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Law Offices of Charles D. Naylor
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Warning: Longshore and Shipyard Workers

February 29, 2012 Charles Naylor

The Virginia State Senate is considering legislation that would prevent shipyard workers who suffer serious injuries on the job, such as the loss of a hand or foot, from receiving coverage through the state workers' compensation program.

If the State Senate approves the bill - patroned by Del. Lee Ware, R-Powhatan - 20,000 employees at Newport News Shipbuilding, roughly 1,800 longshore workers at the port of Hampton Roads and thousands of other workers at private repair shipyards and other port facilities across the state would be carved out of Virginia's workers' comp program for any injuries suffered July 1 or later. They would then have to depend solely on protection offered through the Longshore and Harbor Workers’ Compensation Act (LHWCA), a federal workers compensation law.
 
The Virginia House passed the bill (HB153) , on Feb. 6 by a vote of 70-26.  The International Longshoremen's Association in the port of Hampton Roads opposes the legislation.
 
This legislation, should serve as a warning to longshore and shipyard workers around the country.  If the maritime employers who are backing this legislation in Virginia are successful, it’s very likely they will try to bring similar legislation in other coastal states.  If legislation such as this were brought to California, an injured worker could be effectively cut off from medical care.
 
Under the LHWCA, an employer or its insurer can terminate medical care any time it wants, simply by filing a Notice of Controversion; and there is no requirement that the employer show cause for terminating medical care under the federal act.  As you can imagine, employers and their insurers use this procedure frequently in an effort to “bully” claimants into early or disadvantageous settlements.  The LHWCA makes this problem worse by not recognizing treatment liens from medical providers wiling to provide medical care now, and await payment until the claim settles.  
 
However, the California Workers’ Compensation Act does recognize treatment liens (after a treatment lien has been filed, the case can not be settled without resolving the treatment lien).  If a California longshore or harbor worker's LHWCA claim is "controverted" and medical care is cut off, the worker has a right to receive medical care on a "lien" under the state act.  
 
Without the protection afforded by the state act, doctors will not provide treatment on a lien.  As a result a worker who does not have medical insurance (someone new on the job or who isn't getting enough work hours to qualify for benefits) can be completely isolated from medical care by an employer "controversion."  Because there is no penalty under the LHWCA for unjustified controversion, an employer could cut of care without any adverse consequence. 
 
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