The §902(3)(A) Exclusions Are Narrow

The first sentence in James Joyce’s novel Ulysses reads, “Stately, plump Buck Mulligan came from the stairhead , bearing a bowl of lather on which a mirror and a razor lay crossed.”

The literary critics immediately began arguing about whether “stately” refers to Buck Mulligan’s physical appearance or the manner in which he walked down the stairs.

Here’s another example of ambiguous modifiers:

Section 902(3)(A) of the Longshore and Harbor Workers’ Compensation Act states that, “The term ‘employee’ means any person 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, but such term does not include –

(A) Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work.”

The lawyers immediately began arguing about whether “exclusively” modifies the four job classifications of clerical, secretarial, security, and data processing.

The Department of Labor’s Benefits Review Board has found that the term “exclusively” does indeed modify all four classifications of work listed in the §902(3)(A) coverage exclusion (Dobey v. Johnson Controls, 33 BRBS 63 (1999)).

But the arguing continued. Does the term “office” also modify all four classifications of work?

The Benefits Review Board has previously made it clear that “office” modifies clerical and data processing work.

And in a recent case, in affirming an ALJs Decision and Order, the Board found that the term “office” also modifies the “security” work classification (K.L. v. Blue Marine Security, LLC and Louisiana Workers’ Compensation Corporation, BRB No. 08-0789, Issued 04/16/2009).

In K.L., the Board considered coverage in the case of a security guard working on a vessel on the Mississippi River. Citing the Congressional Record in support of the narrow application of the §902(3)(A) exclusions, and the fact that the worker faced the hazards of the sea since his work was performed aboard a vessel on navigable waters, the Board found that the exclusion did not apply, and the security guard was covered under the Longshore Act by virtue of Director, OWCP v. Perini North River Associates, 459 U.S. 297 (1983) (an injury on actual navigable waters provides coverage if the claimant is not excluded by a statutory exclusion).

The Board stated that the exclusion does not apply because the claimant was not exclusively performing “office” security work. This is a very narrow reading of the “security guard” exclusion.

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