AEU Longshore Blog ISSUE: Annual Increase & Attorney Fees

ANNUAL INCREASE

By Industry Notice No. 162, dated September 12, 2017, The U.S. Department of Labor, which administers the Longshore Act, has announced the new National Average Weekly Wage (NAWW) effective October 1, 2017, and consequently the new maximum and minimum rates for weekly benefits derived from the NAWW under Section 910(f) of the Longshore Act.

The new NAWW effective for the period October 1, 2017, through September 30, 2018, is $735.89.  This represents a 2.46% increase over the October 1, 2016, NAWW.  All beneficiaries receiving permanent total disability or related death benefits as of September 30, 2017, receive a 2.46% increase in their weekly rate.

The weekly rates for temporary total disability and permanent partial disability are subject to the maximum rate that is applicable on the date of injury.  These benefits are not increased annually.

The new NAWW provides the new maximum and minimum weekly rates.   Effective October 1, 2017, the maximum weekly rate under the Longshore Act is 200% of the NAWW, or $1,471.78.  The new minimum weekly rate is 50% of the NAWW, so it is $367.94.

Note on calculating the weekly compensation rate:  The weekly rate for permanent total disability and temporary total disability and for permanent partial disability based on the schedule in Section 908(c) is two-thirds of the worker’s Average Weekly Wage (AWW).  The weekly rate for permanent partial disability based on a loss of wage-earning capacity is two-thirds of the difference between the AWW and the post-injury wage-earning capacity.  The weekly rate for a widow is fifty percent of the AWW.  The AWW is established as of the date of the injury.

The minimum weekly rate does not apply in Defense Base Act cases.

ATTORNEY FEES

Section 28(a) of the Longshore Act states, “If the employer or carrier declines to pay any compensation on or before the thirtieth day after receiving written notice of a claim for compensation having been filed from the deputy commissioner on the ground that there is no liability for compensation within the provisions of this chapter and the person seeking benefits shall thereafter have utilized the services of an attorney at law in the successful prosecution of his claim … “ then the employer may be liable for the claimant’s attorney’s fee.

In the case of Steven Lincoln v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor; Ceres Marine Terminals, Inc., decided March12, 2014, the federal Fourth Circuit Court of Appeals affirmed a Benefits Review Board’s (Board) decision denying an employer paid attorney fee.

In the Lincoln case, based on a 4/11/11 audiogram the claimant filed a claim for hearing loss on 5/24/11, which the employer controverted on 5/26/11.  The employer received written notice of the claim from the Department of Labor (DOL) on 6/14/11, and on 7/7/11 the employer voluntarily paid $1,256.84 in compensation, which was the equivalent of one week’s compensation at the maximum weekly rate and was paid within the 30 day time limit of Section 28(a). The employer acknowledged that there was workplace noise-induced hearing loss, but that additional information was needed before it could determine the correct compensation payment.

The Board held that the term “any compensation” in Section 28(a) is unambiguous and plainly encompasses an employer’s partial payment.  The Fourth Circuit affirmed that the payment of one week’s compensation was directly tied to the alleged injury and was not merely an attempt to avoid fee shifting.  Thus, under the terms of Section 28(a), the employer was not liable for the claimant’s attorney’s fee.

The Lincoln case did not mention medical benefits (whether they constitute “compensation”) in relation to the phrase “any compensation”.   Now we have a case that deals with medical benefits and Section 28(a).

The case is Arthur B. Taylor v. SSA Cooper, L.L.C. and Homeport Insurance Company and Director, Office of Workers’ Compensation, U.S. Department of Labor, Benefits Review Board No. 16-0174, issued June 30, 2017.

In the Taylor case, the employer paid medical benefits within the Section 28(a) thirty-day time limit but did not pay weekly disability compensation.

The employer argued that it satisfied the Section 28(a) requirement of “any compensation” by the payment of medical benefits and should not be liable for the claimant’s attorney’s fee.

The issue, thus, was whether the employer’s payment of medical benefits within the thirty day period constitutes payment of “any compensation” such that the employer cannot be held liable for an attorney’s fee, even though the claimant was successful in obtaining disability benefits after using the services of an attorney.

