Accident and Injury Frequently Asked Questions
Many accident victims are overwhelmed by their injuries, and the thought of a legal case can seem daunting. At Hofmann & Schweitzer, our legal team understands these feelings, and we’ve compiled our thoughts on many common worries here to help you get started finding the answers you need to protect yourself and your family. If you’ve been hurt in a construction, maritime, or railroad accident, browse our FAQs today.
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What is the situs test for compensation under the Longshore and Harbor Workers’ Compensation Act?
The Longshore and Harbor Workers’ Compensation Act (LHWCA) is a federal workers’ compensation law that provides benefits to some maritime workers who are hurt on the job. In order to qualify for LHWCA benefits, an injured maritime worker must meet the specific eligibility requirements of the law.
Where Were You Injured?
The situs test involves where you were when you suffered your injuries. When the LHWCA originally became law in 1927, it only applied to maritime workers who were hurt on boats that were on navigable waters. Over the years, this definition was found to be too limiting. It excluded maritime workers who were on land but who were working on building, fixing, loading, or unloading vessels.
Today, the LHWCA applies to maritime workers who are hurt on, near, or adjacent to navigable waters. It includes people who are on:
- Vessels, but are not considered seamen pursuant to the Jones Act
- Oil rigs
- Natural gas drilling platforms
- Marine railways
- Building ways
Maritime workers who are far from the water will, therefore, not be eligible for LHWCA benefits because of the situs test.
The Situs Test Is Just One LHWCA Requirement
You may meet the requirements of the situs test, but to qualify for LHWCA benefits, you are also going to have to meet the status test. If you satisfy the requirements of both the situs test and the status test, then you may be able to receive compensation for a good portion of your income and compensation for all of your injury-related medical expenses.
To learn more about your rights and about whether you may qualify for LHWCA compensation, please contact the experienced maritime lawyers of Hofmann & Schweitzer today. You have a very short amount of time to file an LHWCA claim, and you don’t want to miss the deadline. Call us or reach out to us via this website today to schedule your free initial consultation.
How much does a maritime injury lawyer cost?
Most injury victims hesitate to seek legal representation because they are unsure whether they can afford an attorney. The truth is that for many injured maritime workers, the amount they stand to gain is far greater than the costs of an attorney’s fees—and most of the legal costs can be paid after the case has been settled.
How Maritime Injury Lawyers Charge for Their Services
Some attorneys charge clients by the billable hour, assessing a flat fee for each hour spent working on the case. However, this method may not be ideal for injury victims who are struggling financially after to an accident. As a result, injury attorneys offer alternative fee structures to give victims access to their legal rights without incurring any upfront costs.
Injury attorneys can serve clients in ways that will not place an unreasonable burden on the victim, including:
The majority of injury cases are taken on a contingency fee basis, meaning the attorney receives a portion of the amount he or she recovers for the victim. The attorney covers all upfront expenses, including filing fees and court costs. If the victim’s case is not successful, the victim will only have to pay the attorney’s out-of-pocket expenses—the victim will not owe the attorney any fees.
Expenses After Settlement.
Legal expenses (such as hiring experts to testify, hiring an investigator or photographer, document copying, and records requests) are not part of an attorney’s fees, and must be paid whether or not the case is successful. However, in a contingency fee arrangement, these costs can be deducted from the settlement rather than paid out of the victim’s pocket.
Free Initial Consultations.
Injury attorneys will want to make sure a maritime injury or Jones Act case is valid before agreeing to represent the client. By offering a free consultation, the attorney can determine whether the maritime employee has a right to recover legal damages, and victims can get the legal advice they need at no cost to them.
Our nationwide maritime injury lawyers have experience in all aspects of maritime law and personal injury law, and can advise you on your rights free of charge. Contact us online or call (800) 362-9329 today to speak with a maritime lawyer at Hofmann & Schweitzer or download your complimentary copy of Are You a Seaman Injured in a Maritime Accident? Know Your Rights today.
How can I determine whose negligence caused my construction injury?
A construction site is a bustling environment, and it can be difficult to tell exactly who could be responsible for the cost of medical bills and lost income when an injury occurs. An attorney can help discover why the accident happened, find the negligent party, and obtain justice and compensation for the victim.
Who May Be Held Liable in a Construction Injury Case
The law applies a doctrine of negligence to establish the person or persons who may held liable for an injury. A person may be liable if he or she had a duty of care to the victim, breached that duty of care, and caused direct harm and losses as a result of that breach. However, not all parties owe the same level of care to construction workers, and establishing negligence may quickly become complicated.
Negligence for an injury or fatality on a NYC construction site could fall on many parties, including:
Construction Site Owners.
