Industrial equipment, slick surfaces, and a hurried environment can make for dangerous working conditions for shore-based workers. When longshoremen, harbor workers, and other dock and shipyard workers sustain a shore-based maritime injury, they should look into all of the available avenues for securing benefits before they file any paperwork. There may be more than one way of obtaining benefits and compensation, depending on the circumstances of the accident.
What protections do workers have after a shore-based maritime injury?
Shore-based workers are oftentimes confused about their rights and legal options regarding work injuries. Employees who work on land are generally under the protection of their state’s workers’ compensation laws. They can file for and receive benefits from their employer’s insurance company if ever they are hurt on the job. Similarly, seamen are protected under the Jones Act, under which they can claim benefits for work injuries they sustain at sea.
But what about dock workers are other maritime industry workers that are hurt on shore? Ordinary workers’ compensation does not cover them, nor do they qualify as seamen under the Jones Act. Fortunately, they are not without options. These types of employees are protected under a specific piece of federal legislation: The Longshore and Harbor Workers’ Compensation Act (LHWCA).
This Act provides workers’ compensation-like benefits for injured shore-based maritime employees, including Louisiana shipbuilders, repairers, loaders, stevedores, shipyard terminal workers, and others that work primarily on shore.
What benefits can workers obtain under the LHWCA?
When you have sustained a shore-based maritime injury, you will need to notify your employer and seek medical attention straight away. The LHWCA provides that your employer will need to pay for all of your medical bills, as well as a portion of your wages if you need to miss work time due to your injury. Specifically, you are entitled to:
- Medical benefits (all reasonable and necessary expenses for the treatment of your work injury)
- Income replacement in the number of two-thirds of your average pre-injury wages
- Once your injury has reached maximum healing, you may qualify for a scheduled award for injury to certain body parts [as per 33 U.S.C. § 908(c)], or two-thirds of your lost earning capacity
- Vocational rehabilitation services
Note, in order to receive benefits, you will need to file a claim for compensation (Form LS-203) with the United States Department of Labor’s Division of Longshore and Harbor Workers’ Compensation within one year after your accident. For help with paperwork and securing your benefits, call 800-899-7102.
What other kinds of claims can I file after a shore-based maritime injury?
In certain situations, you may qualify to file a lawsuit against a third party or even your employer. There are very specific qualifying factors that you must be able to establish in order to have a successful case, though.
If your injury was the result of another party’s negligence (not your employer), then your attorney can help you file a negligence lawsuit and seek recovery for damages. For instance, if you were hurt by a defective piece of machinery while on the dock, you might be able to file a third party lawsuit against the equipment manufacturer.
In the majority of cases, both land-based and maritime employers are immune from liability to lawsuits when their employees are injured. However, there is an exception to the rule. Under § 905(b) of the LHWCA, you have the right to sue your employer for recovery of damages if the following two conditions exist:
- (1) your employer owned the vessel on which you were injured; and
- (2) your injury was the result of your employer’s negligence “in his capacity” as the vessel’s owner.
For instance, if your employer knew the gantry crane was on the fritz, but had you operate the crane anyway, causing your injury, you might qualify to file a 905(b) claim against your employer. Filing these claims can be complicated; speak with an attorney for assistance in doing so.
What kinds of damages can be recovered with third party and 905(b) claims?
You can recover much fuller and more varied damages with 905(b) claims than you can with LHWCA claims, which are notably limited in scope. Claims filed under 905(b) are essentially tort cases, or claims filed based on a “tortious act,” or civil wrongdoing. As such, the compensable damages for 905(b) claims are akin to those you can recover in a common personal injury lawsuit.
These damages include compensation for:
- Full wage replacement (not just two-thirds)
- Future lost wages
- Lost benefits
- Emotional harms
- Pain and suffering
- Loss of enjoyment in life
- Loss of contribution/personal services to your family
In some cases, you might also be able to recover punitive damages, awarded to victims in select cases as a punishment for the wrongdoer if the negligence was particularly gross or wanton. The possibility of receiving punitive damages largely depends on the state in which you file. Louisiana courts, for example, have allowed injured shore-based workers to pursue punitive damages under 905(b) in prior cases, whereas other state courts have decided the opposite.
Your attorney can advise you of which types of damages you may qualify for and what the estimated value of your case is.
What do I have to prove in order to win a 905(b) claim?
Just like with any tort case, you must be able to prove four basic elements in order to win your 905(b) claim:
- Duty of care: The employer had a duty to keep the ship reasonably safe.
- Breach of duty: The employer somehow breached its duty of care, i.e., acted negligently.
- Proximate cause: The employer’s negligence proximately caused your injury.
- Damages: You sustained actual, provable, compensable injuries in the accident.
The key to prevailing in these types of cases is compiling a good amount of evidence that strongly supports your case. Photos and videos of the scene and hazard, eyewitness reports, and testimony from experts can all be useful. Your maritime injury attorney can assist you with collecting the evidence you need, filing the necessary paperwork, and fighting for the full amount of benefits to which you are entitled.
What is the time limit for filing a Louisiana shore-based maritime injury claim?
The time limits for filing claims after a Louisiana shore-based maritime accident varies according to the type of claim and state in which you file. For instance, you must file LHWCA and third-party injury claims within a year, and 905(b) claims within three years.
However, you do not want to procrastinate in taking action, because you may lose evidence or face unexpected delays — and accidentally overstepping the time limit will nullify your rights to compensation. It is far better to get the ball rolling as soon as practicable to protect your claim.