The Administrative Law Judge (ALJ) denied an employer paid attorney’s fee, finding that the phrase “any compensation” includes medical benefits, and in this case, the employer paid medical benefits and thus did not decline to “pay any compensation” within thirty days.

The Board reversed the ALJ’s decision.

The Board held that the term “compensation” in Section 28(a) should be read as “disability and/or medical benefits”.  The Board stated, “Its (compensation) precise meaning in the phrase “declines to pay any compensation” depends on what benefits are claimed and what benefits the employer paid or declined to pay in each case.  Whether a claimant files a claim for both disability and medical benefits or for only one or the other type of benefit, fee liability under Section 28(a) depends on whether there is success in obtaining the claimed but denied benefit”.

Essentially, if any type of claimed benefit is denied with no payment within 30 days of receipt of the claim from the DOL and legal services are necessary to obtain the denied benefit, the claimant will be entitled to an employer-paid attorney fee.

Doug Matthews, a New Orleans-based attorney at King Krebs & Jurgens who specializes in longshore cases, raised several questions related to this case.

For instance, if there are issues with regard to medical bills in the first 30 days after receipt of the claim from the DOL, is a direct analogy with the Lincoln case suggested?  Should the employer tender some amount “directly tied to the alleged injury” against potential medical liability to protect itself under Section 28(a)?

It’s not unusual for a decision to resolve the issues between the immediate parties, but in a broad sense, it seems to raise more questions than it answers. We’ll wait for future cases for clarification.

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

AEU Longshore Blog ISSUE: Vessel in Navigation?

A recent decision by the Supreme Court of Texas offers a discussion of an issue that is important to employers (and insurance carriers) struggling to distinguish between liability for injured employees under the Jones Act/General Maritime Law and the Longshore Act.  The case is Helix Energy Solutions Group, Inc., Helix Well Ops, Inc., and Helix Offshore International, Inc. v. Kelvin Gold, (No. 16-0075 in the Supreme Court of Texas, June 16, 2017).  The issue was whether the vessel remained “in navigation” while undergoing an overhaul.

The seaman’s remedies under the Jones Act and the General Maritime Law are only available to members of a crew of a vessel in navigation.  The workers’ compensation remedy under the Longshore Act is only available to land-based maritime workers who are not crew members of a vessel in navigation, so the “in navigation” status of the “vessel” is a key element in determining the correct exposure.

There have been related issues arise on the question of vessel status.  For example, during the shipbuilding process, what is the point at which a vessel under new construction becomes a “vessel in navigation”?  The basic “what is a vessel” question has been addressed by the U.S. Supreme Court in the recent cases of Lozman v. City of Riviera Beach, FL (2013) and Stewart v. Dutra Construction Company (2005).  The Lozman case gives us the current test for vessel status: is the contrivance, viewed through the eyes of a reasonable observer, practically capable of serving as a means of transportation of people or things over water?  Then there’s our present issue: does a vessel remain “in navigation” when it is taken out of service to undergo repairs?

General Statement No. 1:  A vessel is in navigation, although taken to a dry dock or shipyard for repairs, if it remains in readiness for another voyage or is in preparation for making another voyage.  At some point, however, repairs may become sufficiently significant that the vessel can no longer be considered “in navigation” (Fousseini Tounkara v. Glacier Fish Co.; SeaBright Insurance Co., BRB No. 15-0217, January 28, 2016).

General Statement No. 2: “A vessel does not cease to be a vessel when she is not voyaging, but is at anchor, berthed, or dockside … or is taken to a dry dock or shipyard to undergo repairs in preparation to making another trip.” (Chandris v. Latsis, 515 U.S. 347 (1995))

General Statement No. 3: “Major renovations can take a ship out of navigation, even though its use before and after the work will be the same.” (Chandris, citing McKinley v. All Alaskan Seafoods, Inc., 980 F. 2d 567 (9th Cir. 1992))

How do we determine whether a vessel remains in navigation when it leaves the water for repairs?  The answer will usually determine the difference between whether the employer has liability for injuries to employees under the Jones Act or under the Longshore Act.

The Gold case involves the conversion of a drill ship into a well intervention ship servicing pre-existing offshore wells.  The conversion lasted 20 months and cost $115 million, during which the vessel was turned over to contractors and unable to navigate during the entirety of the plaintiff’s employment on board.

