Everything You Wanted to Know About Longshore, But Were Afraid to Ask
Thursday, April 23, 2009 | 0
Editor's note: The following is the first of a two-part series of articles aimed at providing an overview of the Longshore & Harbor Workers Compensation Act (LSHWCA), emphasizing such issues as jurisdiction, coverage, and how the Longshore Act compares and contrasts with California's workers' compensation benefits.
By Judy Barrett
Where It Came From and Why
More than 90 years ago, on March 4, 1927, Congress enacted the Longshore & Harbor Workers' Compensation Act (LSHWCA). The objective: to fill a void corrected by the various states' workers' compensation laws. Prior to the passage of LSHWCA, workers' compensation benefits only extended to the shorelines; workers' compensation excluded most injuries not occurring on land.
Although initially extending coverage only to workers injured or killed on U.S. Navigational Waters (if not otherwise covered by state law), the LSHWCA was amended in 1972 to include injuries suffered on "any adjoining pier, wharf, dry-dock, terminal building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel."
Jurisdiction
To establish LSHWCA's jurisdiction, the following must be established:
1. Situs: the injury occurred on a maritime site or within U.S. navigable waters.
2. Status: the occupation must be "maritime."
3. Employer: applicant worked for a maritime employer.
What Are "Navigable Waters"?
Navigable waters are a stream or body of water that can be used for commercial transportation. When, as in the early common law, the term was restricted to waters influenced by tides, it denoted only the open sea and tidal rivers. This definition has been expanded to include virtually any body of water that can be put to public use.
Who Is Covered?
To determine whether the LSHWCA applies, we must examine the employee's status. Was she/he a longshoreman? Engaged in longshore operations? A harbor worker? Shipbuilder? In essence, was this person a "maritime employee"?
Employees not considered "maritime employees" and thus who are excluded from coverage, include:
- Office clerical, secretarial, security, or data processing.
- Employees of a club, camp, recreation operation, restaurant museum or retail outlet.
- Employees of a marina who are NOT engaged in the marina's construction or expansion.
- Employees of suppliers, transporters, or vendors who are temporarily doing business for maritime mployer but not performing usual and customary maritime work functions.
- Aquaculture employees.
- Employees building, repairing, or dismantling vessels under 65 feet.
- A master or member of a crew of any vessel.
- An employee of a master engaged to load, unload, or repair a vessel less than 18 tons.
Interestingly, oil workers in the Gulf of Mexico, working on fixed platforms in state waters, may be covered
by the LHWCA.
What about the excluded seamen, masters and crew? They are covered under the Jones Act, which encompasses all employees whose job regularly exposes them to the perils of the sea.
The LHWCA's coverage has been further expanded by various Supreme Court decisions to include:
- Workers identified as longshoremen working on a dock who are struck by a crane attached to a ship.
- Painters repairing a ship during navigation.
- Ship workers who, while on board, are struck by a crane on the dock.
- A janitor who, although not working on a ship, nevertheless takes an unauthorized "test run" and is killed when the boat capsizes.
Concurrent Jurisdiction
The U.S. Supreme Court has modified the LHWCA to allow covered employees to elect either state or federal jurisdiction when filing a claim. This has been occurring in California, ever since the case of a shipbuilder who was injured while working on a ship in dry-dock. The California workers' compensation carrier denied coverage. The U.S. Supreme Court reversed, ordering that benefits be provided pursuant to the state's system.
In 1962, the U.S. Supreme Court expressly recognized the right of shipyard workers to longshore benefits in addition to their state's workers' compensation rights. This case extended concurrent jurisdiction for injuries occurring past the waters' edge. Injured employees could now select the venue and benefit coverage (state versus federal) most beneficial to them.
Why would an applicant (or, better yet, an applicant's attorney) choose one jurisdiction over the other? Hint, hint: It may be the "root of all evil," but Pink Floyd had a big hit with it on "Dark Side of the Moon." Give up? "M-O-N-E-Y!"
In the next installment, we will talk more about "money." Specifically, we will compare and contrast the benefits available under the LHWCA with those available in California's workers' compensation system.
In the meantime, if you have any questions relating to the LHWCA, contact me, Judy Segerstrom Barrett, at (714) 526-9120 or e-mail me at jbarrett@bradfordbarthel.com.
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Judy Barrett is a partner in the California law firm of Bradford & Barthel with more than 20 years of legal experience. She is currently in charge of the firm's special projects. She also regularly teaches on such subjects as the Longshore and Harbor Workers Compensation Act, AMA Guides, and Apportionment.
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