Construction site owners are more likely to be found negligent if they allow dangerous conditions to exist on the property, or if they are involved in the day-to-day operations of the work. Employees who are gravely injured can also include an employer in a construction injury lawsuit against the owner of the property.
The general contractor is tasked with ensuring the safety of all workers on the construction site, informing construction workers of any potential hazards or unsafe conditions, hiring competent employees, and enforcing safety regulations.
A subcontractor may be named in a lawsuit if he or she failed to perform safety regulations and duties for a specific task on the project.
Architects, Engineers, and Designers.
Design professionals have a responsibility to create plans that are in compliance with building regulations, perform routine inspections on the construction site, and ensure that the building is being erected according to specifications.
Our New York City construction accident attorneys can examine the details of your case to see which third parties may be responsible, as well as work to get you the workers’ compensation benefits you are owed. Simply fill out our quick online contact form, call (800) 362-9329 to speak with a personal injury lawyer at Hofmann & Schweitzer today, or read through our FREE brochure, Hurt in a Construction Accident? You’re Not Alone.
What is unseaworthiness?
Like all employers, shipowners are required to provide their employees with a reasonably safe work environment. If the vessel is not safe for navigation, the maritime employer or shipowner can be named in a negligence lawsuit, allowing the injured seaman to recover injury costs and punitive damages.
Understanding Unseaworthiness Under Maritime Law
A ship does not have to be in disrepair or completely unable to sail to be rendered “unseaworthy.” In order for a vessel to be considered seaworthy under maritime law, the vessel must be suitable and able to perform its specific and intended functions without placing seaman at unnecessary risk.
Some Examples of Unseaworthy Conditions
All parts of the ship, including the hull, structure, decks, and equipment, must be adequately maintained and regularly inspected to ensure they are fit for use.
A vessel may be unseaworthy if it attempts to perform work (such as towing or dredging) that it was not designed to do. A vessel may also be flawed if the original design specifications made the ship inherently unsafe.
Outdated or Failing Components
Any one component that is dangerous can render the entire vessel unseaworthy, such as cranes, winches, lines, cables, or other necessary equipment.
Untrained or Inadequate Crew Members
Since the crew is necessary to the function of the ship, an inadequate crew can be considered an unseaworthy condition. An inadequate crew member could be one that is drunk on the job, was not properly trained for the specific work being performed, or otherwise caused a seaman to be injured in the course of his duties.
In a Jones Act negligence case, the burden of proof on the injured seamen is very light. However, the injured seamen will still have to establish a direct link between the unseaworthy condition and the injury. Our maritime accident lawyers know what evidence is required to prove negligence in unseaworthiness claims, and can advise you of your rights at no cost to you. Contact us online or call (800) 362-9329 today to speak with a maritime lawyer at Hofmann & Schweitzer. You can also download your complimentary copy of Are You a Seaman Injured in a Maritime Accident? Know Your Rights today.
How does the Jones Act protect injured seamen from retaliation?
If you are a maritime employee who is assigned to a vessel, you are likely eligible to receive compensation under the Jones Act after an injury on the job. Like state workers’ compensation, the Jones Act is a federal law that provides wage and medical benefits (called maintenance and cure) after a work-related injury, and makes it illegal to retaliate against a worker who files a benefit claim. However, the Jones Act also gives injured seamen the right to sue their employers and shipowners for negligence.
Jones Act Protections Against Retaliation of an Injured Seaman
If you file for compensation under the Jones Act, it is illegal for a shipowner or employer to fire you for exercising your right to benefits. It is also illegal to threaten a seaman’s job to prevent him from filing a Jones Act claim. This is called “retaliatory discharge,” and it can carry serious consequences for the shipowner as well as benefits for the injured worker. Unfortunately, many employees do not know this, and attempt to cope with an injury with no way to pay for their medical bills.
In addition to payment for past and future medical expenses, physical pain, emotional distress, disability, and lost earning capacity, a case that involves retaliatory discharge may result in:
If you are terminated or laid off as a result of seeking injury or wage payments, you can collect additional damages for the hardship you suffered as a result of the discrimination in your injury case.
Wage loss payments with interest
If you lost your job because you were injured, you have the right to be compensated for the wages you would have earned if you had not been unfairly terminated, plus interest.
Any unfairly terminated employee must be reinstated to his or her former position with the same pay and privileges of original employment.
An employer who is found guilty of retaliatory discharge may be ordered to pay for the injured worker’s attorney fees, expert witness fees, and litigation costs.
If your employer fired you after you filed for benefits, it may lend extra weight to your injury claim. Call (800) 362-9329 today to speak with a Jones Act lawyer at Hofmann & Schweitzer or download your complimentary copy of Are You a Seaman Injured in a Maritime Accident? Know Your Rights today.
What are some common tactics insurance companies use to limit maritime injury claims?
