Contents of Main Volume | Contents of Supplement
DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
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TOPIC 60
Topic 60.2 Longshore Act
Extensions--Defense Base Act
Announcement--Possible Gulf War Fire/Lung Cancer Link
According to the Associated Press, a committee of the Institute of Medicine [a
branch of the National Academy of Science, an independent group chartered by
Congress to advise the government on scientific matters], states that Gulf War
personnel exposed to pollution from the well fires, exhaust and other sources
may face an increased lung cancer risk. More than 600 oil well fires were
ignited by Iraqi troops during their retreat from Kuwait in 1991.
Topic 60.2 Longshore Act
Extensions--Defense Base Act
Kalama Servs., Inc. v. Director, OWCP., ___U.S.
___, ____ S.Ct. ____, (S.Ct. No. 03-1440), (Cert. denied Oct. 4,
2004).
Let stand a Second Circuit decision which had found that the Board and
ALJ’s award of benefits under the “zone of special danger” doctrine.
Previously it had been determined that injuries to an off-duty employee during
foreseeable horseplay in a bar on Johnston Atoll arose out of a zone of special
danger created by the isolation of the island and the limited recreational
opportunities available there. Misconduct by the employee during the
horseplay was not sufficiently egregious to sever the relationship between his
employment and the injury under the zone of special danger doctrine.
Topic 60.2 Longshore Act
Extensions--Defense Base Act
Ilaszczat v. Kalama Services, 36 BRBS 78 (2002).
Whether the "zone of special danger" applied to this Defense Base Act
case was the main issue here. The claimant was injured during the time he
worked as the manager of the "Self-Help Store" on the Johnston Atoll,
a two mile long island located in the South Pacific. The claimant initially
sustained a work-related injury to his left leg. Subsequently he sustained an
injury to his left hip while engaging in post-work recreational activity. The
"recreational" injury is the focus of this litigation. After work,
the claimant went for drinks to the "Tiki Bar," where he remained
until closing and then went on to the AMVETS where he bought drinks for a group
of soldiers. He entered into a $100 wager with a military police officer
wherein the claimant bet the officer that the officer could not, in a karate
demonstration, "put [his] leg over [the claimant's] head without touching
[claimant]." At this point there are two versions as to how the claimant
actually injured his hip, but he was taken to the clinic where he stayed for
two days, after which he was transferred to Hawaii for hip surgery. While
recovering, the claimant received notice from the base military commander that
he was expelled from the atoll and was precluded from ever returning. The
employer thereafter discharged the claimant based on the fact that the
debarment order prohibited his return to Johnston Atoll.
The ALJ found that the claimant did fall within the "zone of special
danger" and that his conduct, although perhaps unauthorized and/or
prohibited, was not so egregious as to sever the relationship between his
employment and the injury under the doctrine. The employer on appeal challenges
this finding and further argues that the ALJ ignored the legal "reasonable
recreation" standard, wherein only those incidents in which the claimant's
conduct was reasonable are accepted as falling within the "zone of special
danger" doctrine.
The Board found that the ALJ properly applied the "zone of special
danger" doctrine here. The Board noted that the ALJ had found that the
claimant and the other employees on the atoll had limited choices and
opportunities for recreation, and that this is, presumably, the reason why the
military authorized the operation of "social clubs" on the atoll. The
ALJ had further found that with the existence of clubs serving alcohol to
employees, in combination with the employees' lengthy periods of isolation in
the middle of the Pacific Ocean, it was clearly foreseeable by both the
military authority and the employer that "risky horseplay" or
scuffles such as that which occurred, would occur from time to time. As such,
he determined that the claimant's conduct was not "so far from his
employment" and was not "so thoroughly disconnected from the service
of his employer that it would be entirely unreasonable to say that the injuries
suffered by him arose out of and in the course of his employment."
The ALJ also found, assuming arguendo, that while the claimant was engaged in
"unauthorized" or prohibited behavior (i.e., assuming that the
employer's characterization is accurate and the incident involved wagering and
fighting), this fact alone does not necessarily establish that the claimant's
behavior was unforeseeable. Specifically, the ALJ found that the incident was
"foreseeable, if not foreseen" by the employer and thus the mere fact
that fighting was prohibited does not necessarily preclude the claimant's
recovery even if fighting constituted grounds for expulsion from the atoll.
The Board found that the issue as to whether the claimant should be barred of
benefits because he was discharge and could not return to pot-injury work due
to his own misfeasance became moot since the claimant was never offered any
position by the employer post-injury, nor did the employer establish that
suitable alternate employment would have been available to the claimant at
pre-injury wages, but for, his discharge.
Topic 60.2.1 Extension Acts--Defense Base
Act--Applicability of the LHWCA
Morrissey v. Kiewit-Atkinson-Kenny, 36 BRBS 5 (2002).
