A worker injured over water is covered by the Longshore Act, even if that worker lacks status, the Board recently confirmed.
The claimant injured his foot while working on the hull of a tension leg platform under construction called the Big Foot. The hull of the Big Foot was floating on the water at the construction yard at the time of the claimant’s accident. Notably, the Board determined in a previous decision that the Big Foot was not a vessel, even when in service offshore. Baker v. Gulf Island Marine Fabricators. Accepting that the claimant was injured while working over water, the administrative law judge ruled that the claimant met the geographical component of situs. However, the ALJ ruled that the claimant failed the functional component of situs, because the platform was not a vessel. He further found that the claimant was not a shipbuilder or engaged in maritime employment, so the claimant failed the status requirement. The ALJ determined that the claimant lacked status because he did not work for a “maritime employer.” The employer had alleged that it was an electrical and instrumentation contractor that did not employ any maritime employees. The ALJ also determined that the claimant did not meet the “substantial nexus” requirement for OCSLA coverage under Pacific Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680 (2012). As a result, the ALJ denied the claim.
In examining the ALJ’s decision, the Board recognized that when an injury occurs on or over navigable waters, the worker is “automatically” covered without regard to status or situs, according to the rule announced in Director, OWCP v. Perini North River Assocs., 459 U.S. 297 (1983). The Board noted that the Perini court explained that while Congress adopted a status test with the 1972 amendments, this test only applied to injuries occurring on land, and that “injuries occurring on the actual navigable waters were covered, and would remain covered.” Perini, 459 U.S. at 318. The Board then stated that as the claimant was engaged in maritime employment when injured, “[a]pplication of long-standing case precedent thus establishes that claimant’s employer is a ‘maritime employer’ who has at least one employee engaged in maritime employment.”
Flores v. MMR Constructors, Inc., BRB No. 16-0133 (10/25/16)
In this hearing loss case, the employer moved for a summary decision alleging that it had voluntarily paid the claimant all the compensation to which he was entitled. In its motion, the Employer maintained that the claimant’s average weekly wage was $272.71. The Employer also argued that claimant was not entitled to additional benefits for tinnitus because his expert did not follow the proper impairment rating protocol in assessing that condition. The Claimant responded to the employer’s motion by asserting that genuine issues of material fact existed regarding both his average weekly wage and the extent of his hearing impairment. The administrative law judge granted the employer’s motion for summary decision, but based his decision on a finding that the claimant, at the time of his last exposure to injurious noise on March 9, 2001, was incapable of work and suffered no loss of wage-earning capacity from his hearing loss. However, neither the claimant nor the employer had argued that the claimant had no wage loss.
The Board vacated the summary decision in the employer’s favor, holding that the ALJ could not grant summary judgment on the basis of no wage loss. According to the Board, Section 18.72 of the OALJ Rules, 29 C.F.R. § 18.72, which governs summary decisions, provides that an ALJ may issue a “Decision independent of the motion,” but only after giving notice and an opportunity to respond. In basing his decision on an issue not argued by either side, the Board found that the ALJ had issued a “decision independent of the motion.” As a result, the ALJ should have given the parties notice and an opportunity to address this issue.
The Board’s decision relies upon a literal application of Section 18.72, and provides practitioners with a useful interpretation of this section.
Maglione v. APM Terminals, et al., BRB No. 16-0053 (8/11/2016)
Fifth Circuit Says Tension Leg Platform Not a Vessel; Worker Constructing Platform Not Entitled to Benefits Under Valladolid
An offshore floating tension leg platform is not a vessel, according to the U.S. Fifth Circuit’s recent decision in Baker v. Director, OWCP, 15-60634 (5th Cir. 8/19/16).
The issue in Baker involved whether a worker injured during the construction of an offshore platform was entitled to benefits under the Longshore and Harbor Workers’ Compensation Act. The claimant was injured in a waterside marine fabrication yard in Houma, Louisiana, while building a housing module for Big Foot, a structure being constructed an offshore tension leg platform. The parties stipulated that the Houma fabrication yard constituted a maritime situs under the LHWCA, meaning that the worker could recover benefits if he possessed status as a maritime worker. The Fifth Circuit explained that a worker is involved in maritime employment if he is a ship repairman, shipbuilder or ship-breaker, or if he is engaged in activities that are an integral or essential part of the loading or unloading of a vessel. Therefore, the claimant’s entitlement to benefits in Baker hinged on whether Big Foot was a vessel.
