Friday, August 22, 2014

Some Thoughts on Liability and Compensation Systems - A Jeu D'Esprit for David DePaolo

James Johnson v. PPI Technology et al. On appeal from The United States District Court For The Eastern District Of Louisiana, No. 2:11-Cv-2773. Fifth Circuit case number 14-30423.

David DePaolo of WorkComp Central brings this case to our attention and writes: -

“Regular workers' compensation cases sometimes involve disputes about who is the employer, so this case isn't really all that different in that regard.

But I think it's interesting to us in the regular work comp field to see what life would be like if there were no "no fault" provision in our laws - an additional element of dispute to be resolved adds one more very big layer to the liability picture.

And that disputes go before a jury is what life was like before the administrative proceedings of nearly all work comp litigation now.

Perhaps to a maritime/Jones Act regular, this set of facts and this case isn't all that interesting or important, but those of us in the traditional work comp field should remind employers and workers that this is what life is like without comp's attempt to deliver quick and expedient benefits: four years just to find out who the correct employer is, and still there is the need to prove negligence before any benefit liability is due...”

In answer to the challenge here a few thoughts about the two systems, with special reference to the Longshore and Harbor Workers' Compensation Act.  This a very general piece, and people should be warned that it is not legal advice,  and you believe it at your own risk.

For most people involved with workers’ compensation, the first place to look for a comparison with employers’ liability would be the Railroads.  A railroad worker in intrastate commerce is covered by the workers’ compensation law of that state.   A worker in interstate commerce is covered by the Federal Employers’ Liability Act, (“FELA”), codified at 45 U.S.C. § 51 et seq. (1908).  This very old statute allows an employee to sue in either federal or state court for damages.  It effectively abolishes the old terrible triad of defenses, contributory negligence, assumption of risk and fellow servant negligence.  Damages are reduced in proportion to the employee’s own negligence. 

Congress passed the Merchant Marine Act, the “Jones Act”, in early June 1920.  The short part related to seamen is codified as 46 U.S.C. § 30104: "Any sailor who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply..."  Thus, the provision operates simply by extending FELA to seamen.

Both these statutes are alive and well and living among us, not just on the Ocean but throughout the US, and its rivers and lakes.  Several railroads also own or operate docks, and ships or barges to transport their product.  Such companies may have employees covered by state compensation law, FELA, US Longshore and Harbor Workers' Compensation Act, (“LHWCA”), and the Jones Act, and thus two workers’ compensation statutes and two liability statutes.

I went to a Railroad claims conference, (a great experience), where I found that there were four basic claims they faced.  First, passenger injuries; second, collisions at crossings; third, trespassers on the line and fourth, employee injuries.
The claims people I spoke with preferred liability claims, all of which had roughly the same rules, without having to mess with the complexity of workers’ compensation laws and their differences.  The director preferred workers’ compensation because it was not necessarily nor always confrontational or adversarial.  A defense attorney preferred Jones Act to Longshore, because “you can win a Jones Act case”.  A shipowner preferred Jones Act because you can handle the cases without interference from the government, and if you mess up, you’ve always got your insurance to cover it.

So what are the differences between the pacific world of compensation and the wild west of employers’ liability?  Actually, the latter is like any normal liability claim, except it’s against your employer. 

Given the alacrity with which employers accept compensation claims, and do try to push them onto private medical systems, there probably isn’t much difference.   Some state statutes have threshold requirements for accepting or rejecting claims.  LHWCA, reflecting its date, (1927 and 1972), does not, so that an employer can deny a claim with impunity. Prompt payment is far from unusual but it is not enforceable. 

How quickly is payment enforceable?   Under LHWCA, you need to set an Informal Conference – which can be done relatively quickly, but realistically not for a couple of weeks.  Then there has to be a recommendation, which may be rejected.  Then the case will be assigned to the Office of Administrative Law Judges.  The time between referral and trial depends on where the claimant lives, since the Judges will often have to travel to the area, so cases will be tried at the same time, and also on the parties.  A trial date shorter than 90 days will usually be met with a request for a continuance.  Once the case is tried there may be delays before the record is closed.  Once the record is closed the decision will take some time, often as much as a year.  So realistically, an LHWC case that is disputed can take about two years before a decision can be expected.  This is probably shorter than most liability cases could be expected to be decided.

