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The
Longshore and Harbor Workers' Compensation Act
The Longshore and Harbor Workers' Compensation Act was
enacted in order to provide compensation to injured
workers or their dependents for disability or death due to
an injury occurring over or adjoining the navigable waters
of the United States. The Act provides that the employer
must pay for the medical care required for its employee’s
injury, for disability compensation payments and for
rehabilitation training. In the event of death caused by
injury, benefits include payment for reasonable funeral
expenses and compensation payments to surviving eligible
dependents. Although the Act does not provide for
compensation for non-economic losses, such as pain and
suffering, compensation is payable regardless of whether
the employer was "negligent" or "at fault" in causing a
worker's injuries.
Injuries Covered by Workers' Compensation
The Longshore and Harbor Workers' Compensation Act applies
to all injuries or occupational diseases which arise
during the course of employment and which are related to
that employment. You are eligible for workers'
compensation regardless of your previous physical
condition -- for example, even if you have had a bad back
or heart condition for many years, you are entitled to
workers' compensation benefits if you re-injure,
aggravate, or accelerate your back or heart condition
during the course of your employment. In addition, you can
receive workers' compensation benefits even if your own
negligence or carelessness contributed to your injury or
death.
Notice of Injury
Under the law, an injured employee, or someone acting on
his or her behalf, is required to give notice of the
injury to the employer. Therefore, if you are injured on
the job or suspect that you have an occupational disease,
you should notify your employer of your injury or illness
as soon as possible, preferably in writing. If you fail to
notify your employer of your injury within 30 days, you
may not be eligible for workers' compensation benefits.
Choice of Physicians
Your employer is responsible to authorize medical services
to you after you give notice of your injury. You are
permitted one free choice of physician to treat your
injuries. After that no change may be made without the
consent of your employer or the United States Department
of Labor. If the doctor you chose to treat you turns out
not be of the appropriate specialty, another choice will
generally be granted. Unlike many state compensation laws,
under the Longshore and Harbor Workers’ Compensation Act,
the employer can’t compel you to choose from a list of
doctors that it has selected. However, if you visit a
doctor who is not your free choice physician or to whom
you have not been referred by your free choice physician,
you will be responsible for payment of the doctor's bill.
The physician selected to treat you is required to provide
your employer and the Department of Labor with periodic
updates concerning your medical condition and progress.
There is no limit on the duration that medical expenses
can be paid as long as the need for medical treatment can
be substantiated and related to the work-related injury or
illness.
Medical benefits include hospital and physician bills,
prescriptions, and reimbursement for travel to obtain
medical treatment. As of January 14, 2000, the Department
of Labor generally allows 32.5 cents per mile for mileage
reimbursement.
When Weekly Benefits Should Begin
Compensation for time lost from work is payable on the 4th
day after the onset of your disability. In cases where
disability extends more than fourteen calendar days,
compensation is paid for the three-day waiting period.
You should begin receiving weekly workers' compensation
benefits within 14 days of the date you gave your employer
notice of your injury. If you do not receive benefits
within 14 days, or if your employer or the Department of
Labor sends you a Notice of Controversion, you should
immediately contact a lawyer, who will assist you in
filing a Claim for benefits.
In general, your claim for benefits must be filed with the
Department of Labor within one year of the date of injury
or death.
Amount and Duration of Weekly Benefits: Temporary Total
Disability Benefits
Under the Act, you are entitled to receive temporary total
disability benefits if you are unable to perform your
usual occupation for what is anticipated will be a limited
period of time. If you are temporarily totally disabled,
you will be paid weekly benefits equal to two-thirds of
your average weekly wage subject to minimum or maximum
compensation rates. The maximum and minimum compensation
rates are set on October 1 of each year. The maximum
compensation rate as of October 1, 1999 is $901.28 per
week. The minimum compensation rate as of October 1, 1999
is $225.32 per week.