The Fifth Circuit noted the following characteristics of Big Foot:
“Big Foot, like other TLPs, is a type of offshore oil platform used for deep water drilling; the parties concede that Big Foot was not built to regularly transport goods or people. Its various parts were constructed in several locations: its base, which is capable of flotation, was built in Korea; its operations modules were built in Aransas Pass, Texas; and its living quarters were built in Houma, Louisiana. All of these components were transported to Ingleside, Texas for assembly—a process that often takes several months, if not years. Although Big Foot can float, it is not capable of self-propulsion, has no steering mechanism, does not have a raked bow, and has no thrusters for positioning once on location. Once completed, Big Foot was scheduled to be towed to a location approximately two hundred miles off the coast of Louisiana and anchored to the sea floor by over sixteen miles of tendons. Anytime it is under tow, Big Foot will be tended to by a crew that is employed to control Big Foot during the voyage. Once anchored, Big Foot will serve as a work platform for the life of the oil field, which is estimated to be twenty years.”
In determining whether Big Foot was a vessel, the Fifth Circuit relied upon two U.S. Supreme Court decisions, Stewart v. Dutra Constr. Co., 543 U.S. 481 (2005) and Lozman v. City of Riviera Beach, 133 S. Ct. 735 (2013). The Fifth Circuit explained that the Supreme Court determined in Stewart that a watercraft is a vessel if it is used or capable of being used as a means of transportation on water. Lozman restricted this definition, reminding that not every floating structure is a vessel. The Court in Lozman held that a floating home was not a vessel because “[b]ut for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water.” Lozman, 133 S. Ct. at 741.
Relying on these precedents, the Fifth Circuit found that Big Foot was not a vessel. The Fifth Circuit noted that “Big Foot will not be used to transport equipment and workers over water in the course of its regular use. … In fact, Big Foot is only intended to travel over water once in the next twenty years—the voyage to its operational location on the OCS.” The court noted that Big Foot had no means of self-propulsion, no steering mechanism or rudder, and lacked a raked bow.
The claimant advanced another argument for benefits, relying on the Supreme Court’s decision in Pacific Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680 (2012). In Valladolid, the Supreme Court allowed a worker to obtain workers’ compensation benefits under the Outer Continental Shelf Lands Act, even if the worker was not injured on the Outer Continental Shelf (“OCS”). The Court held that the worker only need establish a “substantial nexus between the injury and extractive operations on the [OCS] to qualify” for benefits. While Big Foot had a “future purpose” of extracting natural resources from the OCS, the Fifth Circuit held that, in constructing a portion of Big Foot on land, the claimant’s activities were “too attenuated” from that future purpose. The Fifth Circuit observed that the claimant’s employment would never require him to go to the OCS, and his employer would have no role in moving Big Foot to its eventual location on the OCS.
Baker v. Director, OWCP, 15-60634 (5th Cir. 8/19/16)
An employer is liable for a reasonable fee incurred by the claimant’s attorney in defending a fee petition, the Board recently re-affirmed. This rule had been established in a number of Board and Circuit court decisions. However, in Clisso v. Elro Coal Co., the employer argued that the U.S. Supreme Court’s recent decision in Baker Botts L.L.P. v. ASARCO LLC, 576 U.S. _____, 135 S. Ct. 2158 (2015), required a change in the existing rule. Baker Botts held that a certain provision of the bankruptcy code does not permit a bankruptcy court to award attorney’s fees for defending a fee petition in court. The Board rejected the application of Baker Botts to the Longshore Act, noting that the Baker Botts holding has been limited solely to the bankruptcy context. As a result, the Board maintained the existing rule allowing an attorney’s fee award to include time defending the fee petition in court.
Clisso v. Elro Coal Co., BRB No. 15-0470 (6/20/16)
The U.S. Fourth Circuit Court of Appeals recently rejected application of the tort “zone of danger” concept to the Longshore Act. Under the zone of danger test, only a worker who sustains a physical injury or who was “within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not.” Ceres Marine Terminals, Inc. v. Director, No. 15–1041 (U.S. 4th Cir. 3/24/2016) (citing Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 556 (1994)).
In this case, the claimant, a forklift operator, backed into a co-worker, causing severe injuries leading to the co-workers’ death. The claimant remained on the scene until rescue workers extracted the co-worker and rushed her to the hospital. However, at no time was the claimant in imminent danger. The claimant almost immediately stopped working and started treatment for PTSD. The employer denied benefits, and argued for the application of the zone of danger concept, meaning that the claimant could not receive compensation unless he “sustains a physical injury or is placed in immediate risk of harm.”
