ISSUES: Updates and Situs

Here is a collection of comments and notes that refer back to previous discussions.

ONE  – United States Circuit Courts of Appeal – We know that there are disagreements on Longshore Act issues among the various federal courts of appeal, and one of these days I may get ambitious enough to try to summarize the more prominent circuit conflicts.  In the meantime, keep in mind that the circuit in which the injury occurred determines which court will decide the appeal, and the U.S. Department of Labor’s Benefits Review Board usually applies the law of the appropriate federal circuit when adjudicating cases before it.  So here’s a breakdown of the U.S. Circuit Courts of Appeal:

First Circuit – Maine, New Hampshire, Rhode Island, Massachusetts, Puerto Rico

Second Circuit – New York, Connecticut, Vermont

Third Circuit – Pennsylvania, New Jersey, Delaware, U.S. Virgin Islands

Fourth Circuit – Maryland, Virginia, West Virginia, North Carolina, South Carolina

Fifth Circuit – Louisiana, Texas, Mississippi

Sixth Circuit – Ohio, Kentucky, Tennessee, Michigan

Seventh Circuit – Wisconsin, Illinois, Indiana

Eighth Circuit – Minnesota, Iowa, Missouri, Arkansas, Nebraska, South Dakota and North Dakota

Ninth Circuit – Washington, Oregon, Montana, Idaho, California, Nevada, Arizona, Alaska, Hawaii

Tenth Circuit – Wyoming, Utah, Colorado, Kansas, Oklahoma, New Mexico

Eleventh Circuit – Alabama, Georgia, Florida

The location of the injury can make a big difference in the outcome of a litigated Longshore case.

TWO U.S. Department of Labor – I recently listed significant changes that have occurred in the management of the Office of Workers’ Compensation Programs in the U.S. Department of Labor.  Positions are starting to be filled, and people are moving around.  DOL has just announced that Eric Richardson, the District Director in the Longshore Division’s Long Beach district office is moving to Washington, DC to replace Miranda Chiu as Chief, Branch of Policies and Procedures.  As you may recall, Miranda had announced her retirement to be effective the end of March but then agreed to stay on temporarily in the position of Acting Director when Director Mike Niss retired at the end of February.  Stay tuned.

THREE – Jones Act – I think that the last word is now in with regard to the bogus issue of whether the Jones Act hindered the clean up effort in the aftermath of the Deepwater Horizon explosion and oil spill.  The President Obama appointed, non-partisan National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling confirmed in its final report that the Jones Act did not prevent foreign vessels from assisting with the clean-up.

FOUR – Medical Marijuana – Back on 09/08/2010 I expressed the opinion that the legalization of the medical use of marijuana appeared to be a developing trend among the various states.  At that time I found fourteen states where the medical use of marijuana is legal (Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington).  You can now add Arizona and the District of Columbia to the list, but subtract Montana, which is in the process of repealing its medical marijuana law.  Delaware and Florida appear to be getting close to legalization.  So we’ll see how it goes, since more than a dozen states still have bills aimed at legalization pending in their legislative processes.

FIVE – Situs – It seems that recently we have stressed “status” when discussing contested issues of Longshore Act coverage and neglected “situs”.  For example, the discussion of truck drivers on 01/20/2011, the discussion of the case involving the nurse on 12/22/2010, and recent references to the Caputo principle of part time maritime work equaling full time Longshore Act exposure all related to the issue of occupational status under the Act. 

So, now, just a brief reminder that you must separately satisfy both the “status” and the “situs” tests for Longshore Act coverage.  The injury must occur 1) over the navigable waters (discussed on 09/29/2009), or 2) on an enumerated site (pier, wharf, dry dock, terminal, building way, or marine railway), or 3) in an “other adjoining area” customarily used by an employer for maritime activity.

Unlike “status”, “situs” is determined at the moment of injury.

If the worker is not injured upon navigable waters or on an enumerated site, then the issue is whether the injury occurred on an “other adjoining area”.  So, what is an “other adjoining area”?

As usual, this is a case by case determination, but there are a few general principles that can help the analysis.

The situs does not have to be used exclusively or even primarily for maritime purposes, as long as it is customarily used for significant maritime activity.  And the maritime use does not have to be continuous, but under certain circumstances can be intermittent.

If a particular area is associated with items used as part of the loading/unloading or shipbuilding/ship repair processes it need not itself be directly involved in loading/unloading a vessel or in shipbuilding or ship repair, or even physically connected to the point at which those processes take place.  For example, a shed used to store longshoremen’s gear located several blocks away from the nearest gate to the terminal and outside the property line of the port may be a covered site.  Also, a garage away from the water’s edge used to store and repair heavy equipment used in loading/unloading may also be a covered site.

Except for the federal Fourth Circuit Court of Appeals (states of Maryland, Virginia, West Virginia, North Carolina, and South Carolina), where “adjoining” literally means “lying next to”, the site does not have to touch navigable water.  It can be in the vicinity, or neighboring area of navigable waters, as long as it has a reasonable geographic and functional connection with customary maritime activity on those navigable waters.

