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)
© 2018 Ira J. Rosenzweig