Workers who are injured while working as longshoremen or in other harbor-based occupations have the right to make a claim for compensation under the Longshore Harbor Workers Compensation Act (LHWCA). The same procedures apply to claims made by injured workers who are covered by the Defense Base Act (usually employees of defense contractors who are working overseas) and the Outer Continental Shelf Lands Act (usually employees whose work is associated with oil and gas drilling in the ocean).
In many cases, an injured worker’s attorney can settle those claims with the employer’s insurance company. When the insurer refuses to be reasonable, however, it may be necessary to litigate the claim at a hearing before an Administrative Law Judge (ALJ).
First Step: Give Notice
Injured workers begin the claim process by giving notice of their injury to their employer and to the Office of Workers Compensation Programs (OWCP). Our firm can help injury victims complete the paperwork and deliver notice of the injury.
That notice must usually be given within 30 days of the accident that caused the injury, but the right to bring a claim is not necessarily lost if that deadline is not met. When the injury did not cause the employee to miss work immediately, the 30-day period will often start running when the employee must take time off from work because of the injury. In addition, a longer period of time applies to diseases or other health conditions caused by hazards (such as chemical exposures) in the work environment.
Lawyers who handle cases before the OWCP understand the importance of giving notice right away. The longer an employee waits, the less likely it becomes that an insurance company will believe that the injury is work-related. In addition, any time an employee waits more than 30 days, there is a risk that an ALJ will find that the delay does not fit within an exception to the 30-day deadline. Asking a lawyer to give notice of the injury as soon as the injury occurs is the best way for injured workers to protect their rights.
Second Step: File a Claim
In some cases, giving notice to the employer is the only step an injured employee will need to take. If the employer’s insurance company provides necessary medical treatment and pays the required benefit for days when the employee is unable to work, an employee who returns to work after making a full recovery will probably not need to take further action.
Disputes arise when the insurance company believes it has grounds to argue that the injury was not work-related. An insurance company might also dispute the existence and extent of an injured worker’s disability.
If the insurance company is reasonable, the employee’s lawyer may be able to negotiate a settlement that is consistent with the employee’s injury and with the LHWCA. When the case does not settle promptly, the worker will need to file a claim with the OWCP.
The “Employee’s Claim for Compensation” includes 38 boxes that request specific information. Making an incorrect or incomplete statement about the cause of the injury or providing other inaccurate information can jeopardize the employee’s claim. The employee’s lawyer will take care to provide complete and accurate information in a way that protects the employee’s right to receive full compensation.
Third Step: Request an Informal Conference
When a lawyer files a Claim for Compensation on behalf of an injured worker, the lawyer will usually request an Informal Conference with the OWCP. The lawyer will then gather evidence to support the claim. That evidence usually consists of medical records that substantiate the nature and extent of the injury, the cause of the injury, treatment that has been rendered, and whether any impairment is likely to heal.
An OWCP claims examiner will review the evidence and make an informal settlement recommendation. The injury victim and the insurance company both have the right to reject that recommendation. If the victim’s lawyer believes that the outcome of a hearing will be more favorable than the recommendation, the lawyer will generally advise the worker to take the case to a formal hearing.
Fourth Step: Request a Formal Hearing
If the case is not resolved at the informal conference, the injured worker’s lawyer will request a formal hearing. That hearing is held before an ALJ. The case does not go to court and no jury considers the evidence. Congress required employees to follow an administrative process to resolve compensation claims under the LHWCA and related laws.
Both sides are allowed to engage in pre-hearing discovery that is similar to the process lawyers use to prepare for lawsuits. If there is a dispute about how the injury occurred, it may be necessary to obtain depositions of witnesses who saw the accident. If there is a dispute about the nature of the injury, it may be necessary to gather additional medical evidence.
Both the worker’s lawyer and the lawyer for the insurance company can present evidence at the hearing. It is the worker’s burden to prove that the injury is work-related and the extent of any claimed disability. The injured worker’s lawyer will present evidence of the employee’s wages, evidence of how the injury occurred, evidence of how much work the employee has missed, and medical evidence that establishes the nature and degree of the employee’s disability and the employee’s prognosis.
The worker will typically testify at the hearing. The worker’s lawyer will prepare the worker to testify so that the lawyer’s questions do not surprise the worker and to assure that the worker’s answers do not surprise the lawyer.
The presentation of evidence must follow rules that apply to hearings before ALJs. A lawyer’s full understanding of those rules is essential to a successful outcome.
At some point, after the hearing is complete, the ALJ will issue a written decision. The ALJ will decide whether a compensable injury occurred and if so, the benefits to which the employee is entitled. If the ALJ makes an error about the facts or law, the employee can appeal the ALJ’s decision to the Department of Labor’s Benefits Review Board.