Being injured on the job is an unpleasant experience, regardless of who your employer is or what career path you are following. When you are a maritime worker, you may feel more frustrated because you are not sure how to file a claim, what paperwork to file or with whom, or what to do if your claim is denied. Just like a workers’ compensation claim, there are legal procedures and considerations when appealing a denied longshore claim. However, it does not have to be a difficult process. With the assistance of a skilled Mississippi workers’ compensation attorney, you may be able to appeal your claim more quickly and easily than if you attempt to do it alone. Call Lott Law at (228) 215-2787 to schedule a consultation and discuss your rights under the Longshore Act.
What Is the Longshore Act?
The Longshore and Harbor Workers’ Compensation Act (LHWCA), also known as the Longshore Act, is a federal law that provides compensation to maritime workers if they are injured on the job and is administered by the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). The Act covers occupational diseases and injuries that occur while working on navigable waters or areas adjoining such waters, such as docks, piers, and marinas. The Longshore Act applies to workers such as longshoremen, bridge builders, dock workers, shipbuilders, and ship repairmen.
The Longshore Act compensates covered workers for medical care, rehabilitation services, lost wages, and survivor benefits, regardless of who is at fault for the injury. Employees can also file a third-party lawsuit against any other party responsible for their injury. Additionally, workers can also receive state workers’ compensation, but amounts paid for the same injury will be offset if they do so.
What Is the Process for Making a Longshore Claim?
When a maritime worker is injured or contracts an occupational disease while working, they may file a longshore claim. The process is similar to the process other workers follow to file a workers’ compensation claim, but with different forms and a different law overseeing the claim.
Notify Employer Immediately
Like a workers’ compensation claim, the first step in a longshore claim is for the employee to notify their employer of the injury. This can be done verbally, in-person or by phone, or written, such as an email or text message, depending on the circumstances. If it is an emergency, medical treatment should be sought and the employer notified as soon as possible. Another employee may also inform the employer of the injury if the injured employee is unable to, such as being unconscious or requiring surgery.
Seek Medical Treatment
Some injuries are minor and do not require medical treatment, such as small lacerations like a paper cut. However, in more serious injuries that do require medical treatment, the employee is able to see a doctor of their choosing. Upon notifying them of the injury, the employer will provide United States Department of Labor Office of Workers’ Compensation Programs Form LS-1 to the employee. This form authorizes the employee to seek treatment.
Provide Employer With Written Notice of Injury
If it was not already done, the employee must also provide written notice of the injury to their employer. This must be done within 30 days of the injury and is done with Form LS-201 from the United States Department of Labor Office of Workers’ Compensation Programs. Certain hearing loss injuries and occupational disease claims have additional time to provide this written notice.
File Additional Forms If Required
Depending on the severity of the injury, there are additional forms that may need to be filed in some cases. For example, they may need to file Form LS-203 or a written statement stating that the claimant (the injured employee) is seeking permanency or other benefits under the Longshore Act. These forms can be found on the Department of Labor’s Longshore Forms list. If these forms are required, they must be filed within one year after the injury occurs, or within one year of the last payment made if the employer or their insurer made voluntary payments to the employee. For occupational diseases, these forms must be filed within two years.
Wait for Claim to Be Decided
The Department of Labor’s Division of Longshore and Harbor Workers’ Compensation (DLHWC) administers the longshore claim. Once the claim has been filed with them, they will get additional information from the employer and the insurer. There will be an informal conference with both the injured employee and their employer. Then DLHWC will make their initial recommendations regarding eligibility for medical and other benefits in a memorandum to the employee, employer, and insurer. If everyone is in agreement, they will move forward with following those recommendations.
What Happens When a Dispute Arises?
In both longshore claims and other workers’ compensation claims, it is not uncommon for someone to disagree with the decisions made. Sometimes it is the employee who feels they are not being fairly compensated for their injuries, and other times it is the employer or the insurer who feels they are paying more than is necessary for the injuries sustained. Either way, there is a process that can be followed if there is a dispute.
File Form LS-207 to Dispute
The employee, employer, or insurer can disagree with the recommendation from DLHWC. Whichever party disagrees can file Form LS-207. This form allows the disputing party to explain what they disagree with and to choose to refer the case to the Office of Admistrative Law Judges (OALJ). This starts the formal adjudication of the claim.
Prepare for the Case to Be Heard
When a case is heard before the OALJ, it is similar to a civil lawsuit, though court rules are not strictly followed. Therefore, all parties will prepare for the case to be heard by going through the discovery process and holding depositions with the injured employee, witnesses to the injury, the employer, and any expert witnesses that may be called. Claimants should note that they have the burden of proof to show that they are entitled to benefits. If you are disputing the decision in your longshore claim, an experienced Mississippi workers’ compensation attorney with Lott Law may be able to help you prepare your case and ensure that you have the evidence you need to meet your burden of proof.
Wait for Decision
Once the case has been heard, it is time to wait for the decision. This may be a substantial wait, and may take as long as a year. Often, it is only a few months, but claimants should be prepared to wait. Once the decision is received, the parties can choose to follow the decision or appeal.
Appeal Decision If Still Disputed
If any of the parties disagree with the decision made by the administrative law judge, they can appeal the decision to the Benefits Review Board (BRB) within 30 days of receiving the decision. The BRB will review the decision and either reverse the decision, modify the decision, affirm the decision, or remand the case back to the ALJ for further proceedings, per the Department of Labor.
Further Appeal Options
If a party still disagrees with the result after appealing to the BRB, they do have further appeal options with the federal circuit courts of appeal. According to the Department of Labor’s Notice of Appeal Rights, parties have 60 days after the BRB’s decision to file an appeal. Their next appeal would be with the Fifth Circuit Court, which handles these cases for Mississippi, Louisiana, and Texas. If they wish to appeal after that, the final appeal would be with the United States Supreme Court.
Can You Settle a Longshore Claim Instead?
Many claims are settled during adjudication, so it is possible to settle a longshore claim. Choosing to settle the claim can have some benefits, such as providing more control over the outcome, and making the entire situation more predictable and final. However, it is also important not to settle too early or take less than the claim may be worth. Claimants may not always know when to settle and how to negotiate to make the most of their settlement. They may wish to consult with an attorney before opting to settle, particularly if their employer or the insurer is offering to settle.
One protection injured employees do have when it comes to settlements is that DLHWC reviews all longshore claim settlements for reasonableness. They look at the medical records, lost earning capacity, and any factual or legal issues at dispute to determine the reasonableness of the settlement. DLWHC has 30 days to review the settlement. If they review it and determine the settlement is reasonable, they will issue a Compensation Order. The employer and/or insurer must comply with this order within 10 days or they can face stiff penalties for noncompliance.
How a Workers’ Compensation Attorney Can Help You With Your Longshore Claim
Filing a longshore claim may be unfamiliar, but it does not have to be difficult. A Mississippi workers’ compensation attorney may be able to assist you with filling out and filing forms, gathering evidence, representing you if your case moves to the OALJ or beyond in appeals, and negotiating a settlement. Call (228) 215-2787 to schedule a consultation with an attorney at Lott Law and learn more about your rights in appealing these claims.