In this jurisdiction case, the claimant argued that he had jurisdiction under
the LHWCA either by way of the Outer Continental Shelf Lands Act (OCSLA), the
Defense Base Act (DBA), or the LHWCA itself. The Board upheld the ALJ's denial
of jurisdiction in this matter. The claimant worked on a major construction
project known as the Harbor Clean-up Project undertaken by the Massachusetts
Water Resources Authority to build a new sewage treatment plant and a
discharge, or outfall, tunnel to serve the Boston metropolitan area. The
outfall tunnel is located 400 feet beneath the ocean floor and is to extend
over nine miles from Deer Island into the Atlantic Ocean. The claimant worked
as a member of a "bull gang," and his duties included maintenance of
the rail system, water systems and the tunnel boring machine. He also was
required to shovel muck, a substance he described as a cement-like mixture of
wet dirt and debris, and assisted with the changing of heads or blades on the
tunnel boring machine. When injured, the claimant was working in the outfall
tunnel approximately five miles from Deer Island.
The ALJ found that the claimant's work site was located in bedrock hundreds of
feet below any navigable water and thus could not be viewed as being "upon
the navigable waters of the United States." Additionally the ALJ found
that the claimant was not engaged in maritime employment as his work had no
connection to loading and unloading ships, transportation of cargo, repairing
or building maritime equipment or the repair, alteration or maintenance of
harbor facilities. Further, the ALJ found that the tunnel where the injury
occurred was not an enumerated situs and was not used for any maritime
activities. The ALJ also rejected claims for coverage under the OCSLA and DBA.
The Board first rejected coverage under the OCSLA noting that claimant's
contentions on appeal pertain to the geographic location of the injury site
(more than 3 miles offshore under the seabed), and erroneously disregard the
statutory requirement that the claimant's injury must result from explorative
and extractive operations involving natural resources.
Next, the Board rejected coverage under the DBA. The claimant had contended
that the oversight provided by the United States District Court to the project
is sufficient to bring the claim under the jurisdiction of the DBA. However,
the DBA provides benefits under the LHWCA for those workers injured while
engaged in employment under contracts with the United States, or an agency
thereof, for public work to be performed outside of the continental United
States. The Board stated that the ALJ properly found that the DBA does not extend
coverage for work on projects that must meet federal specifications, guidelines
and statutes, but rather requires that the United States or an agency thereof
be a party to the contract.
Finally the Board rejected coverage directly under the LHWCA. The rock where
the tunnel was being drilled rose above the surface of the water at the point
where the claimant was injured. The bedrock was at all times dry ground, and
there is no assertion that the tunnel itself was used in interstate commerce as
a waterway. Thus, the Board found that the injury did not occur on navigable
water. As to the claimant's contention that he was injured on a "marine
railway," the Board rejected this allegation after examining the
definition of "marine railway" and noting that the claimant did not
contend that the railway used in the tunnel played any part in removing ships
from the water for repair.
Topic 60.2.2 Extension Acts--Defense Base Act--Claim Must Stem From a "Contract" For "Public Work" Overseas
Morrissey v. Kiewit-Atkinson-Kenny, 36 BRBS 5 ( 2002).
In this jurisdiction case, the claimant argued that he had jurisdiction under
the LHWCA either by way of the Outer Continental Shelf Lands Act (OCSLA), the
Defense Base Act (DBA), or the LHWCA itself. The Board upheld the ALJ's denial
of jurisdiction in this matter. The claimant worked on a major construction
project known as the Harbor Clean-up Project undertaken by the Massachusetts
Water Resources Authority to build a new sewage treatment plant and a
discharge, or outfall, tunnel to serve the Boston metropolitan area. The
outfall tunnel is located 400 feet beneath the ocean floor and is to extend over
nine miles from Deer Island into the Atlantic Ocean. The claimant worked as a
member of a "bull gang," and his duties included maintenance of the
rail system, water systems and the tunnel boring machine. He also was required
to shovel muck, a substance he described as a cement-like mixture of wet dirt
and debris, and assisted with the changing of heads or blades on the tunnel
boring machine. When injured, the claimant was working in the outfall tunnel
approximately five miles from Deer Island.
The ALJ found that the claimant's work site was located in bedrock hundreds of
feet below any navigable water and thus could not be viewed as being "upon
the navigable waters of the United States." Additionally the ALJ found
that the claimant was not engaged in maritime employment as his work had no
connection to loading and unloading ships, transportation of cargo, repairing
or building maritime equipment or the repair, alteration or maintenance of
harbor facilities. Further, the ALJ found that the tunnel where the injury
occurred was not an enumerated situs and was not used for any maritime
activities. The ALJ also rejected claims for coverage under the OCSLA and DBA.
The Board first rejected coverage under the OCSLA noting that claimant's
contentions on appeal pertain to the geographic location of the injury site
(more than 3 miles offshore under the seabed), and erroneously disregard the
statutory requirement that the claimant's injury must result from explorative
and extractive operations involving natural resources.
