TOPIC 60 LONGSHORE ACT EXTENSIONS
[ED. NOTE: By
express provision of the Defense Base Act (DBA), 42 U.S.C. § 1651 et seq.,
the Outer Continental Shelf Lands Act (OCLSA), 43 U.S.C. § 1331 et seq.,
the Nonappropriated Fund Instrumentalities Act (NFIA/NAFI), 5 U.S.C. § 8171 et seq.,
5 U.S.C § 2105, and the War Hazards
Compensation Act (WHCA), 42 U.S.C. § 1701 et seq., (see also the
District of Columbia Workers' Compensation Act), the individuals subject to
said acts are covered for workers' compensation
purposes by the LHWCA, as amended, 33 U.S.C. § 901 et seq.
Aspects of the reported cases common to LHWCA cases generally are discussed elsewhere
in this text. Only aspects which are peculiar to the extension acts are digested in this section (with
the exception of a few cases which are considered particularly noteworthy).]
60.1 DISTRICT OF COLUMBIA WORKERS' COMPENSATION ACT
60.1.1 Applicability of the D.C. Act v. the LHWCA
The District of Columbia Workmen's
Compensation Act of 1928, 36 D.C. Code § 501 et seq.
(1973) (the 1928 Act), extends the provisions of the LHWCA to injuries and
deaths arising out of employment in the District of Columbia. In 1979, the
District of Columbia government repealed the
1928 Act and enacted its own workers' compensation law, which became effective
on July 26, 1982. The District of Columbia Workers' Compensation Act of 1979,
36 D.C. Code § 301 et seq. (1981)
(the 1982 Act).
The 1982 Act "narrowed the scope
of coverage and lowered the level of benefits available to injured workers." Railco Multi-Constr. Co. v. Gardner, 564 A.2d 1167, 1171 (D.C. 1989). The
1982 Act is administered by the District of Columbia Department of Employment Services with
judicial review of administrative decisions in the D.C. Court of Appeals. Id.
Injuries to employees in the District of Columbia occurring prior to July 26, 1982, the
effective date of the 1982 Act, are covered by the LHWCA. Although an employee's death occurred
after the effective date of the 1982 Act, there was liability for death benefits under the LHWCA since
the employer first incurred liability for compensation in 1975, when the employee became
permanently and totally disabled by his work-related condition (mental illness caused by
employment stress). Lynch v. Washington Metro Area Transit Auth., 22 BRBS 351 (1989).
The Board has held that in an occupational disease claim, if the claimant meets the coverage
requirements of Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469 (1947), during exposure to
injurious stimuli prior to July 26, 1982, jurisdiction over the claim properly rests with the
Department of Labor under the LHWCA as extended by the 1982 Act. Exposure after July 26, 1982,
which is not covered under the 1982 Act, does not affect the employer's liability under the 1928 Act
for injurious exposure which occurred prior to July 26, 1982. Gardner, 564 A.2d 1167; see also
Pryor v. James McHugh Constr. Co.,
18 BRBS 273 (1986); 20 C.F.R. § 701.101(b).
Where an employee was injured while the 1928 Act was in effect, but dies of causes
unrelated to his employment injuries after the 1982 Act went into effect, the 1928 Act gives the U.S.
Department of Labor jurisdiction to award death benefits to the widow of the employee. Shea v.
Director, OWCP, 24 BRBS 170 (CRT) (D.C. Cir. 1991) (claim for death benefits, like a claim for
disability benefits, is derivative of the employment injury).
The District of Columbia Circuit has held that, as the repeal of the 1928 Act had the effect
of severing the application of the LHWCA to the District of Columbia, the 1984 Amendments to
the LHWCA have no effect on and are not to be applied to claims for injuries sustained prior
to the effective date of repeal of the 1928 Act. Pryor v. James McHugh Constr. Co., 27 BRBS 47
(1993). In Pryor, the claimant was exposed to injurious stimuli prior to July 26, 1982, the effective
date of the 1982 Act. Thus, the claim was under the jurisdiction of the LHWCA as extended by the
1928 Act, to which the 1984 Amendments did not apply. In Pryor, the Board noted that the burden
of establishing non-coverage of a claim under the 1928 Act falls on the employer.
Since it was the 1984 Amendments to the LHWCA which extended to two years the time
allowed to file a claim, the claimant in Pryor could not avail himself of the new two-year filing
period. Therefore, the Board held that claims under the 1928 Act are governed by the time
limitations imposed by Sections 12 and 13 of the LHWCA as they existed prior to the 1984
Amendments. Since the claimant's date of awareness was September 1982 and the claim was not
filed until more than one year after that date, the Board found that the claimant had failed to comply
with the time limitations.
The provisions of the LHWCA, as they existed in 1982, are preserved for the benefit of
employees whose claims are derived from injuries occurring prior to enactment of the 1982 Act.
Keener v. Washington Metro. Area Transit Auth., 800 F.2d 1173 (D.C. Cir. 1986), cert. denied, 480
U.S. 918 (1987).
In occupational disease cases, "manifestation" (rather than "exposure")
after the effective date of the 1982 Act triggers coverage of the 1982 Act. Railco Multi-Constr. Co. v. Gardner, 23
BRBS 69 (CRT) (D.C. Cir. 1990). Finding no controlling precedent, the District of Columbia
Circuit certified the question to the District of Columbia Court of Appeals. In its response
opinion, 564 A.2d 1167, that court held that manifestation after the effective date triggers coverage
by the 1982 Act, but that any gap in coverage would be filled by continued application of the 1928
Act.
[ED. NOTE: The District of Columbia Circuit is compelled to defer to the holding of the District
of Columbia Court of Appeals since a matter of local law is involved. Hall
v. C & P Tel. Co., 19
BRBS 67 (CRT) (D.C. Cir. 1987).]
60.1.2 Determining Coverage Under the D.C. Act: The Cardillo Test
Coverage under the Act applies to employees of employers carrying on any business in the
District of Columbia, irrespective of where the injury occurs. The term "employer" means every
person carrying on any employment in the District, and the term "employee" means
every employee of any such person. 36 D.C. Code § 501. The Board has held that a general partner is not an
"employee" within the meaning of the Act. Duncan
v. D & K Foreign Auto Repair, 17 BRBS 40
(1985).
The burden of disproving jurisdiction falls upon the employer. Edgerton v. Washington
Metro. Area Transit Auth., 24 BRBS 88 (CRT) (D.C. Cir. 1991).
The Section 20(a) presumption of jurisdiction "applies with equal force to
proceedings under the District of Columbia Act."
Cardillo, 330 U.S. at 474.
The courts have developed a two-prong test to determine whether the Act covers specific
claimants. First, the fact-finder must determine whether the employer carries on any
employment in the District. Cardillo, 330 U.S. 469. If the fact-finder determines that the employer
carries on some employment in the District, he must then weigh the contacts between the employee,
the employer, and the District and determine whether the contacts are substantial enough to
confer jurisdiction. The Section 20(a) presumption applies to the issue of jurisdiction in cases
arising under the Act. Cardillo, 330 U.S. 469; see Dorn v. Safeway Stores, Inc., 18 BRBS 178
(1986).
In order to be carrying on employment in the District, the employer must have some
employment activities in the District. In Carraway v. LTD Contracting Co., 16 BRBS 210 (1984),
the employer had completed its single project in the District more than one year prior to the date of
injury and neither solicited nor accepted any other work in the District. The fact that the employer
occasionally published employment opportunities in the Washington Post was insufficient alone to
establish that employer carried on employment in the District. In Gatling v. Colonial Masonry, Inc.,
11 BRBS 123 (1979), the Board held that the employer must be carrying on employment within the
same time frame as the employment injury for jurisdiction to exist.