In defending the Jones Act lawsuit, the defendant’s burden of proof was to establish that the vessel was not a “vessel in navigation” at the time of the plaintiff’s injury.

The trial court granted the defendant vessel owner’s motion for summary judgment dismissing the Jones Act and General Maritime Law lawsuits based on the fact that during the major overhaul the ship was not a “vessel in navigation”.  An appeals court then reversed and, finally, the state Supreme Court reinstated the trial court’s dismissal on summary judgment.

The Texas Supreme Court found that the vessel in navigation question can sometimes be answered as a matter of law, although it is usually a question of fact.  Conclusive evidence can establish that an extended, major overhaul can remove a vessel from navigation as a matter of law.  Thus, major overhauls that render watercraft practically incapable of transportation are sufficient to remove those craft from “vessel in navigation” status.  Whether a vessel is or is not “in navigation” for Jones Act purposes, while normally a fact-intensive question for the jury to decide, may be removed from the fact finder’s consideration where the facts and the law will reasonably support only one conclusion.

The analytical framework is based on the fact that the spectrum of repairs needed is broad, ranging from temporary routine repairs to complete overhauls. At what point along this spectrum do repairs become sufficiently significant that the vessel can no longer be considered in navigation?  The difference is one of degree.

The court noted that there is no uniform approach or comprehensive list of factors in determining where on this scale the vessel leaves “in navigation” status.  The yardstick of analysis is the “status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done (West v. United States, 361 U.S. 118 (1959)).  This vague framework includes consideration of (a) the significance of the work performed, (b) the cost of the conversion relative to the value of the ship, (c) whether contractors exercised control over the work, (d) the duration of the repairs, and (e) whether the repairs took the ship out of service.

Also, there is no time limit for the out-of-service repairs as a matter of law.

In the final analysis, this case does not seem to have been a close call.  This vessel was not “in navigation” during the period of claimant’s employment (not limited to the moment of injury).  Thus, he was not a crew member of a vessel in navigation, and he had no Jones Act/General Maritime Law remedy.

Our lesson: The Longshore Act covers workers who repair or build vessels.  A vessel that is not “in navigation” means no Jones Act exposure to crew, but it does mean workers’ compensation exposure under the Longshore Act.

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

AEU Longshore Blog ISSUE: Review of Status, Part Two: Construction Workers, Mail Clerks, and Truck Drivers, Foreign Workers and Bridge Workers

This is Part Two of a compilation of occupation-specific status discussions from past AEU Longshore blog postings.

 

Construction Workers

A few years back, we covered the Longshore Act status of construction workers.  These are workers who build, repair, renovate, or maintain buildings and equipment.  They are welders, electricians, roofers, sheet metal workers, carpenters, plumbers, etc.  They work on shipyard and terminal buildings at maritime locations as well as office and industrial buildings nowhere near any navigable water.  The problem is determining when these workers may be covered by the Longshore Act.

This is a status discussion, so let’s assume that the workers meet situs for Longshore Act coverage.

Construction work can be maritime employment based on the location and timing of the work and the nature, purpose, and use of the structures being worked on.

First, the structure must have a maritime purpose.  Construction work does not meet maritime status simply because it is done on a maritime situs.  The building or structure has to have a maritime connection, integral or essential to the loading/unloading of cargo, shipbuilding, ship repair or ship breaking.

Second, there’s a timing element.  The nature of the building, structure, equipment, etc. being built, maintained, renovated, or repaired has to be related to concurrent maritime activity.  Future intended maritime use may not be enough to confer status.

Two case examples illustrate this point:

  1. A pipefitter building a power plant at the Norfolk Naval Shipyard failed to meet Longshore Act status. Although the plant would eventually provide steam and electricity to shipbuilding operations, at the time that the claimant was on the site it was new construction and the building had never performed a maritime function.  When the job was finished the claimant would have been off the site and on to another construction project (Weyher/Livsey Constructors Inc. v. Prevetire, (27 F.3d 985 (4th 1994)).
  2. However, two maintenance workers at that same power plant at a later date did meet status. At the time of their injuries, the plant was operating and the steam and electricity were going to supply shipyard operations.  The employees were maintaining an operating, essential maritime facility, (Kerby v. Southeastern Public Service Authority, (31 BRBS 6 (1997)).