Next, the Board rejected coverage under the DBA. The claimant had contended
that the oversight provided by the United States District Court to the project
is sufficient to bring the claim under the jurisdiction of the DBA. However,
the DBA provides benefits under the LHWCA for those workers injured while
engaged in employment under contracts with the United States, or an agency
thereof, for public work to be performed outside of the continental United
States. The Board stated that the ALJ properly found that the DBA does not
extend coverage for work on projects that must meet federal specifications,
guidelines and statutes, but rather requires that the United States or an
agency thereof be a party to the contract.
Finally the Board rejected coverage directly under the LHWCA. The rock where
the tunnel was being drilled rose above the surface of the water at the point
where the claimant was injured. The bedrock was at all times dry ground, and
there is no assertion that the tunnel itself was used in interstate commerce as
a waterway. Thus, the Board found that the injury did not occur on navigable
water. As to the claimant's contention that he was injured on a "marine
railway," the Board rejected this allegation after examining the
definition of "marine railway" and noting that the claimant did not
contend that the railway used in the tunnel played any part in removing ships
from the water for repair.
Topic 60.2.4 Substantive Rights Determined Under Provisions of LHWCA as Incorporated into the DBA
The third paragraph of this subsection should read as follows:
In Lee v. The Boeing Co., Inc., 123 F.3d 801 (4th Cir.
1997), the issue arose as to whether the DBA incorporated Section 3(e) of the
LHWCA. The claimant had suffered major injuries in a car crash while
working for Boeing in Saudi Arabia. Boeing wanted a credit for payments
that the claimant was receiving from the Occupational Hazards Branch of the
Social Insurance Laws of Saudi Arabia. The ALJ found that such a credit
was appropriate. Lee v. The Boeing Co., 27 BRBS 597
(ALJ)(1994). The Board tacitly affirmed by taking no action on the appeal
within a year. The claimant then appealed the holding to the Fourth
Circuit which found that it did not have jurisdiction to hear the case and
transferred it to the District Court for the District of Maryland.
See Lee v. The Boeing Co., 7 F. Supp. 2d 617 (D. Md. 1998).
Topic 60.2.7 Defense Base Act--Course and Scope of Employment, "Zone of Special Danger"
Kalama Servs., Inc. v. Director, OWCP., ___U.S.
___, ____ S.Ct. ____, (S.Ct. No. 03-1440), (Cert. denied Oct. 4,
2004).
Let stand a Second Circuit decision which had found that the Board and
ALJ’s award of benefits under the “zone of special danger” doctrine.
Previously it had been determined that injuries to an off-duty employee during
foreseeable horseplay in a bar on Johnston Atoll arose out of a zone of special
danger created by the isolation of the island and the limited recreational
opportunities available there. Misconduct by the employee during the
horseplay was not sufficiently egregious to sever the relationship between his
employment and the injury under the zone of special danger doctrine.
Topic 60.2.7 Extension Acts-Defense Base Act, Course and Scope of Employment, "Zone of Special Danger"
Edmonds v. Al Salam Aircraft Co., Ltd.,
(Unpublished)(BRB No. 01-0602) (April 5, 2002).
In this Defense Base Act case the issue was the extent of the "zone of
special danger" concept. Claimant was hit by a car while attempting to cross
a highway in order to go to the supermarket Saudi Arabia. The ALJ found that
claimant, although not injured while performing the duties of his employment,
was nevertheless in the "zone of special danger" created by his
overseas job. The employer here appealed, arguing first, that driving in Saudi
Arabia is no more dangerous than driving in the United States. Second, the
employer urged the Board to reconsider the "zone of special danger"
doctrine "in light of the 21st Century, since applicability of this
doctrine, as exemplified by past case precedent, is premised on an antiquated
view of the world outside of the United States."
After noting Supreme Court jurisprudence on the "zone of special
danger" doctrine, the Board declined to address the employer's invitation
to reconsider the doctrine "in light of the 21st Century, since the
Board's use and application of the ‘zone of special danger' doctrine stems
directly from the binding precedent of the Supreme Court's decisions...
." Next the Board noted that the instant case was no one in which the
claimant was "so thoroughly disconnected" from work for the employer
that it is unreasonable for his injuries to be covered, as the ALJ found that
claimant's injuries were related to his living and working conditions in Saudi
Arabia. The Board noted that the ALJ had determined that the employer did not
provided the claimant with on-base housing, convenient transportation to and
from the base, or fresh food at the commissary on the housing compound, and it
was reasonable for him to buy food off-base. The ALJ had also found that the
claimant was always on call and his hours of work were not consistent; thus it
was reasonable for him to drive his own car. Lastly, the ALJ determined, based
in part on the claimant's credible testimony and a pamphlet distributed by the
employer's predecessor that driving in Saudi Arabia presented hazards not found
in the United States.
