Longshore/Defense Base Act

The United States Department of Labor, Office of Workers’ Compensation Program administers claims under the Longshore and Harbor Workers’ Act.


Longshore/Defense Base Act FAQ’s: 1-20 | 21-40 | 41-61 | 62-80 | 81-95


2) Longshore/Defense Base Act FAQ’s: 21-40.


21. Can my employer retaliate against me for filing a claim?
Under the LHWCA, it is unlawful to discriminate against or fire an employee solely because he or she has filed a claim for compensation or has testified, or is about to testify, in an LWHCA hearing. However, it is not a violation of this law if an employer fires or refuses to hire an employee who has knowingly and willfully filed a false claim.

22. What happens to my OWCP case file if I move?
If you move to a State that is under the jurisdiction of a different district office, your OWCP case file can be transferred to the office closer to your home. You should submit your new address and contact information to our Central Mail Receipt site, and you may request that your case file be transferred. Please make sure to provide a day-time telephone number in the event we need to contact you.

23. How do I get a copy of my OWCP case file?
OWCP case files are protected by The Privacy Act of 1974, 5 U.S.C. §552a ("the Privacy Act"). You may request a copy of your case file (or any information in your case file) by submitting a written request to our Central Mail Receipt site. The OWCP will provide one copy of your case file free of charge, but you must pay a copying charge for any additional copies.

24. Who has the right to review my OWCP case file?
Your employer, the employer’s workers' compensation insurance carrier, and DOL officials all have access to your OWCP case file for purposes of administering your claim.

25. How do I get a copy of someone else's OWCP case file?
The Privacy Act prohibits disclosure of the contents of OWCP case files to anyone who is not a party to the claim without (1) specific written consent from the injured employee who filed the claim; or (2) a court order. All properly authorized requests for copies of case files should be sent to the local district office handling the claim.


 
26. Why won’t the OWCP staff talk to my spouse or my family about my claim?
The Privacy Act prevents the OWCP from releasing any information regarding a claim without the signed written authorization of the injured employee, even if the person requesting information is a spouse or other relative.


27. Why can’t I communicate with the OWCP by email?
As a matter of policy, the OWCP does not discuss or handle claims by e-mail. This is to protect your privacy. You should contact the district office by telephone with specific claim-related questions, since that office has access to the OWCP case file and is most familiar with the claim. Alternatively you can submit written correspondence to our Central Mail Receipt site, and the Claims Examiner handling your case will receive the documentation for review.


COMPENSATION

28. What are the different types of disability benefits?
"Disability" means the inability to earn the same wages that the employee was receiving at the time of injury. The LHWCA provides for the payment of compensation for the following four types of disability: temporary partial, temporary total, permanent partial, and permanent total. Under the LHWCA, the type of disability depends on the answers to two main questions: (1) is the disability temporary or permanent, and (2) is the disability partial or total?


29. What is the difference between “temporary disability” and “permanent disability”?
A disability is “temporary” if the injured employee is unable to return to work for medical reasons and is still recuperating from the work injury. A medical doctor must certify that the employee is not able to work.

A disability is “permanent” if the injured employee’s medical condition has become stable and is not expected to improve. A stable condition is often described as having reached the point of “maximum medical improvement,” or "MMI."


30. What is the difference between “total disability” and “partial disability”?
A disability is “total” when the injured employee cannot do any work due to the work-related injury. A disability is “partial” if the injured employee cannot do the same job he or she was doing at the time of the injury but is able to work in a lighter or modified job, either with the same or with a different employer.


31. What is the “Average Weekly Wage”?
All compensation benefits are paid based on the employee’s Average Weekly Wage ("AWW") at the time of injury. In general, the AWW is the average weekly wages the employee was earning when injured. There are several methods to determine the AWW. Each method takes the employee's average annual earnings and divides that figure by fifty-two (52) to obtain an Average Weekly Wage.


32. I think the insurance carrier is paying compensation benefits at a lower rate than I am entitled to. What can I do?
The law provides different methods for determining the AWW. If your wages in the 52 weeks prior to injury do not reflect your true earning capacity, for example, due to promotion, reduction in force (RIF), illness, or lack of work, or if the employment has not been permanent and continuous, there are other methods to calculate the AWW. You should contact OWCP/DLHWC for more information. Be sure to provide the district office with documentation of earnings in the form of pay stubs, W-2 tax forms, earnings statements, or tax returns.


33. What are the “Maximum” and “Minimum” rates?
Compensation payable under the Act is subject to the Maximum ("Max") and Minimum ("Min") rates. The Max and Min are determined each year on October 1 based on the National Average Weekly Wage ("NAWW") determined by the DOL. The NAWW is calculated using national wage data published by the Bureau of Labor Statistics. The Max equals 200% of the NAWW; the Min equals 50% of the NAWW. For current and historical rates, see the NAWW Table at: http://www.dol.gov/owcp/dlhwc/NAWWinfo.htm.

In general, the aggregate weekly compensation payable cannot be higher than the Max in effect at the time of injury. If two-thirds (2/3) of the AWW falls below the Min, compensation is paid at the Min. If the AWW is below the Min, compensation is paid at the AWW. The Min does not apply to compensation paid under the Defense Base Act.


34. How much compensation do I get when I am temporarily disabled?
Temporary Total Disability ("TTD") is compensated at two-thirds (2/3) of the employee's Average Weekly Wage (AWW), subject to certain minimum and maximum amounts set by the OWCP annually. For example: if the AWW is $600 per week, the TTD benefit rate is $400.00 per week ($600 x 2/3 = $400.00).