A decision awarding benefits must be paid before an appeal can be made to the
Benefits Review Board.  This is a benefit to the injured worker, because if the worker wins a liability case, the defense can appeal without first paying the award.

To get an award the worker must prevail.  Under LHWCA the worker must prove:

1.     An injury
2.     Conditions at work that could have caused the injury.

The employer can rebut the presumed link between the two, by substantial evidence.  The employee must then prove on the balance of probability that there was a link.  In other systems the employee must always prove the link.  In FELA and Jones Act cases the employee must prove:

1.     A duty owed by the employer;
2.     Breach of that duty;
3.     Which caused the accident.

Under FELA and Jones Act the burden of proving negligence is “feather weight” and causation is not judged under the “proximate cause” standard.  In this sense a critic might say that these statutes are so favorable to the employee as to be “compensation without limit of benefits”.  But an important difference is not so much the proving of negligence by the employer, but that an injury in the course and scope of employment with the employer but caused by a negligent third party is compensable under a compensation act, with a subrogation right of recovery from the responsible party, but under a liability statute, only the responsible party is liable.

The LHWCA has a provision in §905(b) allowing recovery from a vessel responsible for the injury.  However, there are rules relating to the duties of the vessel owner and the stevedore employer that limit the circumstances in which the worker can recover from the vessel.  This a frequently litigated field, often unpopular with employers who feel they are providing an income stream to support the worker while he sues their customer.

Under the Jones Act, if the case brought in the Federal Court under the Admiralty rules, the Judge, not the jury, decides the case. This old procedure was the reason that the Longshore Act does not violate the constitutional requirement for a jury – there never was such a right in Admiralty, and LHWCA is a reform of admiralty, not common, law.  Since there is a right to a jury in the employee’s option, this is perhaps a benefit.  However, I recall many years ago a case which the defense asked for a jury trial.  The Judge to whom it had been assigned rejoiced in the nickname ”Santa Claus”.  The question of who decides the cases is a lottery, since not all juries are the same, nor are all Judges.  An inexperienced Longshore Judge may very well be a good judge, finding facts based on good reasoning and making good credibility determinations.  Lack of experience with the arcane recesses of the law is not so important as having a clear, comprehensive and well-explained finding of facts.  Because there is a high degree of deference given to the trier of fact by the appellate process, a good first instance decision is essential.  The 1972 amendments moved the formal hearing proceedings from the District Directors to the Administrative Law Judges, with Congress noting the need for the Department of Labor to swiftly install judges skilled in this field.  This leads to a reasonably predictable result, based on the individual quirks of individual judges.  In many ports there are Judges very familiar with maritime affairs, leading to the same reliably predictable results.  Of course, predictability does not mean desirability from both sides point of view.

Which brings us to the extent of benefits.  One advantage of a liability system for a claimant is the control of the medical; a compensation system allows a greater involvement by the employer both as to utilization and price.  In both system there are likely to be “dueling doctors”.

A major difference in monetary amounts is, obviously, the way lost wages are calculated.  Compensation systems work on a notional average weekly wage, often subject to a limit, with a reduction to reflect tax; liability systems work on actual wages, on an individual basis, requiring evidence from an economist.

The liability system will predict lost wages over work life expectancy.  A compensation system typically limits many accidents to a number of weeks compensation based on a schedule.  The LHWCA limits such cases to injuries to extremities.  All other injuries require two thirds of the difference between the assumed to last until death, not a notional work life.  Permanent total disability is special case where the post accident wage is zero.  In these cases an annual wage, (not cost of living), increase replaces the post accident wage.

The liability systems of course, allow for non-pecuniary damages, which typically would make the full recovery higher than under compensation acts.  The liability systems also then reduce the damages to a lump sum reduced by a present value factor based on life expectancy.