Topic 60.2.7 Defense Base Act--Course and Scope of Employment, "Zone of Special Danger"
Ilaszczat v. Kalama Services, 36 BRBS 78 (2002).
Whether the "zone of special danger" applied to this Defense Base Act
case was the main issue here. The claimant was injured during the time he
worked as the manager of the "Self-Help Store" on the Johnston Atoll,
a two mile long island located in the South Pacific. The claimant initially
sustained a work-related injury to his left leg. Subsequently he sustained an
injury to his left hip while engaging in post-work recreational activity. The
"recreational" injury is the focus of this litigation. After work,
the claimant went for drinks to the "Tiki Bar," where he remained
until closing and then went on to the AMVETS where he bought drinks for a group
of soldiers. He entered into a $100 wager with a military police officer
wherein the claimant bet the officer that the officer could not, in a karate
demonstration, "put [his] leg over [the claimant's] head without touching
[claimant]." At this point there are two versions as to how the claimant
actually injured his hip, but he was taken to the clinic where he stayed for
two days, after which he was transferred to Hawaii for hip surgery. While
recovering, the claimant received notice from the base military commander that
he was expelled from the atoll and was precluded from ever returning. The
employer thereafter discharged the claimant based on the fact that the
debarment order prohibited his return to Johnston Atoll.
The ALJ found that the claimant did fall within the "zone of special
danger" and that his conduct, although perhaps unauthorized and/or
prohibited, was not so egregious as to sever the relationship between his
employment and the injury under the doctrine. The employer on appeal challenges
this finding and further argues that the ALJ ignored the legal "reasonable
recreation" standard, wherein only those incidents in which the claimant's
conduct was reasonable are accepted as falling within the "zone of special
danger" doctrine.
The Board found that the ALJ properly applied the "zone of special
danger" doctrine here. The Board noted that the ALJ had found that the
claimant and the other employees on the atoll had limited choices and
opportunities for recreation, and that this is, presumably, the reason why the
military authorized the operation of "social clubs" on the atoll. The
ALJ had further found that with the existence of clubs serving alcohol to
employees, in combination with the employees' lengthy periods of isolation in
the middle of the Pacific Ocean, it was clearly foreseeable by both the
military authority and the employer that "risky horseplay" or
scuffles such as that which occurred, would occur from time to time. As such,
he determined that the claimant's conduct was not "so far from his
employment" and was not "so thoroughly disconnected from the service
of his employer that it would be entirely unreasonable to say that the injuries
suffered by him arose out of and in the course of his employment."
The ALJ also found, assuming arguendo, that while the claimant was engaged in
"unauthorized" or prohibited behavior (i.e., assuming that the
employer's characterization is accurate and the incident involved wagering and
fighting), this fact alone does not necessarily establish that the claimant's
behavior was unforeseeable. Specifically, the ALJ found that the incident was
"foreseeable, if not foreseen" by the employer and thus the mere fact
that fighting was prohibited does not necessarily preclude the claimant's
recovery even if fighting constituted grounds for expulsion from the atoll.
The Board found that the issue as to whether the claimant
should be barred of benefits because he was discharge and could not return to
pot-injury work due to his own misfeasance became moot since the claimant was
never offered any position by the employer post-injury, nor did the employer
establish that suitable alternate employment would have been available to the
claimant at pre-injury wages, but for, his discharge.
Topic 60.3.1 Longshore Act Extensions--Outer Continental Shelf Lands Act—Applicability of the LHWCA
Announcement--Offshore Drilling Workers cannot be required
to take mandatory periodic medical exams under the
ADA
BNA (Daily Labor Report No 228, Nov. 29, 2004) reports that offshore drilling
rig workers cannot be required to take mandatory period medical examinations to
screen for threatening illnesses, according to a September 10, 2004 EEOC informal
advisory letter. The letter, addressed to an inquiring offshore drilling
company, states that EEOC does not believe that workers on remote drilling rigs
fall within the “public safety exception” of the EEOC Enforcement Guidance on
Disability-Related Inquiries and Medical Examinations of Employees Under the
Americans with Disabilities Act (2000). According to BNA, the EEOC stated
alternatives available to such an employer: 1) completely voluntary
medical screenings; 2) a medical exam before being allowed to work on a
platform, provided there is a “reasonable belief that a particular offshore
worker has a medical condition that may affect his or her ability to perform
job functions or may pose a direct threat; 3) requiring all offshore workers to
answer a medical history questionnaire and undergo a medical exam after making
a conditional job offer, with follow-ups where appropriate.
Topic 60.3.1 Longshore Act Extensions--Outer Continental Shelf Lands Act—Applicability of the LHWCA
Nase v. Teco Energy, Inc., (Unpublished)(Civ. Act. No:
04-0838 Sec. “R”(5))(E.D. La Dec. 8, 2004).