It should be noted that facts which may constitute contacts under the second part of the
jurisdiction test, discussed below, do not necessarily indicate that the employer is carrying on
employment. In Oliver v. Frank Brisco Co.,
8 BRBS 684 (1978), the employer submitted bids on construction jobs located
within the District; hired employees through unions located throughout the
metropolitan Washington area, including the District; 40 percent of employer's
employees were District residents; and the claimant was hired through a message
sent to him at his brother's home
in the District. The Board observed that "[a]lthough some of the factors constitute
contacts with the District of Columbia, they do not constitute the carrying
on of any employment in the District of
Columbia." Id. at 686. See also Hill v. Allied Aviation Serv. Co., 8 BRBS 204 (1978).
The second prong of the two-part jurisdiction test requires "substantial
contacts" between
the employee, the employer, and the District. In Cardillo, 330 U.S. 469, the Supreme Court listed
several factors which it considered relevant in determining whether substantial contacts exist to
support jurisdiction under the Act. Those factors are: the employee's place of residence, the
employer's place of business, the place of contract of hire, the employee's prior work in the District
over a period of years, the place from which the employee received direction while working outside
of the District, the place from which the employee was paid, and whether the employee was subject
to transfer to the District.
Another important factor is whether the claimant recently performed services on behalf of
the employer within the District. Pfister v. Director, OWCP, 675 F.2d 1314, 15 BRBS 139 (CRT)
(D.C. Cir. 1982), aff'g Pfister v. Delta Airlines, Inc., 10 BRBS 677 (1979); Director, OWCP v.
National Van Lines, Inc. (Riley), 613 F.2d 972, 11 BRBS 298 (D.C. Cir. 1979), cert. denied, 448
U.S. 907 (1980); Saunders v. Jumbo Food Stores, Inc., 16 BRBS 245 (1984).
Although these factors are all relevant, not all of them need be met for jurisdiction to be
proper. Cardillo did not specify
how many of the enumerated contacts were required to exist before contacts
were "substantial."
Especially significant are those cases finding jurisdiction where the employee was not a
resident of the District and the injury did not occur in the District. In National Van Lines, the
claimant was a resident of Virginia who was injured in New York while delivering goods picked up
in the District, Maryland, and Virginia. The court noted that the usual indicia of connection, such
as the residence of the employee, headquarters of the employer, and place of entering the contract,
were absent, but determined that the common indicia of connection were unimportant. The court
found that the interstate nature of employer's business and employment-related activities in the
Washington, D.C. metropolitan area were sufficient to establish jurisdiction.
In National Van Lines, the District of Columbia Circuit stated
that the 1928 D.C. Act authorizes the "widest permissible extraterritorial application" of
the LHWCA to employers which do business in the District. 613 F.2d at 979; Edgerton, 24 BRBS at 90 (CRT). But cf. Exhibit Aids,
Inc. v. Kline, 20 BRBS 1 (CRT) (4th Cir. 1987) (where employer carried on 40 to 50 percent of its
business in the District and claimant intermittently entered the District on this business, there was
not a substantial connection between employee, employer, and the District sufficient to confer
jurisdiction).
he District of Columbia Circuit, the primary venue for these cases, has generally held to
the National Van Lines position. For example, where a foreign enterprise established a District
facility to recruit metropolitan district area workers and continuously develop United States supply
sources for projects abroad, it was held that there was no over extension of the DCW Act into
domains exclusively reserved to other states or nations. Gustafson v. International Progress Enters.,
20 BRBS 31 (CRT) (D.C. Cir. 1987).
In Gustafson, the decedent, who had lived in Arlington, Virginia, was hired by the employer's
District facility and worked there prior to working for the employer in Saudi Arabia (where his death
occurred). The court found that there were substantial contacts between the employer, the employee,
and the District sufficient to establish jurisdiction under the LHWCA as extended by the DCW Act.
In Greenfield v. Volpe Construction Co., Inc., 849 F.2d 635, 21 BRBS 118 (CRT) (D.C. Cir.
1988), rev'g 20 BRBS 46 (1987), the District of Columbia Circuit expressed its intention to assume
jurisdiction over any injuries giving rise to claims under the DCW Act, regardless of whether the
injury giving rise to the claim actually occurred in the District.
National Van Lines notwithstanding, in Butts
v. Fischbach & Moore and Comstock, 22
BRBS 424 (1989), the Board found there was a lack of evidence of substantial contacts where the
claimant did not reside in the District, his job site was not in the District, he never traveled to the
District in the course of his employment, and he was not hired in the District. See also Dupree v.
Kiewit-Shea Construction Co., 21 BRBS 229 (1988), wherein the Board held that the District's
interest in the subway construction project (which was outside the District) or the fact that the
general contractor was the Washington Metropolitan Area Transit Authority, was not sufficient to
confer jurisdiction under the DCW Act absent any other incidents of contact between the District,
the claimant, and the employer.
In Dupree, the claimant's duties as an underground miner were confined exclusively to the
Maryland jobsite, he worked for Nebraska corporations which maintained a Maryland office. The
claimant had been sent in 1981 from the union hall in the District to the Maryland job site where he
was hired by the District union steward. His Maryland job never required him to travel into the
District.
For another case where the Board found the contacts to be insufficient, see Smith v. ITT
Continental Baking Co., 20 BRBS 142 (1987).
The Board found MacRae v. MacMyer Investments, Ltd., 21 BRBS 332 (1988) to be
distinguishable from National Van Lines. In MacRae, the claimant's employment relationship was
established and the injury occurred in a Maryland town approximately 60 miles from the District
(not in the District's metropolitan area). The Board held that although the claimant made several
trips into the District during his employment, there were insufficient contacts to find jurisdiction.
This case, however, can be contrasted with Greenfield v. Volpe Construction Co., Inc., 21
BRBS 118 (CRT) (D.C. Cir. 1988). In Greenfield, the District of Columbia Circuit found
a substantial connection existed where the claimant was injured while working
on a job (the Metro
subway system) which was "a matter of public concern to the District." The
court also noted, however, that the claimant physically returned to the District
on work-related tasks even after his
transfer to Virginia. See Norfleet v. Holladay-Tyler Printing Corp., 20 BRBS 87 (1987) (making
deliveries in the District is carrying on employment there).
The Board has disagreed strongly with the holding in National Van Lines but has followed
the decision in factually-similar cases arising in the District of Columbia Circuit. See Horton v.
A. B. Dick Co., 21 BRBS 101 (1988); Robidoux v. Xerox Corp., 18 BRBS 209 (1986); Walker
v. Desks & Furnishings, 17 BRBS 239 (1985); Brocklehurst v. Giant Food, Inc., 16 BRBS 220 (1984).
In Phillips v. Craft Master Corp., 14 BRBS 330 (1981), the claimant was not a District
resident at the time of his injury and was working exclusively outside of the District when the injury
occurred. The Board held that substantial contacts existed to establish jurisdiction where the
claimant had contracted for hire in the District, initially worked in the District, and was subject to
transfer back to the District by the same employer. See also Shorb v. Peoples Life Ins. Co., 22
BRBS 67 (1989).
In Cunningham v. Washington Gas Light Co., 12 BRBS 177 (1980), the Board held that
where the claimant had previously worked in the District and was transferred outside of the District,
it was to be assumed, in the absence of specific evidence to the contrary, that he was subject to
transfer back to the District.
For cases finding no substantial contacts, see Pfister, 675 F.2d 1314, 15 BRBS 139 (CRT);
Butler v. Continental Western Lines, Division of Trailways, Inc., 668 F.2d 1374 (D.C. Cir. 1981),
aff'g 13 BRBS 1 (1980); Dorn, 18 BRBS 178; Sanford v. Shenandoah's Pride Dairy, 16 BRBS 237
(1984).
