Mesothelioma & the LHWCA: Recovery for Louisiana Shoreline Workers

For decades, the Louisiana shoreline was a hub of industrial activity where asbestos was handled, stored, and transported daily. Today, many of the workers who kept our ports running are facing the devastating reality of mesothelioma. While the legal road to recovery is complex, the federal government created a powerful tool for these families: the Longshore and Harbor Workers’ Compensation Act (LHWCA). This act ensures that maritime workers have a distinct pathway to justice, regardless of how many years have passed since their initial exposure.

What is the LHWCA? Protection for Louisiana’s Maritime Workforce

The Longshore and Harbor Workers’ Compensation Act (LHWCA) is a federal law that provides injury and occupational-disease protection for people working on the navigable waters of the United States. In South Louisiana, this includes dock workers, shipbuilders, and harbor workers who were often exposed to asbestos while unloading bags or working in warehouses. Unlike standard state workers’ comp, the LHWCA provides a specific pathway for those suffering from debilitating diseases like mesothelioma.

Asbestos-related illnesses have impacted many families throughout the nation. The impact of asbestos exposure can lead to serious terminal illnesses. Partly as a response to such illnesses, the federal government created the Longshore and Harbor Worker’s Compensation Act (LHWCA). The act provides injury and occupational-disease protection for those who work on the navigable waters of the United States.

In the past, the Louisana shoreline was home to many companies that were involved with the direct use of asbestos. Those individuals who were impacted by the use of asbestos in such areas are potentially protected by the LHWCA. The act provides for a set of procedures that must be fulfilled prior to any case reaching a court of law. At first, an Administrative Law Judge (ALJ) reviews the facts of the case and decides whether the LHWCA provides relief for any party. If this decision is appealed, it will go to the Benefits Review Board (BRB), which will have to conclude whether the ALJ’s order was supported by substantial evidence on the record as a whole and is in accordance with the law. After this stage, if the decision of the BRB is challenged, the case will find its way into court.

In a recent decision by the United States Court of Appeals, Fifth Circuit, in Louisana Insurance Guaranty Association Baton Rouge Marine Contractors Inc. vs. Director Office of Worker Compensation, the process through which claims under the LHWCA proceed is clearly outlined. Plaintiff in the case worked on the Lousiana shoreline from 1965 to 1977. During the 60’s he worked directly with asbestos by unloading bags of asbestos. From 1970 to 1977 plaintiff worked on cranes for the same company. This position did not require direct contact with asbestos. However, he worked in and had to continuously walk through warehouses where asbestos was dealt with and stored. During the plaintiff’s employment, the company that he worked for was insured by Employers’ National. It provided insurance coverage from 1972 until 1982. However, it was declared insolvent and placed in receivership in 1994. Louisiana Insurance Guarantee Association (LIGA) appeared in its place as a substitute party in this proceeding.

Based on the facts provided, the ALJ granted relief under LHWCA. The BRB, then found the ALJ’s decision to be supported by substantial evidence. The insurance company appealed the decision to the fifth circuit. The case is broken down into factual questions and legal questions. The fifth circuits only job was to correct errors of law and make sure that the BRB did not substitute its interpretation of the factual issues for those of the ALJ.

The first factual issue in the case was whether LIGA was subject to the LHWCA’s last employer rule. LIGA argued that plaintiff could not have been injured by asbestos exposure after 1970 when he moved from working directly with asbestos, to working on the cranes. The Court held that the ALJ had sufficient evidence to determine that plaintiff was indeed exposed to asbestos due to the storage of asbestos in warehouses in which he worked in and walked through. Second, defendants argued that plaintiff was not forced to retire because of any asbestos related injury. Plaintiff testified that he had trouble walking up and down stairs and that the asbestos injuries and sickness are at least in part the cause of his retirement.

The Court stated,”the ALJ as sole factfinder is entitled to consider all credibility inferences and [his selection] among inferences is conclusive if supported by evidence and the law.” The BRB explained in its review that,”if the claimant’s work related injury played a role in causing his retirement, the retirement is involuntary.” The Court decided that since both determinations were made within the bounds of law and the evidence provided, the decision made by the ALJ, that plaintiff was involuntarily forced to retire due to asbestos exposure, should stand. Third, plaintiff was granted the status of total disability.

Under the LHWCA, to establish a prima facie case claimant must show that he is unable to return to his regular or usual employment. Thus, the question posed is not whether any claimant can work anywhere else or do anything else, the question is whether the claimant can continue to do the same or similar things as he or she did prior to the disease or injury. Since the plaintiff testified that he had a hard time walking up and down stairs, there was sufficient evidence that plaintiff had total disability as defined under the act.

The “Last Responsible Employer” Rule: Who Pays for Your Claim?

One of the most complex parts of an asbestos claim is determining which employer is liable after 30+ years of exposure. The LHWCA utilizes the “Last Responsible Employer” rule. This means the last employer to expose the worker to asbestos—and their insurer at that time—is responsible for the full amount of the claim. As seen in recent Louisiana litigation, even if an insurer becomes insolvent, the Louisiana Insurance Guaranty Association (LIGA) may step in as a substitute to ensure the victim is paid.

The legal issue in the case was whether LIGA should be held liable for the insurance that was provided by Employers’ National, which was declared insolvent. The “last responsible employer” rule was a policy decision on the part of the acts administrators. Eventually, it was judicially adopted by courts. Under the act, insurance liability would fall onto the shoulders of Employers’ National. Employers’ National insured plaintiff’s employer during the last years of his employment. Under Louisiana law, the law responsible employer rule would also subject the last insurer. The rule applies to Employers’ National, and in turn to LIGA, as a substitute party in this case. Thus, under the law, and Federal law as applied in Louisiana, LIGA is liable to plaintiff for his injuries and medical expenses.

Establishing Total Disability: The LHWCA Standard

To win a total disability claim under the LHWCA, you don’t have to prove you can’t work anywhere. You only have to prove that your asbestos-related illness prevents you from returning to your regular or usual employment. If your work-related injury played any role in your retirement or inability to work, the law is designed to provide you with total disability status, medical expenses, and compensation for your pain.

Although, nothing can take away the pain and anguish associated with a debilitating disease or the loss of a loved one, there are law that were created to protect those who have been impacted by disease associated with asbestos. It is essential that if you or a loved one have been injured due to asbestos exposure, you should contact an attorney who may be able to help. Laws like the LHWCA have been enacted to help people in such difficult and trying time.

A mesothelioma diagnosis is life-altering, but the LHWCA was built to ensure you don’t have to face the financial burden alone. From identifying the ‘last responsible employer’ to securing total disability benefits, our team specializes in the technical maritime laws that protect Louisiana harbor workers. If you or a loved one worked on the water and are now suffering from asbestos exposure, don’t wait for the clock to run out. Contact the Berniard Law Firm today for a free evaluation of your federal maritime claim.