The Fourth Circuit rejected the zone of danger test, explaning: “The LHWCA plainly does not encompass such a limitation [the zone of danger test] by its express terms. The LHWCA does not distinguish between psychological and physical injuries—the statute simply says ‘injury.’ … Nowhere in the statute is there a requirement that psychological injuries be accompanied by actual or threatened physical harm. To be sure, Congress could have easily written the statute to contain such a requirement, but it did not.” The Fourth Circuit emphasized that “further, courts interpreting § 902(2) of the LHWCA have held that claimants can recover for a work-related psychological injury, and have never mandated actual or threatened physical harm to be a prerequisite for coverage.” Based on this finding, the Board refused to review the ALJ’s finding that the claim was compensable.
Of course, the tort “zone of danger” concept is different from the “zone of special danger” doctrine utilized in Defense Base Act cases.
In its decision, the Fourth Circuit also emphasized that the opinion of an independent medical examiner appointed by the Department of Labor is not entitled to dispositve weight.
Ceres Marine Terminals, Inc. v. Director, No. 15–1041 (U.S. 4th Cir. 3/24/2016)
An employee who voluntarily retires before his injury prevents him from working does not have a compensable disability, the Benefits Review Board recently confirmed. The Board had already held in Harmon v. Sea-Land Service, Inc., 31 BRBS 45 (1997), that a claimant who becomes unable to perform his usual job prior to a voluntary retirement remains disabled following his retirement. Also, in Hoffman v. Newport News Shipbuilding & Dry Dock Co., 35 BRBS 148 (2001), the Board found that a claimant whose scheduled injury worsened after a voluntary retirement was not totally and permanently disabled, although the claimant may be entitled to increased benefits under the schedule. The Board reasoned in Hoffman, that the loss of wage earning capacity was due to the retirement and not the injury. Considering these cases together, the Board held that “in a traumatic injury claim for post-retirement disability compensation, the only relevant inquiry is whether claimant’s work injury precluded his return to his usual work at the time of his retirement such that the loss of earning capacity was ‘because of injury.’”
In this case, the claimant worked for the employer for 45 years. He injured his back in 2001 while working as welder. After considerable treatment, he returned to work for the employer in 2011 as a driver. After he advised the employer he intended to retire, the Claimant injured his shoulder, but continued working until the date of his voluntary retirement. The Claimant had surgery for his shoulder after he retired, and he alleged he was entitled to temporary total disability benefits while he recuperated. The Administrative Law Judge agreed, findng that the claimant’s retirement prior to the time of his surgery was irrelevant. The ALJ believed that the claimant need show only that his physical disability was due to the work injury and need not also establish a loss of wage-earning capacity due to the injury.
However, the ALJ found that the claimant had not retired because of his injury. Because of this finding, the Board reversed the ALJ’s award of benefits. As the Board stated, the “reason for claimant’s retirement is central to this case because resolution of that issue determines whether claimant’s disability is ‘because of injury’ pursuant to Section 2(10).” Of course, under Section 2(10), “’Disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment….” Therefore, as the Board reminded, the “disability inquiry encompasses both physical and economic considerations.” Continuing, the Board held that “claimant continued working in a suitable position until he voluntarily retired. Accordingly, as claimant did not establish that either his work-related back or shoulder injury prevented him from working as a driver at the time of his retirement on October 31, 2011, claimant did not establish that he lost any wage-earning capacity ‘because of” his work injuries. Claimant’s retirement had already resulted in his complete loss of earning capacity at the time of his shoulder surgery.”
Moody v. Huntington Ingalls, Inc., BRB No. 15-0314 (3/10/16).
An injury occurring when a claimant fell while stepping out of a shower is covered under the Defense Base Act, according to the Benefits Review Board. The Board applied the zone of special danger doctrine to reach this decision.
The claimant was assigned to force protection duties in Israel. He lived in an apartment selected by and paid for by his employer, and he had to be available for assignment 24 hours a day. His work required him to wear heavy equipment, in a sandy environment, which caused him to become sweaty and dirty by the end of a shift. Yet, his employer required that the claimant maintain his personal appearance and hygiene. This required the claimant to shower every day at the end of his shift. The administrative law judge determined, and the Board affirmed, that ““the obligations or conditions of [claimant’s] employment create[d] the zone of special danger out of which the injury arose,” resulting in the claim being compensable under the zone of special danger doctrine. The zone of special danger doctrine provides that a DBA employee may be within the course of employment when injured, even if the injury did not occur within the space and time boundaries of work, if the “obligations or conditions of employment” create a “zone of special danger” out of which the injury arose. The Board rejected the employer’s argument that showering was an activity purely personal in nature, even though the claimant admitted he would shower daily regardless of any work responsibilities.
Ritzheimer v. Triple Canopy, Inc., BRB No. 15-0233 (2/23/16)
Cataracts allegedly caused by exposure to electric arc welding in a worker permanently assigned to a vessel under repair are covered under the Act, according to the Benefits Review Board.
