Who Needs USL&H?

The subject of this article intends to provide a better understanding of USL&H insurance provided under the Longshore and Harbor Workers Compensation Act (LHWCA). The content does not constitute legal advice, but is intended to provide information to the workforce for an improved appreciation of USL&H applications.

USL&H covers maritime workers’ work related injuries. Depending on the state where the injury occurred, a claimant may file under LHWCA in conjuncture with state workers’ compensation insurance, but cannot receive double coverage. Agents should check with the state’s dept. of insurance to comply with the state’s coverage regulations.

Background

LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT was enacted in 1927 as an extension of the Jones Act of 1920. The Jones Act is considered protectionist legislation by a federal law that regulates maritime commerce in the United States between U.S. ports on ships that are built, owned, and operated by United States citizens or permanent residents. It is also known as the Merchant Marine Act of 1920.

In an effort to prevent state legislation to infringe upon federal interests, LHWCA was enacted in 1927 to regulate maritime employees that are not at sea, but are land based working on or near navigable waters within the United States. LHWCA is “exclusive remedy,” covering work related injuries of longshoremen, harbor workers, and most other people who work on the docks in shipping terminals or shipyards. With respect to civilian employees on military bases, their workers’ compensation benefits are provided under the Act pursuant to a separate federal law called the Defense Base Act.

Application of Coverage

The jurisdiction of USL&H coverage is determined by meeting the requirements of two distinct evaluations.

The Situs Test: This test relates to the physical location of where the accident occurred. In order for a worker’s injuries to be covered by the LHWCA, the accident which caused the injury must take place on structures near or adjacent to navigable waters. These structures must be used to load, unload, repair, break-up, or build navigable vessels for use in maritime commerce. This can include injuries that occur on piers, wharves, dry docks, terminals, building ways, and marine railways.

The Status Test: This test relates to the type of work that the injured worker was doing at the time of the accident. In order to be covered by the LHWCA, the injured worker must be shown to be a maritime employee that is not covered by the Jones Act and is not a government worker. Examples of those considered are longshoremen and harbor workers, including ship repairmen and maintenance workers such as welders and pipefitters, shipbuilders, shipbreakers, and those who load and unload cargo.

Additional Coverage

The structural integrity of piers and other structures that line the coasts of our oceans, rivers, lakes and bays is important to protect boats and other vessels as well as human lives. Therefore, marine construction company employees are generally compensable under the USL&H Act when such construction is conducted upon, or adjacent to, navigable waters.

Marine construction companies design, build and repair marine outbuildings and structures. People who own marine construction companies are called marine contractors. Their work includes the construction of piers, bulkheads, breakwaters, and other structures over water. However, Jones Act remedies may be available for injuries sustained while working from a vessel, work platform, barge or dredge.

Primary residents and vacation homes along waterfronts are often in need of marine construction to build facilities to house boats. Marine construction can also deal with commercial work for companies and businesses, civic work for cities or towns, and military work. Work must be performed by a certified marine construction company that has obtained a marine construction permit. Once the project is approved, marine construction requires strict adherence to federal, state and local guidelines.

Injuries to persons employed in dredging operations have also been compensable under the USL&H when such operations are carried out in navigable waters. However, under certain circumstances, injured workers may be able to pursue Jones Act remedies when dredging is conducted from a vessel in navigation.

Amendment to the Act

In 1984 Congress amended and renamed LHWCA. Congress attempted to limit shoreline coverage by excluding certain types of workers from the definition of employees. The following are not subject to USL&H by the 1984 Amendment:

· 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.

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 are employed by suppliers, transporters, or vendors who are temporarily doing business on the premises of a covered maritime employer, but are not engaged in work normally performed by that employer

· Aquaculture workers

· Individuals employed to build, repair, or dismantle any recreational vessel under sixty-five feet

· Any person engaged by a master to load or unload or repair any small vessel less than eighteen tons net.

· Small vessel workers if exempt by certification of the Secretary of Labor under certain conduit

Conclusion

The intent of the Act amendments President Reagan signed into law on September 28, 1984 were aimed to reduce the excessive cost to employers and to curb the rising cost of the Special Fund of the LHWCA. The amendments enacted were also designed to assure those eligible for coverage are prevented from improper claims and litigation. For a more detailed determination of coverage, GEM suggests contacting

The Department of Labor

200 Constitution Ave. NW

Washington DC 20210

1-866-4-US-WAGE

1-866-487-9243

www.dol.gov