When it comes to coverage issues with regard to construction workers, the best approach is to analyze the timing and nature of the project looking for an essential maritime connection.

 

Mail Clerks and Truck Drivers

In the past, we have also addressed in general terms the coverage issues related to the maritime status of mail clerks and truck drivers (see parts one and two of that discussion).  This included consideration of the “vendor exclusion” of section 2(3)(D) as it may apply to truck drivers.  This exclusion is narrower than generally believed, therefore it may be worth revisiting those discussions.

About a year ago, we reviewed a then-new truck driver case of Abdulaziz A. Ahmed v. Western Ports Transportation, Inc., (BRB No. 16-0067, 9/21/16).  This decision contains a good discussion of the issues of situs as well as status.

In addressing the status issue, the BRB reviewed a number of its prior truck driver cases.  It considered several situations where drivers, much like the driver in this case, transported cargo between port terminals and facilities located outside the port.  These drivers were involved in the land-based stream of commerce rather than cargo handling. The key point is that the drivers were transporting sealed containers, loaded onto the trucks by others, to destinations outside the port area.  Since the driver in this case was transporting containers between the port and an inland intermodal facility, he was involved in land transportation and did not meet status under the Longshore Act.

 

Special Status

An example of a special status issue is the situation where status is actually irrelevant.  On several occasions, notably on September 23, 2010 and January 27, 2015, the AEU Longshore Blog referenced Perini coverage.  It’s a very simple principle.  According to the U.S. Supreme Court, any work over the navigable waters of the United States is covered by the Longshore Act, unless an express statutory exclusion applies.  Situs over the water confers status; the nature of the work doesn’t matter.

 

Foreign Workers

The Longshore Act status of foreign workers has also been discussed on several prior occasions, notably on February 14, 2012 and July 1, 2015.  The coverage provisions of the Act, sections 2(3) (status) and 3(a) (situs), comprise the tests for coverage.  With the exception of the section 3(b) exclusion of employees of a foreign government, there is no nationality or citizenship component to Longshore Act coverage.

For example, if a domestic U.S. company hires foreign workers to work in the U.S., either permanently or temporarily, these workers are covered if they meet Longshore Act status and situs.  Likewise, if a foreign company sends employees to work in the U.S. these workers are also covered if they meet situs and status.

In the July 1, 2015 post, the point was made that the same considerations also apply to workers in the U.S. illegally.  The definition and coverage provisions in the Longshore Act do not contain citizenship, nationality, or immigration status conditions.

 

Bridge Workers

Cases involving bridge workers involve issues of both situs and status, as we discussed back on July 13, 2010.  Status is usually a secondary consideration in bridge cases.  If you meet the situs element for coverage then you will often satisfy status by virtue of Perini (work over the water) coverage.

Work on a bridge does not usually meet situs since bridges are considered extensions of land and are not “enumerated sites” under section 3(a).  Situs issues usually include instances where the worker is not working on the bridge itself but from a barge or work platform (watch out for MEL exposure here), or where the bridge is incomplete, or the bridge is floating, not permanently affixed to land, or any number of circumstances which affect the question of whether the bridge is permanently affixed to land.

But back to status. If the worker meets situs and Perini doesn’t apply because the injury does not occur over the water then you have to sort out status.

Is work on a bridge considered maritime employment?  You need a strong maritime connection to have an argument for Longshore coverage.  For example, what effect will the work have on water borne commerce?  If you can make a strong argument that the purpose of the work is to aid, regulate, or otherwise influence maritime commerce, such as work on a drawbridge that will improve the flow of commerce, then you may have status.  In some federal circuits if you are unloading construction materials at the job site this may give you status.

Conclusion: Work on completed bridges permanently affixed to land is not generally considered to meet situs or status under the Longshore Act, but all facts should be considered for any duties or circumstances that could implicate Longshore coverage.  For example, is the worker loading and unloading construction materials from vessels, or is he working from a floating work platform or barge?  Might he be considered a “harbor worker”, based on the effect of his work on water borne commerce?  One must look closely at all circumstances before concluding that bridge work is not covered by the Longshore Act. We’ll cover the various nuances of bridge worker coverage in an upcoming post.