Temporary Partial Disability ("TPD") is compensated at two-thirds (2/3) of the employee's loss of earning capacity, calculated based on the difference between the AWW (what the employee earned at the time of injury) and what he/she is able to earn after the injury. For example: if the AWW is $600 per week, and now the employee can only earn $300 per week, the TPD benefit rate is $200.00 per week (($600 - $300) x 2/3 = $200.00).

If you have any questions about how your compensation benefits are calculated, contact the local Longshore district office for guidance.


35. How much compensation do I get when I am permanently disabled?
  • Permanent Total Disability ("PTD") - Compensation is paid at two-thirds (2/3) of the AWW. For example: if the AWW is $600 per week, the PTD benefit rate is $400.00 per week ($600 x 2/3 = $400.00). PTD benefits are paid as long as the disability continues. Benefits may be adjusted annually based on increases in the National Average Weekly Wage.

  • Permanent Partial Disability ("Scheduled PPD") - Compensation for permanent impairment or loss of use of the arm, hand, fingers, leg, foot, toes, ears (hearing) or eyes (vision) is paid for a specified number of weeks. This is commonly called "Scheduled PPD" and is payable even if the employee is able to return to work. The "Schedule" and the number of weeks of compensation payable for each body part may be found in Section 8(c) of the LHWCA at the following website: http://www.dol.gov/owcp/dlhwc/lhwca.htm#908.

  • Permanent Partial Disability ("Unscheduled PPD") -Compensation for permanent loss of wage earning capacity is payable when the injury causes permanent impairment to other parts of the body not listed in the "Schedule" of § 8(c) of the LHWCA. The impairment must limit the employee's ability to earn wages. Unscheduled PPD benefit is paid at two-thirds (2/3) of the employee's loss of earning capacity, calculated based on the difference between the AWW (what the employee earned at the time of injury) and what he/she is able to earn after the injury. For example: if the AWW is $600 per week, and now the employee can only earn $300 per week, the PPD benefit rate is $200.00 per week (($600 - $300) x 2/3 = $200.00). Unscheduled PPD benefits are payable as long as the disability continues. These benefits are not adjusted to reflect increases in the NAWW.

  • Permanent Partial Disability for Retirees - In cases of permanent disability due to an occupational disease diagnosed after retirement (e.g. asbestosis), PPD benefits are payable based upon a percentage of impairment determined under the American Medical Association Guides to the Evaluation of Permanent Impairment ("AMA Guides"). Contact the local Longshore district office for more information.

36. Do I have to report earnings to the OWCP while I am receiving compensation benefits?
Your employer, insurance carrier, or the OWCP may require you to report any earnings you receive because your compensation benefits may be based upon your ability to earn. You should report any earnings from employment or self-employment in order to avoid overpayment of benefits. By law, your employer or insurance company can deduct any overpayment from future payments of compensation due.


37. Is there a limit on how long I can receive compensation for a work-related injury?
Generally, disability compensation is payable for as long as the disability continues. The two exceptions are temporary partial disability benefits, which cannot exceed 5 years, and the "Scheduled" permanent partial disability benefits, which are limited to a fixed number of weeks. The employer or insurance carrier may require medical documentation of your continuing disability. To ensure that you receive benefits without interruption, you should provide the documentation when requested.


38. What benefits are available for survivors?
If the work injury causes, contributes to, or hastens the employee's death, death benefits are paid to certain specified survivors up to an aggregate of two-thirds (2/3) of the deceased employee's Average Weekly Wage. Funeral expenses up to $3,000 are also payable.

A widow or widower receives one-half (1/2) of the decedent's AWW for life or until remarriage. Additional compensation at one-sixth (1/6) of the AWW is payable for one or more children. If there is no widow or widower, 1/2 of the AWW is paid for one child, or two-thirds (2/3) of the AWW if there are two or more children. Benefit payments to children terminate when they reach age 18 but may be extended to age 23 if the beneficiary is a full-time student. Death benefits may be paid to an adult "child" who is totally disabled and incapable of self-support.

If there is no surviving spouse or child, death benefits may be payable to other dependents at various rates fixed by law. The death benefit is adjusted annually for cost-of-living as calculated by the DOL.


39. What is the Special Fund and why is it paying me instead of the insurance company?
The “Special Fund,” also known as the "Second Injury Fund", pays certain types of claims and expenses authorized by the LHWCA. The OWCP’s Longshore National Office processes payments from the Special Fund, and the U.S. Treasury issues the compensation benefit checks. In certain circumstances, an employer or insurance company may be responsible to pay your compensation benefits for only the first 104 weeks of permanent disability. The Special Fund then pays disability compensation for the duration of your entitlement. However, the employer or insurance company remains liable for paying for your medical treatment related to your injury, and the employer retains the right to challenge the employee's continuing disability even if the Special Fund is paying the claim.


40. What other types of payments are made by the Special Fund?
The Special Fund also may pay compensation and medical benefits when both the responsible employer and its insurance carrier are insolvent or are out of business. Additionally, the Special Fund pays the cost of vocational rehabilitation services authorized by the OWCP in appropriate cases.



Next List of Longshore/Defense Base Act FAQ’s: 1-20 | 21-40 | 41-61 | 62-80 | 81-95








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