Temporary Partial Disability Benefits
You are considered temporarily partially disabled when you
are only partially disabled to perform any type of work
for an anticipated limited time period. In such case, you
may be able to return to your original job part-time or to
a lesser paying position. Alternatively, your employer may
send you notification that you must look for modified work
outside of the workplace. If you are partially disabled,
you are entitled to receive weekly benefits equal to
two-thirds of the difference between your average weekly
wage and your "earning power" -- the amount you are
earning if you have returned to the workforce, or the
amount that it is determined that you should be able to
earn. Temporary partial disability benefits can continue
for up to 5 years.
Permanent and Total Disability Benefits
You are considered permanent and totally disabled when you
are unable to perform any type of employment for an
indefinite period of time. You are entitled to a cost of
living adjustment not to exceed 5% per year while you are
on permanent total disability. The cost of living
adjustment to permanent and total disability benefit
recipients is set on October 1 of each year by the
Department of Labor. The adjustment on October 1, 1999 was
3.39%.
Permanent Partial Disability Benefits
You are considered permanently partially disabled when you
are partially disabled from performing any type of work
for an indefinite period of time. In such a situation,
your injury does not prevent you from performing some type
of suitable alternative employment consistent with your
functional capacity. Vocation services, including
retraining and placement, are provided by the Department
of Labor. Compensation for permanent partial disability is
payable either on the basis of a scheduled award (see
below) or a loss of earning capacity, depending on the
anatomical parts of your body disabled by the work injury.
Specific Loss Benefits
The Act provides for limited term payments in cases where
an employee suffers a permanent loss of use of parts of
the body listed in the Act. A scheduled award can be paid
even if you return to your pre-injury employment. A
scheduled award may consist of the permanent loss or loss
of use of certain limbs or bodily functions, including
vision and hearing. Calculation of the percentage of your
loss of use is generally prepared by physician in
consultation with the current edition of the American
Medical Association Guide to Permanent Impairment.
Disfigurements of the head, neck, face, or other exposed
areas are also considered specific losses. The maximum
disfigurement award is $7,500.00. If you have a specific
loss, you are entitled to compensation in the amount of
two-thirds of your average weekly wage, for the number of
weeks set forth in the following chart:
Scheduled Award - Weeks of Compensation
Hand ............................... 244 weeks
Arm ................................ 312 weeks
Foot ............................... 205 weeks
Leg ................................ 288 weeks
Eye ................................ 160 weeks
Thumb .….......................... 75 weeks
Index Finger .......................46 weeks
Middle Finger ....................30 weeks
Ring Finger ........................15 weeks
Little Finger .................... 15 weeks
Great Toe ......….................38 weeks
Other Toes ......…...........…16 weeks
Hearing Loss-Both Ears…200 weeks
Hearing Loss-One Ear…....52 weeks
Disfigurement ...........….$7,500.00
For example, a person who has a 10% loss of use of a leg
according to the AMA Guidelines will receive 28.8 weeks of
additional weeks of compensation at a compensation rate
determined by his average weekly wage.
Method of Computing
Average Weekly Wage
It is important that you make sure that your employer has
correctly calculated your average weekly wage. The amount
of any compensation benefits to which you are entitled is
equal to two-thirds of your average weekly wage subject to
the maximum or minimum compensation rate. The most
commonly applied computation of the average weekly wage
involves dividing all payroll earnings received during the
year prior to the injury by 52. Generally, any bonuses,
incentives, vacation, or royalty payments that you earn
are included in the calculation.
Alternative calculations may apply if your employment in
the industry is seasonal or the usual calculation does not
determine an appropriate average weekly wage at the time
of injury.
If you have any questions about the correct calculation of
your average weekly wage, or believe that your employer's
calculation is incorrect, you should contact a lawyer or
the Department of Labor as soon as possible since even a
few dollars difference in your average weekly wage can
mean thousands of dollars over the life of your claim.