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

AEU Longshore Blog ISSUE: Dredging Operations

Questions regularly arise with regard to Longshore Act coverage for dredging operations.  These operations present several key coverage issues worth discussing.

Overview

Dredging is usually done to remove sediment and debris in the process of creating new harbors and/or deepening existing harbors, channels, and waterways for the benefit of maritime commerce.  It is also done in connection with repair or construction of bridges and piers, environmental cleanup, replenishing sand on recreational beaches, harvesting of aquatic species, seabed mining, flood prevention, and any number of other purposes. Dredging is done on all bodies of water, from ocean waters to inland rivers, lakes, and reservoirs.

It is becoming more important as the need for improvement of infrastructure becomes crucial.  International ocean carriers are utilizing larger ships which require deeper channels, bigger harbors and berths, and higher bridges.

There are many types of dredging contrivances, including submerged vehicles, amphibious wheeled as well as tracked vehicles, and all sorts of special purpose platforms.

The varied jobs and mixed duties of employees along with the wide assortment of apparatus used in dredging operations puts us squarely within the so-called “Uncertainty Zone” where workers’ compensation exposure under the Longshore and Harbor Workers’ Compensation Act overlaps with maritime employers’ liability for injury or illness to crew members of vessels.

What is the “Uncertainty Zone”?

The federal Fifth Circuit Court of Appeals has observed, “Thus, despite our continued insistence that a Jones Act ‘seaman’ and a ‘crew member’ excluded from the Longshore Act are one and the same (in other words that the statutes are mutually exclusive) we recognize that in a practical sense, a ‘zone of uncertainty’ inevitably connects the two Acts.”

The Jones Act and other seamen’s remedies are only available to crew members (seamen), and the Longshore Act excludes crew members (seamen).

The broader the definition of “vessel” has become, however, and the less seaman status has to do with going to sea or vessel navigation, the more difficult it has become to sort out coverage issues in the Uncertainty Zone.  Clearly, there are coverage issues at the fringes of seaman status as well as the issue of what constitutes a vessel, and these issues are confronted directly in a typical dredging operation.

Situs and Status

For the purpose of distinguishing employer liability issues, there are questions of situs, vessel status, and worker status.

First, let’s briefly consider situs.  Liability under federal maritime law (the Jones Act, the General Maritime Law, the Admiralty Extension Act, the Death on the High Seas Act, Section 905(b), etc.), requires activity on the navigable waters of the United States which involves traditional maritime activity or has the potential to disrupt maritime commerce.  Liability under the Longshore and Harbor Workers’ Compensation Act also requires maritime employment on or near the navigable waters of the United States.

Dredging of one kind or another can occur wherever there is water.  But we’re interested in the “navigable waters of the United States”.  For our purpose that means water that carries, or is capable of carrying, interstate or international commerce.  This does not include land-locked intrastate lakes, sections of rivers or reservoirs that are dammed or closed off at both ends, industrial tanks or treatment facilities that are comprised of water that has been removed from a navigable body, and similar bodies of water that cannot carry interstate commerce.

Note:  If the dredging activity is being conducted on a body of water that does not constitute “navigable waters of the United States”, then the workers are most likely covered by state act workers’ compensation.

So, situs is the first box to check when considering issues of federal maritime liability, and the question is whether or not the waterway carries or is capable of carrying interstate or international commerce.  For the rest of this discussion, we’ll assume that our activity is occurring on the navigable waters of the United States.

Next, maritime liability usually requires the presence of a vessel.  The United States Supreme Court has considered the vessel question twice in the past twelve years, and one of the cases involved a dredging operation.  In the case of Stewart v. Dutra Construction Company, (543 U.S. 481 (2005)) the Supreme Court considered whether the Super Scoop, at that time the world’s largest dredge, was a vessel.  The Super Scoop is a massive floating platform from which a clamshell bucket is suspended beneath the water.  The bucket removes silt from the ocean floor and dumps the sediment onto one of two scows that float alongside.  It navigates short distances by manipulating its anchors and cables.  Otherwise it is towed into position.

