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.