If you fall under the LHWCA it is still important for you to evaluate any potential third-party claims or claims under 905(b) which you may have against your employer. A “third-party claim” is simply a separate lawsuit that is filed in court against any third-party company that may be responsible in whole or in part for your accident. The LHWCA only provides protection to your employer from traditional lawsuits filed by you. Under the LHWCA if a third party might be responsible in whole or in part for your injury, you are still allowed to pursue a traditional lawsuit against that third party in court. You can collect full damages including pain and suffering, lost wages, medical expenses, lost fringe benefits and other damages against that third party provided you prove that the third-party company caused or contributed to your injury. Note that you will only collect the percentage of your damages as the company was proven to be at fault for.
Under Section 905(b) of the LHWCA, you can actually file a traditional tort lawsuit against your employer “in its capacity as a vessel owner”. It is critical to understand this very narrow exception to your employer’s general immunity from lawsuits filed by you under the LHWCA. You can only pursue a claim against your employer if (1) your employer was also the owner and operator of a vessel upon which you may have been injured, and (2) your injury was caused by your employer’s negligence “in its capacity” as the vessel owner. These claims are very complicated and you must rely upon a qualified maritime attorney to inform you if you have a potential 905(b) claim against your employer. Note that you can pursue your 905(b) claim against your employer without any risk to your other benefits under the LHWCA. In other words, even if you file suit against your employer under Section 905(b), and you are not successful, your employer will still be required to pay you full compensation and medical benefits under the LHWCA as if the 905(b) suit had never been filed. A suit under Section 905(b) against your employer does not in any way jeopardize, modify or change your rights to workers’ compensation benefits under the LHWCA.