had earned more when working in more dangerous environments previously.

The Benefits Review Board (“BRB”) upheld the ALJ’s average weekly wage calculation, finding that because the Claimant’s pre-Atoll jobs were performed under different conditions, they would not form the basis for calculating his current wages.

Interestingly, this case is the exact opposite of the typical war zone cases, where a claimant is working in a high-danger job, often at a premium for any hazardous duty, and often for a short time before the disabling accident occurs - in which case the claimant gets the benefit of the higher wages (even if only briefly earned) in establishing his wage rate for the purposes of compensation.

Case: Luttrell v. Alutiiq Global Solutions, BRB No. 10-0555 (2011).

From Chapter Five of my upcoming book, "Longshore and Harbor Workers' Compensation Act":

Jurisdiction
The following are excluded from coverage under the Longshore and Harbor Workers’ Compensation Act:

• Master or member of a crew;
• Small vessel workers;
• Officers and agents of the federal, state, local, or foreign governments;
• Clerical/secretarial/security/data processing employees;
• Employed by a club, camp, recreational operation, restaurant, museum or retail outlet;
• Marina workers;
• Employees of suppliers, transporters or vendors;
• Aquaculture workers;
• Recreational vessel construction repair;
• Small vessel building/repairing/dismantling.

Waiver
The claimant’s right to receive benefits under the Longshore and Harbor workers’ Compensation Act by filing a claim for an receiving state workers’ compensation benefits.

Notice & Prejudice
The claimant must provide notice of injury to the employer within 30 days of the injury except for occupational disease cases. In an occupational claim, the notice period extend to one year from when the employee was aware or should have been aware of the condition and the relationship of the condition to work. The claimant must show that either the employer had knowledge during the filing period, or that the employer was not prejudiced by the failure to file timely notice, or that the failure was excused.

Failure to file notice may be excused by the judge where notice was given to an official of the employer or carrier and no prejudice resulted, even if not given to the designated official.80 This frequently happens where an employee reports an injury to a colleague rather than a supervisor. The notice requirement may also be excused if a satisfactory reason exists as to why such notice could not be given.

The employer can show prejudice when due to a lack of timely written notice the employer was unable to effectively investigate to determine the nature and extent of the alleged illness or to provide medical services.

Despite ‘notice’ being a defense, please note that notice is presumed under the Act and must be affirmatively plead.

Intoxicated Workers.
In order for this defense to prevail, the employer must show that the intoxication was the sole cause of injury.

Intentional Injuries
Section 903(c) of the Act states that “ (c) No compensation shall be payable if the injury was occasioned solely . . . by the willful intention of the employee to injure or kill himself or another.”

Suicide or self-harm.
In order to prevail with this defense, the employer must show that the claimant’s injuries arose out of a willful intent on the part of the employee to harm himself - this is more than just a ‘careless’ attitude towards safety or even willful refusal to use a specific piece of safety equipment. The burden of proof is on the employer to demonstrate that the suicide or self-inflicted injury did not arise out of the employment.

Intent to harm another.
The employer bears the burden of showing that the      claimant was injured will attempting to harm himself or another. The employer must show willful intent on the part of the claimant, which can be demonstrated by the claimant's speech and physical activity (gestures and contact) at the time of the incident. The burden shifts to an employer seeking to rely on an employee’s own intentional acts.

Intoxication.
An employee’s own intoxication being the sole cause of the accident is a defense to compensability. However, in order to prevail, the burden shifts to the employer to show that the accident arose solely due to the intoxication of the employee with no contribution from the work.