In Pfister, neither a showing of one isolated contact by the employee with the District nor the
employer's operation of ticket offices in the District were sufficient contacts where overwhelming
evidence located the employment relationship in Virginia. In Butler, the employer's three
subsidiaries operating in the District and the District residence of claimants (employee's children)
were insufficient to confer jurisdiction where the employee's work for the employer had never
brought him within 2000 miles of the District and the employee did not reside in the District.
In Dorn, 18 BRBS 178, the claimant, who was hired in the District, lived and worked in the
District for nine years before requesting a transfer to Maryland, where she lived and worked for 13
years prior to filing a claim under the LHWCA. The Board held that claimant had severed her
contacts with the District when she transferred to Maryland. The Board distinguished National Van
Lines based on the specific location of the employment relationship.
In National Van Lines, the claimant regularly entered the District during the course of his
employment. Unlike the situation in National Van Lines, once the claimant in Dorn transferred to
Maryland she lived and worked exclusively in Maryland, thereby severing all employment ties with
the District. Accord, Gustafson, 18 BRBS 191. See also Basinger v. Kaufmann Graphics, Inc., 19
BRBS 165 (1986) (where the only contact claimant had with the District consisted of phone calls
to District suppliers, there were clearly no substantial contacts).
In Sanford, 16 BRBS 237, the Board held that past contact with the District, standing alone,
did not support a finding of substantial contacts. The claimant's travel through the District did not
constitute a contact because he did not perform any services there for the employer and was not
required to travel through the District by the employer.
60.1.3 D.C. Act and determining Average Weekly Wage
In Kubin v. Pro-Football, Inc., 29 BRBS 117 (1995), the claimant was a former football
player for the Washington Redskins who had suffered an injury while lifting weights. The issue was
raised as to whether the claimant's average weekly wage should be based on his earning capacity
at the time of the injury or at the point he realized the full extent of the disability. In 1981, when the
injury occurred, his salary was significantly smaller than in 1985 when the latent injury fully
manifested itself. The Board upheld the ALJ's use of the average weekly wage at the time the
injury became manifest. Id. at 121. The Board, and the ALJ, were following the holding in Johnson
v. Director, OWCP, 911 F.2d 247 (9th Cir. 1990), cert. denied, 499 U.S. 959 (1991), which treated
latent injuries in the same manner as an occupational disease. In both cases the actual time of the
injury does not coincide with the claimant's realization of the full extent of his disability.
60.1.4 D.C. Act and Medical Cost
The Claimant, a resident of Austin, Texas, sought medical treatment following his injury.
The employer constructively refused treatment and the claimant sought treatment at the Boston Pain
Center. Schoen v. U.S. Chamber of Commerce, 30 BRBS 112 (1996). Comparable, though less
expensive, treatment was available to the claimant at the Baylor Medical Clinic in Houston, Texas;
however, he decided to go to the Boston Clinic. The Board upheld the ALJ's limitation of the
claimant's recovery to the amount that the claimant would have been able to recover had the
treatment been done locally at the Baylor Medical Clinic.
60.1.5 D.C. Act and Section 14(f) Penalties
In Holliday v. Todd Shipyards Corp., 654 F.2d 415, 13 BRBS 741 (5th Cir. 1981), the Fifth
Circuit had held that the rate paid for permanent total disability should include all intervening
Section 10(f) adjustments occurring during periods of prior, temporary total disability should include
all intervening Section 10(f) adjustments occurring during periods of prior, temporary total
disability.
In Brandt v. Stidham Tire Co., 785 F.2d 329 (D.C. Cir. 1986),
at 332, 18 BRBS 73(CRT), at 78, the District of Columbia Circuit stated, "In
sum, we accept the Holliday ruling as the proper
reading of the statue in this circuit at least until the precedent is overruled in the Fifth Circuit..."
Holliday was overruled en banc by the Fifth Circuit in Phillips v. Marine Concrete Structures, Inc.,
895 F.2d 1033, 23 BRBS 36 (CRT)(5th Cir. 1990). Thus, in Bailey v. Pepperidge Farm, Inc., 32
BRBS 76 (1998), the Board reasoned that Holliday no longer applied to cases under the District of
Columbia Workers' Compensation Act and that the claimant was entitled to annual adjustments
pursuant to Section 10(f) at a rate including only those adjustments occurring after she became
permanently totally disabled.
60.2 DEFENSE BASE ACT
42 U.S.C. § 1651 et seq.
60.2.1 Applicability of the LHWCA
By the terms of the Defense Base
Act (DBA) the LHWCA applies "in respect to the injury
or death of any employee engaged in any employment ... under a contract entered into with the
United States or any executive department, independent establishment, or agency thereof ... where
such contract is to be performed outside the continental United States ... for the purpose of engaging
in public work." 42 U.S.C. § 1651. The Second Circuit has stated:
The Act was originally intended to cover civilians employed at overseas
military bases, was later extended to cover civilians working on overseas
construction projects for the United States government or its allies, and was
finally extended to protect employees fulfilling service contracts tied to such
a construction project or to a national defense activity. The sine qua non of
the Act's applicability has always been a military or a United States
government construction connection.
University of Rochester v. Hartman, 618 F.2d 170 (2d Cir. 1980).
A claimant, under the DBA, must satisfy the same requirement as to proof of causation as
any other claimant under the LHWCA. In Piceynski v. Dyncorp, 31 BRBS 559 (ALJ) (1997), the
claimant was unable to carry his burden of proof that his medical complications were the result of
Gulf War Syndrome. In Wendler v. American Red Cross, BRB 93-0423 (May 29, 1996)
(unpublished), the claimant was unable to prove that she was exposed to Agent Orange during the
period of time that she was stationed in Korea.
60.2.2 Claim
Must Stem From a "Contract" For "Public Work" Overseas
In Hartman,
the court held that a university professor who was killed while doing research
in Antarctica under grants from NASA and the National Science Foundation was
not covered under the DBA because he was not engaged in "public work" and his research grant did not constitute a
"contract" within the meaning of the DBA. Specifically, the court held that:
to be compensable under the DBA, a benefit claim must stem from a
contract with the United States to perform public work overseas,
public work constituting government-related construction projects,
work connected with the national defense, or employment under a
service contract supporting either activity.
618 F.2d at 176.
In Airey
v. Birdair, Division of Bird & Sons, Inc., 12 BRBS 405 (1980), the Board affirmed
a judge's denial of benefits where substantial evidence demonstrated that the claimant had not been
performing services related to a service contract with the U.S. Government at the time of injury. The
Board also found that the claimant had not established that any of his work for employer was related
to a service contract with the government.
While working in Saudi Arabia as an administrative assistant for a corporation which had
contracted to provide logistical support to the U.S. Army Corps of Engineers, which corps was
involved in managing military construction for the Saudi government, claimant in Alan-Howard v.
Todd Logistics, Inc., 21 BRBS 70 (1988), was injured. The Board held that the claim for the injury
was cognizable under the DBA since the undertaking to aid in the construction of a military facility
for Saudi, an "ally" of the United States, constituted a "common
defensive military alliance" and
therefore qualified as the "public work" required for coverage under § 1651(a)(4)
of the DBA.
Furthermore, the DBA exclusion
from coverage of "any employee of ... (a) contractor ... who
is engaged exclusively in furnishing materials or supplies under his contract" was held not to apply
since the claimant's work as a facilitator under his employer's contract to provide "logistics
management and support services" constituted a "service." Specifically, the
Board views the pertinent exclusionary language as excluding manufacturers
of goods used overseas, rather than
individuals who work on-site to facilitate the utilization of such goods, from
DBA coverage.
