LONGSHORE
V.
MS WORKERS’
COMPENSATION
CONTRAST
AND COMPARE
City of Aberdeen Port, Aberdeen, MS
Port of Amory, Amory, MS
Port Bienville Industrial Park*, Bienville, MS
Biloxi Port*, Biloxi, MS
Port of Claiborne County, Claiborne, MS
Port of Greenville*, Greenville, MS
Port of Gulfport*, Gulfport, MS
Port Itawamba, Itawamba, MS
Lowndes County Port, Lowndes, MS
Natchez Adams County Port, Natchez, MS
Port of Pascagoula*, Pascagoula, MS
Port of Rosedale, Rosedale, MS
Port of Vicksburg*, Vicksburg, MS
Port of Clay County, West Point, MS
Yazoo County Port, Yazoo, MS
Yellow Creek Port, Yellow Creek, MS
16 Ports in MS
City of Aberdeen Port, Aberdeen, MS
Lowndes County Port, Lowndes, MS
Port of Amory, Amory, MS
Natchez Adams County Port, Natchez, MS
Port Bienville Industrial Park, Bienville, MS
Port of Pascagoula, Pascagoula, MS
Biloxi Port, Biloxi, MS
Port of Rosedale, Rosedale, MS
Port of Claiborne County, Claiborne, MS
Port of Vicksburg, Vicksburg, MS
Port of Greenville, Greenville, MS
Port of Clay County, West Point, MS
Port of Gulfport, Gulfport, MS
Yazoo County Port, Yazoo, MS
Port Itawamba, Itawamba, MS
Yellow Creek Port, Yellow Creek, MS
Bevill-Hook Port, Aliceville, AL
Crossroads of America Port, Boligee, AL
Port of Bridgeport, Bridgeport, AL
Barry Electric Generating Plant*, Bucks, AL
Port of Claiborne, Claiborne, AL
Port of Columbia, Columbia, AL
Port of Cordova, Cordova, AL
Port of Decatur, Decatur, AL
Port of Demopolis, Demopolis, AL
Port of Epes, Epes, AL
Port of Eufaula, Eufaula, AL
Port of Florence, Florence, AL
Port of Guntersville*, Guntersville, AL
Port of Mobile*, Mobile, AL
Port of Montgomery, Montgomery, AL
Port of Phoenix City, Phoenix City, AL
Pickens County Port, Pickensville, AL
Port of Selma, Selma, AL
Port of Tuscaloosa, Tuscaloosa, AL
Bevill-Hook Port, Aliceville, AL
Crossroads of America Port, Boligee, AL
Port of Bridgeport, Bridgeport, AL
Barry Electric Generating Plant*, Bucks, AL
Port of Claiborne, Claiborne, AL
Port of Columbia, Columbia, AL
Port of Cordova, Cordova, AL
Port of Decatur, Decatur, AL
Port of Demopolis, Demopolis, AL
Port of Epes, Epes, AL
Port of Eufaula, Eufaula, AL
Port of Florence, Florence, AL
Port of Guntersville*, Guntersville, AL
Port of Mobile*, Mobile, AL
Port of Montgomery, Montgomery, AL
Port of Phoenix City, Phoenix City, AL
Pickens County Port, Pickensville, AL
Port of Selma, Selma, AL
Port of Tuscaloosa, Tuscaloosa, AL
Port of Alliance, Alliance, LA
Port of South Louisiana, Ama, LA
Port of Avondale, Avondale, LA
Port of Greater Baton Rouge, Baton Rouge, LA
Port of Bellevue, Bellevue, LA
Port of Burnside, Burnside, LA
St. Bernard Port, Chalmette, LA
Port of South Louisiana, Convent, LA
Port of South Louisiana, Destrehan, LA
Port of South Louisiana, Garyville, LA
Port of Geismar*, Geismar, LA
Port of Gramercy*, Gramercy, LA
Port of Gretna*, Gretna, LA
Port of Terrebonne*, Houma, LA
Port of Krotz Springs*, Krotz Springs, LA
Port of South Louisiana*, La Place, LA
Port of Lake Charles*, Lake Charles, LA
LOOP Terminal, Metairie, LA
Port of Morgan City*, Morgan City, LA
Port of Iberia*, New Iberia, LA
Port of New Orleans*, New Orleans, LA
Port of South Louisiana, Norco, LA
Port of Ostrica*, Ostrica, LA
Port of South Louisiana, Paulina, LA
Plaquemines Parish Port, Harbor and
Terminal District*, Plaquemines, LA
Port Fourchon*, Port Fourchon, LA
Port of South Louisiana, Reserve, LA
Port of Shreveport-Bossier*, Shreveport, LA
Port of South Louisiana, St Rose, LA
RULE OF THUMB:
Choose
Longshore!
