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Know Your Rights (Longshore Workers)

Pierry & McAdams, LLP
302 W 5th Street, Suite #304
San Pedro, California 90731
 
(310) 834-2691
 
Fax
(310) 518-5814
 
E-mail
tpierry@pierrymcadams.com

If you are injured on the job, it is important that you know your rights under the law. Below is some important information to help you recover benefits and/or an appropriate settlement.

What do I do if I am injured?

What should I know about the Longshore & Harbor Workers' Compensation Act?

What is the settlement value of my claim under the Longshore Act?

What are the Workers' Compensation rates under the Longshore Act?

Does my injury fall under more than one law?

What are my other available benefits and options?

What are the deadlines or limitation periods to file my claim or lawsuit?

If I hire a lawyer for my injury, how does my lawyer get paid?


What do I do if I am injured?

Unfortunately, many people do not know the requirements under the law or their rights under the Longshore Act. For this reason, many people do not seek the advice of an attorney until the Employer or its Insurance Company refuses to provide medical benefits or compensation. By this time, your rights may be prejudiced if you have not done what is required under the Longshore Act or other law. This is why it is important to consult with an attorney shortly after your accident so that you do not miss any important deadlines or otherwise prejudice your rights. Don't unknowingly give up benefits and rights that you and your family may be entitled to under the law! If you are hurt on the job on the waterfront, you should:

1. NOTIFY YOUR EMPLOYER IMMEDIATELY and ask for a Form LS-1 (doctor's slip), which authorizes treatment by a doctor of your choice.

2. Select your own doctor for treatment and obtain medical treatment as soon as possible. Remember you are allowed only one free choice doctor under the Longshore Act. This is why it is important to obtain a doctor that you know and trust or to go to a doctor on the advice or recommendation of someone who knows or trusts the doctor. If you allow yourself to be treated over time by a doctor that the Employer or its Insurance Company refers you to, this may count as your free choice. Obviously, if the "Company" doctor later sides with the Company and states that you are not disabled or do not need further medical treatment, this will prejudice your rights.

3. Give written notice of your injury within thirty days to your Employer on a Form LS-201. Notice of Death must also be given within thirty days. Additional time is provided for certain hearing loss and occupational disease claims. Any reputable attorney who specializes in practice under the Longshore Act should be knowledgeable of these type of Forms and will file them for you if you hire that attorney.

4. File a written claim for Compensation within one year after injury if full compensation and medical care have not been provided. A claim must also be filed within one year after death. The time for filing claims in certain occupational disease cases has been extended to two years. Once again, any reputable attorney who specializes in practice under the Longshore Act should be knowledgeable of this type of claim form (called an LS-203) and will file it for you. Always keep in mind that there may be other deadlines and time limitations that apply in your case. You should not wait until the last minute to consult an attorney to file your claim or lawsuit. As stated above, important rights may be lost if you do not file certain claims or lawsuits within the applicable deadline or time limitations.

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What should I know about the Longshore & Harbor Workers' Compensation Act?

• There is a difference between a claim for Worker's Compensation Benefits under the Longshore Act and a lawsuit against other responsible parties (sometimes called a "Third-Party" lawsuit).

• There are important time limits for you to do certain things after your injury (such as file a claim or lawsuit) which vary in length according to which law you are making a claim or a lawsuit under.

• Under the Longshore Act, you are allowed to choose your own treating doctor (but you are only allowed one choice and if you allow yourself to be treated by the "Company" doctor you may be stuck with this doctor as your treating doctor).

• The settlement value of your case under the Longshore Act is determined differently depending on which part of your body is injured.

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What is the settlement value of my claim under the Longshore Act?

The short answer to this question is that every case is different. After an injury, you may hear that a friend or a friend of a friend has received a certain amount for a similar case. Just as you are unique, every case is unique and there may be additional factors which make your case worth more or less money to settle.

Generally, the Longshore Act divides injuries into scheduled and unscheduled injuries. Scheduled injuries are any type of injury to your extremities (i.e., fingers, hands, arms, toes, feet, legs) and unscheduled injuries apply to any other part of your body that is injured or injuries to your mental capacity or nervous system. Under scheduled injuries, Longshore Act claims are generally evaluated based upon the percentage of permanent impairment to that injured extremity.

For example, if your injury results in a 10% permanent impairment to your arm (as evaluated by a doctor or determined by an Administrative Law Judge who decides your case), the settlement value of your case would be equal to 31.2 weeks multiplied by your compensation rate. Obviously, the percentage of permanent impairment can vary greatly and a different number of weeks are paid depending on what extremity is injured.

For unscheduled injuries (for example, injuries to your head, neck, back and sometimes shoulders or hips), the settlement value of your case will depend upon whether or not you have suffered a loss of earning capacity after your return to work from your injury. For example, if you suffer an injury to you back and later return to work earning $600.00 per week less than you earned before your injury, you would be entitled to 2/3rds of your loss of earning capacity (or, in this example, $400.00 per week).

In some situations, your Employer or its Insurance Company may offer a lump sum settlement to you when you have sustained a loss of earning capacity. Whether or not this amount is adequate to close your case depends upon many factors and varies from case to case.

It is always a good idea to seek the advice of an attorney who specializes in longshore cases before signing any settlement papers with your Employer or its Insurance Company.

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What are the Workers' Compensation rates under the Longshore Act?

If you are a longshore person or harbor worker injured in longshoring operations you are covered by the provisions of the Longshore & Harbor Workers' Compensation Act. Some limited exceptions to coverage of the Longshore Act sometimes apply when a longshore worker or harbor worker is injured at some location other than the waterfront (e.g., at a container freight station several miles from the water). In theory, the Longshore Act is supposed to automatically provide you with certain benefits.

