A Maritime, Longshore and Defense Base Act Blog

Author Archive

A group of maritime practitioners, both representing injured workers, and employers and insurance carriers, who handle claims before the United States Department of Labor’s Office of Workers’ Compensation Programs, have created the DOL-Joint Bar Association, Inc. These areas of practice include claims arising under the Longshore and Harbor Workers’ Compensation Act and the Defense Base Act. The purposes of the association are to promote and improve the efficient handling of claims and cases administered and adjudicated by the U.S. Department of Labor for all parties involved in those claims, including injured workers, their employers, and insurance carriers; to create an unbiased resource for policy makers and the public on issues of importance related to the representation of individuals and companies involved in claims administered by the U.S. Department of Labor; to defend the honor of the legal profession and promote the highest standards of professional conduct for attorneys practicing before the U.S. Department of Labor, and to provide guidance to the U.S. Department of Labor in administering laws and regulations within its jurisdiction throughout the United States and abroad.

The initial officers of the association are:

David C. Barnett, President
Barnett & Lerner, P.A.
Ft. Lauderdale, FL

Alan G. Brackett, Vice President
Mouledoux, Bland, Legrand & Brackett, LLC
New Orleans, LA

Amie C. Peters, Secretary
Law Office of William D. Hochberg
Edmonds, WA

Roger A. Levy, Treasurer
Laughlin Falbo Levy & Moresi, LLP
San Francisco, CA

If you are interested in the work of the association or becoming a member, please contact us.

The Internal Revenue Service has published the mileage rates applicable for the 2011 calendar year.  Beginning January 1, 2011, the standard mileage rates for the use of a car will be:

1. 51 cents per mile for business miles driven;
2. 19 cents per mile driven for medical or moving purposes; and
3. 14 cents per mile driven in service of charitable organizations.

On October 12, 2010, the Obama Administration lifted the six-month ban on deep water drilling in the Gulf of Mexico.  Although the ban has been lifted, there are still concerns regarding the delayed resumption of drilling activities due to new permit requirements.  Media coverage of the lift can be found here: Associated Press, CNN, and Fox News.  Secretary Ken Salazar’s official Decision Memorandum terminating the moratorium is here.

Loyola Law School, in conjunction with the United States Department of Labor, Office of Workers’ Compensation Programs, will hold its annual Day With the DOL on Wednesday, September 29th, from 8:00 a.m. to 3:30 p.m. Registration for this program is available online through Loyola Law School’s Continuing Legal Education webpage.

A recent decision from the Ninth Circuit has added yet another wrinkle to the caselaw interpreting the scope of the Outer Continental Shelf Lands Act.

In 1953, when the Outer Continental Shelf was becoming an important area for the exploration and development of energy resources, Congress adopted the Outer Continental Shelf Lands Act, 43 U.S.C. §1331, et seq., to establish the law that would govern injuries occurring on the OCS. Congress determined that injuries to non-seaman, already covered by the Jones Act, would be subject to the remedies of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §901, et seq. The OCSLA provides that “[w]ith 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…” the LHWCA would define recovery.

The United States Court of Appeals for the Fifth Circuit determined that the OCSLA has a special situs requirement, meaning that in order for the OCSLA to apply, an injury must actually occur on the OCS. In Mills v. Director, OWCP, 877 F.2d 356 (5th Cir. 1989) (en banc), the court held that Congress enacted the OCSLA to provide a compensation scheme for non-seaman injured offshore who would otherwise not have a remedy, due to the inapplicability of state law to offshore operations. In that case, a welder had been injured onshore in Louisiana working on a structure that was to be installed on the OCS. Arguing that his injury was the “result of operations conducted on the outer Continental Shelf,” Mills sought LHWCA benefits, rather than state workers’ compensation benefits.

The Fifth Circuit found that Congress intended to cover OCS workers only where state law would otherwise not apply, and there was no legislative history suggesting an extension of the LHWCA to state workers was desired. To the contrary, the Fifth Circuit found instruction from the United States Supreme Court in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986), which involved a claim by the widows of offshore workers killed in a helicopter crash while transporting their husbands to the OCS. In rejecting OCSLA coverage, the Supreme Court stated 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 or killed.”