BENEFITS ARE
LIFE V. 450 WEEKS
ROT: CHOOSE LS!
MAXIMUM WEEKLY BENEFIT FOR LS:
$1,377.02
MAXIMUM WEEKLY BENEFIT FOR MWCC:
$463.59
MWCC – “This chapter shall not apply to transportation and maritime employments
for which a rule of liability is provided by the laws of the United States.”
LS JURISDICTION:
MUST ESTABLISH STATUS , SITUS AND
EMPLOYMENT BY A MARITIME EMPLOYER
STATUS TEST: 33 U.S.C. § 902---"EMPLOYEE“– a person engaged in maritime employment,
longshoreman, or other person engaged in longshoring operations, or any harbor-worker
including a ship repairman, shipbuilder, and ship-breaker
NOT
(A) office clerical, secretarial, security, or data processing work;
(B) club, camp, recreational operation, restaurant, museum, or retail outlet employees;
(C) marina employees not engaged in construction, replacement, or expansion of the
marina;
(D) suppliers, transporters, or vendors, who are temporarily doing business on the
premises but not engaged in work normally performed by employees of that employer
(E) aquaculture workers;
(F) employees building, repairing or dismantling any recreational vessel under 65 ft.
(G) a master or member of a crew of any vessel;
or (H) any person engaged by a master to load, unload or repair any small vessel under
eighteen tons net; if individuals described in clauses (A) through (F) are subject to
coverage under a State workers' compensation law.
SITUS TEST: 33 U.S.C. §903:
injuries "occurring upon the navigable waters of the United States (including any adjoining
pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area
customarily used by an employer in loading, unloading, repairing, dismantling, or building a
vessel.)“
waterways are navigable in fact "when they are used, or are susceptible of being used, in
their ordinary condition, as highways for commerce." The Daniel Ball, 10 Wall. 557, 77 U.S.
557, 563, 19 L.Ed. 999 (1870). Lockheed Martin Corp. v. Morganti, 412 F.3d 407 (2nd Cir.
2005).
However, a worker who is assigned to work on a fixed oil field platform within three miles
offshore (which is considered land) but performs some duties on or over navigable water
and whose injuries occurred on or over navigable water may be covered by LS.
If the employee establishes he IS “injured in the course of his employment [while
actually] on navigable waters, [then he] IS engaged in maritime employment and meets
the status test only if his presence on the water at the time of injury was neither
transient or fortuitous.” Bienvenu v. Texaco, Inc., 164 F.3d 901 (5th Cir. 1999). [Emphasis
added].
There is no particular formula or percentage used to determine if a worker’s presence on
the water is ‘transient or fortuitous’. Id. (Clmt spent 8.3% of time working on vessel over
water).
In 1953 Congress enacts Outer Continental Shelf Lands Act (OCSLA), (on oil
platforms outside 3 mile limit) which extended LHWCA coverage to injuries
‘occurring as the result of operations conducted on the [OCS] for the purpose of
extracting natural resources from the shelf’. 43 U.S.C. §1333(b).
Originally interpreted by Fifth Circuit as covering only injuries that actually
occurred ON the OCS. See Mills v. Director, OWCP, 877 F.2d 356 (5th Cir. 19899 en
banc).
BUT Supreme Court held in 2012 that there need only be a ‘substantial nexus’
between the injury and extractive operations on the shelf. See Pacific Offshore
Operators v. Valladolid, 130 S. Ct. 680, 691 (2012).
“This case transforms OCLSA into a ‘brooding omnipresence in the sky’ hurling its’
benefits like random thunderbolts, indiscriminately”. John Chamberlain, Sr. OWCP
official.
