How do I know if I am covered by the Longshore and Harbor Workers' Compensation Act?

If you find that a State Workers' Compensation Appeals Act or the Federal Employees' Compensation Act does not cover you, then you must look to another area to cover you in workers' compensation. If you work on the waterfront, unloading or loading ships, if you work on the waterfront in repairing or building ships or work with any of the marinas in repair or rebuilding, then you are generally covered by the Longshore and Harbor Workers' Compensation Act. The Longshore and Harbor Workers' Compensation Act or an extension of it also covers you if you work on a military base for a civilian contractor with the military, such as a Burger King on a military base or even if you work for one of the post exchanges or the officer's clubs. Those kinds of places are covered by what is called a Non-appropriated Instrumentalities Act, which is an extension of the LS Act.

Other places where the LS Act may cover you are if you work on oil drilling rigs in the open sea or if you work on a defense base for a defense contractor outside of the United States, in a foreign country or in the territories.

If the Longshore and Harbor Workers' Compensation Act or one of its extensions covers me, what benefits can I expect to receive?

Within 14 days of being injured and staying out more than 3 days, you should be receiving temporary disability. This is a benefit that provides compensation to you while you are recovering from an injury. The rate at which you are compensated depends upon your regular pay, but you may be paid close to $900 per week if two-thirds of your average weekly wage equals that amount. Generally speaking, your temporary disability will be two-thirds of your average weekly wage calculated over the preceding 52 weeks from the date of your injury.

You are also entitled to a choice of physician to treat you for all of the medical problems that have occurred as a result of the injury. That means that you have the first choice of physician. If you have already chosen a physician, then you most likely will have to stay with that physician. If you have not chosen a physician and the employer has chosen one for you, then you can ask to go to one that you trust and who is on your side. Medical treatment will be provided for the rest of your life to treat the affects of your injury.

You also may be entitled to an Award for permanent disability if you have a lasting impairment that interferes with your work. There are two types of permanent disability awards. One is called the "scheduled injury" which is usually an injury to one of the extremities, either arms or your legs, but it may also be hearing loss, loss of sight or a number of other body parts. When you are compensated for a permanent disability to a scheduled member, then you get a certain number of weeks of disability to compensate you for permanent damage to a part of your body.

There is also a permanent disability award for injuries to what is called "unscheduled body parts." Those are the neck, spine, head, hips, shoulders, psychiatric and any disability which entirely prevents you from going back to work at all. The basis for this disability award depends on your wage loss. You should be paid the same you are getting on temporary disability, two-thirds of your average weekly wage if you are permanently disabled. This is a lifetime award. This award can be reduced if the employer finds there is suitable or alternative employment somewhere in the labor market in which you work.

How is the Longshore and Harbor Workers' Compensation Act administered?

The U.S. Department of Labor is in charge of overseeing Workers' Compensation claims under the Longshore and Harbor Workers' Compensation Act. There are two levels at which it oversees these claims. The first is at the Office of Workers' Compensation Programs where claims administrators and district directors see to it that injured workers have some place to go with their claims. If a resolution cannot be found at the level of Office of Workers' Compensation Programs, then a case must be referred to the Office of Administrative Law Judges for a formal hearing. At that time, an Administrative Law Judge will hear the evidence and make a decision on any contested issues.

Why do I need an attorney and how much do I pay in this system?

This is a complicated and misunderstood Workers' Compensation law. There are few attorneys that understand this law and there are fewer non-attorneys who understand it. Injured workers may expect their employer and its insurance company to take care of them, but often times there is an issue or some disagreement that the insurance company or the employer has decided is important and, therefore, benefits are not being paid or given. In situations where there is an argument about benefits, an attorney would be helpful to injured workers. An experienced longshore attorney can guide the injured worker through the maze of rules and regulations and be able to understand what is going on as well as dealing with the insurance companies and their large contingent of lawyers. The advantages to having a lawyer are numerous and under the Longshore and Harbor Workers' Compensation system, if a lawyer obtains a benefit for an injured worker, the insurance company or the employer must pay the attorney's fees and, therefore, the injured worker does not have to be responsible for the attorney fee.

