Everything You Wanted to Know About Longshore, But Were Afraid to Ask - 2
Saturday, April 25, 2009 | 0
Editor's note: In this article, the final of a two-part presentation, Judy Segerstrom Barrett explores how the federal Longshore & Harbor Workers' Compensation Act (LSHWCA) compares and contrasts with California's workers' compensation benefits.
By Judy Barrett
Some Minor Differences
Where's the Courthouse?
LSHWCA has only seven regional offices throughout the United States. These offices supervise eleven district offices. California (located in Region IX) has only two district offices: One in San Francisco and the other in Long Beach. The DWC has at least 24 offices throughout the state.
Crazy for Feeling This Way
LSHWCA and California workers' compensation treat psychiatric injuries differently. Like California, the LSHWCA recognizes two types of psychiatric injuries: (1) those psyche claims that arise from a physical trauma, and (2) stress caused by the emotional strain at the place of work. By contrast, the LSHWCA imposes no six-month employment requirement, nor, for that matter, most of the prerequisites identified in Labor Code 3208.3.
Don't be Presumptuous!
There are a number of presumptions in LSHWCA I find particularly interesting. There is, for example, a presumption that an injury was not caused solely by intoxication. Another presumption is that the injury or death was not caused by the willful intent of the employee to injure or kill himself.
Get Me a Doctor
The employee has a free choice of a physician in all LSHWCA cases. The physician of choice must be within 25 miles of the place of injury or the employee's home. Also, an employee must file the proper forms with his/her employer to obtain medical treatment. If the employee obtains medical care without prior request from the employer or carrier and/or the employer has no knowledge of the injury - the medical treatment is "self-procured" and solely the employee's responsibility.
Rehabilitation
Rehabilitation still exists in the Longshore & Harbor Workers Compensation Act (it has not been replaced by "vouchers"), but - and this is huge - it is voluntary. The employer, carrier, or employee may refuse to participate in vocational rehabilitation.
The Employer must file Form LS 222 (Carrier's Report to the Deputy Commissioner) in all cases where the employee is disabled more than two months. Beyond this reporting requirement, the employer or carrier has no obligation to support a rehabilitation program.
However, (there's always a "however" in law) once the employee becomes permanently partially disabled or totally disabled - as determined by his medical practitioner - it then becomes the employer's duty to find a job for the injured worker comporting with the employee's work limitations.
Enough "Minor" Differences. Let's talk CASH!
Here is the big difference: Money.
Temporary Disability
Under LSHWCA, benefits are based on the Average Weekly Wage (AWW), but this is calculated based on either a five-day or six-day work week. The 52 weeks of earnings are divided by the number of DAYS WORKED within that 52-week period, and then multiplied by 300 if the employee worked a 6-day week, or by 260 if the employee worked a five-day week.
- TTD = Temporary total disability is paid at 66 2/3% of the employee's AWW.
- TPD = Temporary partial disability is the difference in pay between the earnings while disabled and the previous full time AWW.
- This difference is then paid at 66 2/3% (not to exceed five years).
Under LSHWCA, benefits are based on the Department of Labor's National Average Weekly Wages.
As a comparison, for a date of injury just prior to 9/30/08, the National Average Weekly Wage was $580.18. Thus, the maximum benefit would be $1,160.36, with the minimum standing at $290.09 per week. California's benefit as of 9/30/08 is a maximum of $916.33 and the minimum of $137.45, see below.
LSHWCA MAX: $1,160.30 MIN: $290.09
CAWCAB MAX: $ 916.33 MIN: $137.45
DIFFERENCE MAX: $ 243.97 MIN: $152.55
Per the LSHWCA, temporary disability benefits end when:
1. The doctor says the employee can return to work.
2. Investigation reveals the claim is not valid.
3. The employee fails to attend a medical appointment pursuant to an order.
4. The employee is found to be permanent and stationery by the treating doctor.
5. An order is issued terminating TTD.
6. The employee falsified Form LS-200 (the way the claim is begun).
7. The employee has failed to return or complete Form LS-200.
Permanent Disability
There are two types of Permanent Disability under the Longshore Act:
- Total Permanent Disability
- Partial Permanent Disability
Total Permanent Disability presumes the loss of all wage earning capacity. Once employees show they are unable to perform their usual and customary duties, they are entitled to "total" disability, unless the employer can show there are other jobs available in the community within the employee's limitations. The burden is on the employer, who will likely rely on a rehabilitation counselor for assistance in making this argument.
Total Permanent Disability is paid at 66 2/3% of the AWW (average weekly wage), and is paid for life, or until there is improvement in the medical impairment, or until alternate employment is found.
Partial Permanent Disability is considered partial in nature, but permanent in quality. It is for a disability that is less than total that may be considered as a loss of earning capacity, or an injury to specific body parts.
The Table of Scheduled Disabilities assigns a 66 2/3% of the AWW for the number of weeks identified in the schedule. The employee may receive both Partial Permanent Disability benefits and TTD or TPD, though he/she may not receive this benefit along with Total Permanent Disability (because Total Permanent Disability presumes loss of all wage earning capacity).
Listed below are some examples from the Table of Scheduled Disabilities:
- Arm lost, 312 weeks' compensation.
- Hand lost, 244 weeks' compensation.
- Thumb lost, 75 weeks' compensation.
- Leg lost, 288 weeks' compensation.
- Foot lost, 105 weeks' compensation.
- Great toe lost, 88 weeks' compensation.
- Toe other than great toe lost, 16 weeks' compensation.
- Eye lost, 160 weeks' compensation.
Disfigurement: Proper and equitable compensation not to exceed $7,500 shall be awarded for serious disfigurement of the face, head, or neck or other normally exposed areas likely to handicap the employee in securing or maintaining employment.
As in California workers' compensation, the employee's disability is calculated using the AMA Guides (5th Edition). Once the disability/impairment percentage is assessed, it is then multiplied by the number of weeks to calculate the total body part impairment.
Death Benefits
A 1972 amendment to the LSHWCA allowed unlimited death benefits, death benefits for a death unrelated to the original injury, and cost of living increases to disability benefits. There is no cap. No wonder carriers stopped underwriting Longshore coverage! This lasted until a 1984 amendment abolished all benefits for deaths unrelated to the injury occurring after Sept. 28, 1984. To get death benefits, the death must now be related to the injury, and benefits are paid based on the decedent's AWW. Funeral expenses are capped at $3,000.00.
Conclusion
While it is impossible to outline all of the differences between the LSHWCA and California workers' compensation law, I hope this brief summary provides you some insights into the wonderful world of the Longshore & Harbor Workers' Compensation Act.
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Judy Barrett is a partner in the California law firm of Bradford & Barthel with more than 20 years of legal experience. She is currently in charge of the firm's special projects. She also regularly teaches on such subjects as the Longshore and Harbor Workers Compensation Act, AMA Guides, and Apportionment.
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