The third difference, of course, is that a liability system allows a reduction, as a percentage, to reflect the comparative fault of the worker.  Thus for the same accident a worker may get a very large sum of money, nothing, or something in between.  Compensation provides a fixed sum regardless of fault.  The benefits of one system or the other depend on the case.  A typical example would be an accident occurring in a car park.  If the injury is catastrophic and the fault of the employer, the employer will argue that it is covered by compensation.  If it is the fault of the worker, the employer will argue that it is not covered by compensation.  And the worker will argue the reverse.  A similar calculus allows for arguments as whether a worker is a Jones Act seaman or a Longshoreman.

Once the benefits have been awarded, the question of payment of legal fees arises.  The LHWCA is a fee shifting statute and of late years has been a huge bone of contention.  The employers have carefully parsed the act to ensure the minimum possibility of the shifting to occur, and if it does to limit the amount of fee payable as to both rate and utilization.  Under liability statutes, the “American Rule” applies and the fee is deductible from the recovery.  The combination of a reduction for comparative fault and for fees may in individual cases make a compensation recovery more beneficial to workers.

The biggest problem seems to me that the compensation system has been kidnapped by the legal system, and we may compare it with the difference between for example a safety inquiry in a hospital seeking to find cause, with a legal inquiry into the same incident to find blame, or an accident analysis like that into the TWA crash off Long Island, where the FBI and National Transportation Safety Board had entirely different ways of proceeding.  If we wish to make a determination that work accidents are societal matter, and that industry rather than either the individual or society as a whole should bear the cost, then we should ensure that the procedure really does ensure the continuation of money to the worker, and appropriate medical is promptly delivered and paid for.  In many cases, a compensation case looks like a liability case, with legalese sprinkled through the pleadings, instead of using plain language.  I’m sorry, but starting a pleading “Comes now..” in the twentieth century is just plain idiotic.  Many of the issues that arise could be sorted out singly.  The biggest source of immediate concern is often the calculation of the average weekly wage.  Why do you need a hearing about it?  If you can’t explain your position in writing, an oral hearing isn’t going to help you.  Both sides should simply send their calculations and arguments to the District Director who can then transmit them to the OALJ.  A Judge can be assigned with twenty-four hours, and start working on the problem right away.  In the meantime, the rest of the case can continue until another issue arises.

Monday, August 18, 2014

The Florida Fiasco - Padgett and Recreational Boating

What fun.   In Florida Workers’ Advocates, Workers’ Injury Law &Advocacy Group and Elsa Padgett v. State of Florida, the Court held that the gradual erosion of workers’ rights through successive amendments to the law rendered the Workers’ Compensation statute unconstitutional under the Florida Constitution.  Of course, this has created quite a frisson in the Workers’ Compensation Community, now largely ensconced in Orlando for their annual gripe fest.  For not only is the Florida Act now in doubt, but all other states need to review the logic of the case and measure their current statutes against their state constitutions – and, of course, the Federal Constitution.  Oh joy, open your books at New York Central Railroad v White, and work on through the cases in the early twenties.

But what does this have to do with the Longshore and Harbor Workers' Compensation Act?  Surely nothing since 1930 has so far changed the Act as to render it unconstitutional.  (Although there were whispers that the landward extension might not be as constitutional as all that, the whispers seem to have ceased).  So that’s fine.

Now consider the Longshore and Harbor Workers' Compensation Act, section 2 (3) at the end: ”if the individuals described in clauses (A) through (F) are subject to coverage under a State workers’ compensation law”. Of course, (F) covers recreational vessel builders and repairers.  So all these folk are suddenly going to have to hope the Padgett case will be overturned or get Longshore cover in a hurry.  What an enjoyable time for a lawyer or a broker.  Do you advise your clients to protect themselves in case, by taking out the insurance?  Do you advise them to report the cases to the Department of Labor and then deny them?  Or do you advise them that the Padgett case is of doubtful validity and to wait it out?

Of course, the Department of Labor regulations want a decision on its merits from the State to the effect that the worker is not covered under state law. See 29 CFR §701.401 (a): “For these purposes, a worker or dependent must first claim compensation under the appropriate state program and receive a final decision on the merits of the claim, denying coverage, before any claim may be filed under this Act.”  This presupposes a state program, and a valid one at that.  Both Texas and Oklahoma have opted out provisions from their state programs.  The regulation is going to get a lot of scrutiny in the near future.  A change, however, like the mythical Englishman of song, (ask Eartha Kitt), takes time.

