An Introduction to Handling LHWCA Claims

Counsel must initially understand where to find the body of applicable law, regulations, forms and treatises in order to successfully represent a claimant. The following are suggested basic resource materials:

Longshore & Harbor Workers' Compensation Act
The provisions of the LHWCA are set forth in the Federal Longshore and Harbor Workers' Compensation Act (the "LHWCA"), 33 U.S.C. §§901-950. Accordingly, the practitioner needs to have a copy of the LHWCA available since a claimant's entitlement has a statutory base.

Link to the LHWCA (online)
from the Government Printing Office

BRBS Desk Book
The Longshore Desk Book was last published in 1986 by the Benefits Review Board Service. The Desk Book is an important research tool which will allow counsel to find applicable caselaw interpreting the LHWCA. While it is a good source of initial research, the Desk Book has not been updated in some time. Therefore, counsel should heed the notice preceding the Desk Book's Table of Contents.

Link to the BBRS Desk Book (online)
from the Department of Labor

Code of Federal Regulations: 20 C.F.R. 702, et. seq. and 29 C.F.R. 18, et. seq.
The Code of Federal Regulations contains rules and regulations which the practitioner should use in connection with the LHWCA. 20 C.F.R. 702, et. seq. contains regulations governing the administration of the LHWCA. 29 C.F.R. 18, et. seq. contains the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges. These valuable sources provide counsel with procedural guidance in trying LHWCA cases.

Link to 20 C.F.R. §702 et. seq. (online)
Link to 29 C.F.R. §18 et. seq. (online)
from the Government Printing Office

Guides to the Evaluation of Permanent Impairment, Fifth Edition (Revised). American Medical Association (Chicago 2001)
The Guides to the Evaluation of Permanent Impairment (Guides) is a reference source published by the American Medical Association to be used by physicians in evaluating medical impairments. Chapter 1 of the Guides is especially helpful to the LHWCA practitioner. It explains the important difference between physical impairment and disability. As used in the Guides, "impairment" means an alteration of an individual's health status that is assessed by medical means. On the other hand, "Disability" is assessed by non-medical means. It is a change in a person's capacity to meet personal, social or occupational demands or statutory or regulatory requirements. Counsel must be careful to distinguish between impairment and disability at all times in handling LHWCA cases. The AMA Guides provide counsel the tools for assessing permanent physical impairment. They also can prove helpful in determining claimant's disability.

Guides to the Evaluation of Permanent Impairment, 5th Ed.
from the

OWCP-5 Form
This is an official United States Department of Labor form which is important in determining a claimant's physical restrictions. The form sets forth certain boxes for a physician to complete regarding a claimant's physical capacity. Upon receiving a properly completed OWCP-5 form from a physician, a qualified vocational rehabilitation specialist can determine whether a claimant has the physical capacity to perform sedentary, light, medium, heavy or very heavy work. Thereafter, the qualified vocational rehabilitation expert can form opinions about transferable skills, labor market access and wage earning capacity.

OWCP-5a - Psychiatric and Psychological Conditions
OWCP-5b - Cardiovascular and Pulmonary Conditions
OWCP-5c - Musculoskeletal Conditions

Dictionary of Occupational Titles. U.S. Department Labor, revised 1991
The Dictionary. of Occupational Titles provides a standardized assessment of some 12,800 recognized jobs in the U.S. Economy. Each job description is coded and includes the skills for a given job. The physical demands of a job as well as aptitudes, reasoning, math and language requirements are found in accompanying publications. The Dictionary of Occupational Titles sheds light on the nature of claimant's pre-injury work. Also, it permits evaluation of alternative employment in the event a claimant cannot return to his previous jobs after an injury.

Link to the Dictonary of Occupational Titles (online)
from the Department of Labor

The Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles, U.S. Department of Labor. revised 1991
The Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles is a companion publication to the Dictionary of Occupational Titles. It defines the physical requirements of sedentary, light, medium, heavy or very heavy work. The handbook is useful in evaluating a claimant's post-injury wage-earning capacity. The handbook is used in conjunction with a VDARE form, an OWCP-5 form and the Dictionary of Occupational Titles to classify various jobs.

Link to the Dictonary of Occupational Titles (online)
from the Department of Labor

The Longshore Newsletter Procedure Manual - (rev. 1996)
This manual provides a copy of the Longshore & Harbor Workers' Compensation Act (the "LHWCA"), 33 U.S.C. §§901-950, applicable CFR's and forms used by the Office of Workers' Compensation Program. It also provides certain basic information about how the LHWCA operates.

Link to the Longshore Newsletter Procedure Manual
from the Longshore Institute

Computation Tools
Counsel needs several basic computation tools in order to handle LHWCA claims. First, a pocket calculator is indispensable. This will assist in the rapid calculation of case values for injuries arising under the schedule as well as general injuries. Second, a Future Damage Calculator is essential. The Future Damage Calculator is published by Lawyers and Judges Publishing Co. It enables counsel to assess the present value of permanent total disability, non-scheduled permanent partial disability and death benefit cases. Counsel needs to calculate the present value of a claim in order to formulate a settlement demand. Once counsel has the necessary computation tools, the proper variables can be set forth in a standardized demand letter to the employer and carrier. A model demand letter is included as Appendix Form B.

Armed with the essential source materials, counsel has the information with which to handle a LHWCA claim. Unfortunately, the material standing alone is not enough. It needs to be integrated into an organized framework.

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