My book - "Longshore and Harbor Workers' Compensation Act and Defense Base Act Claims 2011 Edition" is getting ready for publishing and we are finalizing the cites and references for the 2011 editiion (shipping: April 2011). Here's a sneak preview of the second chapter (note: all cites & footnotes have been removed):

Chapter 1: Initial Reporting

Overview

• The employee must notify the employer immediately by reporting the accident.
• If medical treatment is sought, provide the claimant with Form LS-1, which authorizes treatment by a doctor of the employee’s choice.
• The claimant will then receive medical treatment.
• The claimant must provide written notice of the injury within 30 days to the employer on Form LS-201. Notice of death must also be given within 30 days. Additional time is provided for certain hearing loss and occupational disease claims.
• (Optional - does not happen in all cases). To obtain permanency and some other benefits under the Act, the injured worker must file either Form LS-203 or a written statement identifying the alleged injury and stating that the identified claimant is seeking benefits. This must be filed within one year after injury, or, if the employer or its insurer has made voluntary payments, within a year after the last payment. If the alleged condition is an "occupational disease" rather than a specific accident, the filing period is two years from the date it was recognized as employment-related and disabling character.

Forms & Procedure - Controverting claims.
An employer controverting the right to compensation must file a Notice of Controversion of Right To Compensation10 with the District Director on or before the fourteenth day, after knowledge of the alleged injury or death (from the date the claimant files Form LS-207). following the filing of a Notice of controversy, an informal conference will be scheduled at the District Office and a Longshore claims examiner will preside over an informal conference to discuss and potentially resolve the dispute. If the issues cannot be resolved informally, the parties will be directed to file a Pre Hearing Statement. The case will then be referred to the Office of Administrative Law Judges for a formal hearing. The Administrative Law Judge will issue a formal decision and order regarding the benefits claimed.

Appeal.
Appeal from the decision of the Administrative Law Judge is to the Benefits Review Board. Appeal of the benefits Review Board’s decision is to the appropriate Circuit Court and finally the Supreme Court of the United States.

DLHWC Forms
All forms that need to be filed with the Division are available online:
http://www.dol.gov/owcp/dlhwc/lsforms.htm
These forms include: wage statement (LS-200), pre-hearing statement (LS-18), and employee’s claim forms (LS-203).

Notice in specific accident cases.
Notice of an injury or death for which compensation is payable must be given within 30 days after injury or death, or within 30 days after the employee or beneficiary is aware of, or in the exercise of reasonable diligence or by reason of medical advice should have been aware of, a relationship between the injury or death and the employment.12 It is the claimant's burden to establish timely notice. The claimant is provided a presumption that timely notice has been provided.13 Where one injury arises out of an accident has been reported, the claimant does not have to give separate notice of other injuries resulting from the same incident.14
     
Notice in occupational disease cases.
In the case of an occupational disease which does not immediately result in disability or death, notice must be given within one year after the employee or claimant becomes aware or in the exercise of reasonable diligence or by reason of medical advice, should have been aware of the relationship between the employment, the disease, and the death or disability. Thus, the period does not begin to run until the employee is disabled. It is possible for an employee to bring an occupational disease claim “post-retirement.” In a post-retirement occupational disease claim, the claimant will be required to show that the retirement was ‘involuntary’ in that the allegedly occupationally-related condition caused him to leave the workforce.
         
Giving the report of loss.
The injured worker can provide notice to:

• The first-line supervisor (including foreman, hatch boss or timekeeper), local plant manager, or personnel office official;
• Any partner, if the employer is a partnership; or
• Any authorized agent or officer, therefore, upon whom legal process may be serviced or person in charge of business at the place of injury if the employer is a corporation.

Notice as a defense.
Notice to the employer is a requirement. Therefore, the lack of notice to the employer can be a defense to a claim. We discuss using ‘Notice’ as a defense in Chapter 5, infra.

The first chapter of my new book - "Longshore and Harbor Workers' Compensation Act and Defense Base Act Claims 2011 Edition" is off to the publisher and we are finalizing the cites and references for the 2011 editiion. The publication will ship in April 2011(note references below). Here's a sneak preview of the introductory chapter:

Introduction

The Longshore and Harbor Workers' Compensation Act ("LHWCA") was enacted in 1927 to provide no-fault workers' compensation benefits to longshoremen injured in the navigable waters of the United States. These benefits extend to longshoremen injured within three miles of shore which includes the docks along the shore. In the last year for which such statistics are available, there were 27,000 new claims filed and $764M in benefits issued under the LHWCA. Since its inception in 1927, the LHWCA has been amended many times, usually to extend the benefits available under the Act to more workers.