The quickest best solution is for Florida to adopt an Act above suspicion.  They could always adopt the Longshore and Harbor Workers' Compensation Act.  It has stood the test of time.

Friday, April 25, 2014

Calculating The Average Weekly Wage On A Defense Base Act Claim

One of the most difficult and annoying problems under the Defense Base Act is calculating an Average Weekly Wage.  Not that it is exactly easy under the Longshore and Harbor Workers' Compensation Act, whose benefits are incorporated into it.  The Longshore and Harbor Workers' Compensation Act, originally passed in 1927, in section 10, provides for three methods of doing the sums.  The first two deal with five day a week and six day a week workers.  These need not detain us here.  The methods work well in a factory with a hierarchical structure.  For seven day a week or casual workers, not so much.  So the Act provides a third way, in section 10(c):

“If either [subsection 10(a) or 10(b)] cannot reasonably and fairly be applied, such average annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and the employment in which he was working at the time of his injury, and of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, or other employment of such employee, including the reasonable value of the services of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee.”

Which translated into English, means roughly “do the best you can”.   The difficulty with a Defense Base Act claim is that workers overseas, especially in war zones, are paid a much higher wage than equivalent workers in the U.S.  So, if someone who earns about $40,000 a year as a truck driver in the U.S. goes to Kuwait at a salary of $70,000 for a one year contract, what is his average weekly wage? 

One answer, of course, is $70,000 divided by 52.  Its what he is earning, and what all the other drivers are earing.  When he is injured, that’s what he is losing.  And if we are only talking about temporary disability, then probably there’s no real objection.  

But what if it isn’t just temporary?  Here we need to recall the rules of the Longshore and Harbor Workers' Compensation Act, extended to the Defense Base Act as they apply to loss of wage claims.  If a worker has a residual wage loss, then the employer pays two thirds of the difference between the average weekly wage and the residual wage.  So if the worker with the $70,000 annual wage (i) recovers from the injury, (ii) is precluded from returning to his overseas posting, but (iii) is able to work as a truck driver in the U.S earning $40,000 a year, then he is entitled to ($70,000 - $40,000) /(2/3) = $20,000 annual compensation.

However, since the $40,000 he is currently earning is in today’s dollars, that amount needs to be reduced to its level or value at the date of the injury.  This is done using the percentage increase in the National Average Weekly Wage, in reverse.  So, if there were two years between the two numbers, and the combined total increase was 5%, then (roughly, for we are demonstrating a point, not calculating an exact result,) his earnings of $40,000 will reduce to $38,000.  This means that the wage is loss is compared “like for like”, and the employer will have to pay $21,333.33 annually.  To someone earning exactly the same wages as they were before they went on their overseas adventure.  And, given the reduction in U.S. presence, the job, which was a one-year contract, might not have been extended, so the employee wouldn’t have gone back to his old job anyway.  Since these benefits are for as long as the disability lasts, the worker will likely be paid for life.  Some might find this an undesirable result.

Therefore, some have suggested, and some courts have accepted, that the “average weekly wage” should be a “blend” of the contract wage and the “previous earnings of the employee”, so avoid a possible “windfall” for the employee.

In February 27, 2014 Administrative Law Judge Lee Romero issued his Decision and Order in the case of Lopez v Dyncorp, Case 2012 LDA 00613.  One of the issues was the calculation of the average weekly wage.  There was no permanent disability, so there is little startling fuss to be made.  But since the case sets a precedent, and it is a matter of principle, it is worth at least examining it.

Lopez had worked in the U.S. in the same sort of job as the one he took with Dyncorp.  He started working for them on April 9, 2011, and was injured 30.14 weeks later, on November 5.  During that time his average weekly was $1,797.73.  The Judge decided it would be correct to use the blended approach, so he calculated the average annual wage for the four years before the accident, ($45,155.24, giving an average weekly wage of $868.37,) then added the current average of $1797.73, and divided by two.  He found the average week wage was $1, 333.05.

