Interesting Longshore Act Cases From 2020

2020 was a relatively routine year, at least with respect to jurisprudence involving the Longshore and Harbor Workers’ Compensation Act (LHWCA or the Longshore Act), extensions Defense Base Act (DBA), Outer Continental Shelf Lands Act (OCSLA), Nonappropriated Fund Instrumentalities Act (NAFIA), and related maritime matters.

Here are some cases I found interesting.

Peggy Mays v. Chevron Pipe Line Company, No. 19-30535, 5^th Cir., 08/03/2020

In Pacific Operators Offshore, LLP v. Valladolid (565 U.S. 207, 2012) the U.S. Supreme Court resolved a federal circuit conflict court as to whether there is a situs of injury requirement in the Outer Continental Shelf Lands Act, i.e., does the injury have to occur on the outer continental shelf of the United States (OCS) to be covered.  The Supreme Court decided that it does not.  It is only necessary that there be a “substantial nexus” between the injury and extractive operations on the OCS.  The injury can occur anywhere.

The decision in Valladolid did not resolve the question of whether the extractive operations for the substantial nexus test must be carried out by the injured worker’s direct employer.  According to the 5^th Circuit in the Mays decision they do not.  The injured worker must establish a substantial nexus between the injury and any extractive operations on the OCS, not only those of his direct employer.

Anthony Jordan v. SSA Terminals, LLC; Homeport Insurance Company; Director, Office of Workers’ Compensation Programs, No. 19-70521, 9^th Cir., 08/28/2020

This case produced the 9^th Circuit’s position on the correct legal standard to use when evaluating an injured worker’s allegations of disabling pain.  The Court’s opinion was that the U.S. Department of Labor’s (DOL) Administrative Law Judge (ALJ), as affirmed by the Benefits Review Board (BRB), had used the wrong standard when it found that the injured worker must establish that the pain level is so “excruciating” that it is “literally impossible” for him to work.

The Court did not offer a specific test for what constitutes a disabling level of pain, but it did indicate that “… the pain must be sufficiently severe, persistent, and prolonged to adversely impact the claimant’s ability to do his or her job in some significant way.”  The “excruciating” and “extraordinary effort” standards which the Court attributed to the BRB and ALJ was the wrong test, at least as it was expressed in the language that the ALJ used in his decision.

The case has been remanded back to the ALJ.  It will be interesting to see what happens. 

Milorad Raicevic v. Fieldwood Energy, L.L.C.; Shamrock Management, L.L.C., doing business as Shamrock Energy Solutions, No. 19-40580, 5^th Cir., 10/28/2020

This case involved the issue of the defendant’s workers’ compensation immunity from tort suits based on the claimed status of the borrowing employer.  The 5^th Circuit uses the nine-factor test from Ruiz v. Shell Oil Company, 413 F.2d 310 (5^th Cir. 1969) in borrowed employee/borrowing employer cases.

An interesting question was raised by the plaintiff/injured worker in opposition to immunity for the borrowing employer. He argued that to have immunity the borrowing employer must not only satisfy the LHWCA Section 5(a) requirement that an employer must secure the payment of compensation under the LHWCA, but that it also must actually have paid benefits under the Longshore Act in order to be immune from suit.

The court found that the borrowing employer must only secure the payment of compensation under the Longshore Act to invoke immunity.  It is not necessary that the borrowing employer pay benefits.

Lara M. Sabanosh v. Navy Exchange Service Command/NEXCOM, BRB No. 20-0019, 06/25/2020

AEU's Longshore Insider has discussed the Zone of Special Danger doctrine several times in the context of cases arising under the DBA, an extension of the LHWCA generally applicable to work on overseas military bases and overseas work on U.S. government contracts.

Here is the standard formulation, based on the U.S. Supreme Court’s decision in O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504 (1951):

“The Zone of Special Danger doctrine extends coverage in overseas employment cases such that time and space limits on whether the activity is actually related to the job requirements may not remove an injury from the [Longshore] Act’s coverage.”  (Translation:  As it is broadly applied, the doctrine results in nearly open-ended 24-hour coverage in DBA cases.)

Now in the Sabanosh case, for the first time, the BRB has affirmed an ALJ’s application of the doctrine to an injury arising under the Nonappropriated Fund Instrumentalities Act (NAFIA), where a death occurred on the U.S. Navy base at Guantanamo Bay, Cuba.  (The NAFIA is an extension of the LHWCA which generally covers civilian employees of nonappropriated fund instrumentalities on U.S. military bases.)

Henry Hall v. Ceres Gulf, Inc., BRB No. 17-0070, 01/31/2020

This case presents an issue involving whether an injury occurring in an employer’s parking lot met the situs requirement for coverage under the LHWCA.

The question was whether the employer’s warehouse parking lot, where the claimant slipped and fell, was an “other adjoining area” customarily used for maritime activity under Section 3(a) of the Longshore Act.

Significantly, the case arose within the jurisdiction of the federal 5^th Circuit Court of Appeals (states of TX, LA, MS).  In the 5^th Circuit “adjoining” navigable waters means contiguous with or touching the water at some point.

