Jeffrey P. Gale, P.A. // Important Differences Between the LHWCA and Florida Workers’ Compensation

ship4-300x227The Longshore and Harbor Workers’ Compensation Act (LHWCA) and Florida’s Workers’ Compensation Act are statutory systems established to handle the provision of benefits to injured workers. The LHWC covers persons engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. The injuries must occur on the navigable waters of the United States or in the adjoining areas, including piers, docks, terminals, wharves, and those areas used in loading and unloading vessels. Importantly, Congress extended the LHWCA to include other types of employment. Employees covered by these extensions are entitled to the same benefits, and their claims are handled in the same way as Longshore Act claims. The following are the extensions of the LHWCA: Defense Base Act (DBA); Outer Continental Shelf Lands Act (OCSLA); and Non-Appropriated Fund Instrumentalities Act (NAFIA).

The LHWCA specifically excludes seamen (masters or members of a crew of any vessel, typically, employees working aboard ships, tugs, fishing boats, barges, and dredges, who would be covered by the Jones Act), and employees of the United States government or of any state or foreign government. ;

Most of the rest of Florida employees will fall under Florida’s workers’ compensation system.

While the LHWCA and Florida’s system share many of the same concepts, some of the differences between them, especially as to the quality and quantity of available benefits, are significant. For the most part, the LHWCA is more generous to injured workers. This blog will set out some of the more important differences.

Jurisdiction. The LHWC is a federal law. Jurisdiction lies with the U. S. Department of Labor Office of Workers’ Compensation Programs Division of Longshore and Harbor Workers’ Compensation. Florida workers’ compensation cases are governed by state law. Jurisdiction lies with the State of Florida Division of Administrative Hearings.

Dispute Resolution. While very different from one another, both systems function relatively well. Florida’s system is somewhat more detailed and precise. Hearings and mediations must be completed within specific time periods and its electronic filing system/database is state of the art. The federal system is more ambiguous.

Compensability. Compensability concerns whether a claim is covered or denied. While both systems are what is known as “no-fault,” meaning injured employees are not required to establish fault to be compensated, each has defenses available to employers and their insurance carriers to deny claims. Florida workers’ compensation, in particular, has two potent and popular defenses:

“The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries. For purposes of this section, “major contributing cause” means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought.”

The language can prove problematic for injuries superimposed on preexisting conditions such as degeneration and prior injuries. However, it is not uncommon for a work-related accident to aggravate a preexisting condition. Even if the accident-related injury does not total more than 50% of the overall medical condition, the employer/carrier (E/C) are responsible for treating the aggravation until it becomes less than the 50% of the reason for why treatment is necessary. For example, a person with a preexisting back condition that has required fusion surgery, but is otherwise doing well, may suffer an aggravation of the condition from a work related incident. If the aggravation results in the need of medical care, the E/C is responsible for the care. However, once the aggravation subsides, typically when the treating workers’ compensation doctor decides that the aggravation has reached the point known as maximum medical improvement (MMI) — 440.02(1) — compensation for further medical care and lost wages will end.

The main downside of the MCC defense comes when a work-related injury falls below the 50% level for aggravation or permanency. In this circumstance, the E/C is not responsible for any related medical or wage loss benefits. The LHWCA does not have a similar all-or-nothing standard. Benefits can be payable regardless of whether or not the work-related injury is the MCC.

440.09(3): “Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician….”

903(c): “No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee….”

Off the bat, the highlighted language shows a dramatic difference between the two standards. It is much easier for employers to establish “occasioned primarily” than “occasioned solely.” Making matters significantly worse is the following language from section 440.09(7)(b), which creates a presumption in favor of the employer that, in most cases, is exceedingly difficult to overcome:

“If the employee has, at the time of the injury, a blood alcohol level equal to or greater than the level specified in s. 316.193, or if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.”

The LHWCA has no such presumption. To the contrary, the LHWCA provides that “a claim for compensation . . . shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the injury was not occasioned solely by the intoxication of the injured employee.” 33 U.S.C. § 920(c). “[T]he employer may rebut the presumption . . . by presenting substantial evidence that is specific and comprehensive enough to sever the potential connection between the disability and the work environment.” Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642, 651 (9th Cir. 2010). This is a difficult burden for the employer to meet.

Presumption of Compensability. The two systems address this issue quite differently.

Section 920 of the LHWCA provides:

In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary —

(a) That the claim comes within the provisions of this Act.

(b) That sufficient notice of such claim has been given.

(c) That the injury was not occasioned solely by the intoxication of the injured employee.

(d) That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another.

This is a liberal view, which favors workers. Florida’s position, as contained in section 440.015, is quite different. In pertinent part, the section provides as follows:

“[I]t is the intent of the Legislature that the facts in a workers’ compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. Additionally, the Legislature hereby declares that disputes concerning the facts in workers’ compensation cases are not to be given a broad liberal construction in favor of the employee on the one hand or of the employer on the other hand, and the laws pertaining to workers’ compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer.”

Medical Benefits. Generally, LHWCA employees have”the right to choose an attending physician ….”, Section 907(b), while Florida workers’ compensation claimants do not. Section 440.13, Florida Statutes. Circumstances can alter these rules in either direction. Doctor selection often means everything in a case. There’s a reason why Florida workers’ compensation insurance carriers select the same handful of doctors time and again … and it’s not because those doctors put their patients first.

Compensation. Both systems set maximum rates of compensation for injured workers. The amount a claimant is eligible to receive is largely a function of his or her weekly earnings. In our experience, longshore and harbor workers typically earn more than many other types of workers. Perhaps in recognition of this, the LHWCA max rate (see section 906) is nearly double the Florida workers’ compensation max rate for any given year.

The systems also have similar categories of indemnity (money) benefits, ranging from temporary partial disability (TPD) to permanent total disability (PTD, which vary depending on work status and the stages of recovery from injury. Yet, while the categories between the systems may share similarities, the quality and quantity of the benefits and the ability of claimants to recover them, are substantially more favorable under the LHWCA than under Florida’s workers’ compensation system. The various categories:

Attorney’s Fees. Both systems have attorney’s fee provisions — LHWCA – § 928; Florida WC – 440.34 (caveat: 440.34 was modified significantly in 2016 by the Florida Supreme Court case Castellanos v. Next Door Company). Our firm handles longshore and Florida workers’ compensation cases on a contingency fee basis, meaning that no fee is due unless and until a recovery is made. Under some circumstances, the E/C may be required to pay all or a portion of the attorney’s fee. Fees payable under the LHWCA from the E/C and the claimant are limited to hourly fees; fees on a percentage basis are not allowed. Florida’s system (section 440.34) allows both hourly and percentage fees, however, only carriers may pay hourly fees. (The exception is for quantum meruit fees awarded to a discharged or withdrawn attorney.) Otherwise, claimant-paid attorney’s fee are limited to the contract or statutory percentage, whichever the court decides is reasonable. (In Miles v. City of Edgewater, 190 So.3d 171 (Fla. 1st DCA 2016), the court held that claimants may contract to pay attorney’s fees in excess of the statutory formula. Before Miles, such agreements were prohibited.) Importantly, all attorneys fees in both systems must be approved as reasonable by an administrative law judge.
Contact us at 305-758-4900 or by email ( to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

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