Will my employer fire me if I file a Workers' Compensation claim?

It is against the law to fire an injured worker or to harass an injured worker for filing a workers' compensation claim. Section 49 of the Longshore and Harbor Workers' Compensation Act provides for penalties and reinstatement if you are fired. In addition, Section 31 of the Act calls for criminal penalties if an employer or its insurance company misrepresents a material fact. Lawyers can protect their clients against these illegal actions by employers. You should not be hesitant in filing a claim.

What should I do if I am hurt on the job?

First, you should report your injury as soon as you are hurt to an employer's representative. There is a form they may have you fill out and do so. Try to keep a copy of it. Try to keep a copy of all forms that you fill out. If you need medical attention, again, you have a choice of your own doctor to go to. You should not and need not follow the orders of your employer to go to a specific doctor of their choice. That is illegal.

If you go to a doctor and that doctor decides you cannot go back to your job until you recover, you should receive your benefits within 14 days of the injury. If you do not receive those benefits, this may be the time you need to consult an attorney. Keep good notes on everything that happens to you. Keep records on everything that happens. Make sure that if your co-workers have seen the accident, that you get their name and their telephone numbers so that they can act as witnesses for you if necessary.

Do not give statements to anyone. Do not make any tape recordings with anyone. What you say and what you have recorded may and will be used against you if litigation is necessary. If you are out of work for an extended time, the employer may very well try to watch you with an undercover agent. That undercover agent may have a camera and take pictures of you so that later on you may be questioned about your activities and if it is contradictory to the pictures, your case may be damaged. Therefore, if you are off the job and the doctor says you should not participate in certain activities, follow that doctor's advice. Do not go beyond that advice. Do not go and mow the law if your doctor tells you not to.

What happens if the benefits are not paid on time?

Your attorney will work to get your workers' compensation temporary disability benefit. If it is delayed, you may be able to receive other temporary disability benefits. In most states there is a temporary disability benefit that is administered by the state. In California, it is called "State Disability Insurance". If you have not received your workers' compensation benefits by the 14th or 15th day, then contact your doctor and tell him that you need to fill out forms for State Disability benefits and that will start fairly soon. You also may be entitled to short term or long-term disability benefits through a private policy that you or your employer has provided. You should check with your personnel officer or Human Resources Office about this.

What about Social Security Disability?

You may be entitled to Social Security Disability benefits if you have been off the job for a year because of an injury or are expected to be off the job for a year or more. If that is the case, then you should go to your local Social Security Office and fill out an application for Social Security Disability benefits.

Can I get Unemployment Insurance while I am out?

If your doctor has decided that you can no longer do your job and has put you on temporary disability, then it is contradictory to go to an unemployment office and fill out a form for unemployment benefits in which you would indicate that you are available for work. If a doctor has released you to go back to work but not your old job, you may be entitled to unemployment if you can apply for other jobs.

What is the Law Office of Steven M. Birnbaum?

The Law Office of Steven M. Birnbaum, founded in 1983, is a professional corporation that only represents injured workers in workers' compensation cases. The office represents injured workers only under the Longshore and Harbor Workers' Compensation Act. This office has been rated AV by the nationally recognized lawyers directory of Martindale Hubble. That is the highest rating for a law office in its field. Read more about Mr. Birnbaum.

The Law Office of Steven M. Birnbaum supports a staff of professional paralegals, legal assistants and administrators who all band together to help injured workers get their benefits and entitlements. We maintain two offices, one in San Francisco, California and the other in Hawaii. The main office is located in downtown San Francisco at 1388 Sutter Street, Suite 650 and is open between the hours of 9:00 a.m. to 5:00 p.m. The Hawaii office is located in Kailua, Oahu and is located at 26 Hoolai Street, Kailua, Hawaii.