This decision, establishing a “situs of injury” test, was contrary to the Third Circuit, which had adopted a “but for” test of jurisdiction the previous year in Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d 805 (3rd Cir. 1988). In that case, an offshore worker injured in a car accident on land was found to have OCSLA coverage because “but for” that employment he would not have been involved in the accident.

Now, the United States Court of Appeals for the Ninth Circuit has weighed in on OCSLA jurisdiction, in Valladolid v. Pacific Operations Offshore, LLP, No. 08-73862 (9th Cir. May 13, 2010). In that case, the worker was an offshore roustabout who was killed on shore at his employer’s facility, located some 250 feet from shore. Rejecting both the “but for” test from the Third Circuit and the “situs of injury” test from the Fifth Circuit, the Ninth Circuit has adopted yet a third test for OCSLA jurisdiction. In holding that the worker’s death is covered by the act, the Ninth Circuit held that for the OCSLA to apply, “the claimant must establish a substantial nexus between the injury and extractive operations on the shelf. To meet the standard, the claimant must show that the work performed directly furthers outer continental shelf operations and is in the regular course of such operations. An injury sustained during employment on the outer continental shelf itself would, by definition, meet this standard. However, an accountant’s workplace injury would not be covered even if related to outer continental shelf operations, while a roustabout’s injury in a helicopter en route to the outer continental shelf likely would be. We leave more precise line-drawing to the specific factual circumstances of later cases.”

What this means is that in the Ninth Circuit, which covers the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, OCSLA coverage has been significantly expanded. The employer and carrier in Valladolid have sought rehearing en banc before the Ninth Circuit seeking reversal of this decision. This decision should be of importance to all offshore employers. An appeal to the Supreme Court is likely in this matter, based on the significant divergence of tests adopted by the circuit courts.

The United States Department of Labor, Division of Longshore and Harbor Workers’ Compensation, Seventh District, in conjunction with Loyola Law School, will host its annual Day With the DOL on September 29th at the Pan American Life Center in New Orleans. Details and registration will be available here.

The plaintiff alleged that he developed malignant mesothelioma following his exposure to asbestos during his twenty-year employment with Defendant.  The Defendant argued that because plaintiff’s only exposure to asbestos occurred while the plaintiff was indisputably on a vessel situated over water, plaintiff’s exclusive remedy was under the Longshore and Harbor workers’ Compensation Act (“LHWCA”).  Both the trial court and Louisiana’s Third Circuit Court of Appeals agreed. 

The LHWCA, which was originally enacted and 1927 and most recently revised in 1984, contains an exclusivity provision holding that the LHWCA “shall be exclusive and in place of all other liability of such employer…at law or in admiralty on account of injury or death.”  The plaintiff, desiring to take this case out of the scope of the LHWCA, argued that this case should be viewed as a “twilight case.”

In a “twilight case,” a claim shares concurrent state and federal jurisdiction.  These types of claims involve employees who “occupy that shadowy area” separating the scope of state and federal compensation acts.   In other words, a claim could potentially be a “twilight case” when a plaintiff straddles the line dividing state and federal jurisdictions.

Here, however, the plaintiff acknowledged in deposition testimony that the relevant work he performed for the defendant occurred over navigable waters.  As such, he clearly delineated the area of exposure: over navigable waters.  Without a locational controversy, the plaintiff could not cognizably argue that he was in the “shadowy area” separating the LHWCA from the Louisiana Workmen’s Compensation Act.   Consequently, the trial court’s grant of Defendant’s motion for summary judgment was affirmed on appeal.

Bourque v. Anco Insulations, Inc., 25 So.3d 1008 (La. App. 3 Cir. 12/09/09).

Disclosure: Mouledoux, Bland, Legrand & Brackett represented Defendant, Lake Charles Stevedores, Inc.