Of course, what we immediately notice is that the Judge did not increase each of the four years’ wages by the percentage increase in the National Average Weekly Wage.  This seems to be a flaw in the calculations.  Calculating from the numbers provided in the Decision, but without any claim to precision, (lacking exact dates,) an “increased average annual wage” would be $47,203.93, an average weekly wage of $ 907.81, and a blended rate of $1,352.77.

If the four years wages are not increased, there should be a good explicit reason why not, and why the procedure should differ that of the loss of wage calculation.  The blended rate already ensures a reduced AWW; not to recognize annual increases is to reduce it further.  There is no policy reason to do that.

Sunday, March 23, 2014

A Car Park Injury In New Jersey – Thoughts From A Longshore Perspective

A Car Park Injury In New Jersey – Thoughts From A Longshore Perspective

It was just after 10.00 p.m. on the night of September 19, 2012 that a worker in New Jersey drove their car out of their employer’s parking lot onto a public highway.  As the car entered the highway, another car collided with it, striking the driver door, injuring the worker.  The picture below is included in the court’s decision.  The case is Carla Burdette v. Harrah’s Atlantic City, Superior Court of New Jersey, Appellate Decision.

It was not a decision related to the relative culpability of the drivers for the collision, as one might expect, but one determining whether the New Jersey Workers’ Compensation Act covered the injured worker.  The question was whether the worker was still in the course of their employment when the accident occurred.  The judge found that the worker’s car had left the car park, but not completely.  No matter how little or how much, the car was still in the car park, and, applying New Jersey precedent, that meant the worker was still in the course of their employment.  The employer, unsurprisingly, begged to differ, and appealed.  They maintained that the accident occurred on the highway, and the injuries resulting from the accident also occurred on the highway.  The appellate court remarked: “We disagree”.

The court wrote:
“The statute provides that "[e]mployment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer." N.J.S.A. 34:15-36.”
They further said that “[t]he circumstances of the present case plainly reveal that [the worker] never fully left [the] employer’s premises…We reject [the employer’s] ultra-rigid approach that focuses only on the colliding vehicles’ point of impact and the front seat location of [the worker]….Instead, applying common sense and the policies inherent in the Act, we subscribe to the judge of compensation’s viewpoint that the injuries suffered here were a result of [the worker’s] firm attachment to her place of employment, albeit while on her way home”.  De minimis curat lex, perhaps.

Presumably, had the accident occurred on the way to work, and the worker’s car been pushed a smidgeon over the line into the parking lot, resulting injuries would also have been compensable.

With no disrespect to the court, it is perhaps possible that another outcome might have been reached; and it is possible that “common sense and the policies inherent in the Act” might allow for different results, depending on whose “common sense” is used.  To call the employer’s argument “ultra-rigid” is at best unkind.  One might argue that it is “ultra-rigid” to construe “when the employee leaves” to mean “when the employee’s car has left” the premises.  But those of us battling the obscurity of federal law regard as very small beer the eccentricities of state laws.

Welcome to the wonderful world of the Longshore Act, (“LHWCA”), (codified for the curious at 33 U.S.C. §§901 et seq.).  The Act passed in 1926 because the Supreme Court of the United States decided in 1917 in the case of Southern Pacific Company v. Jensen, (244 U.S. 205) that States could not extend their workers’ compensation statutes to cover maritime employees injured on navigable waters.  Only a federal workers’ compensation statute would do.  So there was a line at the water’s edge, the “Jensen” line.  On the shore side, state law applied; on the seaward side, federal maritime law applied.  Thus, the Longshore Act was born with a boundary.  And with the boundary, obfuscation began even before the Act was passed.  Those in the know will be muttering the mantras of “maritime but local”, “twilight zone”, and “concurrent jurisdiction”.  Patience.  Those are for another day.