Who is a Longshoreman?
The LHWCA covers employees in traditional maritime occupations such as longshore workers, ship-repairers, shipbuilders or ship-breakers, and harbor construction workers. The term “Longshoreman” typically refers to maritime workers responsible for unloading or loading ships and who are not a master or member of the ship’s crew. The injuries must occur on the navigable waters of the United States 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 perform their work on navigable water and their injuries occur there.  

Who else qualifies for benefits under the LHWCA?
Congress extended the LHWCA to include other types of employment. Employees covered by these extensions are entitled to the same benefits, and their claims are handled in the same way as Longshore Act claims. The following are the extensions of the LHWCA:

• DEFENSE BASE ACT - applying to employment at overseas military bases of the United States and to employees of U.S. government contractors working outside the United States in public work projects or in national defense and military operations;
• OUTER CONTINENTAL SHELF LANDS ACT - applying to employees working on the Outer Continental Shelf of the United States in the exploration and development of natural resources, for example, off-shore oil drilling rigs;
• NONAPPROPRIATED FUND INSTRUMENTALITIES ACT - applying to civilian employees of non-appropriated fund instrumentalities of the Armed Forces (for example, military base exchanges and morale, welfare, and recreational facilities).

Who is specifically excluded from benefits under the LHWCA?
The LHWCA specifically excludes from eligibility for benefits the following individuals:

• Seamen (masters or members of a crew of any vessel);
• Employees of the United States government or of any state or foreign government;
• Employees whose injuries were caused solely by their intoxication;
• Employees whose injuries were due to their own willful intention to harm themselves or others.

We cover these exclusions in depth in our chapter on Defenses. The LHWCA also excludes the following individuals if they are covered by a state workers' compensation law:

• Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;
• Individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
• Individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);
• Individuals who (A) are employed by suppliers, transporters, or vendors, (B) are temporarily doing business on the premises of a maritime employer, and (C) are not engaged in work normally performed by employees of that employer covered under the Act;
• Aquaculture workers;
• Individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel or dismantle any part of a recreational vessel in connection with such repair;
• Small vessel workers if exempt by certification of the Secretary of Labor under certain conditions. 

What benefits are available under the LHWCA?
The LHWCA provides for medical benefits and disability benefits to an injured worker. An injured employee is entitled to reasonable and necessary medical, surgical, and hospital treatment and other medical supplies and services required by the work-related injury or illness, such as prescription medications, diagnostic tests, physical therapy, prostheses, hearing aids, attendant care, and the cost of travel for such treatment. An injured employee is entitled to select a physician of his/her choice to provide medical treatment for the work injury. The LHWCA provides for the payment of compensation for the following four types of disability: temporary partial, temporary total, permanent partial, and permanent total. This compensation can not exceed two-thirds of the employee’s average weekly wage during the period of disability, subject to maximum and minimums.

About this Book
This book is designed to be a “plain English” practical and up-to-date guide to handling claims under the Longshore and Harbor Workers’ Compensation Act (and Defense Base Act claims).

The chapters in this book are designed to follow the natural timeline of a LHWCA compensation claim: We begin with initial reporting requirements, establishing jurisdiction, and we address ‘compensability.’ We then discuss the benefits available to an injured worker: medical treatment, wage replacement, and special handling considerations for specific types of claims. Finally, the ending chapters in this book discuss trial considerations, types of settlements, judgment and appeal, and related considerations (HIPAA, Medicare Secondary Payer, etc).

Writing a book on Longshore and Harbor Workers’ Compensation Law is like trying to hit a moving target. The law is evolutionary. As this book goes to press in April 2011, we are confident that it represents the most up-to-date edition we have ever published. We encourage you to subscribe to our free newsletter and visit Greg Lois’ website (www.greglois.com) for the very latest updates.

To subscribe to our free newsletter, please send an email to glois@tompkinsmcguire.com.