Longshore and Harbor Workers’ Compensation Claims in New Hampshire

New Hampshire workers and their attorneys should be aware that, in addition to New Hampshire or Maine workers’ compensation, they may be covered under the Longshore and Harbor Workers’ Compensation Act (LHWCA) for injuries received while working at the Portsmouth Naval Shipyard (“Navy Yard,” “PNS”) or other facilities near the water. And because jurisdiction in New Hampshire and Maine runs concurrently for state workers’ compensation and Longshore claims, injured workers may benefit from a rare “best of both worlds” confluence of systems for dealing with work injuries under some circumstances.

Many workers at the Navy Yard are employed by the federal government, and as such are covered for work injuries by the Federal Employees’ Compensation Act, or “FECA.” FECA is what it sounds like: workers’ compensation for federal employees. Longshore is a different thing altogether. This article is about Longshore, not FECA. Other workers in or around the Navy Yard working in “Morale, Welfare and Recreation,” (“MWR”), or PX, may also be covered for work injuries by the Longshore Act via the Nonappropriated Fund Instrumentalities Act—definitely a subject for another day, but something to consider depending on the nature of the injury in question.

Longshore coverage, to oversimplify, applies to people doing the right kind of work in the right kind of location. To be more precise, the right kind of work is “maritime employment,” 33 U.S.C. S 902(3), and the right kind of location is “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, or building a vessel),” 33 U.S.C. S 902(4). Not surprisingly, that language about piers, dry docks, and so forth has been the subject of much litigation, but facilities as far away from the water as several thousand feet have been held to meet the “situs” test, Newport News v. Graham, 573 f.2d 167 (4th Cir. 1978) (citations omitted). (And even as to “maritime employment” there is a caveat: “maritime employment” is statutorily defined to exclude a complicated host of workers, the details of which demand case-by-case scrutiny.)

All the injured worker or attorney in New Hampshire looking at this needs to know is this: Anyone with a work-related injury anywhere near the water or having to do with maritime activity should at least ask “could there be a Longshore claim here?” Two compelling reasons to get the right answer to this question: 1.) Longshore pays 66-2/3% of average weekly wage, instead of the New Hampshire 60%; and, potentially much more important, 2.) Partial disability in Longshore cases can extend beyond the 262-week cap for such benefits that is contained in New Hampshire law, at least for the right kind of injury (so-called “non-scheduled” injuries, to be precise, 33 U.S.C. 908—also a subject for another day).

In fact, the Longshore Act contains no time limit at all on partial disability benefits in cases involving non-scheduled injuries. Considering that back injuries are non-scheduled, it is easy to understand why the value of partial disability benefits in Longshore claims can far exceed the counterpart, otherwise-identical partial disability benefit in New Hampshire state workers’ compensation claims.

Trap for the unwary: Longshore law forbids percentage attorney fee contracts—attorney fees are contingent, and billed hourly, and fee-shifting is possible but complicated. So the percentage-based contingent fees that are common in state workers’ compensation claims are not available in Longshore.

Example to pique the interest: Consider the case of Graziano v. General Dynamics Corp., 663 F.2d 340 (1st Cir. 1981): In Graziano, the claimant’s work “primarily involved the repair of masonry in shipyard buildings, but also included digging ditches, breaking up concrete with a jackhammer, laying cement, grouting, removing asbestos from pipes, repairing boilers and manholes, and cleaning acid tanks.” In other words, the claimant in Graziano was not a shipbuilder and was not working on ships. He was a building and equipment maintenance worker who happened to work in a shipyard. The question was, “is this maritime employment?”

The defense argued that the claimant failed to meet the “status” test, i.e. did not do the right kind of work. (The “situs” test, having to do with location of the work, was uncontested, considering that the work was done in a shipyard.) The court said “the maintenance of the structures housing shipyard machinery and in which shipbuilding operations are carried on is no less essential to shipbuilding than is the repair of the machinery itself,” Graziano, 663 F.2d 340, 342, concluding that in fact the work in question was maritime employment, and therefore Longshore coverage applied.

So to conclude: If you are faced with a work-related injury having anything to do with the water, and especially taking place at the Navy Yard, think about Longshore coverage in addition to state workers’ compensation.

Why I do this and why you might care

If you’re considering hiring an attorney, maybe it would help to know what that prospective lawyer is thinking. Here’s what I’m thinking.