This is the consolidated case of two off-shore workers for the alleged exposure
to hazardous, toxic and carcinogenic materials (phosphate and drilling
muds/chemicals) allegedly resulting in diagnoses of “bronchitis obliterans
organizing pneumonia” (BOOP) and non-Hodgkin’s lymphoma. The workers sued
in state court. One made claims under the general maritime law and the
Jones Act, and alternatively, under the LHWCA. The other alleged that he
was a maritime worker entitled to compensation under the LHWCA. The
defendants removed the action to federal court alleging OCSLA jurisdiction, and
the plaintiffs are now moving the court to remand the action to state court.
The district court found that some of the events giving rise to the suit
occurred on the outer Continental Shelf. While acknowledging that
district courts have original jurisdiction over actions governed by OCSLA, the
court stated that it must determine whether the claims “arise under” federal
law. The court stated that in the absence of a clear statement of law by
the Fifth Circuit, it finds that removal under the OCSLA is not proper
when maritime law governs the plaintiff’s claim and one of the defendants is
from the state of suit, as here. As to the defendant from the state of
suit, the defendants argued that that defendant is immune from the intentional
tort claim (that is a part of the litigation) under the LHWCA. While
finding that the defendants are correct with regard to the LHWCA (LCHWA bars
recovery for the intentional tort of another person in the same employ.), the
court noted that the claimant argued only in the alternative that he had LHWCA
coverage. The primary allegations were under the maritime law, Jones Act
and state law. Because there is a possible cause of action in intentional
tort against the in-state defendant that is not barred by either state worker’s
compensation, the court found that there was not fraudulent joinder.
Under the rules of joinder, the court allowed the second worker’s claim to
remain joined and thus both cases were remanded to state court.
Topic 60.3.1 OCSLA—Applicability of the LHWCA
Lively v. Diamond Offshore Drilling, Inc.,
(Unpublished)(No. Civ. A. 03-1989)(E.D. La. August 3, 2004).
At issue here was whether, under the OCSLA, general maritime law or Louisiana
law would apply. (Louisiana law prohibits enforcement of an indemnity provision
pursuant to the Louisiana Oilfield Anti-Indemnity Act ("LOAIA"). In
addressing whether state law would apply as surrogate law, the court reviewed
the law of the Fifth Circuit to determine if federal maritime law
applied of its own force in this case. Noting that circuit law indicates that a
contract to furnish labor to work on special purpose vessels to service oil
wells is a maritime contract, the district court concluded that the worker's
duties were in furtherance of the vessel's primary purpose and that the
agreement was maritime. Thus federal law and not Louisiana law governed.
The court next held that Section 905(c) and not 905(b) governed since the
worker was a non-seaman engaged in drilling operations on the OCS. (As a
non-seaman engaged in drilling operations on the OCS, the worker is subject to
the exclusive remedy of the LHWCA by virtue of 43 U.S.C. § 1333(b) of the
OCSLA, rather than 33 U.S.C. § 901, et seq. When the LHWCA is applicable
by virtue of Section 1333(b), the third-party remedy against the vessel owner
is governed by Section 905(c). ) Under Section 905(c) "any reciprocal
indemnity provision" between the vessel and the employer is enforceable.
Topic 60.3.1 Outer Continental Shelf Lands
Act—Applicability of the LHWCA
Desoto v. Pride International, Inc., (Unpublished)
(No. Civ. A 03-1868)(E.D. La. March 3, 2004).
Here a Motion for Summary Judgment was granted to the defendants because the
claimant was injured on a fixed platform located within the territorial waters
of Mexico, within the Gulf of Mexico. The plaintiff was injured by a falling
crate while employed as a crane operator and motorman mechanic aboard a
drilling rig. The plaintiff alleged federal question jurisdiction and in an
amended complaint relied upon the general maritime law of the United States
("GML") and the OCSLA. The fact that the accident occurred on a fixed
platform in Mexican territorial waters was uncontested. Since the Fifth
Circuit has previously held that an injury on a fixed platform does not
fall within the admiralty and maritime jurisdiction, the district court found
that the GML does not support federal question jurisdiction. The court further
found that the OCSLA was inapplicable since the OCSLA provides that "the
soil and seabed of the outer continental Shelf appertain to the United States
and are subject to its jurisdiction, control, and power of disposition."
Thus, the claim was outside the scope of the OSCLA. (Cf. Weber v.
S.C.Loveland Co. (Weber II), 35 BRBS 75 (2001)(Claimant injured in the port
of Kingston, Jamaica, while walking on employer's catwalk on barge, was covered
under the LHWCA.)
Topic 60.3.1 Outer Continental Shelf Lands
Act—Applicability of the LHWCA
Hebert v. Pride International, (Unpublished) (Civ. No.
03-0804)(E. D. La. March 5, 2004); 2004 U.S. Dist. LEXIS 3436.