The Defense Base Act provides Longshore workers' compensation protection
to civilian employees working outside the United States on US military bases
or under a contract with the U.S. government for public works or for national
defense.
Employees working under the Defense Base Act, are far away from their families and
friends, in remote places where there are severely limited recreational and social
activities, are in different circumstances from employees working at home. Personal
activities of a social or recreational nature must be considered as incident to the
overseas employment relationship. … An employee injured on Grand Turk while offduty but on call is like a seaman injured ashore on fun of his own. Short of wilful
misconduct, the seaman is still in the 'service of his ship'.
O'Keeffe v. Pan Am. World Airways, Inc., 338 F.2d 319 (5th Cir. 1964)
The test of recovery is not a causal relation between the nature of employment of the
injured person and the accident. … Nor is it necessary that the employee be engaged at
the time of the injury in activity of benefit to his employer. All that is required is that the
"obligations or conditions" of employment create the "zone of special danger" out of
which the injury arose.
O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483 (1951)
ANOTHER EXTENSION OF THE LS ACT:
Nonappropriated Fund Instrumentalities Act
Civilian employees, compensated from nonappropriated funds, of the Army and Air
Force Exchange Service, Army and Air Force Motion Picture Services Navy Ship's
Stores Ashore, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and
other instrumentalities of the United States under the jurisdiction of the Armed
Forces conducted for the comfort, pleasure, contentment, and mental and physical
improvement of personnel of the Armed Forces shall not be held and considered as
employees of the United States for the purpose of any laws administered by the Civil
Service Commission or the provisions of the Federal Employees' Compensation Act,
as amended…
LS-203 is basic equivalent to Petition to Controvert
LS-203
MWCC Petition to Controvert
Go to http://www.dol.gov/owcp/dlhwc/ to locate form and click on LS-203
for an interactive version that can be completed online
INFORMAL CONFERENCE NORMALLY REQUIRED
IF EMPLOYER BEGINS TO PAY COMPENSATION AND THEREAFTER A CONTROVERSY
ARISES OVER WHAT ADDITIONAL COMPENSATION IS OWED, REQUEST AN
INFORMAL CONFERENCE WITH THE DOL CLAIMS EXAMINER. DOL CLAIMS
EXAMINER HOLDS CONFERENCE AND ISSUES WRITTEN RECOMMENDATION
IF THE E/C REFUSES TO PAY ANYTHING, AND CONTESTS LIABILITY UNDER THE ACT,
YOU MAY GO STRAIGHT TO THE ALJ AND REQUEST A HEARING.
CHOOSE LS, E/C PAYS ATTORNEY’S FEES
(IF, IF, IF!)
33 U.S.C. §928(b).
If E/C pays compensation without an award... and thereafter a controversy
develops…, an informal conference SHALL BE scheduled & thereafter the DOL
Claims Examiner makes a written recommendation. If E/C refuses to accept the
recommendation, within 14 days after receipt, they shall pay or tender to the
employee in writing the additional compensation, if any, to which they believe
the employee is entitled. If the employee refuses to accept such payment or
tender of compensation and thereafter utilizes the services of an attorney at law,
and if the compensation thereafter awarded is greater than the amount paid or
tendered by the employer or carrier, a reasonable attorney’s fee... shall be
awarded in addition to the amount of compensation. …
an employer must refuse to accept the informal recommendation before attorneys' fees
are shifted … a claimant who loses at the informal conference has only two options:
accept the result, or seek greater compensation before the ALJ and suffer a reduction in
his or her benefits based on the cost of hiring an attorney to pursue the claim.
