I’ll pick up where I left off last time, with a look at some more cases that made calendar year 2013 interesting in the Longshore context. I’ll also mention some important administrative events at the U.S. Department of Labor.
New Orleans Depot Services, Inc. v. Director, Office of Workers’ Compensation Programs, et al. (Zepeda), (04/13) – a case in which the Fifth Circuit overruled its longstanding precedents on the issue of Longshore Act “situs”.
In reversing the decision of the Benefits Review Board that had awarded benefits to Mr. Zepeda and which had been affirmed by the Fifth Circuit’s appellate panel, the en banc Fifth Circuit reinterpreted language in section 903(a) of the Longshore Act. “Adjoining” as in “… other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel” no longer means “neighboring” or “in the vicinity of” navigable waters in the Fifth Circuit.
Now in the Fifth Circuit, the interpretation of “adjoining” means “to lie next to” or “to be in contact with”. The Fifth Circuit has adopted the “plain language of the statute” as it is interpreted by the Fourth Circuit. This is a very significant decision.
A concurring opinion holding that the claimant in this case also did not meet “status”, contained intriguing language with regard to Longshore Act “status”.
The “determinative consideration” was whether the loading process could not continue in the absence of the worker’s activities. As stated, “… the proper question when defining the status of an employee under the Longshore Act is whether the task that the employee engages in is the type of customary maritime work that a dockworker or longshoreman would have to perform in order to successfully transfer cargo between ship and land transportation.” Unfortunately, the decision goes on to say, “This standard makes the capacity to interrupt ongoing longshoring activities paramount”. We’ll have to see how the word “ongoing” will be interpreted in future cases. To me, this statement suggests that a new status interpretation may require that the worker’s activity must be contemporaneous with the maritime activity it is essential to.
BPU Management, Inc./Sherwin Alumina Company; Liberty Mutual Insurance Company v. Director, Office of Workers’ Compensation Programs; and David Martin, (10/13) – an other decision from the Fifth Circuit involving Longshore Act “situs”.
This case involved the “operational realities of a sophisticated multi-tier facility”, in this case an ore processing facility. The Benefits Review Board had found that the entire facility was a covered situs since it was interconnected in the processes of unloading and storage of bauxite and the manufacture of alumina.
The claimant was injured underground shoveling spilled bauxite back on to the conveyor system. At the point of injury, the claimant was four locations removed from dockside.
The Court found that the delivery of the bauxite into storage bins was the functional equivalent of the surrender of cargo for land transport. Manufacturing processes beyond that point were not covered under the Longshore Act, since the necessary functional nexus with navigable waters was missing.
This was a sensible decision concerning a multi-use facility with distinct areas for loading/unloading and manufacturing. Even though the site of the injury adjoined navigable waters, it was not an area customarily used for maritime activity.
U.S. Department of Labor
Under New Management
The Division of Longshore and Harbor Workers’ Compensation Act, Office of Workers’ Compensation Programs, U.S. Department of Labor, is under new management in Washington, DC.
As I discussed here, the new national Longshore management team consists of:
Antonio Rios, Director, Division of Longshore and Harbor Workers’ Compensation
Rich Stanton, Chief, Branch of Insurance, Financial Management, and Assessments
Jennifer Valdivielso, Chief, Branch of Policies, Procedures, and Regulations
Industry Notice No. 144, Dated November 14, 2013
This Notice contained important information regarding new mailing instructions for claim forms and correspondence in Longshore cases effective December 2, 2013.
1. The New York Longshore District Office is designated the “Central Case Create” site.
Forms LS-202, LS-201, LS-203, and LS-262 are to be submitted to the following address:
U.S. Department of Labor, OWCP
Division of Longshore and Harbor Workers’ Compensation
201 Varick Street, Room 740
P. O. Box 249 New York, NY 10014-0249
Fax: 646.264.3002 (for urgent or time sensitive situations)
2. After a case has been created the Jacksonville, FL District Office is designated as the “Central Mail Receipt” site. All case specific mail is to go to the following address:
U.S. Department of Labor, OWCP
Division of Longshore and Harbor Workers’ Compensation
400 West Bay Street, Suite 63A, Box 28
Jacksonville, FL 32202
Fax: 904.357.4787 (for urgent or time sensitive situations)
3. All checks (for deposit to the Special Fund or in response to penalties), as well as inquiries, forms, and other documents concerning self-insurance authorization, security deposits, and Special Fund assessments are to go to the following address:
U.S. Department of Labor, OWCP
Division of Longshore and Harbor Workers’ Compensation
Branch of Financial Management, Insurance, and Assessments
200 Constitution Avenue, NW, Room C-4319
Washington, DC 20210
That’s about it for 2013. Happy New Year.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.