Are there Workers' Compensation injuries that I might not be aware of?

The most commonly overlooked workers' compensation injury is what is called a "cumulative" injury, one that takes place over a period of time where the injured worker has been hurt in a series of micro-traumas to a particular body part. A common example of a cumulative injury is one for carpal tunnel syndrome. In carpal tunnel syndrome, an area in the wrist has become inflamed because of repetitive use of those wrists and hands. You usually cannot point to one specific time when the injury took place, but it is a legitimate injury taking place over a period of time, which is called a cumulative injury.

 Another type of injury that is often overlooked is one that is caused by toxic fumes or substances in the workplace. Often times injured workers will come to this office with complaints about shortness of breath, skin problems, or brain disorders for which they cannot account. Upon questioning, it is found that they are using substances like solvents, paints or other strong chemicals in the workplace on a daily basis. Doctors have found that the exposure to these kinds of chemicals may indeed cause long lasting problems that are serious in nature. So it is common for the injured worker to be unaware of the fact that their toxic exposure has endangered them.

Another common cumulative injury that this office handles is hearing loss. In this injury an employer has subjected the employees to loud noises in the workplace. After a period of time these loud noises damage the workings of the inner ear and, therefore, hearing suffers. If hearing has suffered as a result of work and of loud noises on the job, then that worker is entitled to workers' compensation, which is determined by how much hearing loss has been suffered. We usually ask the injured workers to go out and get what is called an "audiogram" from their private care physician. If they belong to Kaiser, this has never been a problem. Once the audiogram is done, it tells us what the hearing loss has been and we will make a claim based on that. If you are having trouble obtaining a hearing test, most hearing aid offices administer these tests for free.

How long will my claim take?

It is hard to say how long a workers' compensation case may last. It depends on the type of injury. It depends on the response of the employer or the insurance carrier. Most importantly, it depends on how long the hearing process takes place because until an injury stabilizes and a doctor can say that the employee has reached maximum medical improvement, permanent disability cannot be evaluated. Of course, even after that point when permanent disability has been evaluated, the insurance company or the employer may not accept what the injured worker decides is fair compensation. At that point, the claim may have to go into the litigation phase which draws it out even longer. Although it is sometimes very difficult for an injured worker to bear with the long process, it may be necessary in order to obtain 100% of the benefits they deserve.

What if I have other questions?

If you have a claim with our law office we will attempt, in every way possible, to answer your questions. We spend much time in hearings and we are usually not available when you telephone. We will, however, have one of our trained legal assistants accept your call. Please be patient. If one of our assistants is not available at the time of your call, we will see that your call is returned shortly. Because the attorney's fees in workers' compensation are low, a high number of cases are being handled at any one time. Specific questions and problems receive a much higher priority than requests for status updates. We depend on our clients to understand that if they had a specific problem, they would expect that to be handled before routine requests.

We will arrange an appointment when it necessary for you to come to our office. Normally, an appointment is not necessary until, and unless, your case goes to a hearing.

As time goes on, this website will be augmented to give more information about particular points about the law and operations of the Longshore and Harbor Workers' Compensation Act and other Workers' Compensation Statutes so that it will be an efficient way to gather general information rather than waiting for return telephone calls.

Do you have an e-mail address to which we can send inquiries?

Our e-mail address is questions@injuredworkersatty.com. We will get back to you with return e-mail as soon as possible. Due to the volume of e-mail, it may take a few days.

Why are Workers' Compensation benefits so minimal?

Unfortunately, workers' compensation is subject to the political process as well as the legal process. Lawyers can only work within the system that is given to them by the legislatures. It is up to injured workers and others to change the political system so that injured workers receive better benefits. It is up to you. Your lawyer has no more voice in changing the law than you do. We encourage you to band together with other injured workers and demand that benefits be raised to an adequate level.