This OCS summary judgment matter dealt with whether a worker was a borrowed
employee making his exclusive remedy workers' compensation benefits under the
LHWCA. Noting Fifth Circuit case law, the federal district court listed
the nine factors a court must consider in making a borrowed employee
determination.
Topic 60.3.1 Extension Acts--Outer Continental
Shelf Lands Act Applicability
Morrissey v. Kiewit-Atkinson-Kenny, 36 BRBS 5
(2002).
In this jurisdiction case, the claimant argued that he had jurisdiction under
the LHWCA either by way of the Outer Continental Shelf Lands Act (OCSLA), the
Defense Base Act (DBA), or the LHWCA itself. The Board upheld the ALJ's denial
of jurisdiction in this matter. The claimant worked on a major construction
project known as the Harbor Clean-up Project undertaken by the Massachusetts
Water Resources Authority to build a new sewage treatment plant and a
discharge, or outfall, tunnel to serve the Boston metropolitan area. The
outfall tunnel is located 400 feet beneath the ocean floor and is to extend
over nine miles from Deer Island into the Atlantic Ocean. The claimant worked
as a member of a "bull gang," and his duties included maintenance of
the rail system, water systems and the tunnel boring machine. He also was
required to shovel muck, a substance he described as a cement-like mixture of
wet dirt and debris, and assisted with the changing of heads or blades on the
tunnel boring machine. When injured, the claimant was working in the outfall
tunnel approximately five miles from Deer Island.
The ALJ found that the claimant's work site was located in bedrock hundreds of
feet below any navigable water and thus could not be viewed as being "upon
the navigable waters of the United States." Additionally the ALJ found
that the claimant was not engaged in maritime employment as his work had no
connection to loading and unloading ships, transportation of cargo, repairing
or building maritime equipment or the repair, alteration or maintenance of
harbor facilities. Further, the ALJ found that the tunnel where the injury
occurred was not an enumerated situs and was not used for any maritime
activities. The ALJ also rejected claims for coverage under the OCSLA and DBA.
The Board first rejected coverage under the OCSLA noting that claimant's
contentions on appeal pertain to the geographic location of the injury site
(more than 3 miles offshore under the seabed), and erroneously disregard the
statutory requirement that the claimant's injury must result from explorative
and extractive operations involving natural resources.
Next, the Board rejected coverage under the DBA. The claimant had contended
that the oversight provided by the United States District Court to the project
is sufficient to bring the claim under the jurisdiction of the DBA. However,
the DBA provides benefits under the LHWCA for those workers injured while
engaged in employment under contracts with the United States, or an agency
thereof, for public work to be performed outside of the continental United
States. The Board stated that the ALJ properly found that the DBA does not
extend coverage for work on projects that must meet federal specifications,
guidelines and statutes, but rather requires that the United States or an
agency thereof be a party to the contract.
Finally the Board rejected coverage directly under the LHWCA. The rock where
the tunnel was being drilled rose above the surface of the water at the point
where the claimant was injured. The bedrock was at all times dry ground, and
there is no assertion that the tunnel itself was used in interstate commerce as
a waterway. Thus, the Board found that the injury did not occur on navigable
water. As to the claimant's contention that he was injured on a "marine
railway," the Board rejected this allegation after examining the
definition of "marine railway" and noting that the claimant did not
contend that the railway used in the tunnel played any part in removing ships from
the water for repair.
Topic 60.3.1 Outer Continental Shelf Lands
Act–Applicability of the LHWCA
Demette v. Falcon Drilling Co., Inc., 280 F.3d 492 (5th
Cir. Jan. 16, 2002); en banc pet.denied, 37 Fed. Appx 93 (table)(5th
Cir. March 5, 2002); 2002 WL 1022097.
[ED. NOTE: This opinion was substituted for
a previous one styled the same and reported at 253 F.3d 840 (5th Cir.
2001).]
In determining that an OCSLA case was covered by the LHWCA and that the LHWCA did
not invalidate an indemnity agreement, the Fifth Circuit, for the first
time, specified the "exact contours of the situs test" established by
Section 1333 of the OCSLA.
The Fifth Circuit formulated a specific rule:
The OCSLA applies to all of the following locations:
(1) the subsoil and seabed of the OCS;
(2) any artificial island, installation, or other device if
(a) it is permanently or temporarily attached to the seabed of the OCS, and
(b) it has been erected on the seabed of the OCS, and
(c) its presence on the OCS is to explore for, develop, or produce resources
from the OCS;
(3) any artificial island, installation, or other device if
(a) it is permanently or temporarily attached to the seabed of the OCS, and
(b) it is not a ship or vessel, and
(c) its presence on the OCS is to transport resources from the OCS.
Topic 60.3.1 OCSLA–Applicability of the LHWCA
Diamond Offshore Co. v. A & B Builders, Inc., 302
F.3d 531 (5th Cir. 2002).