In Rosenthal v. Statistica,
31 BRBS 215 (1998), the Board held that a program manager injured while returning
to the United States was not covered by the DBA. The Board based its
determination on: 1) the employee was not performing activities related to
Statistica'a contract with the State Department at the time of the injury;
2) the employee's travel from Brussels to the United
States would have been covered, but the travel in Spain was not government
work so the State Department would not be paying for it. This means that
just because the employee was in "transportation" is not disposative. Rather,
it is the reason for the trip that is important. Had the employee been injured
while driving to the Brussels airport to return to the United States, even
following a short vacation, he would have been covered by the DBA as being
in transportation.
In Casey v. Chapman College, PACE Program, 23 BRBS 7 (1989), the Board held that a
professor of Asian Studies who was injured on a U.S. Naval Base in Japan was covered under the
DBA, on a finding that his employment teaching Asian Studies in the Pacific to Navy personnel was
related to national defense and therefore constituted the "public work" required for coverage.
60.2.3 Inapplicability
to "Master or Member of a Crew of Any Vessel"
The DBA does not apply to a "master or member of a crew of any vessel." 42 U.S.C. § 1654(3); Sosenik v. Lockheed California Co., 14 BRBS 191 (1981) (claimant, employer's field
service representative aboard a U.S. Navy ship, was a crew member and was not entitled to benefits
under the DBA).
60.2.4 Substantive Rights Determined Under Provisions of LHWCA as Incorporated
into the DBA
In Smith v. Director, OWCP, 17 BRBS 89 (1985), the claimant was awarded benefits under
the DBA. The employer was reimbursed for these benefits, however, from the Federal Employees'
Compensation Act (FECA) Fund pursuant to the War Hazards Compensation Act (WHCA) because
the injury resulted from a war risk hazard. The claimant later filed a claim for a lump sum payment
of his future benefits. The judge awarded a lump sum commutation of the benefits under the WHCA
and FECA. The Board determined that the substantive provisions of the LHWCA, not FECA, were
controlling and that entitlement to commutation should have been considered under Section 14(j)
of the LHWCA.
The WHCA provided only the source of benefits. The DBA was determinative of the
claimant's rights because he was covered under the DBA, and Section 101(a)(1) of the WHCA
excludes employees covered under the DBA.
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, and the Board, both found that such a credit was appropriate. Lee v. The
Boeing Co., 27 BRBS 597 (ALJ) (1994). 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.
In Guthrie
v. Holmes & Narver, 30 BRBS 48, 50 (1996), the Board found that housing and
food will be considered to be part of the claimant's wages if they are deemed to be given in part, or
in place, of wages. See also Quinones v. H.B. Zachery, Inc., 32 BRBS 6 (1998); Topic 2.13, supra.
60.2.5 Waiver of Applicability by Secretary of Labor
42 U.S.C. § 1651(e) provides that,
upon the recommendation of the head of any department or other agency of
the United States, the Secretary of Labor may waive the application of the
DBA
with respect to any contract or classification of employees. In Ann v. Eastern Construction Co., 17
BRBS 163 (1985), the Board affirmed the judge's finding that the document waiving DBA coverage
limited the claimant's recovery to the workers' compensation provided by the law of her own
country, rather than affording the claimant the option of electing the more favorable benefits of the
place of injury.
60.2.6 Appeals of Cases Determined Under DBA
A split has arisen among the United States courts of appeals concerning the proper route of
appeal of a DBA case.
The Sixth Circuit and the Fourth Circuit have
concluded that Section 21(b)(3) of the LHWCA as amended in 1972, which provides
for direct review of the Board's decision by the U.S.
court of appeals for the circuit in which the injury occurred, was not incorporated
into the DBA under 41 U.S.C. § 1653(b). Review would therefore remain in
the appropriate District Court as it did prior to the Amendments (and thence
to the court of appeals). Home Indem. Co. v. Stillwell, 597
F.2d 87 (6th Cir. 1979), cert. denied, 444 U.S. 869 (1979); Lee v. The Boeing Co., 123 F.3d 801,
805 (4th Cir. 1997) (Congress specifically amended the provisions of the LHWCA without
changing Section 3(b) of the DBA).
The Seventh and Ninth Circuits, however, have concluded that Congress meant to
incorporate the LHWCA, as amended in 1972, into the DBA. Accordingly, direct appellate review
of Board decisions in these circuits lies with the Board and then the United States court of appeals
for the circuit where the office of the district director or judge whose compensation order is involved
is located. Pearce v. Director, OWCP, 603 F.2d 763, 10 BRBS 867 (9th Cir. 1979), transferred, 647
F.2d 716, 13 BRBS 241 (7th Cir. 1981), discussing Pearce v. McDonnell Douglas Corp., 5 BRBS
573 (1977); see also Parsons Corp. of California v. Director, OWCP, 619 F.2d 38 (9th Cir. 1980).
In the Fifth Circuit, as in the Sixth, appeal of the Board's order on a DBA claim is to the
district court, from whose order appeal may then be taken to the court of appeals. AFIA/CIGNA
Worldwide v. Felkner, 930 F.2d 1111, 24 BRBS 154 (CRT) (5th Cir.), cert. denied, 502 U.S. 906
(1991).
60.2.7 Course and
Scope of Employment, "Zone of Special Danger"
Under the DBA, the Supreme Court has
allowed benefits where the injury did not occur within the space and time
boundaries of work, but the employee was in a "zone of special danger." In O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504 (1951), the employee, while spending the
afternoon in employer's recreational facility near the shoreline in Guam, drowned while attempting
to rescue two men in a dangerous channel. The Court in finding
coverage held that "(a)ll that is
required is that the obligations or conditions of employment create the zone of special danger out
of which the injury arose." 340 U.S. at 507.
In O'Keeffe
v. Smith, Hinchman & Grylls Associates, 380 U.S. 359 (1965), the employee
drowned in a lake in South Korea during a weekend outing away from the job; the Court in
finding coverage noted that the employee had to work "under the exacting and dangerous conditions of
Korea." 380 U.S. at 364.
In Ford
Aerospace & Communications Corp. v. Boling, 684 F.2d 640 (9th Cir. 1982) a heart
attack suffered by the claimant while off duty in a barracks provided by his employer in Thule,
Greenland, was covered under the zone of special danger test.
In Gillespie v. General Electric Co.,
21 BRBS 56 (1988), the Board denied benefits under the DBA to the widow of
an individual who died accidently while attempting to temporarily
asphyxiate himself as part of an autoerotic activity (euphemistically referred
to as a "recreational
activity") on an Air Force Base in West Germany on which he was employed as a civilian radar-equipment installer. In so doing, the Board found no evidence to support the proposition that "a
relationship existed between the conditions created by decedent's job and the
activity which occasioned his death."
Citing O'Leary, the Court held that decedent had gone so far from his employment and
become so thoroughly disconnected from the service of his employer that it would be entirely
unreasonable to say that his death arose out of and in the course of his employment.
A widow claimant was denied death
benefits under the DBA on the ground that her complicity in the murder of
her husband "effectively severed any causal relationship which may have
existed between the conditions created by his job and his death," as well as
on the policy ground that she not be allowed to benefit from her own wrongdoing. Kirkland v. Air America, Inc., 23 BRBS
348 (1990).
[ED. NOTE: The "zone
of special danger" does not apply to claims brought under the Non-appropriated Fund Instrumentalities Act. McDuffie
v. Army & Air Force Exchange Service, BRB
No. 96-0825 (Jan 27, 1997) (unpublished).]
