Defenses under the Longshore and Harbor Workers' Compensation Act

From Chapter Five of my upcoming book, “Longshore and Harbor Workers’ Compensation Act”:

Jurisdiction
The following are excluded from coverage under the Longshore and Harbor Workers’ Compensation Act:

  • Master or member of a crew;
  • Small vessel workers;
  • Officers and agents of the federal, state, local, or foreign governments;
  • Clerical/secretarial/security/data processing employees;
  • Employed by a club, camp, recreational operation, restaurant, museum or retail outlet;
  • Marina workers;
  • Employees of suppliers, transporters or vendors;
  • Aquaculture workers;
  • Recreational vessel construction repair;
  • Small vessel building/repairing/dismantling.

Waiver
The claimant’s right to receive benefits under the Longshore and Harbor workers’ Compensation Act by filing a claim for an receiving state workers’ compensation benefits.

Notice & Prejudice
The claimant must provide notice of injury to the employer within 30 days of the injury except for occupational disease cases. In an occupational claim, the notice period extend to one year from when the employee was aware or should have been aware of the condition and the relationship of the condition to work. The claimant must show that either the employer had knowledge during the filing period, or that the employer was not prejudiced by the failure to file timely notice, or that the failure was excused.

Failure to file notice may be excused by the judge where notice was given to an official of the employer or carrier and no prejudice resulted, even if not given to the designated official.80 This frequently happens where an employee reports an injury to a colleague rather than a supervisor. The notice requirement may also be excused if a satisfactory reason exists as to why such notice could not be given.

The employer can show prejudice when due to a lack of timely written notice the employer was unable to effectively investigate to determine the nature and extent of the alleged illness or to provide medical services.

Despite ‘notice’ being a defense, please note that notice is presumed under the Act and must be affirmatively plead.

Intoxicated Workers.
In order for this defense to prevail, the employer must show that the intoxication was the sole cause of injury.

Intentional Injuries
Section 903(c) of the Act states that “ (c) No compensation shall be payable if the injury was occasioned solely . . . by the willful intention of the employee to injure or kill himself or another.”

Suicide or self-harm.
In order to prevail with this defense, the employer must show that the claimant’s injuries arose out of a willful intent on the part of the employee to harm himself – this is more than just a ‘careless’ attitude towards safety or even willful refusal to use a specific piece of safety equipment. The burden of proof is on the employer to demonstrate that the suicide or self-inflicted injury did not arise out of the employment.

Intent to harm another.
The employer bears the burden of showing that the      claimant was injured will attempting to harm himself or another. The employer must show willful intent on the part of the claimant, which can be demonstrated by the claimant’s speech and physical activity (gestures and contact) at the time of the incident. The burden shifts to an employer seeking to rely on an employee’s own intentional acts.

Intoxication.
An employee’s own intoxication being the sole cause of the accident is a defense to compensability. However, in order to prevail, the burden shifts to the employer to show that the accident arose solely due to the intoxication of the employee with no contribution from the work.

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com