The State Historical Society of Wisconsin in their Wisconsin Magazine of History Vol. 57, No. 2, Winter, 1973-1974, published a history of the State’s workers’ compensation statute of 1911, by Robert Asher.  It includes a photograph of stevedores unloading a freighter in the port of Milwaukee between 1905 and 1910.  Three men in suits are watching two men in overalls heave a barrel on a hand truck up a (rather dilapidated) gangplank onto a (rather dilapidated) pier.  The worker at the front, pulling the cart, has the sole of his left foot on a plank on the pier.  His left heel seems raised, but over the water.  His head is over the pier, but his shoulders and chest appear to be half over the pier and half over the gangplank, over navigable waters.  Is he covered by state law or by federal law?  In such cases, as we noted before, de minimis curat lex.  It is on small differences that large results turn.  His companion, shoving the load from behind, is clearly on the gangplank, over navigable waters and so would be covered by federal maritime law, rather than by the state law of 1911 enacting workers’ compensation in Wisconsin.  But that was not known at the time.  Christian Jensen, the worker whose name is used for the supposed line of demarcation, was killed in 1912.  (He appears to have been working in a somewhat similar situation.  He was driving an electric truck on the gangplank of the El Oriente and hit his head on the opening into the vessel, broke his neck and died, in much the same place as the second worker in the picture).  It was not until 1917 that the Supreme Court announced the Jensen decision.

The rigid line, later embalmed in the Longshore Act, lead to some interesting results.  A worker fell from the ship, and died when he hit the pier.  He was held covered under state law.  A worker fell from the pier into the harbor.  He was held covered under the Longshore Act.  Which Act was more beneficial to the worker?  I have not studied the relative values under the various acts.  But since 1972, when the Longshore Act was amended, it is likely that most workers would, if killed or seriously injured, be better compensated under LHWCA.  (Those that did better under state acts, probably did worse after the reforms of the various states passed since 1980.  But this too is a discussion for another day).

Looking at the picture, we can see that they will both be covered under the state act when they reach the pier and wheel the barrel to its point of rest on the pier or in the warehouse.   They will return to maritime law as they step onto the gangplank to get the next barrel, and into state cover again as they unload it.  They will walk (or struggle – these barrels are not light) in and out of cover all day.  To fix this problem, Congress amended the LHWCA to extend its reach landward.  They limited the landward reach to accidents occurring “upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, of other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).”  So now both workers would be covered by the LHWCA all day.  Of course, a line still remains.  It has simply moved landward.  Could the New Jersey case occur under the LHWCA?  Of course it could.  But there would be an added twist.  Not only must there be an employer-employee connection at the time of the accident.  The accident itself must also be on a covered location.  So if the car park had been owned by the employer, but located on the other side of a highway, the worker would have to prove the car park was an “adjoining area”.  And the answer would have us going round in Circuits.  Different circuits, different results.  The only certainty is that there will be uncertainty.

Tuesday, January 28, 2014

Recreational Vessels, yet again. A further inconsistency

Recreational Vessels Again.

Representative Debbie Wasserman Schultz has introduced a bill, H.R. 3896, to amend the Longshore and Harbor Workers' Compensation Act.  In fact, the amendment really modifies the regulations at 20 C.F.R. §701.501, the definition of “recreational vessel”.


The ARRA Act of 2009 amended the definition of “employee” to exclude “individuals employed to build any recreational vessel, or individuals employed to repair any recreational vessel, or to dismantle any part of a recreational vessel in connection with the repair of such vessel”. 

Subsequently the Department of Labor issued regulations, which defined the term “recreational vessel”, and established effective dates for the changes depending on the injury.  The fundamental definition of “recreational vessel” in the regulations was taken from the Coast Guard definition, and will be embalmed in statute, if the bill is enacted.

20 C.F.R. §701.501 contained three subsections.  Subsection (a) contained the definition.  Subsection (b)(2) contained some exclusions based on other statutes, and, at (b)(3) contained a paragraph “deeming recreational” public vessels, i.e. a vessel owned by the United States, or by a State or political subdivision thereof.  Subsection (c) adopted subsequent amendments to the statutes listed in (b)(2).

H.R. 3896 has one section.  Subsection (a) amends the current statute by redesignating Section 2(22) as section 2(23), and adding a new section 2(22).  The new Paragraph 22 has two sub-paragraphs. 