The Act requires your Employer or its Insurance Company to furnish all medical, surgical, hospital treatment and supplies which are needed because of the injury. (The term injury also includes occupational disease). In addition, when an Employee loses more than three days from work and has lost pay, the Employee is entitled to compensation for pay loss at the rate of 2/3rds of his/her average weekly wage. The first payment of compensation is due 14 days after your Employer has knowledge of the injury and is to be paid every two weeks during the continuance of the disability. If your disability is more than 14 days, you are also entitled to receive compensation for the first three days of your pay loss at the same rate.

An injured Employee's compensation rate is based upon his or her average weekly wage (AWW) for the year prior to the injury. To estimate your average weekly wage (AWW), add all of your earnings for the year prior to your injury and divide the total by 52 weeks. This will represent a close approximation of your average weekly wage. You can then estimate your compensation rate by applying this average weekly wage to the chart below:

If your average weekly wage is: Your compensation rate is:
Less than $225.32 Equal to your average weekly wage
Between $225.32 & $337.98 $225.32 per week
Between $337.99 and $1,351.92 66 2/3% of your average weekly wage
$1,351.93 or more A maximum of $901.28 per week
Between $337.99 and $1,351.92 66 2/3% of your average weekly wage

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Does my injury fall under more than one law?

If you are injured on the job as a longshore person or harbor worker you are entitled to certain benefits under the Longshore & Harbor Workers' Compensation Act. In addition, you may be covered by other laws such as the Labor Code of the State of California and you may be entitled to file a lawsuit against other persons or companies if the actions (or inactions) of those persons or companies caused or contributed to your accident and injury.

Many people do not know that a claim for worker's compensation benefits under the Longshore Act is not a lawsuit. Instead, it is simply a claim for certain benefits which your Employer (or its Worker's Compensation Insurance Company) are required to give you under the Longshore Act. Under the Law, you are not allowed to sue your Employer in a lawsuit because of a work injury. However, if your injury was caused or contributed to by some other person, company, or governmental agency, you may be entitled to file a lawsuit against that other person, company or agency which can potentially provide a greater recovery to you and your family.

For example, if you are injured when an independent trucker or employee of a different company operating a vehicle hits your UTR or other vehicle, you may be able to sue that other person or company. In such a lawsuit, you could potentially claim entitlement to compensation for all of your lost earnings as a result of your injury (past, present and future) and fair compensation for all of your pain and suffering (again, past, present and future). In some instances, you will have up to one year to file such a lawsuit.

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What are my other available benefits and options?

In addition to worker's compensation benefits under the Longshore Act or the Labor Code of the State of California, as stated above, you may be entitled to bring a lawsuit against the responsible person or company (other than your Employer).

In addition, you may be entitled to other benefits such as Social Security Disability or the Longshore Supplement. Social Security Disability is generally paid, regardless of whether you are entitled to regular Social Security Retirement Benefits, if the disability is severe enough so that you cannot work in any substantial gainful work or employment and this disability is expected to last at least twelve months or to result in death.

You may also be entitled to a Longshore Supplement while you are off work recovering from an injury. You can consult with you Union Health and Welfare Officer and he will explain more about this benefit.

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What are the deadlines or limitation periods to file my claim or lawsuit?

Be warned that in some situations there may be a shorter deadline or limitation period for you to file the appropriate documents which constitute a claim or lawsuit!

For example, if there is a dangerous condition on the dock which caused or contributed to your injury, you may be entitled to file a lawsuit against the Governmental Entity (i.e., City, County or State) that owns the land. However, in order to do so, you must first file a "Government Tort Claim" with the correct governmental agency within Six Months after your injury!

There may be other, different time limitations which apply in your particular case. For this reason, it is always a good idea to consult an attorney shortly after any accident on the job so that the attorney can inform you of the deadlines and time limitations which may apply in your case. Of course, it is always a good idea to hire an attorney in the case of a serious injury or death soon after the accident so that important witnesses and evidence will not disappear or be lost and thereby result in it being more difficult for you or your attorney to prove your case.

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If I hire a lawyer for my injury, how does my lawyer get paid?

Any reputable lawyer who specializes in handling cases for injured workers or their families, in most instances, will not charge an hourly fee for these services. Generally, lawyers who represent injured workers get paid only if they obtain some type of recovery (whether by settlement or through trial).

In worker's compensation cases, all attorney fees have to be approved by the United States Department of Labor (for the Longshore Act) or the Worker's Compensation Appeals Board (for Worker's Compensation cases under the Labor Code of the State of California). The amount of the fee will depend upon the complexity of the case, the time spent by the lawyer, and the result obtained. The United States Department of Labor does not specifically use any particular percentage of your recovery to calculate acceptable attorney fees.

However, attorney fees in the range of 12-15% in worker's compensation cases are generally considered reasonable depending upon the time spent by the lawyer and the amount obtained. Under the Labor Code of the State of California, attorney fees normally range between 9 and 15%, again depending upon the complexity of the case, the time spent by the attorney, and the results obtained. In certain circumstances, your Employer (or its Insurance company) may be liable to pay your attorney's fees.

In a third-party lawsuit, most lawyers again do not charge by the hour. Instead, most lawyers charge a percentage fee of your recovery. Because it is necessary to prove fault or negligence on the part of the person or companies that you are suing in a lawsuit, the percentage charged is generally higher in a third-party lawsuit and is usually 33-1/3% unless the case gets close to trial or goes to trial in which case the fee increases to 40%.

The advantage of this type of attorney fee system is that, in most cases, it does not cost you anything up front to hire a lawyer to represent you as a result of an injury. Usually, therefore, if there is no recovery, no attorney fee is charged.