Offset of Social Security Disability Benefits from
Longshoreman’s Compensation
Title II of the Social Security Act requires that Social
Security disability benefits be offset from workers’
compensation indemnity benefits. This means that the
amount of your social security disability benefits may be
reduced by the amount of any compensation weekly benefits
that you receive during the period of your disability. On
the other hand, there is no offset for "Old Age" Social
Security retirement benefits against the amount of weekly
workers' compensation benefits paid by your employer. If
you have any question as to whether the offset applies to
your case or is being properly calculated by Social
Security, you should contact a lawyer.
Employee Work Verification
The Act requires you to report earnings from alternative
employment. Accordingly, while you are out of work, your
employer may send you a verification form to be completed
and returned within 30 days. The verification form may
request you to disclose the nature of your alternate
employment, the dates of employment, and the amount of
your earnings. If you do not accurately complete the
verification form and return it within 30 days, your
employer may suspend your benefits until the form is
returned. If you provide your employer with intentionally
false information, your employer may terminate your
benefits or refer your claim for prosecution to the U. S.
Attorney for fraud.
Medical Examination
After you suffer a work injury, your employer may require
you to submit to a medical examination by a doctor of its
choosing. You may lose your right to compensation if you
do not submit to medical examinations at reasonable
intervals. If you receive a notice from your employer
scheduling you for a medical examination or interview, you
should consult an attorney as to whether you should
attend, or have your own representative present during the
examination, since employer requested evaluations may
result in reduction or termination of your compensation
benefits without prior notice or hearing for you.
Americans with
Disabilities Act of 1990
The purpose of Title 1 of the Americans with
Disabilities Act of 1990 (“ADA”) is to prohibit
employers from discriminating against qualified
individuals because of a disability in all aspects of
employment. As discussed in the previous section, the
purpose of workers’ compensation laws is to provide a
system for securing prompt and fair settlement of the
employees’ claims against employers for occupational
injuries and illnesses. The object of these two sets of
laws are not in conflict, and in some instances,
simultaneous application of the laws has created
questions for employers and individuals with
disabilities. In this section, we will provide you
guidance concerning the following issues:
- Whether a person with an occupational injury has a
disability as defined by the ADA;
- The type of disability-related questions employers can
ask and when employers can require medical examinations
relating to occupational injuries and workers’
compensation claims;
- Reasonable accommodations under the law for persons with
disability-related occupational injuries;
Light duty assignments---Are employers obligated to
provide them;
- And how the exclusive remedy provisions in workers’
compensation laws are affected by the ADA.
Occupational Injuries and the ADA
The ADA defines “disability” as: (1) a physical or
mental impairment that substantially limits a major life
activity, (2) a record of such impairment, or (3) being
regarded as having such an impairment. Not every
employee with and occupational injury has a disability
within the meaning of the ADA. For example, impairments
resulting from occupational injury may not be severe
enough to substantially limit a major life activity, or
they may be only temporary, non-chronic, or have little
or no long-term impact.
Therefore, even though an individual sustaining a
work-related injury files a workers’ compensation claim
and receives benefits, he or she does not necessarily
have a disability under the ADA. A person has a
disability under the “record of” portion of the ADA
definition only if that worker has a history of, (or has
been misclassified as having), a mental or physical
impairment that substantially limits one or more major
life activities.
A person with an occupational injury has a disability
under the “regarded as” portion of the ADA definition
if: (1) the worker has an impairment that does not
substantially limit a major life activity but is treated
by an employer as if it were substantially limiting; (2)
if the worker has an impairment that substantially
limits a major life activity because of the attitude of
others towards the impairment; or (3) has no impairment
but is treated as having a substantially limiting
impairment.
For example:
An employee has an occupational injury that has resulted
in a temporary back disability that does not
substantially limit a major life activity, however, the
employer considers the individual as being unable to
lift more than a few pounds and refuses to return the
worker to his former job. Since the employer regards the
worker as having an impairment substantially limiting
the major life activity of lifting, that employee is
considered to have a disability as defined by the ADA.