60.2.8 Nationalization of Job Not Compensable
There is no compensable injury that covers American civilians being laid off in foreign
countries due to nationalization of jobs. The claimants are still able to preform their jobs just not
in that local. Najjar v. Vinnell Corp., BRB No. 96-0906 (Apr. 15, 1997) (unpublished) (Defense
Base case - civilian working as a personal specialist was release due to a program of Saudization)
60.2.9 "Wages" Includes
Overseas Allowances and Wage Additives
The Board has held, in a claim under the LHWCA as extended by the Defense Base Act, that
overseas allowances and wage additives were properly included in the determination of the
employee's wages because these amounts were (1) easily ascertainable, similar to board, rent or
lodging, and (2) were included for purposes of tax withholding and could not be considered fringe
benefits. Denton v. Northrop Corp., 21 BRBS 37, 46-47 (1988). See generally Cretan v. Bethlehem
Steel Corp., 24 BRBS 35, 43-44 (1990); Lopez v. Southern Stevedores, 23 BRBS 295, 301 (1990);
Thompson v. McDonnell Douglas Corp, 17 BRBS 6, 8 (1985).
60.3 OUTER CONTINENTAL SHELF LANDS ACT
43 U.S.C. §1331 et seq.
60.3.1 Applicability of the LHWCA
With respect to disability or
death of an employee resulting from any injury occurring as a result of operations
conducted on the Outer Continental Shelf for the purpose of exploring for,
developing, removing, or transporting by pipeline the natural resources, or
involving rights to the
natural resources, of the subsoil and seabed of the Outer Continental Shelf,
compensation shall be payable under the provisions of the LHWCA, 33 U.S.C.A. § 901 et seq. For the purposes of
extension of provisions of the LHWCA under this section:
(1) the term "employee" does not include a master or member of
a crew of any vessel, or any officer or employee of the United
States or any agency thereof or of any State or foreign
government, or of any political subdivision thereof;
(2) the term "employer" means an employer any of whose
employees are employed in such operations; and
(3) the term "United
States" when used in a geographical sense
includes the outer Continental Shelf and artificial islands and
fixed structures thereon.
43 U.S.C. § 1333(b).
The term "Outer Continental
Shelf" means "all submerged lands lying seaward and outside
of the area of lands beneath navigable waters as defined in section 1301 of this title, and of which
the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control."
43 U.S.C. § 1331(a).
The term "lands beneath
navigable waters" means:
(1) all lands within the boundaries of each of the respective States
which are covered by nontidal waters that were navigable
under the laws of the United States at the time such State
became a member of the Union, or acquired sovereignty over
such lands and waters thereafter, up to the ordinary high water
mark as heretofore or hereafter modified by accretion,
erosion, and reliction;
(2) all lands permanently or periodically covered by tidal water
up to but not above the line of mean high tide and seaward to
a line three geographical miles distant from the coast line of
each such State and to the boundary line of each such State
where in any case such boundary as it existed at the time such
State became a member of the Union, or as heretofore
approved by Congress, extends seaward (or into the Gulf of
Mexico) beyond three geographical miles; and
(3) all filled in, made, or reclaimed lands which formerly were
lands beneath navigable waters, as herein above defined.
43 U.S.C. § 1301(a).
The term "boundaries" is
defined at length at 43 U.S.C. § 1301(b).
The term "lands beneath
navigable waters" is subject to the limitations set forth in 43
U.S.C. § 1301(f).
[ED. NOTE: The oil exploration indemnity case of Demette v. Falcon Drilling Co., 253 F.3d 840
(5th Cir. 2001), is principally concerned
with defining the phrase "by virtue of," which appears at
Section 1333(b) of the OCSLA. However, it does provide a good general discussion of OCSLA
coverage as well as a reference point for LHWCA Sections 905(b) (bars employers from
indemnifying the vessel from LHWCA liability) and 905(c) (OCS exemption to LHWCA's current
proscription of indemnity agreements under § 905(b)). Here the worker was
injured on a jack-up rig while doing casing work. The Fifth Circuit noted
that, "[c]asing work is the model case of
injuries 'occurring as a result of operations conducted on the [OCS] for the purpose of exploring
for, developing, removing, or transporting by pipeline the material resources...of the [OCS].'" The Fifth Circuit noted, "If the injured employee is entitled to the benefits of the LHWCA 'by virtue of'
section 1333(b) of the OCSLA, then section 905(c) of the LHWCA states that "any
reciprocal indemnity provision between the vessel and the employer is enforceable."]
60.3.2 Coverage
- (Situs, Status, "But for" Test)
U. S. Supreme Court
In Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 219 (1986), the United States
Supreme Court concluded that: "Congress determined that the general
scope of OCSLA's coverage ... would be determined principally by locale,
not by the status of the individual injured ..."
(emphasis added). Nevertheless, although noting that § 1333(b), which makes the LHWCA
applicable to injury resulting from certain operations "on the Outer Continental Shelf," was
not relevant since the case before the Court did not involve a suit of an injured employee against his
employer under that section, the Court acknowledged that the
otherwise "determinative" situs
requirement has superimposed on it a status requirement by virtue of that section. Id. at 221, n.2.
Circuit Courts
The Third Circuit, in Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d 805, 21
BRBS 61 (CRT) (3d Cir. 1988), held (in remanding the case
to the BRB) that claimant, who was injured in an automobile accident on the
New Jersey Garden State Parkway in the course of returning
to his work aboard a semi-submersible drill rig engaged in drilling operations
above the outer continental shelf, was within the coverage of the OCSLA since "but for" his
employment in outer continental shelf operations claimant would not have been
injured in the automobile accident on the
New Jersey highway, and that the injury therefore occurred as a result of such
operations and thus was not outside the scope of the OCSLA.
It is noted that the case was
decided under the 1958 version of the OCSLA, § 1333(c) of
which provided, in pertinent part, that the LHWCA was to apply to "any injury occurring as the
result of operations described in subsection (b) ..." Such "operations" under § 1333(b) are those "in
connection with any operations conducted on the outer Continental Shelf for the purpose of
exploring for, developing (etc.) ... the natural resources, or involving rights to the natural resources
of the ... outer Continental Shelf." The court viewed the 1978 amendments of § 1333(b), (c) as being
"largely technical" and "not meant to change the meaning of the law ..."
Curtis appears
to be most intent on reaching a result which satisfies "the administrative,
legislative and judicial policy of resolving doubtful LHWCA coverage questions
in favor of coverage." Curtis, 849 F.2d at 811. And, its discussions and interpretations of legislative history
and decisions of other courts is best read carefully in that light.
The Supreme Court, in Herb's Welding v. Gray, 470 U.S. 414 (1985), reversed the Fifth
Circuit's decision, see 703 F.2d 176, 15 BRBS 126 (CRT) (5th Cir. 1983), that the claimant's
employment was maritime in nature and therefore fell within the direct coverage of the LHWCA,
and remanded for consideration of his eligibility for LHWCA benefits under the OCSLA extension
provision.
The claimant, who worked as a welder on fixed platforms in an oil and gas field located off
the Louisiana coast partly in state waters and partly on the outer continental shelf, spent roughly
three quarters of his time working on platforms in state waters and one quarter on platforms on the
shelf; he was injured on a fixed platform in state waters while welding a gas flow line.
In its decision, the Board had held that since the claimant spent 25 percent of his time
working on oil rigs on the Shelf and was injured on a platform that was connected by a gas flow
pipeline to another platform located on the Shelf, he was covered under the OCSLA, because his
work was an integral part of operations on the Shelf and his injury occurred as the result of such
operations. 12 BRBS 752 (1980).