The claimant was hired under a “crew member agreement” on July 21, 2008, to work aboard the Pacific Glacier, which had returned to port for repairs following a fire some months before. While in drydock, the fire damage was repaired, but the Pacific Glacier also underwent various upgrades including enlarging the wheelhouse and moving it up one level, adding sponsons, and removing and replacing electronics as part of a system upgrade. When hired, the claimant was told he was only helping to rebuild the ship, he would not be a member of the crew when the Pacific Glacier returned to sea. During the repairs, the claimant worked as a fire watch for welders, did stripping, painting and cleaning, and loaded and unloaded equipment with a forklift and crane. Unexpectedly, at the conclusion of the repairs, the employer hired the claimant for sea duty, and he went to sea for the employer for about the next 10 months.
Not long after the claimant stopped working for the employer, he learned he had vision problems. He filed a claim alleging that he developed cataracts as a result to exposure to electric arc welding during his fire watch duties aboard the Pacific Glacier. The administrative law judge found the claimant’s cataracts were caused, at least in part, by his employment while the vessel was in the shipyard. The ALJ also found jurisdiction under the Act, because the Pacific Glacier was “not in navigation” during its repair time in the shipyard, when the claimant’s exposure occurred.
The Board affirmed the finding that the vessel was not in navigation; the employer did not contest the medical causation issue. As to whether a vessel under repair is “in navigation,” the Board explained that the “question in all cases is whether the watercraft’s use for maritime transportation is a practical possibility or merely a theoretical one.” Further, “[s]hips being transformed over extended periods of time through ‘major’ overhauls or renovations may lose their status as vessels in navigation until they are rendered capable of maritime transport.” Whether a vessel remains in navigation during repairs is a factual question. The Board explained that “[i]n assessing whether a vessel is in navigation, ‘the focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done.’” The Board accepted the ALJ’s finding that the repairs were “extensive” and exceeded those necessary to return the vessel to sea. The repairs and improvements took more than a year to complete and involved major system upgrades and structural modifications, which involved changes to the dimensions and buoyancy of the hull. These changes made navigation improbable during the time of these repairs. Further, much of the crew transferred to other vessels. “For these reasons, the administrative law judge concluded that the pattern of the repairs, the extensive nature of the repair work, and the status of the ship all supported a finding that the Pacific Glacier was not in navigation at the time of claimant’s injury.”
Tounkara v. Glacier Fish Company, BRB No. 15-0217 (1/28/16)
The Benefits Review Board recently examined the U.S. Supreme Court’s decision in Pacific Operators Offshore v. Valladolid, 132 S. Ct. 680 (2012). The Board found coverage under the Outer Continental Shelf Lands Act for an offshore worker injured in an accident while driving his personal vehicle from his home in Church Point, Louisiana, to a designated rendezvous site on a dock in Freshwater City, Louisiana. In his employment, the claimant used specialized equipment to test tanks on offshore platforms located on the Outer Continental Shelf. His employer paid him mileage reimbursement and compensation for his onshore travel time. In the year prior to his accident, the employee worked 89.2 percent of his time actually offshore.
The Supreme Court held in Valladolid that an employee’s injuries are covered by OCSLA, even if the injuries do not occur while the employee is on the shelf, if the employee’s injuries have a “substantial nexus” to the employer’s extractive operations on the shelf. The Court stated in Valladolid that there must be “a significant causal link between the injury that [a claimant] suffered and his employer’s on-OCS operations conducted for the purpose of extracting natural resources from the OCS.”
The employer in the recent BRB decision argued that the “substantial nexus” test set out by the Supreme Court in Valladolid meant that the injury must be “caused by” the employer’s actual operations on the Shelf. As a result, the employer argued that the claimant’s injuries, caused by a vehicle accident onshore, were not sufficiently related to its operations on the shelf to merit coverage under OCSLA. Rejecting the employer’s arguments, the Board stated that the Valladolid holding “clearly and unambiguously anticipates” that an employee injured while not on the shelf may nevertheless be covered by OCSLA.
The ALJ had found that the claimant was transporting himself and his equipment to a customer’s boat dock at the time of the car accident, and that the employer paid mileage and wages during this activity. The ALJ also determined that the employee’s work testing tanks was directly related to OCS extractive operations. Therefore, the ALJ ruled, the employee’s work at the time of the accident was in the course of his employment and furthered the employer’s extractive operations on the shelf. Affirming this determination, the Board further explained that, while “coming and going” from work is generally not covered, the employee’s travel to the dock fell under an exception to this rule that provides coverage when the employer pays the employee’s wages and expenses for the travel.
Boudreaux v. Owensby & Kritikos, Inc., BRB No. 15-0117 (12/21/15)
© 2018 Ira J. Rosenzweig