Employers’ Rights to Inquire About Workers’
Compensation Claims or Occupational Injuries
Employers may ask questions about and applicant’s prior
workers’ compensation claims or occupational injuries
after they have made a conditional offer of employment
but before employment has begun, as long as they ask the
same questions of all entering employees in the same job
categories. An employer may require a medical
examination to obtain information about the existence or
the nature of an applicant’s prior occupational
injuries, after it has made a conditional offer of
employment, but before employment has begun, once again
as long as it requires all entering employees in the
same job category to have a medical examination.
Before a conditional offer of employment is made, and
employer may not obtain from third parties, insurance
carriers, etc., any information that it could not
lawfully obtain directly from the applicant.
Employers may ask disability-related questions or
require medical examination of employees both at the
time the employee experiences and occupational injury or
when the employee seeks to return to work following such
an injury. However the questions must not exceed the
scope of the specific occupational injury and it’s
effect on the employee’s ability, with or without
reasonable accommodation, to perform the essential job
functions or to work without a direct threat.
Employers may also ask disability-related questions or
require a medical examination of an employee with an
occupational injury in order to ascertain the extent of
workers’ compensation liability. Once again, however,
questions and examinations must be consistent with the
state laws’ intended purpose of determining an
employee’s eligibility for workers’ compensation
benefits. Excessive questioning or imposition of medical
examinations may constitute disability-based harassment,
which is prohibited by the ADA.
All medical information obtained regarding an
applicant’s or employee’s occupational injury or
workers’ compensation claims must be held in the
strictest of confidence, and may only be disclosed for
limited job related and/or bona fide insurance purposes.
Employee’s Right to Return to Work
An employer may not prevent and employee with a
disability-related occupational injury who can perform
the essential functions of his job from returning to
employment because he or she is unable to return to
“full duty”. Even if an employee has been designated
under the workers’ compensation law as suffering from a
“permanent” or “total” disability, an employee still may
be able to return to work. Workers’ compensation laws
are different in purpose from the ADA and may utilize
different standards for evaluating whether an individual
has a “disability” or whether he is capable of working.
For example, under a workers’ compensation statute, a
person who loses vision is both eyes, or who has lost
the use of both arms or both legs may have a “total
permanent disability,” although he may be able to work.
The ADA requires that an employer make reasonable
accommodation to the known physical or mental
limitations of an otherwise qualified individual with a
disability, unless the employer can demonstrate that the
accommodation would impose an undue hardship. The ADA
does not require an employer to provide a reasonable
accommodation for an employee with an occupational
injury who does not have a disability as defined by the
ADA.
An individual with a disability-related occupational
injury that qualifies under the ADA is entitled to
return to his or her same position unless the employer
demonstrates that holding open the position would pose
an undue hardship. However if an employee can no longer
perform the essential functions of his or her position,
with or without a reasonable accommodation, the employer
need not offer the individual his or her former job, but
can instead offer and equivalent vacant position in
terms of pay, status, etc., or if no vacancy exists can
offer a lower graded position for which the employee is
qualified absent undue hardship to the employer’s
business. If, however, there is no vacancy the ADA does
not require an employer to create a new position or to
bump another employee from his or her in order to
reassign an employee who can no longer perform the
essential functions of his or her original position,
with or without a reasonable accommodation.
Light Duty
The term “light duty” has a number of different meanings
in the employment setting. Generally, “light duty”
refers to temporary or permanent work that is physically
or mentally less demanding than normal job duties. Some
employers use the term “light duty” to mean simply
excusing an employee from performing those job functions
that he is unable to perform because of an impairment.
Light duty may also consist of particular positions with
duties that are less physically and mentally demanding
created specifically for the purpose of providing
alternative work for employees who are unable to perform
some or all of their normal duties.
The ADA neither prohibits nor requires employers to
create light duty positions for disabled workers or
employees injured on the job. However, the ADA does
require the employer to make a reasonable accommodation
which would enable an employee to work, if the employee
to work, of the employee has a disability as defined by
the ADA. Therefore, if an employer creates light duty
positions for employees with occupational injuries, he
may also be required to provide similar light duty
positions for employees with non-occupational
disabilities. Whether or not this is required will
depend upon the specific facts of each case. However,
whether or not it offers light duty, and employer must
provide other forms of reasonable accommodation to
disabled employees required under the ADA. Fore example,
and employer may restructure positions by redistributing
marginal functions which an individual cannot perform
because of a disability, provide modified scheduling, or
reassign an employee with a disability to an equivalent
existing vacancy for which he or she is qualified.
