Feb 28, 2012
- Jack Martone, The American Equity Underwriters, Inc.
I’ve been posting discussions about the Longshore and Harbor Workers’ Compensation Act since April 20, 2009. I think it’s about time that I summarize what the Act provides by way of compensation benefits to injured workers.
A. Disability Compensation Benefits
- Temporary Total Disability (TTD) Section 908(b) – compensation is paid until the worker is able to return to work or is declared to be medically stable. TTD applies if an employee’s injury prevents him from working for a period of time, but he is expected to return to work at a later date; he may be under active medical care or the medical condition is expected to improve. The rate is 66 2/3 percent of the injured worker’s pre-injury average weekly wage, subject to the weekly maximum and minimum rates. No compensation is paid for the first three days of disability. If disability lasts more than 14 days, then compensation is paid from the first day.
- Temporary Partial Disability (TPD) Section 908(e) – compensation is paid during a period of reduced earnings which is not expected to be permanent. The rate is 66 2/3 percent of the wage loss or loss of wage earning capacity (the difference between wages prior to the injury and wage earning capacity after the injury, subject to the weekly maximum). Compensation is paid for the duration of the disability but limited to five years.
- Permanent Total Disability (PTD) Section 908(a) – awarded where the worker can not return to his pre-injury employment and there is no evidence in the record of suitable alternate employment that he can perform. Compensation is paid indefinitely for the continuance of the disability. The rate is 66 2/3 percent of the worker’s average weekly wage, subject to the weekly maximum and minimum. The rate is adjusted annually each October 1 based on changes in the National Average Weekly Wage.
- Permanent Partial Disability (PPD) Section 908(c) –
- Scheduled Compensation – The Act contains a schedule, rating various types of permanent partial impairments. The percentage of impairment is converted into the number of weeks of compensation payable at the rate of 66 2/3 percent of the average weekly wage. The schedule covers the loss or loss of use of extremities, loss of hearing, and loss of vision. Partial loss, or loss of use of a part of the body listed in the schedule, is compensated on a pro rata basis. For example, a worker with 10 percent loss of use of an arm receives 31.2 weeks of compensation based on 312 weeks for 100 percent loss of use. It is not necessary to show actual wage loss for scheduled injuries.
- Non-Scheduled Compensation – where the injury is not confined to the schedule (e.g., injuries to the back. shoulder, neck) compensation is paid at the rate of 66 2/3 percent of loss of wages, i.e., 66 2/3 percent of the difference between the pre-injury average weekly wage and the post injury wage earning capacity.
NOTE: Disability under the Act is an economic concept. The extent of disability cannot be measured by the medical condition alone. Even a minor physical impairment can establish total disability if it prevents the employee from performing his usual employment.
B. Death Benefits
- Section 909 of the Act provides death benefits if the injury causes or contributes to the death of the worker. Reasonable funeral expenses are paid up to $3,000. A widow or widower receives 50 percent of the deceased’s average weekly wage (or national average weekly wage at the time of death if greater) for life or until remarriage. If there are one or more children, an additional 16 2/3 percent is paid, regardless of the number of children, since the first child besides the widow would bring compensation to the maximum payable of 66 2/3 percent of the average weekly wage. If there is no widow or widower, an only child is entitled to 50 percent of the deceased’s average weekly wage. Any additional children bring the total payable to 66 2/3 of the deceased’s average weekly wage. Children share the benefits equally.
- Other eligible survivors include dependent brothers, sisters, grandchildren, parents and grandparents. The first three types of beneficiaries are entitled to receive 20 percent and the latter two are entitled to receive 25 percent of the average weekly wage. These are subordinate to the widow/widower and children. Thus, a widow and one child would preempt any other beneficiaries. A surviving widow alone would reduce a dependent brother’s share from 20 percent to 16 2/3 percent.
- Compensation to an employee’s widow or widower ends upon death or remarriage. Upon remarriage, a widow or widower will receive 2 years’ compensation in a lump sum. Awards to children end when they reach 18, but benefits may be extended to age 23 if the child is a student or indefinitely if the child is incapable of self-support.
C. Disfigurement Compensation is paid for serious disfigurement of the face, head, neck or other normally exposed area likely to prejudice the injured worker’s ability to secure employment. Disfigurement awards are set by the District Director and cannot exceed $7,500.
D. Annual Adjustment Under Section 910(f), every October 1 there is an adjustment to compensation payable for permanent total disability or death arising out of injuries subject to the Act. The increase is the lesser of the percentage, if any, by which the national average weekly wage for the year increased over the previous year or 5 percent. The maximum weekly rate is twice the National Average Weekly Wage as determined by the Bureau of Labor Statistics, and the weekly minimum is one half of the National Average Weekly Wage. Effective October 1, 2011, the current maximum weekly rate is $1,295.20 and the minimum is $ 323.80.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.
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