This 905(b) summary judgment case concerning whether there has been a breach of
an indemnity provision in a contract, has an extensive discussion of
"situs" and "status" under the OCSLA. The matter was
remanded for supplementation of the record in order for there to be a
determination as to if there was a genuine issue of material fact as to whether
the repair contractor's employee's injury on an offshore drilling rig qualified
as an OCSLA situs so that the contractor could validly contract to indemnify
the operator of the rig with respect to the injury. The court noted that
because an employee of a contractor repairing an offshore drilling rig was
injured on navigable water (qualifying for benefits under the LHWCA) did not
preclude the possibility of also qualifying for benefits under the OCSLA. If
the worker qualified for benefits directly under the OSCLA, the contractor
could validly contract to indemnify the rig operator as to the worker's injury.
Topic 60.3.2 Longshore Act Extensions--Outer Continental Shelf Lands Act—Coverage—(Situs, Status, “But for” Test)
Nase v. Teco Energy, Inc., (Unpublished)(Civ. Act. No:
04-0838 Sec. “R”(5))(E.D. La Dec. 8, 2004).
This is the consolidated case of two off-shore workers for the alleged exposure
to hazardous, toxic and carcinogenic materials (phosphate and drilling
muds/chemicals) allegedly resulting in diagnoses of “bronchitis obliterans organizing
pneumonia” (BOOP) and non-Hodgkin’s lymphoma. The workers sued in state
court. One made claims under the general maritime law and the Jones Act,
and alternatively, under the LHWCA. The other alleged that he was a
maritime worker entitled to compensation under the LHWCA. The defendants
removed the action to federal court alleging OCSLA jurisdiction, and the
plaintiffs are now moving the court to remand the action to state court.
The district court found that some of the events giving rise to the suit occurred
on the outer Continental Shelf. While acknowledging that district courts
have original jurisdiction over actions governed by OCSLA, the court stated
that it must determine whether the claims “arise under” federal law. The
court stated that in the absence of a clear statement of law by the Fifth
Circuit, it finds that removal under the OCSLA is not proper when maritime
law governs the plaintiff’s claim and one of the defendants is from the state
of suit, as here. As to the defendant from the state of suit, the
defendants argued that that defendant is immune from the intentional tort claim
(that is a part of the litigation) under the LHWCA. While finding that
the defendants are correct with regard to the LHWCA (LCHWA bars recovery for
the intentional tort of another person in the same employ.), the court noted
that the claimant argued only in the alternative that he had LHWCA
coverage. The primary allegations were under the maritime law, Jones Act
and state law. Because there is a possible cause of action in intentional
tort against the in-state defendant that is not barred by either state worker’s
compensation, the court found that there was not fraudulent joinder.
Under the rules of joinder, the court allowed the second worker’s claim to remain
joined and thus both cases were remanded to state court.
Topic 60.3.2 Longshore Extension Acts—Outer
Continental Shelf Lands
Act—Coverage
Kirkpatrick v. B.B.I, Inc., 38 BRBS 27 (2004).
The Board affirmed the ALJ's finding that the claimant was covered by the OCSLA
although the claimant was not directly involved in the physical construction of
an offshore platform. The parties had stipulated that the worker's
"primary job function was supervising the ordering and transportation of
materials necessary to the construction of the Conoco platform complex, upon
which he was injured." As the claimant's purpose for being on the platform
was to procure supplies necessary to construct the platform, and his injury
occurred during the course of his duties, his work satisfies the OCSLA status
test.
The Board also found that Sections 12 and 13 apply to a claimant's notice of
injury and claim for compensation due to his injury; these sections do not
apply to a carrier seeking a determination that another carrier is responsible
for claimant's benefits. The Board stated, "There is, in fact, no
statutory provision requiring a carrier seeking reimbursement from another carrier
to do so within a specified period."
Here INA claimed that it relied on Houston General's 12 year acceptance of this
claim and, to its detriment, "is now facing a claim for reimbursement
approaching three-quarters of a million dollars, without the opportunity to
investigate contemporaneously, manage medical treatment, engage in vocational
rehabilitation, monitor disability status, etc." The Board rejected this
argument "as there was no representation or action of any detrimental reliance,
there can be no application of the doctrine of equitable estoppel."
Further, the Board noted that the doctrine of laches precludes the prosecution
of stale claims if the party bringing the action lacks diligence in pursuing
the claim and the party asserting the defense has been prejudiced by the same
lack of diligence. Additionally the Board noted that because the LHWCA contains
specific statutory periods of limitation, the doctrine of laches is not
available to defend against the filing of claims there under. "As the
claim for reimbursement is related to claimant's claim under the Act by
extension of OCSLA, and as the Supreme Court has stated that the doctrine of
laches does not apply under the OCSLA, the doctrine of laches does not apply to
this case.
The Board found that neither judicial estoppel or equitable estoppel applied
and noted that "jurisdictional estoppel" is a fictitious doctrine.