After you have been injured on the job, you may be relying on your employer to provide payment for your medical bills and lost income. Unfortunately, many employers and their insurance companies will first look for ways to limit or deny claims instead of paying out.
5 Ways Insurers Deny Fair Payment for a Maritime Injury
Injury treatments can have expensive and long-lasting effects, and it is far more profitable for the insurance company to deny valid claims than pay for them. Some insurers may claim that the injury was caused by a pre-existing medical condition, or stop payments before the worker’s injuries have healed, forcing him to return to work too soon.
Insurers use many different tactics to deny maritime employees fair compensation, but the most common methods include:
Offering An Early Settlement For Your Maritime Injury
Insurance companies have teams of adjusters to calculate how much your claim could potentially cost them, allowing them to offer settlements for a fraction of the full amount. Once you accept a settlement, you cannot ask for more money later—even if your injury prevents you from earning a living.
Taking Statements Regarding Your Maritime Injury
Insurers will typically contact injured employees soon after the accident to obtain a recorded statement. While they may claim that these statements are used to document the incident, they are actually fact-finding missions to discover potential ways to deny benefits. For this reason, injured workers should never agree to give a recorded statement to an insurer or employer.
Refusing Your Choice of Physician
Injured maritime employees have the right to choose the physician who will perform and oversee their treatment. However, employers may attempt to steer the employee toward one of the company’s recommended physicians. These doctors may be on the company payroll or otherwise influenced by the employer, and may release you to return to work before you are ready.
Forcing You To See a Company Doctor
Even if you have already selected a doctor for your treatment, your employer may require you to see the company physician. However, submitting to this request can severely damage your maritime claim. Company physicians may not perform adequate or expensive diagnostic testing, advise you to resume working as early as possible, or make entries in your medical record that can be used against you in the future.
Attacking Your Credibility
If the insurer thinks you have a good chance at collecting compensation, the company may perform surveillance of your activities in order to convince a judge that you are lying about the extent of your injuries. The company may also use your own words against you, especially any statements or accusations you made early in your claim.
Our New York City maritime attorneys can fight on your side to get you the maximum you may be owed for your injury. Simply call (800) 362-9329 today to speak with a lawyer at Hofmann & Schweitzer or download your complimentary copy of Are You a Seaman Injured in a Maritime Accident? Know Your Rights today.
Can I sue my employer for a construction injury?
Under workers' compensation laws, an injured employee gives up the right to file an injury lawsuit against a co-worker or employer. Workers' compensation was created as a no-fault system, so it guarantees benefits regardless of who caused the injury. However, New York laws do allow a co-worker or employer to be named in a work injury lawsuit if the employee suffered a particularly serious injury.
NY Employees Can Sue Employers After a Grave Construction Injury
New York workers' compensation law contains a special provision allowing employers to be sued after a work accident. An employee who has suffered a "grave injury" can file a third-party lawsuit against a contractor, construction site owner, or other party whose negligence contributed to the injury. The third-party then has the right to bring the employer into the lawsuit to share liability for the injury and damages, adding to the injured worker’s potential recovery.
An employer may be brought into a work injury lawsuit if the employee suffered one or more of the following:
- Total and permanent blindness
- Total and permanent deafness
- Loss of a nose
- Loss of an ear
- Permanent and severe facial disfigurement
- Loss of an index finger
- Loss of multiple fingers
- Loss of multiple toes
- Permanent and total loss of use (including amputation) of an arm, leg, hand or foot
- Paraplegia or quadriplegia
- Injury to the brain caused by an external physical force resulting in permanent total disability
If you were injured while working on a New York City construction site, we can help you get the workers’ compensation benefits you deserve and determine whether you may be able to file a third-party claim. Our team will examine who may be to blame for the accident, gather the medical evidence that proves the extent of your injuries, and hire medical experts to determine how your injuries may affect your financial future. Fill out our quick online contact form or call (800) 362-9329 to speak with a construction injury lawyer at Hofmann & Schweitzer today.
What are the biggest risks to divers who perform underwater welding?
Underwater welding combines all of the hazards of hot work with the potential for drowning, making it one of the most deadly jobs performed by maritime workers. Data from the Occupational Safety and Health Administration (OSHA) suggests an average of 13 workers per year suffer fatal injuries during commercial dive activities, and the number may be even higher due to lack of complete reporting.
Causes of Fatal Injury in Underwater Welding Accidents
In a study of occupational diving fatalities in the United States between 1989-1997, OSHA revealed 116 reported deaths among 3000 full-time commercial divers—a death rate nearly 40 times the national average across all industries. An employee who performs construction activities as part of a dive team is at even higher risk of severe or fatal injury, including:
Drowning remains the overwhelming cause of death for commercial divers. Common elements that lead to drowning are failure to identify signs of distress, solo diving, high wave currents, and becoming entangled or pinned by equipment.
