5 Important Questions
The Five first Steps You Must Take In Regard To Your LHWCA Longshore Claim –
There are five basic questions that you must ask when reviewing your Longshore claim to determine if all of your rights are being protected. Below is a list of these five questions in the order that you should consider them. This is the outline that is often used by lawyers to evaluate an individual’s Longshore claim at the beginning of the attorney/client relationship.
(1) Does the LHWCA (Longshore jurisdiction) even apply to your claim?
The first threshold issue that you should address is whether or not your claim falls under the LHWCA. In order to have the LHWCA apply to your claim, you must satisfy the situs and status requirements of the Longshore Act. The very first issue that you should look into is whether or not you can successfully file suit under the Jones Act against your employer rather than under the LHWCA. In almost all cases a suit filed under the Jones Act will result in a greater recovery for you than limiting your rights to the LHWCA.
(2) If the LHWCA applies to your claim, do you have rights against any third parties?
This is typically the second question asked in reviewing a potential LHWCA claim. It is very important because you can obtain full damages from any responsible third parties for their percentage of negligence in regard to causing your accident and injury. In other words if a third party company caused or contributed to your accident, you may be entitled to recover significant damages from them in addition to your long shore rights. Such third party claims include claims against true third party companies as well as possible 905(b) claims against your Longshore employer.
(3) Are you receiving medical treatment from a doctor that you have chosen?
If your claim is limited to an LHWCA claim, your treating physician’s ultimate medical opinion will be very important in determining the amount of benefits to which you are entitled. Under the Longshore Act you are entitled to select your own choice of treating physician and you should make sure that you have exercised this right. You should select a physician that you are comfortable with and that you believe will give you a fair and honest opinion concerning your medical condition as well as any permanent disability caused by your injury.
(4) Are all of your injuries being recognized by your LHWCA employer and treating physician?
Under the Longshore Act you are entitled to benefits for each injury you suffer due to your accident. Often if you have suffered a scheduled injury as well as a non-scheduled injury (for example an injury to your neck, lower back or shoulder) it is very important that your claim recognize both your scheduled and non-scheduled injury. In almost all cases you will receive a much larger recovery due to a non-scheduled injury including potential benefits for the rest of your life. Often employees will sustain multiple injuries and their employer and treating physician are only focusing on a single scheduled injury. If this is your situation, it is very important that you make the record clear that you have suffered multiple injuries including non-scheduled injuries.
(5) Is your employer paying the proper compensation rate to you?
Your compensation rate is 66 percent of your Average Weekly Wage (AWW). In order to calculate your AWW, generally your Longshore employer will look to the last 52 weeks of employment provided you have been employed by that company during such time period. Alternatively, there are other methods that may be used to calculate your AWW. These methods are described in more detail here.