The Fifth Circuit having pretermitted the OCSLA question in its original decision now
reversed the Board. 766 F.2d 898, 17 BRBS 127 (CRT) (5th Cir. 1985).
Applying a "but for" test
the court held that the claimant's injury would have occurred even if no part of the overall operation
had involved work on the Shelf. The fact that a platform on the Shelf was indirectly connected to
the platform on which claimant was injured was deemed unrelated to the accident's causation.
Therefore, the injury was held not to have been the result of "operations on the shelf," and
coverage was found lacking. In so finding, the court acknowledged that an employee's
coverage would change
depending on the rig to which he was assigned on a particular day, but concluded
that this was dictated by the geographic limitations imposed by the OCSLA.
In a decision which delves at great length into legislative history, the Fifth Circuit in Mills
v. Director, OWCP, 877 F.2d 356, 22 BRBS 97 (CRT) (5th Cir. 1989) denied OCSLA coverage to
a welder who was injured on land during construction of an oil production platform destined for the
Outer Continental Shelf. For historical perspective, see Mills v. McDermott, Inc., 17 BRBS 756
(ALJ) (1985), aff'd, 19 BRBS 258 (1987) and Mills v. Director, OWCP, 846 F.2d 1013, 21 BRBS
83 (CRT) (5th Cir. 1988), rev'd, on reh'g, en banc, 877 F.2d 356 (5th Cir. 1989).
In discussing the implications of Tallentire, 477 U.S. 207, the Fifth Circuit concluded that
the Supreme Court "could not have made it clearer that a worker
must demonstrate status and situs to recover LHWCA benefits
under § 1333(b)." 22 BRBS at 101 (CRT) (emphasis added).
Also cited in support of its situs holding is the reference in Herb's Welding to "the explicit
geographical limitation to the Lands Act's incorporation of the LHWCA ..." 470 U.S. at 427.
Having acknowledged the Third Circuit's contrary view in Curtis, 849 F.2d 805, the Fifth
Circuit expressly held that LHWCA coverage, as extended under OCSLA § 1333(b),
applies only to employees who satisfy the Herb's Welding "but for" status
test, and are injured either on an OCS
platform or the waters above the OCS, 766 F.2d 898, 900, i.e., that the injury
would not have occurred "but for" the extractive operations on the shelf. Mills, 877 F.2d at 362, 22 BRBS at 102
(CRT).
Vis-a-vis the situs requirement for OCSLA coverage, the Mills court explained that its prior
decisions in Barger and Stansbury,
stood for the proposition "that § 1333(b) extended the LHWCA
as the sole remedy for survivors suing the employers of individuals who (1) satisfied the "but for" status
test; and (2) died in helicopter crashes on the high seas above the OCS." Mills, 877 F.2d at
361, 22 BRBS at 102 (CRT) (emphasis added). In Mills, the Fifth Circuit definitively
held that the LHWCA does not extend to those oilfield workers injured on land
or in state territorial waters. "As
the legislative history makes plain, congress enacted OCSLA only as a vehicle
to fill voids in the rules governing the federally managed territory of the
OCS. No such void exists for disputes
encompassing areas already governed by state law." Mills at 359. In Martin v. Pride Offshore, Inc.,
34 BRBS 192)(2001) an ALJ originally held that a seven-day-on, seven-day-off worker driving
home was covered because his injury was the result of fatigue suffered during his seven day work
shift on the platform. The Board reversed, relying on Mills, holding that a car accident occurring
on a Mississippi highway does not meet the OCSLA situs requirement. Accord, Pickett v. Petroleum
Helicopters, Inc., 266 F.3d 366 (5th Cir. 2001), 35 BRBS 101 (CRT) (2001); Sisson
v. Davis & Sons, 131 F.3d 555 (5th Cir. 1998).,
In Robarge v. Kaiser Steel Corp., 17 BRBS 213 (1985), the Board held that a
pipefitter/welder working on a fixed offshore oil platform under construction on the Shelf was an
employee under the OCSLA because he was engaged in "development" of the natural resources
of the Shelf even though the platform was not operational at the time of injury. The Board examined
the legislative history and statutory provisions of the OCLSA and concluded that Congress did not
intend to exclude workers engaged in pre-production, exploratory activities when return is uncertain.
In Kaiser Steel Corp. v. Director, OWCP, 812 F.2d 518 (9th Cir. 1987), the Ninth Circuit
denied Kaiser's petition for review of the Board's order thereby affirming Robarge.
The circuit court held that the OCSLA "should be construed as extending the LHWCA coverage to all victims of
disabling or fatal injuries sustained while working to develop the mineral wealth of the OCS," unless
excluded on the face of the statute or as shown by its legislative history. Id.
at 522. And, the court advised that the OCSLA "purpose requirement should not
be narrowly construed." Id. at 521.
Coverage under the OCSLA is not
based on the same requirements as coverage under the LHWCA. One of the significant
differences is that the work covered under the OCSLA is not "maritime employment".
That is why the LHWCA would not normally cover these individuals without
the Congressional mandate found in the OCSLA. This difference in coverage
thresholds
is clearly demonstrated by the rational of Herb's Welding. Herb's Welding v. Gray, 470 U.S. 414
(1985). Here, the Supreme Court held that the claimant (a welder) was not a maritime employee
because there is nothing inherently maritime about building and maintaining pipelines and platforms.
Since Gray was not working in waters covered by the OCSLA, the threshold question was based on
a satisfaction of the traditional situs and status requirements found in Sections 2(3) and 3. Had he
been working on the OCS the simple fact that he was a mineral resource worker would have given
him coverage.
In determining if Gray's job description was maritime employment, the Court considered
whether the locale of the work significantly altered the nature of the work he was performing. The
Court noted that while maritime employment is not limited to the occupations specifically
mentioned in Section 2(3), neither can the LHWCA be read to eliminate any requirement of a
connection with the loading or construction of ships.
As a result of the holding in Herb's Welding, a mineral resources worker on a platform in
state territorial waters is usually not covered under the LHWCA or the OCSLA. In Munguia v.
Chevron U.S.A., Inc., the Fifth Circuit held that the work of a relief pumper gauger who performs
duties on a fixed platform maintaining the wells, is essentially identical to land-based work, rather
than marine employment. Munguia v. Chevron U.S.A., Inc., 999 F.2d 808 (5th Cir. 1993).
There may be specific circumstances, however, under which a mineral resources
worker in territorial waters
may be covered. For example, a worker, engaged by a subcontractor of Exxon
Corporation to assist in the cleanup of the massive "Valdez" oil spill in the
navigable waters off of Alaska was found to be covered under the LHWCA. Fontenot v. Industrial Clean-up, Inc., 92-LHC-971(unpublished)
(Aug. 17, 1992). The key difference in the holding of Munguia and Fontenot is that the claimant in
Fontenot was working on a floating
platform that qualified as a "vessel." As a result it was found
that the claimant was working in a marine environment and not on an artificial
island. The key is whether the platform is found to be a vessel or an artificial
island.
[ED. NOTE: Thus the worker in Fontenot is analogous to a worker in the Fifth Circuit who
is a "maritime employee" because he is doing his work over water.]
In conformance with the holding in Herb's Welding, the Ninth Circuit has held that a slight
geographic shift will bring such a worker into the coverage of the OCSLA. The Ninth Circuit has
held that the OCSLA extends coverage to a worker injured while working as a pipe fitter/welder on
a stationary offshore oil platform, under construction on the OCS, since his welding activities
contributed directly to the development of natural resources of the OCS. Kaiser Steel Corp. v.
Director, OWCP, 812 F.2d 518 (9th Cir. 1987), aff'g Robarge v. Kaiser Steel Corp., 17 BRBS 213
(1985).