The employer’s parking lot was separated from the Port of Houston’s terminal property (which “adjoined” navigable waters) by two fences and a public road.  The DOL’s ALJ, affirmed by the BRB, found that the fences and road separating the properties effectively “severed the contiguity” between the parking lot and the terminal. The parking lot was not “adjoining” navigable waters and LHWCA situs was not met.  The decision was affirmed at the 5^th Circuit.

NOTE:  There have been other recent parking lot cases where fences, gates, and roads were found not to sever the contiguity with the water.  The general principle is that an entire shipyard or terminal property is a covered situs without necessitating an analysis as to whether various locations within the perimeter are “other adjoining areas”.  The Hall case, however, involved two separately owned properties.

NOTE:  This case likely would have a different result in circuits other than the 5^th and 4^th (states of NC, SC, WV, VA, MD), which are the only two circuits where actual contiguity is required for situs.

Romel E. Johnson v. Ports America, Inc. and Ports Insurance Company, BRB No. 19-0253, 05/08/2020

The BRB affirmed the ALJ’s grant of Summary Decision in favor of the employer in this case involving a claimed exception to the “coming and going” rule.

The claimant was hired to work a four-hour shift to secure a vessel arriving in port.  He could leave when the job was done, subject to recall during the remainder of the shift if the vessel had to be moved.  The job took only one hour, and the claimant was injured when a train struck his vehicle as he was leaving the port (although he was still on the port property).

The “coming and going” rule generally holds that time spent commuting to and from work is not in the course and scope of employment in the context of a workers’ compensation claim.

For an injury to be considered “arising out of and in the course of employment” the injury must occur within the time and space boundaries of the employment and in the course of an activity related to the employment.

There are exceptions to the coming and going rule involving situations where the employer provides the transportation, or where the worker is being paid for the travel, or where he is on a special errand for the employer.

The claimant in the Johnson case asserted that he met an exception to the rule because he was being paid for a full four-hour shift, and at the time of the accident he was still on the clock, and he was subject to recall.

The BRB affirmed that on-call status does not constitute an exception to the “coming and going” rule.  

MMR Constructors, Inc.; Zurich Mutual Insurance Company v. Director, Office of Workers’ Compensation Programs; Henry T. Flores, No. 19-60027, 5^th Cir., 03/26/2020

The claimant’s job was to assist with electrical wiring during the construction of Chevron Oil’s tension leg platform (TLP) called Big Foot at a shipyard in Texas.  During the construction, the future TLP floated in the bay on pontoons.

The claimant was injured, and he filed a claim for benefits under the Longshore Act. The ALJ denied LHWCA benefits because he found that the claimant failed to establish “status” as a maritime worker.

He found that the TLP was under construction at the time of the injury and thus was not a vessel so there was no status based on shipbuilding, and that oil & gas exploration and production is not maritime employment.  The BRB reversed the denial of benefits, and the 5^th Circuit affirmed the reversal.

The award of benefits was based on the U.S. Supreme Court’s decision in Director, Office of Workers’ Compensation Programs v. Perini North River Associates, 459 U.S. 297 (1983).  If a worker is injured while working upon the navigable waters of the United States, he is covered under the Longshore Act under Perini.  The issue of “status” is irrelevant.  This is the pre-1972 Amendments situs of injury coverage test carried over.

NOTE:  Following the Mays decision (see above) it is possible that this worker would also be covered under the OCSLA, based on the “substantial nexus” test since he was working on a platform that was going to end up on the OCS.

Jay Rivera v. Kirby Offshore Marine, LLC, No. 19-40799, 5^th Cir., 12/22/2020

This is the case of a harbor pilot who is suing the owner/operator of the vessel on which he was injured.  He is suing for the breach of the warranty of a seaworthy vessel, and alternatively for negligence under LHWCA Section 905(b).

The claimant was a state-licensed pilot who assisted vessels in navigating the Corpus Christi ship channel and the LaQuinta channel.  He was a member of the Pilot’s Association, an unincorporated association that regulated the rules and regulations of licensed pilots, collected fees earned by the members into a common fund, and made pro rata distributions.

The defendant argued primarily that the claimant was not entitled to the unseaworthiness remedy, that he is covered by the LHWCA, and that negligence under Section 905(b) was his remedy against the vessel owner.

Ordinarily, a vessel owner owes the duty of a seaworthy vessel only to crewmembers of that vessel, but the claimant in the Rivera case was suing as a Sieracki seaman pursuant to the U.S. Supreme Court’s decision in Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85 (1946) which gave the seaworthy remedy to non-crewmembers on board a vessel temporarily performing crew like duties.

To summarize the relevant parts of the decision:

• The pilot claimant was not an employee of anyone.  Since for this reason he was not covered by the Longshore Act and he was an independent contractor he could not sue the vessel owner for negligence under Section 905(b).
• He qualified as a “Sieracki seaman” and could sue the vessel owner for damages caused by an unseaworthy vessel.

NOTE:  The issue of the Jones Act seaman negligence remedy did not arise since the claimant did not claim crewmember status.

NOTE:  Pilots, like divers, often present interesting issues with regard to what remedy may be available to them for on-the-job injuries.