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No More Hand Grenades: Coverage of the LHWCA

No More Hand Grenades: Coverage of the LHWCA. October 1, 2013. Law Office of Matthew H. Ammerman, P.C. 2040 N. Loop West, Suite 390 Houston, Texas 77018 (713) 227-1404; (713) 456-2634 (FAX) mha@MaritimeDefense.net www.MaritimeDefense.net. Jargon.

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No More Hand Grenades: Coverage of the LHWCA

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  1. No More Hand Grenades: Coverage of the LHWCA

    October 1, 2013 Law Office of Matthew H. Ammerman, P.C. 2040 N. Loop West, Suite 390 Houston, Texas 77018 (713) 227-1404; (713) 456-2634 (FAX) mha@MaritimeDefense.net www.MaritimeDefense.net
  2. Jargon OWCP = U.S. Department of Labor’s Office of Workers’ Compensation Programs, a/k/a “DOL.” District Director = Leads district offices of OWCP. Referred to as “Deputy Commissioner” in Act, an anachronism. ALJ = Administrative Law Judge AWW = Average Weekly Wage PIWEC = Post-Injury Wage-Earning Capacity
  3. Path of a LHWCA Claim
  4. Coverage of the LHWCA Bludworth Marine, LLC – Galveston, Texas (dry dock)
  5. Situs:Navigable Waters
  6. 1972: Landward coverage of the LHWCA There must be situs and status for landward LHWCA coverage.
  7. Situs: Start with the Statute 33 U.S.C. §903(a): [the injury must occur] “…upon the navigable waters of the United States (including any adjoiningpier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).”
  8. Situs: old definition of adjoining “Adjoining” can mean "to be close to" or "to be near." Avenue N gear room – 5 blocks away! Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980) cert. denied, 452 U.S. 905 (1981)(reversed). Seriously? Reversed.
  9. Situs New Orleans Depot – Chef Yard Situs? NO!
  10. Situs: new definition of “adjoining” “Adjoining" means "border on" or "be contiguous with" navigable waters. More faithful to the plain language of the statute. Vague definition from Winchester provides little guidance in determining whether coverage is provided by the Act. New Orleans Depot Servs. v. Dir., Office of Worker's Comp. Programs [Zepeda] 718 F.3d 384, 394 (5th Cir. 2013).
  11. Situs Bordelon injured in a warehouse outside his tool room in a warehouse in the center of the facility; about ¾ mile to dock. Employer’s facility is on Mississippi River. Bauxite into facility Levee/River
  12. Situs Tool room Dock Highway 44 (public road) Mississippi River Noranda Aluminum – Gramercy, Louisiana Situs? NO!
  13. Situs Noranda Aluminum – Bauxite Unloading Dock
  14. Situs Noranda Aluminum – Warehouse Situs? NO. Bordelonv. Noranda Alum., LLC, 2012-LHC-01312 (ALJ)(5/14/2013)(ALJ Larry Price).
  15. Situs Radford was Director of Engineering and a “walkaround guy.” Hearing loss claim. The employer owned a dock on Mississippi River; received steel scrap by vessel. Steel mill on landward side of levee and public road was not a covered situs. Radford v. ArcelorMittalLaPlace Limited [f/k/a Bayou Steel], Slip. Op. 12-0463 (May 15, 2013)(unpublished)
  16. Situs Dock Steel Mill Facility ArcelorMittal – LaPlace, Louisiana
  17. Situs ArcelorMittal - LaPlace Levee/River Steel Mill Situs? NO. Radford v. ArcelorMittalLaPlaceLitd., Slip. Op. 12-0463 (May 15, 2013)(unpub’d)
  18. Situs Look for separation between loading or unloading and, e.g., manufacturing or non-maritime functions. Are there facilities between the site of injury and navigable waters used for non-maritime purposes? Areas dedicated to producing finished product are not LHWCA-covered situses because they are functionally separate production areas. Bianco v. Ga. Pac. Corp., 304 F.3d 1053, 1060 (11th Cir. 2002).
  19. Status Maintenance workers – integral to loading or unloading vessels? Status? YES. Coal buildup on rollers could make dumper inoperable and buildup of coal below conveyors could eventually foul the conveyors and cause shutdown. Chesapeake & O. Ry. v. Schwalb, 493 U.S. 40 (U.S. 1989)
  20. Status: Some Time in Maritime Employment Millwright welder and general mechanic. Worked on conveyors used to bring raw materials offloaded from ships. Work must be: integral to the loading, unloading, constructing, or repairing of vessels. Status?YES. Jones v. Aluminum Company of America, 35 BRBS 37 (2001)[Jones II].
  21. Outer Continental Shelf Lands Act TX + FL - 9 nautical miles (total of 10.26 land miles). LA,et al.- 3 nautical miles (total of 3.45 land miles).
  22. Outer Continental Shelf Lands Act Juan Valladolid killed at onshore oil & gas facility in Ventura County, California, consolidating scrap metal. Worker’s injury covered by OCSLA if: Substantial nexus, i.e., a significant causal link between the injury and his employer's on-OCS extractive operations.
  23. Outer Continental Shelf Lands Act If “focus of contract” is work on OCS may impact contractual indemnity or insurance obligations.
  24. Questions?
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