Defective heavy machinery may cause bodily trauma or electric shock, while handheld welding tools may cause burns and explosions.
Underwater welders should be trained on proper decompression procedures during deep dives. Even with adequate training and certification, divers may suffer decompression sickness (called “the bends”) or embolism due to the necessity of immediate surfacing to treat their wounds.
Maritime workers may be so focused on the job they are performing that they ignore the warning signs of hypothermia. Divers working on large projects such as hull repair or pipe maintenance must be given adequate breaks and stay in regular contact with crews on the surface.
Each year brings improvements to diving gear, construction equipment, and safety standards that protect maritime employees. However, workers will see little benefit from these advances if employers and shipowners do not bring these practices onboard.
If you or someone you love has been injured in a maritime welding accident, we can examine the details of your case to get you the maximum compensation you may be owed for your injury. Simply fill out our quick online contact form or call (800) 362-9329 today to speak with a lawyer at Hofmann & Schweitzer about your case.
Can I hire a maritime accident lawyer from any state?
Maritime injuries can involve a mix of state and federal laws, and each one will have its own limitations and options for compensation. As maritime injury lawyers who are based in New York, we represent clients across the country who have suffered an injury at sea, many of whom once worked on or near the Port of New York and New Jersey.
How a New York Maritime Attorney Can Benefit Your Injury Case
Maritime laws are federal, meaning they protect U.S. injury victims no matter what state they are from. In theory, this means that any attorney who is licensed to do so may file a claim for a maritime injury. However, there may be many additional laws that can apply to your case depending on where you live and where the injury occurred—and an injury attorney who is unfamiliar with all the factors in your case may not currently determine who is liable for your injury costs.
If you suffered an injury at sea, you should strongly consider hiring an attorney who is familiar with:
There are many maritime doctrines that can apply to an injury case, including the Longshore and Harbor Workers' Compensation Act (LHWCA), Jones Act, Death on the High Seas Act, and general maritime law.
State Injury Laws
New York state has a variety of laws that protect workers across several industries, including state workers’ compensation and construction worker injury laws. In addition, New York state laws protect victims who are injured in marinas, docks, harbors, and other marine facilities.
Multiple Statutes of Limitations
The manner in which the injury occurred could affect the length of time a victim has to file for compensation. For instance, most cruise ship accident claims must be filed within one year of the incident, while victims must file a notice of claim with a New York municipality within 90 days.
If you or someone you love has suffered an accident at sea, we can carefully examine the details of your case to get you the maximum compensation you may be owed for your injury. Simply fill out our quick online contact form or call (800) 362-9329 today to speak with a lawyer at Hofmann & Schweitzer about your case.
My maritime employer is trying to deny payment for my treatment. Can they do that?
Maritime laws state that employers are obligated to pay the costs of any reasonable medical treatment after an injury at sea. Unfortunately, many maritime employers and their insurance companies will deny payment for certain procedures that they think are too costly, claiming that these treatments are not actually necessary.
Common Medical Treatments Denied by Maritime Insurers
Although maritime employers are responsible for paying the medical bills, they are heavily involved in the process, creating a conflict of interest. All treatments must be authorized by the maritime employer in order to secure payment, and all injured workers are required to see a doctor who is approved by the insurance company. Injured workers should always see a trusted physician after an injury at sea, even if they are required to meet with a company physician.
Common Medical Treatments Often Denied By Insurance Companies
The costs of many surgical procedures, such as spinal fusion or joint replacement surgery, may range from hundreds to thousands of dollars. Even if a doctor recommends surgery as the best possible treatment for an injury, the insurer may deny the expense, claiming that there are other less expensive treatments available and not all alternatives have been explored.
Doctors typically rely on a variety of diagnostic tests to fully understand the extent and nature of an injury, including x-rays, CT scans, or MRIs. However, a doctor working for the insurance company may neglect to order one or more scans to save the insurer money—or to avoid finding a potentially costly complication.
Workers may need physical therapy for months or years in order to improve mobility, as well as take medications to treat chronic pain.
Psychiatry or Counseling for PTSD
Insurers may reject claims for psychological consequences of an injury, claiming that the mental or emotional effects stem from a pre-existing condition or are not related to the work injury.
Insurers are often resistant to claims for prosthetic devices, wheelchairs, spinal cord stimulators, or other devices that can increase quality of life.
Our maritime injury attorneys are based in New York, but we represent clients across the country who have suffered an accident at sea. If your benefits have been denied or withheld, you may be able to collect punitive damages. Simply fill out our quick online contact form or call (800) 362-9329 today to schedule your free consultation.