My practice focuses on injuries. On the workers’ compensation side (which includes Defense Base Act/Longshore claims–they are another type of workers’ compensation), I keep coming back to the feeling that people who are hurt working are really up against a lot of challenges, and they shouldn’t expect to navigate the complexities of the comp system alone. Insurance companies basically want to maximize premiums and minimize payments. They don’t seem to spend a lot of time thinking about the people who are hurt, or whether they will put together decent lives when the healing is over. They hire armies of people to lobby against any attempt to expand benefits for injured workers.

Injured workers have their advocates too, but we are far less well-funded and our organizations are way smaller. A really good one is WILG, the Workers’ Injury Law and Advocacy Group. We do a lot of work to make sure that legislators and other policy makers understand how bad it is to suffer a major work injury, and to put in place the most supportive benefit structures we can. It’s hard work, and it’s never over, but I just can’t shake the feeling that it needs to be done. And I’m glad to do my part.

What is “concurrent jurisdiction?”

Concurrent jurisdiction is when your claim could be in more than one workers’ compensation system (or court) at the same time. No systems allow you to collect benefits twice for the same thing, but sometimes you can “pick and choose” the best of both systems. So if you have a Longshore claim because you were hurt in the State of Maine or New Hampshire (or any of many other states), but were hurt in a maritime occupation with enough connection to the water, you might be able to get benefits under one system or the other that you would not if you were in one system alone.

You should not have to worry too much about concurrent jurisdiction, but you should be aware of it and should ask your attorney if your case might benefit from concurrent jurisdiction in one or more workers’ compensation systems.

“Why is the insurance company denying my DBA claim?”

This came up just the other day, actually, although in this instance it wasn’t a DBA claim. It just seems like a more common question in Defense Base Act cases.

Sometimes you may wonder why the insurance company is or isn’t doing something with your workers’ compensation claim. Maybe you wonder why the claim is denied, or why medical treatment is being denied. I’ve found that most of the time, the answer is “There’s no way to know, plus it probably won’t make any difference in the long run.” This is very unsatisfying, I know, but it’s also true.

My two cents’ worth is that most workers’ compensation claims adjusters have more files than anyone could reasonably expect them to handle, so they are under tremendous pressure all the time. And that can be counterproductive, just like in any other job. So your adjuster may have made a decision out of pressure, because he or she just doesn’t have time to review your file. And it’s easier to say “No” than “Yes.” Plus when is the last time an insurance manager complained at an adjuster about denying a claim?

As to why I don’t think it matters why a decision is made, that’s just me focusing on what we are doing now, and what’s going to happen next. Most of the time, the decisions that have to be made in a case will not change depending on the adjuster’s reasons for taking any given action. So when I’m planning strategy going forward, I do think over what got us where we are, but most of the time it doesn’t really change things much. It’s just a lot of time spent guessing about the thought process of someone who has way more going on than we can possibly know.

Beware “Official Disability Guidelines”–How Official Are They?

For no particular reason, I’ve been working on a lot of Defense Base Act (DBA) cases lately.  I like these cases–the people are great, the facts are interesting, and the law is pretty good, all things considered (and there are tons of things to consider, which I will try to write about later).  So when I’m working on DBA cases, I’m usually in a pretty good mood.  But today I’m feeling a little cranky because of a new twist that insurance companies are using to deny medical benefits in workers’ comp claims.

And this trick is not limited to DBA claims–state comp carriers are doing it too.  The trick is denying medical benefits based on so-called “Official Disability Guidelines,” or other for-profit publications dressed in “Official” clothing.  But there’s nothing “Official” about “Official Disability Guidelines.”  These “Guidelines” are for sale by the Work Loss Data Institute–a for-profit publishing and database company.  Unless your state has adopted these guidelines into law–and some have done so, but not New Hampshire and not the Longshore and Harbor Workers’ Compensation Act (“LHWCA,” the law that applies in DBA cases)–the “Official Disability Guidelines” are nothing more than a way to make it look like there are agreed-upon rules for how or when various medical procedures ought to be done.  There is no such consensus, and there is no “Official.”  It’s just somebody selling “guidelines” to the insurance industry, which the industry in turn uses to deny benefits in a way that appears principled, instead of arbitrary.

So if you are an injured worker, and your doctor is proposing a treatment that the insurance company refuses to pay for because of the “Official Disability Guidelines,” it might be time to get some advice about your options.

Doug’s post–written by Doug (no ghost writing here).