The Family and Medical Leave Act
The Family and Medical Leave Act of 1993 (“FMLA”)
generally requires employers to grant eligible employees
up to 12 weeks of unpaid leave in ant year for any of
the following reasons:
- The birth of the worker’s child
- Initial placement of a child with the worker for
adoption or foster care; including required court
appearances, counseling sessions, etc.
- To care for the worker’s immediate family member
(spouse, child, or parent) who has a serious health
condition
- Or to care for the employee’s own health condition.
Definition of Serious Health Condition
For FMLA purposes, a “serious health condition” is an
illness, condition, or impairment that involves:
- Any period of incapacity or treatment in connection with
in-patient care
- Any period of incapacity requiring absence from work for
more than three days and involving continuing treatment
- Continuing treatment for a chronic or long-term
condition or fore prenatal care.
An eligible employee under the FMLA is one who:
- Works for an employer who employs fifty or more workers
- Has been employed by that employer for at least twelve
months AND has worked a minimum of 1,250 hours for that
employer during the 12 months immediately preceding the
leave.
Intermittent Leave and Reduced Leave Under The FMLA
Under some circumstances, employees may be permitted to
take FMLA leave intermittently. This may allow an
employee to take leave in several blocks of time rather
than in one continuous period of time, or to work under
a reduced work schedule by reducing the number of hours
they work per day or week.
Substitution of Paid Leave
Employees are entitled to substitute paid vacation or
personal leave time for FMLA leave:
- for the birth of a child or for the care of that child
- for placement of a child for adoption of foster care
- to care for an immediate family member with a serious
health condition.
Employees are entitled to substitute vacation, personal
time, and/or medical or sick days for FMLA leave for the
following reasons:
- to take care of the employee’s own serious health
condition
- to take care of an immediate family member with a
serious health condition, if the employer’s policy
permits the use of sick time for this purpose.
If an employee take paid leave of absence, an employer
may designate that leave as FMLA leave and count it
against the employee’s twelve week FMLA entitlement if
the paid leave is taken for an FMLA qualifying reason.
The employer must notify the employee that it is
designating the leave as FMLA leave within two business
days after becoming aware that the leave is being taken
for an FMLA qualifying reason.
Unions generally maintain that employers may not require
employees to use up or substitute paid vacation and
personal days as part of their FMLA leave entitlement.
According to Unions, personal and vacation leave are
contractual benefits, and the FMLA does not permit an
employer to reduce preexisting contractual benefits.
Therefore, employees are entitled to these paid days
plus twelve weeks of unpaid leave. The FMLA also
prohibits an employer from requiring an employee on
workers’ compensation leave to use up his or her paid
leave.
Maintenance of Benefits During FMLA Leave
All covered employers are generally required to maintain
health coverage for an employee on FMLA leave whenever
such insurance was provided before the leave was taken,
and on the same terms that would have existed if the
employee had continued to work.
Return from FMLA Leave
In general, and employee returning from FMLA leave must
be restored to his or her original job, or to an
“equivalent” job with equivalent pay, benefits, and
other employment terms and conditions.
Actions Prohibited by the FMLA
It is unlawful for any employer to interfere with,
restrain, or deny the exercise of any right provided by
the FMLA.
It is unlawful for an employer to discharge or
discriminate against any individual for opposing any
practice or because of any involvement in any proceeding
relating to FMLA.
Conclusion
This information was created to provide you with a brief
summary of your rights and obligations under the
Longshoreman and Harbor Workers’ Compensation Act, the
ADA and FMLA. These laws, and the interaction between
them, are complicated. You may require expert assistance
and/or advice in the event of a work disabling injury or
disability. If you are injured or become ill, and need
advice, contact your Union, the Department of Labor, or
an attorney.
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