The Fifth Circuit's stress
on the "but for" aspect of the Herb's Welding test has resulted in
some unusual results. In Recar v. CNG Producing Co., 853 F.2d 367 (5th Cir. 1988), the Fifth
Circuit held that a worker, injured while supervising the maintenance
of a production platform, was covered because the work that he was performing
furthered resource recovery and the injury would
not have occurred "but for" the maintenance work he was supervising on the platform. In another
demonstration of the "but for" test's application, the Fifth Circuit held that an OCS worker
transported by helicopter to an OCS platform, who was injured when the helicopter crashed, was
covered under the OCSLA extension of the LHWCA. Barger v. Petroleum Helicopters, Inc., 692
F.2d 337 (5th Cir.), cert. denied, 461 U.S. 958 (1982); Stansbury v. Sikorski Aircraft, 681 F.2d 948
(5th Cir.), cert. denied, 459 U.S. 1089 (1982).
The Third Circuit, in Curtis v. Schlumberger Offshore Serv., 849 F.2d 805 (3d Cir. 1988),
held that a drilling rig employee injured on a highway while en route to his
work site was covered under the OCSLA extension. The court noted that the
OCSLA does not contain a "situs"
requirement, that it covers injuries "arising out of or in connection with" any OCSLA operations,
and that the employee in this case would not have been injured "but for" his
job, which was related to operations on the OCS.
Following the holding in Herb's Welding, there remains a continuing uncertainty for mineral
resource workers within territorial waters. The Court did not pass a judgement as to the LHWCA's
applicability to roustabouts performing the function of longshoremen.
60.3.3 Member of a Crew Exclusion
In McDermott International, Inc. v. Wilander, 498 U.S. 337, 26 BRBS 75 (CRT) at 82 (CRT)
(1991), the Supreme Court laid to rest the question of whether or not member of a crew/seaman
status requires the performance of duties in aid of navigation:
We think the time has come to
jettison the aid in navigation language ... We believe the better rule is
to define "master or member of a
crew" under the LHWCA, and therefore "seaman" under the Jones
Act, solely in terms of the employee's connection to a vessel in
navigation. ... All who work at sea in the service of a ship face those
particular perils to which the protection of maritime law, statutory as
well as decisional, is directed. ... It is not the employee's particular
job that is determinative, but the employee's connection to a vessel.
... The key to seaman status is employment-related connection to a
vessel in navigation. ... [A] necessary element of the connection is
that a seaman perform the work of a vessel. See Maryland Casualty
Co. v. Lawson, 94 F.2d 190, 192 (5th Cir. 1938) ("There is implied
a definite and permanent connection with the vessel, an obligation to
forward her enterprise"), cited approvingly in Norton, 321 U.S.,
at 573, 64 S. Ct., at 751. In this regard, we believe the requirement that
an employee's duties must "contribut[e] to the function of the vessel
or to the accomplishment of its mission" captures well an important
requirement of seaman status. It is not necessary that a seaman aid in
navigation or contribute to the transportation of the vessel, but a
seaman must be doing the ship's work.
In Wilander, the Supreme Court acknowledged that the Fifth Circuit, in Offshore Co. v.
Robison, 266 F.2d 769 (5th Cir. 1959) (Wisdom, J.), "correctly
determined that ... this Court was
no longer requiring that seamen aid in navigation." A circuit split had arisen
in which the Seventh
Circuit required a seaman aid in the navigation of the of a vessel for Jones Act coverage. Johnson
v. John F. Beasley Construction Co., 742 F.2d 1054 (7th Cir. 1984).
The member of a crew test in the Fifth Circuit is
two pronged. The first prong concerns whether claimant was permanently assigned
to or did a significant portion of his work on a vessel
or an "identifiable fleet of vessels." An "identifiable fleet" is a group
of vessels acting together or under one control (a circumstance not present
in Nix v. Hope Contractors, 25 BRBS 180, 184-85
(1991), in which, inter alia, the captain of each of the several vessels
upon which claimant worked had the ultimate authority in matters relating to
navigation, and the several vessels upon which he
worked were neither owned nor operated "as a unit").
The second prong has to do with claimant's employment-related connection to the vessel, a
fact-specific question which depends on the nature of the vessel and the employee's precise relation
to it. In short, claimant's duties must contribute to the function of the vessel or to the
accomplishment of its mission, he must be doing the ship's work; it is not necessary that he aid in
navigation or contribute to the navigation of the vessel. Wilander, 498 U.S. at 353; Nix v. Hope
Contractors, 25 BRBS at 183.
Barger v. Petroleum Helicopters, 692 F.2d 337 (5th Cir. 1982), cert. denied, 461 U.S. 958
(1983), involved a claim against a helicopter pilot's employer for the death
of the pilot which occurred in a crash over the Outer Continental Shelf while
he was transporting passengers to work
on a rig on the Shelf. The court held that the helicopter was not a "vessel," that the pilot was an
employee covered under the OCSLA because his duties transporting workers and equipment to and
from the rig played an important role in developing the Shelf, and that the definition of "employer"
in 43 U.S.C. § 1333(c)(2) included the helicopter pilot's employer because
its pilot-employee was engaged in operations connected with the development
of the Shelf. See also Stansbury v. Sikorski
Aircraft, 681 F.2d 948 (5th Cir.), cert. denied, 459 U.S. 1089 (1982).
Benefits Review Board in the Third Circuit
In its Decision on remand of Curtis, 849 F.2d 805, the Board found that the claimant's
function while actually aboard his floating offshore drilling rig (held to be a vessel) was not
primarily to aid in its navigation, and therefore under the Third Circuit's three
part test he was not excluded from OCSLA coverage as a member of a crew. 23
BRBS 63 (1989). It was noted that
under the Third Circuit's "relatively narrow view" proof of the performance of "significant
navigational functions" was required to support an in aid of navigation finding.
[ED. NOTE: Curtis is included here as illustrative of the handling of an OCSLA case. Recall,
however, that under Wilander, an employee need not be aiding in navigation in order to be covered
as a member of a crew.]
Also of significance is the Board's
analysis of the pre- and post 1978 version of § 1333(a)(1),
which has to be read in its entirety to be appreciated; in short, the Board
held that floating oil drilling rigs are not excluded from OCSLA coverage
under either version. 23 BRBS at 69.
Benefits Review Board in the Ninth Circuit
In Ryan v. Alaska Constructors, 24 BRBS 65 (1990), a case arising in the Ninth Circuit and
decided prior to Wilander, the Board rejected use of the Fifth Circuit's two-prong test (see
Robison, supra) and applied the Ninth Circuit's three-part test for member of a crew status, see
Duncanson-Harrelson Co. v. Director, OWCP, 686 F.2d 1336 (9th Cir. 1982), under which one is
excluded from coverage of the OCSLA if he (1) has a more or less permanent connection (2) with
a vessel in navigation and (3) he is on board primarily to aid in navigation. Based on this test, the
Board found that claimant was a rigger who performed no navigational functions aboard the barge
on which he worked, was not a member of its crew, and therefore was covered under the OCSLA.
60.3.4 OCSLA v. Admiralty v. State Jurisdiction
Although the LHWCA provides the exclusive remedy against an employer for disability
or death of an employee covered under the OCSLA, in Smith v. Pan Air Corp., 684 F.2d 1102 (5th
Cir. 1982), the Fifth Circuit held that admiralty jurisdiction over non-employer third parties was
not ousted by OCSLA coverage of a helicopter pilot who died while engaged in a maritime function
over the Shelf.