The holding in the case was that the Super Scoop is a vessel.  Dredges had frequently been held to be vessels prior to the Stewart case, but the issue continued to arise.  Now, explicitly we can assume that dredges are vessels.

Note:  This does not rule out the circumstances where a barge or work platform is permanently affixed to the seabed, and thus not “in navigation”, for use in a dredging operation.  If you do not have a vessel then you do not have crewmembers with seamen’s remedies.  In this case, you have workers’ compensation exposure, most likely under the Longshore Act.

Note:  The vessel question again went to the Supreme Court in 2013 in the case of Lozman v. The City of Riviera Beach, Florida.  This case gives us our present test for vessel status.  Essentially the test is whether, viewed through the eyes of a reasonable observer, the contrivance is practically capable of serving as a means of transportation of people or things over water.

This test would seem to encompass most of the contrivances used in dredging operations, since they are designed to and do in fact carry people and/or equipment over water.

So, on our second issue of federal maritime liability, if you are involved in a dredging operation you are most likely working from or in connection with a vessel.

We are discussing vessels performing dredging operations on the navigable waters of the United States.  That leaves the third, and most difficult, issue.  Do the workers have the status of crewmembers eligible for the seamen’s remedies, or are they land-based maritime workers covered for workers’ compensation under the Longshore Act but excluded from the seamen’s remedies?

Welcome to the Uncertainty Zone.

This is familiar territory for the AEU Longshore Blog;  issues of coverage between the seamen’s remedies and the Longshore Act have been discussed on several occasions, including a discussion of both vessel status and crew member status.

There was a time when dredge workers typically slept at and commuted from home each day, were paid by the hour, belonged to land-based unions, performed no navigation functions, and never “went to sea” in the traditional sense.  These workers were more likely to be considered land-based maritime workers covered by the Longshore Act than crew members entitled to the seamen’s remedies.

Then, as the test for crew member status, outlined by the U.S. Supreme Court in the case of Chandris, Inc. v. Latsis, (115 S.Ct. 2172 (1995)) came to be more broadly interpreted, involvement in navigation of the vessel ceased to be necessary for crew member status, and the “perils of the sea” was replaced by the “perils of a marine environment”.

Maritime construction workers building bridges, piers, and other structures who work from floating construction platforms now have a good case for crewmember status.  In a notable recent case from the federal Fifth Circuit Court of Appeals, a ship repair worker operating a land-based crane in a shipyard channel, who virtually never went to sea, was found to be a crew member of his employer’s vessels (Larry Naquin v. Elevating Boats, Inc., (5th Circuit, March 2014) discussed in an April 7, 2015 post on the AEU Longshore Blog)).

To complicate matters, the choice of remedy is with the injured worker.  He can file a lawsuit seeking recovery for negligence or unseaworthiness under his seamen’s remedies, or he can file a workers’ compensation claim with the U.S. Department of Labor (DOL) under the Longshore Act.  He can even file these claims simultaneously, inconsistently (but permissibly) claiming status under two mutually exclusive remedies.

Further complicating matters, the choice of forum may determine the outcome of the coverage issue.  The DOL may tend toward finding entitlement for an injured worker under the Longshore Act as a land-based maritime worker, while a jury may be convinced that the same worker is a crew member.  It may come down to which forum is first to issue a final Order adjudicating status in these Uncertainty Zone cases that can go either way.

There are peripheral jobs involved in dredging operations, where workers are working landside rather than from vessels. This is where the question of “harbor worker” comes up.  The phrase is not defined in the Act, but it is listed as a covered occupation (and it’s in the title!).  While these workers may have weaker claims to crew member status, we have the related problem of distinguishing state act workers’ compensation from Longshore Act exposure.  An extreme example is the case of Nelson v. American Dredging Co., 143 F.3d 789 (3rd Circuit, 1998), in which a bulldozer operator distributing sand dredged up from the ocean floor on a recreational beach was found to meet situs and status under the Longshore Act.

These dredging cases present coverage difficulties for claims specialists.  Did the injury occur on or around navigable waters?  Was a vessel involved?  Is the injured worker covered under the Longshore Act, or state act workers’ compensation, or is he a crew member?  These issues arise every day, and there are few bright lines.

 

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.