Andrepont v. Murphy Exploration and Production Co., 566 F.3d 415 (5th Cir. 2009)
ONE LONGSHORE DISADVANTAGE
NO CONTINGENCY FEE ALLOWED IN LS, CLMT’S ATTY MUST KEEP
CONTEMPORANEOUS RECORD OF TIME, HOURLY RATE AND AMOUNT OF
FEES MUST BE APPROVED BY ADMINISTRATIVE LAW JUDGE OR DISTRICT
DIRECTOR
MWCC 25% CONTINGENCY ATTORNEY FEES MUCH MORE ATTRACTIVE
FILE LS-18 IN LS
(AS OPPOSED TO PHS IN MWCC)
DOL LS-18
MWCC PHS
TIDBIT:
A SHOULDER INJURY IN LS IS NOT A
SCHEDULED MEMBER
BUT
MWCC CLASSIFIES SHOULDER AS
SCHEDULED MEMBER
8(F) SECOND INJURY FUND: ANOTHER POSSIBLE DISADVANTAGE IN LONGSHORE
Section 8(f) shifts liability from the employer to the Special Fund after 104 weeks,
if the employer establishes the following three prerequisites: 1) the injured
employee has a pre-existing permanent partial disability; 2) the pre-existing
disability was manifest to employer; and 3) claimant's permanent disability is not
solely due to the subsequent work-related injury but results from the combined
effects of that injury and the pre-existing permanent partial disability. Where an
employee is permanently partially disabled, the employer must also show that
the current permanent partial disability "is materially and substantially greater
than that which would have resulted from the subsequent injury alone." 33 U.S.C.
§908(f); Two "R" Drilling Co., Inc. v. Director, OWCP, 894 F.2d 748, 23 BRBS 34
(CRT)(5th Cir. 1990); Pino v. International Terminal Operating Co., Inc., 26 BRBS 81
(1992).
The special fund shall not be liable for reimbursement of any sums paid or payable
to an employee or any beneficiary under such settlement, or otherwise voluntarily
paid prior to such settlement by the employer or carrier, or both. 33 U.S.C.
908((i)(4)
CONTRAST WITH MWCC WHICH PROVIDES FOR APPORTIONMENT OF
OCCUPATIONALLY DISABLING PRE-EXISTING CONDITION AND ALLOWS
SETTLEMENT
FEDERAL LAW PRE-EMPTS STATE
THERE IS NO BAD FAITH CLAIM IN
LONGSHORE
Nadheer v. Insurance Co. of State of Pennsylvania, 12-50164, (Jan. 7, 2013, 5th Cir.)
Links to LS Forms
(1) LS-200 – Report of Earnings
http://www.dol.gov/owcp/dlhwc/ls-200.pdf
(2) LS-201 – Notice of Employee’s Injury or Death
http://www.dol.gov/owcp/dlhwc/ls-201.pdf
(2) LS-202 - Employer’s First Report of Injury
http://www.dol.gov/owcp/dlhwc/ls-202.pdf
(3) LS-203 -Employee’s Claim for Compensation
http://www.dol.gov/owcp/dlhwc/ls-203.pdf
(4) LS-204 Attending Physician’s Supplemental Report
http://www.dol.gov/owcp/dlhwc/ls-204.pdf
(5) LS-206 Notice of Payment of Compensation Without Reward
http://www.dol.gov/owcp/dlhwc/ls-206.pdf
(6) LS-207 Notice of Controversion of Right to Compensation
http://www.dol.gov/owcp/dlhwc/ls-207.pdf
(7) LS-208 Notice of Final Payment or Suspension of Compensation Payments
http://www.dol.gov/owcp/dlhwc/ls-208.pdf
(8) LS-210 Employer’s Supplementary Report of Accident or Occupational Illness
http://www.dol.gov/owcp/dlhwc/ls-210.pdf
(9) LS-262 Claim for Death Benefits
http://www.dol.gov/owcp/dlhwc/ls-262.pdf
(10) LS-265 Certification of Funeral Expenses
http://www.dol.gov/owcp/dlhwc/ls-265.pdf
(11) LS-426 Request for Earnings Information
http://www.dol.gov/owcp/dlhwc/ls-426.pdf
(12) OWCP-915 Claim for Medical Reimbursement
http://www.dol.gov/owcp/dfec/regs/compliance/OWCP-915.pdf
(13) OWCP-5a Work Capacity Evaluation Psychiatric/Psychological Conditions
http://www.dol.gov/owcp/dfec/regs/compliance/OWCP-5a.pdf
(14) OWCPO-5c Work Capacity Evaluation Musculoskeletal Conditions
http://www.dol.gov/owcp/dfec/regs/compliance/OWCP-5c.pdf
Link to Seaportal (e-filing)
https://seaportal.dol-esa.gov/portal/
For DOL filings only, not for OALJ filing