In Recar v. CNG Producing Co., 853 F.2d 367, 21 BRBS 153 (CRT) (5th Cir. 1988), the
Fifth Circuit concluded that the claimant satisfied both
the situs requirement and the status ("but
for") requirement for OCSLA coverage. But, given that the claimant, a fixed platform maintenance
foreman, also had a substantial connection with the vessel on which the injury occurred, the court
held that the "district court may well have both admiralty jurisdiction under the general maritime law
and federal question jurisdiction by virtue of the OCSLA." The determination
was left to the district court to make, under the principles set forth in Rodrique
v. Aetna Casualty & Surety Co., 395 U.S.
352, 353 (1969); Smith, 684 F.2d 1102; and Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754
F.2d 1223 (5th Cir. 1985). Laredo was
cited for the proposition that "where admiralty and OCSLA
jurisdiction overlap, the case is governed by maritime law."
The OCSLA adopts the laws of the
adjacent state, to the extent they are not inconsistent with the Act or other
federal law, as "surrogate" federal law in cases where federal law is not applicable
or there is a "gap" in federal law. 43 U.S.C. § 1333(a)(2); Rodrique, 395 U.S. 352; Smith, 684 F.2d
1102; Wagner v. McDermott, Inc., 79 F.3d 20 (5th Cir. 1996), cert. denied, 519 U.S. 945 (1997)
(OCS work governed by Louisiana law rather that maritime law, thus the Louisiana Oilfield
Indemnity Act voided the reciprocal indemnity agreement); Kerr v. Smith Petroleum Co., 909
F.Supp. 421 (E.D. La. 1995) (claimant cannot "elect" LHWCA/OCS
benefits to circumvent Louisiana worker's comp. provision).
[ED. NOTE: Just because state law may be adopted into a claim, does not make this an area of state
law. Either party may move to have the case removed to federal court, if the case was filed in state
court, based on the federal subject matter jurisdiction implicit in the OCSLA. Tennessee Gas
Pipeline v. Houston Casualty Insurance Co., 87 F.3d 150 (5th Cir. 1996), reh'g and reh'g en banc
denied, 95 F.3d 1151 (1997).]
For a more complete discussion of jurisdictional matters with regard to the OCSLA, see 30
ALR Fed 535.
60.4 NONAPPROPRIATED FUND INSTRUMENTALITIES ACT
5 U.S.C. § 8171 et seq.,
5 U.S.C. § 2105(c)
60.4.1 Applicability of the LHWCA
By virtue of the Nonappropriated Fund Instrumentalities Act (NFIA), the LHWCA covers
civilian employees of armed forces instrumentalities (such as base exchanges), who are paid with
funds generated from earnings rather than congressional appropriation. Traywick v. Juhola, 922
F.2d 786 (11th Cir. 1991).
Under the literal language of
the NFIA, all such employees employed inside the continental United States
are covered; citizens of the United States or permanent residents of the
United States
or a territory or possession of the United States are also covered for such
employment outside the United States; employees who do not enjoy such citizenship
or residence status, and who are so
employed outside the United States, are provided compensation only as prescribed
and approved by certain designated authority. 5 U.S.C. §§ 8171, 8172; see also Army & Air
Force Exch. Serv. v. Hanson, 360 F. Supp. 258 (D. Haw. 1970).
[ED. NOTE: The "zone
of special danger" does not apply to claims brought under the
Nonappropriated Fund Instrumentalities Act. McDuffie
v. Army & Air Force Exchange Service,
BRB No. 96-0825 (Jan 27, 1997) (unpublished).]
60.4.2 Employee Status
In Symanowicz
v. Army & Air Force Exchange Service, 672 F.2d 638, 14 BRBS 651 (7th
Cir.), cert. denied, 459 U.S. 1016 (1982), the claimant was held not to be covered by the NFIA on
a finding that although he was injured in the course of performing a service for respondent
Exchange, he was a "mere volunteer" and therefore was not
an "employee" for compensation
purposes. See also Symanowicz
v. Army & Air Force Exch. Serv., 12 BRBS 961 (1980). Both the
Board decision and the circuit court decision bear reading for discussions of "borrowed
employee,"
"right to control," and "relative nature of work," although none of these concepts is peculiar to
NFIA cases.
60.4.3 Course/Scope of Employment
In denying a claimant benefits
on the principal ground that her injury had not occurred within the scope
of her employment under the "coming and going" rule, the Board expressly
held that the "zone of special danger" concept (which is applicable to Defense Base Act and District of
Columbia Workers Compensation Act cases) is not applicable to the NFIA.
Trimble v. Army & Air Force Exchange Service, 32 BRBS 239 (1998); Cantrell v. Base Restaurant, Wright-Patterson
Air Force Base, 22 BRBS 372 (1989); see also Harris v. England Air Force Base Nonappropriated
Fund Financial Management Branch, 23 BRBS 175 (1990).
In Trimble v. Army and Air Force Exchange Service, 32 BRBS 239(1998), the Board
distinguished Cantrell and Harris, finding that in those cases the employers did not exercise control
over where employees parked and did not maintain responsibility for the condition of the area where
the claimant was injured. In Trimble,
the Board held that a claimant was injured in the course and scope of her employment
when she fell on a wet, ice-covered sidewalk adjacent to the employee-designated
entrance door to the employer's facility. Although the employer did not own
the property
and was not required to maintain the sidewalk, the Board found that the employer
maintained a degree of control over the property significant enough to place
the claimant's accident within the
second exception to the "coming and going rule" (employer controls the journey),
which generally bars employees injured on their way to or from work from compensation.
In reaching this decision,
the Board specifically relied on the holding of Shivers v. Navy Exchange, 144 F.3d 322, 32 BRBS
99 (CRT) (4th Cir. 1998).
Vitola
v. Navy Resale & Service Support Office, 26 BRBS 88 (1992),
deals with the question
of "under what circumstance an injury arising at an after-hours sports event would fall within the
scope of the Act." The ten page case is a primer on the question of whether or not such activity is
in the "course of employment," and is worthwhile reading in its entirety.
60.4.4 Exclusivity of Remedy
Without deciding whether or not Section 33 of the LHWCA contemplates third-party actions
against the government, the First Circuit in Vilanova v. United States, 851 F.2d 1, 21 BRBS 144
(CRT) (1st Cir. 1988), cert. denied, 488 U.S. 1016
(1989), held that it is clear (5 U.S.C. § 8173) that
no such action lies by an employee whose injuries are covered by the NFIA,
under which the employee's exclusive remedy against the United States is compensation
under the LHWCA. Thus,
the claimant was foreclosed from an action under the Federal Tort Claims Act. See also Wilder v.
United States, 873 F.2d 285 (11th Cir. 1989).
60.4.5 Miscellaneous
For purposes of the NFIA, the
U.S. Naval Base, Guantanamo Bay, Cuba, is a "possession"
of the United States, which has "extensive domestic control" over it. Utria v. U.S. Marine Exch.,
7 BRBS 387 (1978).
60.5 WAR HAZARDS COMPENSATION ACT
42 U.S.C. § 1701 et seq.
Broad Overview
Basically, the War Hazards Compensation
Act (WHCA) makes Sections 906, 908, 909, and 910 of the LHWCA (with certain
specified limitations and exceptions) and Section 914(m) of the
LHWCA (see 33 U.S.C.A. § 914 and 33 U.S.C.A. § 906 for Historical Note and
Cross References) applicable to Defense Base Act (DBA) and Nonappropriated
Fund Instrumentalities Act (NFIA)
employees, and certain others employed outside the continental United States
to perform personal services under a contract with the United States.
Injury, death, and inability to
earn wages due to detention, resulting from a "war-risk hazard," are compensable.
The WHCA is arcane and must be dealt with on an ad hoc basis.