Longshore and Harbor Workers Compensation Coverage Question

 

August 13, 2012

 

A manager claimed he sustained injuries while performing his job upon actual navigable waters, upon a lift boat, the M/V SUPERIOR INTEGRITY. He asserted the law applicable to his claim is the Longshore and Harbor Workers Compensation Act (L&HWCA). This case is Early v. Wise Well Intervention Services, Inc., 2012 WL 826992.

 

The United States District Court for the Western District, Louisiana, noted that to receive benefits under the L&HWCA, a worker must satisfy both a situs and status test. The situs test concerns geographic areas covered by the L&HWCA, whereas the status test concerns an employee's type of work activities. The situs test includes injuries occurring upon the navigable waters of the United States. The status test views as an employee any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and ship-breaker.

 

The court also noted that other courts have tried to clarify the “status” point.

 

Citing a Fifth Circuit decision, the District Court said that a worker injured in the course of his employment on navigable waters is engaged in maritime employment and meets the status test only if his presence on the water at the time of injury was neither transient nor fortuitous. The presence of a worker injured on the water and who performs a not insubstantial amount of his work on navigable waters is neither transient nor fortuitous. The threshold amount must be greater than a modicum of activity in order to preclude coverage to those employees who are merely commuting from shore to work by boat. And, the routine activity of assisting in tying the vessel to the dock and loading or unloading one's tools and personal gear onto the vessel do not count as meaningful job responsibilities.

 

In this case, the court said, the sole issue then with regard to the applicability of the L&HWCA is whether Early's presence on the boat on the day of his accident was or was not transient or fortuitous. Early testified that 60 to 75 percent of his work was offshore, and he only occasionally did land jobs. With regard to the job Early was performing when injured, he testified 100 percent of his work on that job was performed aboard the M/V SUPERIOR INTEGRITY. The insurer argued that Early's presence on the boat was fortuitous since he was not even supposed to be on the job and the job was brought about merely by a stuck piece of equipment. Moreover, Early was actually injured when a co-employee fell down the stairs on top of him.

 

Based on the facts presented to it, the District Court ruled that Early carried his burden and showed that he performed a not insubstantial amount of his work on navigable waters, and that his presence on the water at the time of injury was neither transient nor fortuitous. Accordingly, the court found that the law applicable to the claim is the L&HWCA.

 

Editor's Note: This case is presented to highlight the two-pronged test that courts use in determining the applicability of the L&HWCA. The claimant must pass the situs test and the status test. The situs test is usually the easier part—the claimant is either upon navigable waters or he is not. The status test is a bit more involved. The claimant must rely on the facts of the situation to prove his maritime employment. In this instance, the employee was able to carry his burden of proof.