The Board vacated the ALJ's ruling that he did not have jurisdiction to address
the issue of reimbursement between the two insurance carriers. "Because
INA's liability evolved from claimant's active claim for continuing benefits,
and because its responsibility for those benefits is based entirely on the
provisions of the Act, as extended by the OCSLA, we vacate the [ALJ's]
determination that he does not have jurisdiction to address the reimbursement
issue, and we remand the case to him…."
Topic 60.3.2 Extension Acts—Outer Continental
Shelf Lands Act--Coverage
Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC.,
373 F.3d 183 (1st Cir. 2004).
Here the First Circuit notes that windmills to be erected in Nantucket
Sound would be subject to the jurisdiction, control, and power of the United
States government, according to the OCSLA and would be a natural resource
reserve held by the Federal Government for the public. News reports from New
Orleans indicate that there is growing consideration to develop new rigs, as
well as abandoned oil rigs, as alternative energy source wind turbines in the
Gulf of Mexico.
Topic 60.3.2 OCSLA–Coverage
Diamond Offshore Co. v. A & B Builders, Inc., 302
F.3d 531 (5th Cir. 2002).
This 905(b) summary judgment case concerning whether there has been a breach of
an indemnity provision in a contract, has an extensive discussion of
"situs" and "status" under the OCSLA. The matter was
remanded for supplementation of the record in order for there to be a
determination as to if there was a genuine issue of material fact as to whether
the repair contractor's employee's injury on an offshore drilling rig qualified
as an OCSLA situs so that the contractor could validly contract to indemnify the
operator of the rig with respect to the injury. The court noted that because an
employee of a contractor repairing an offshore drilling rig was injured on
navigable water (qualifying for benefits under the LHWCA) did not preclude the
possibility of also qualifying for benefits under the OCSLA. If the worker
qualified for benefits directly under the OSCLA, the contractor could validly
contract to indemnify the rig operator as to the worker's injury.
Topic 60.3.4 OCSLA v. Admiralty v. State
Jurisdiction
Lively v. Diamond Offshore Drilling, Inc.,
(Unpublished)(No. Civ. A. 03-1989)(E.D. La. August 3, 2004).
At issue here was whether, under the OCSLA, general maritime law or Louisiana
law would apply. (Louisiana law prohibits enforcement of an indemnity provision
pursuant to the Louisiana Oilfield Anti-Indemnity Act ("LOAIA"). In
addressing whether state law would apply as surrogate law, the court reviewed
the law of the Fifth Circuit to determine if federal maritime law
applied of its own force in this case. Noting that circuit law indicates that a
contract to furnish labor to work on special purpose vessels to service oil
wells is a maritime contract, the district court concluded that the worker's
duties were in furtherance of the vessel's primary purpose and that the
agreement was maritime. Thus federal law and not Louisiana law governed.
The court next held that Section 905(c) and not 905(b) governed since the
worker was a non-seaman engaged in drilling operations on the OCS. (As a
non-seaman engaged in drilling operations on the OCS, the worker is subject to
the exclusive remedy of the LHWCA by virtue of 43 U.S.C. § 1333(b) of the
OCSLA, rather than 33 U.S.C. § 901, et seq. When the LHWCA is applicable
by virtue of Section 1333(b), the third-party remedy against the vessel owner
is governed by Section 905(c). ) Under Section 905(c) "any reciprocal
indemnity provision" between the vessel and the employer is enforceable.
Topic 60.4.1 Nonappropriated Fund Instrumentalities Act–Applicability of the LHWCA
Hargrove v. Coast Guard Exchange System, 37 BRBS 21
(2003).
Here the Board held that active duty military personnel are excluded from
coverage under the Nonappropriated Fund Instrumentalities Act (NFIA). The
claimant, while on active duty in the United States Coast Guard, sustained a
low back injury during the course of his part time, off-duty, employment as a
sales clerk at the Coast Guard Exchange Mini Mart.
The claimant had argued that nowhere in the statute are active military
personnel in their off-duty hours excluded from the definition of “employee”
under the NFIA. Further, the claimant also argued that the dropping of
the word “civilian” from 5 U.S.C. § 8171(a) is indicative of Congressional
intent to include military personnel who work for nonappropriated fund
instrumentalities in their off-duty hours. However, the Board found that
the deletion of the word “civilian” was not intended to include military
personnel within the coverage of NFIA. Rather, the annotation to Section
8171 states that the word “civilian” was dropped from Section 8171(a) as it was
determined to be unnecessary, since “the definition of ‘employee’ in Section
2105 includes only civilians.” See Annotation to 5 U.S.C.A. § 8171
(West 1986); see also 5 U.S.C. § 2105(a). The Board also noted
that “the implementing regulations of the various branches of the military, as
well as the lone-standing position of DOL, explicitly speak to this issue and
cannot be ignored.”
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