Whenever there is a potential Longshore & Harbor Workers Compensation Act (LHWCA) claim, you may hear the words “situs” and “status” thrown around in an effort to determine whether there is coverage under the LHWCA.
“Situs” refers to the location where the injury took place, the physical location. This is extremely important, because distinctions regarding coverage are made based on a number of criteria.
“Status” refers to the actual job, the type of work that was being performed at the time of the accident.
Add to the mix that different federal circuit courts have interpreted the regulations set out in the LHWCA in slightly different ways, there is a bit of confusion regarding definition of these terms. For the purposes in this article, we will talk about the terms as the 11th Circuit has defined them, which applies to Florida. You must satisfy both requirements separately in order to be covered under the LHWCA.
Section 903 of the LHWCA states:
903. Coverage (a) Except as otherwise provided in this section, compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, 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).
You might think this definition is fairly inclusive and straightforward, but in analyzing individual cases, it is not necessarily so. First of all, there are exceptions for work done on small vessels, defined as under a certain weight, and exceptions to that exception.
For instance, a multi-use facility that has loading/unloading, manufacturing and storage operations that is adjacent to water will not completely meet the situs test – only the loading/unloading area of the facility. The rationale is that the other areas are not used for maritime purposes regardless of the location of the facility.
Then there is the murky term “other adjoining area” which has been the subject of much litigation regarding “situs” issues. The courts look at a couple different things. The geographic nexus test is one tool used, asking the question whether the site of the injury adjoins navigable waters. The courts look at such things as the proximity to the water, the feasibility of the location for maritime purposes, the character of the surrounding properties, the intervening properties and the suitability of the site for maritime purposes.
Another tool used is the functional nexus test – whether the area is customarily used by the employer for loading, unloading, repairing, dismantling, or building a vessel. This is an easier fact to determine, as there is no bright line determination for the geographical nexus.
An area must satisfy both the geographic and functional component to be an “other adjoining area” under Section 903(a). Thus, in the 11th Circuit an adjoining area satisfies the geographic requirement when it is “close to or in the vicinity of navigable waters or in a neighboring area.” This is based on a case from the 1980’s that dictates the location of injury does not have to be touching the navigable waters to be a covered injury. (Other circuits have begun narrowing the definition of “other adjoining area” so the 11th may follow suit in the future.)
The type of work being done at the time of injury is also important. Coverage under the LHWCA is for “employees” injured on the job, however, the definition of employee in the act is limited.
The Act states as follows:
902.(3) The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include —
(A) individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;
(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
(C) individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);
(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of an employer described in paragraph (4), and (iii) are not engaged in work normally performed by employees of that employer under this Act;
(E) aquaculture workers;
(F) individuals employed to build any recreational vessel under sixty-five feet in length, 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;
(G) a master or member of a crew of any vessel; or
(H) any person engaged by a master to load or unload or repair any small vessel under eighteen tons net;
You can see from this listing there are lots of exceptions here, as well. What about people who do both types of work? Then the question becomes were they doing the exempted work when they were injured, or were they doing “longshore activity” work? These are not easy questions to answer.
There are so many different scenarios that arise regarding status in the course of a LHWCA claim that they are too numerous to mention here. In another post we will address more on the “status” issue, because it changes from circuit to circuit and from one case to another. It is a VERY complex issue.
Frolic and Detour
Assume for a moment that you, an injured employee, have met the two tests above – are you automatically covered under the LHWCA? Not necessarily.
If you had left your work assignment, against the rules and without permission, to do something of your own accord and then you were injured, you may not be covered. An example of this might be going to get a soda when it is NOT break time, and without your boss’s permission. The court deems the employment nexus broken at that point, because you are now on a personal mission and you have abandoned your employment related duties, so you are not within the scope of employment. If something happens and you are injured, this “frolic and detour” may mean you are denied benefits.
Further, if your injury resulted from your own voluntary intoxication, you will not be covered under the LHWCA.
So Many Questions
As you can see from the few examples above, there are numerous questions to be asked to determine situs and status to see whether an injury is covered under the LHWCA or some other workman’s compensation program. It is not easy to determine this at first glance because of the complexity of the issues.
If you or a loved one has been injured, or someone has been killed, and you think there may be coverage under the LHWCA, you must consult with an attorney experienced in this area of law. They will be able to analyze your situation and help determine the best plan of action for your circumstances. There are many complex rules that must be followed, and you need experienced legal help.