Sub-paragraph (A) recites the definition of a recreational vessel from 20 C.F.R. §701.501, thus confirming the definition proposed and adopted by the Department of Labor.  

Sub-paragraph (B) enacted rules for applying the definition of “recreational vessels”. 
Clause (i) deals with vessels being manufactured or built and is identical to §701.501(b)(1).

Clause (ii) is new.  It replaces 501(b)(2) with a positive rule for vessels being repaired in language similar to clause (i).  There are no longer any of the exclusions.
Clause (iii) provides the rule for public vessels, and is substantially similar to 501(b)(3).

Section 1(b) is entitled “Regulations” and requires the Department of Labor, within 90 days of enactment of the bill, to amend 20 C.F.R. §701.501 “by deleting the text of sub-sections (a) and (b) of such section and replacing it with only the text of the definition of recreational vehicle [sic] in section 2(22) of the Longshore and Harbor Workers' Compensation Act, as added by subsection (a);” and requires the Department of Labor to make no further modification to such definition in another regulation or any administrative directive.


Note two apparent inconsistencies.  The reference to “recreational vehicles” should clearly be “recreational vessels”, and to the requirement to delete sub-sections (a) and (b) should be added sub-section (c), which refers to the now deleted sub-section (b).


Sunday, January 26, 2014

Recreational Vessels Under the Longshore Act. Again.

Representative Wasserman Schultz has introduced a new amendment to the Longshore Act.

The Bill, HR 3896, seeks to revise the previous definition of “Recreational Vessel” in the Regulations.  The entire Bill has one section, with two subsections.  Section 1(a) is titled “Definitions”, and Section 1(b) is titled “Regulations”.

The Regulations provision requires the Department of Labor to amend the regulations in section 701.501 by replacing the current subsections (a) and (b) with “only the text of the definition of recreational vehicle [sic] in section 2(22) of the Longshore and Harbor Workers' Compensation Act, as added by subsection (a)…”

Apart from the misprint, (“vehicle” should be “vessel”), can the Department actually make the changes within 90 days, given all the restraints on regulating and procedures required under the various statutes seeking to prevent rapid rule making?

Monday, November 11, 2013

No Intentional Tort Exception Under the Outer Continental Shelf Lands Act

Latimer v. Chet Morrison Contractors, No. 11-CV-806, (W.D. La. 10/09/13)

Jon Robinson writing on the Mouledoux Bland Blog, 

drew my attention to this interesting case under the Outer Continental Shelf Lands Act. 

On July 16, 2009, Latimer’s first day of work on the rig, he was carrying a lifeline rope from one area of the platform to another. He had the rope wrapped around his shoulders and trailing behind him. Latimer alleged that Defendant Charles Endom “intentionally stepped on the rope,” jerking Latimer backward. When Endom removed his foot from the rope, Latimer allegedly stumbled forward and slipped in a wet and dirty depression on the platform floor. Latimer alleged that as a result of the incident he sustained injuries to his neck, left shoulder, low back and left knee.

Latimer claimed that the “intentional act” of Endom removed the case from the Outer Continental Shelf Lands Act, under an as yet undeclared by the Fifth Circuit exception to the exclusivity provision of the Longshore and Harbor Workers' Compensation Act.  The Court had no problem in dismissing this argument, and the related argument that the incident was not an “accidental” injury because it was intentional.  The Court also noted the “horseplay” cases in connection with the requirement that an injury so caused arises out of employment.

What was not argued was the slightly different requirement under the Outer Continental Shelf Lands Act, that the injury must occur “as a result of operations” on the Shelf.  In the light of the Vallodolid case, might the employer be able to argue that (a) the horseplay arise out of employment, but (b) it had nothing to do with the operations on the shelf.  In that case, might the employer be able to plead that respondeat superior does not apply, and escape all financial obligations to the worker?  Of course that would leave the co-worker unprotected by §§905(a) and 933(i) of the Longshore and Harbor Workers' Compensation Act, and exposed to liability for the consequences of his actions.