The federal Ninth Circuit Court of Appeals (states of Washington, Oregon, Montana, Idaho, California, Nevada, Arizona, Alaska, and Hawaii) sometimes uses its so-called “Herron factors” to determine whether a particular site is an “other adjoining area”.  This involves an analysis of the particular suitability of the site for maritime use, whether adjoining properties are devoted primarily to use in maritime commerce, the proximity of the site to the water, and whether the site is as close to the water as is feasible given all of the circumstances.  Several other federal courts of appeal take a similar approach, combining an analysis of geography and function.

Multi-use facilities or manufacturing sites may include covered and non-covered areas and usually require a complex analysis to determine whether the site of the injury is in a covered area.

Finally, because of the occupational analysis under Caputo, walking in and out of coverage is usually not an issue in “status” cases.  A maritime employee, however, who leaves a maritime site during the course of his employment and is injured in a non-covered area is not covered by the Longshore Act.

I’m not sure how helpful this has been, but at least take it as a reminder that both “status” and “situs” must be satisfied for Longshore Act coverage.

ISSUES – MEDICAL MARIJUANA

It’s definitely a trend.

New Jersey recently became the fourteenth state to legalize the use of “medical marijuana”.  Also, the District of Columbia is setting up a legal use program.  Also, there are reportedly eight other states which currently have bills or ballot measures knocking around their legislatures to legalize the medical use of marijuana.  Also, there are other states, such as Maryland and Arizona, with reduced penalties for persons using marijuana for medical reasons.  As Robert Allen Zimmerman said back in the ‘sixties, “You don’t need a weatherman to know which way the wind blows.”

The fourteen states where the use of medical marijuana is legal under state law (there may be more at any time) are:  Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

The eight states with live pending legislation are:  Arizona, Illinois, Massachusetts, New York, North Carolina, Ohio, Pennsylvania and South Dakota.

Provider authorization and distribution rules vary widely among the “legal” states, from almost anything goes to tightly controlled.

No federal statute recognizes the legal use of marijuana.  But federal law enforcement seems to be looking the other way in the medical marijuana states.  In fact, on October 19, 2009, the U.S. Department of Justice released a memorandum advising federal prosecutors not to target medical marijuana patients whose actions are in compliance with the law in states that have legalized medical use.

So, we have a federal/state conflict, and I think it’s safe to say that we have a trend in the states in favor of legalizing medical marijuana.

So, the culture of the labor pool in many states is changing with regard to the use of marijuana.  It seems to me that it is an inevitable consequence of this trend that more workers will be testing positive for marijuana use if not actually coming to work high.

So where does this leave the maritime employer under the Longshore and Harbor Workers’ Compensation Act?

The good news:  specifically as regards the Longshore Act, medical marijuana does not present any new issues for the employer, although it seems to me that old problems may arise more frequently due to the changing environment.  (Actually, that’s not precisely true with regard to new issues.  How would you like to be the employer trying to explain to an administrative law judge for the first time that you really don’t want to pay for the claimant’s marijuana as a medical expense, even though it is prescribed by his treating physician as reasonable and necessary treatment in a state where it is perfectly legal?)

The bad news:  the existing statutory provisions regarding intoxication (or drug use) at the work place are not favorable for the employer.

Section 903(c) of the Longshore Act states that, “No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.”  The key word regarding intoxication and causation is “solely”.  Sole cause is a very tough burden for the employer to meet.  And not only is it a very difficult burden of proof, but the injured worker has a presumption in his favor.

Section 920(c) of the Act provides that, “In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was not occasioned solely by the intoxication of the injured employee.”

So first the employer must prove that the worker was intoxicated at the time of the injury.  Then the employer must produce substantial evidence to rebut the presumption of section 920(c) that intoxication was not the sole cause of the injury.  Then once the presumption is gone from the case, the employer must persuade the adjudicator by a preponderance of the evidence that marijuana use was the sole (not the primary, but the only) cause of the injury.

Practically speaking, the employer must rule out all of other possible causes of the accident.

Now, as far as I can tell, there is nothing in the medical marijuana laws that prevents an employer from enforcing a consistently applied drug policy; even a zero tolerance policy.  So, an employer may be able to decline to hire a prospective employee who tests positive for marijuana.  And, if workers test positive for marijuana following an accident, they may be fired, suspended, or even arrested (we’ll know more when we learn the outcome of a few pending lawsuits), but under the Longshore Act the workers have the section 920 presumption in their favor, and the employer must prove that the marijuana use was the sole cause of the accident or else pay workers’ compensation benefits.

So what impact will the medical marijuana laws have on claims handling under the Longshore Act?  Probably not much.  The same provisions apply in the same manner.  Maybe more workers will fail post injury drug tests.  Perhaps the section 903(c) defense will be presented by employers in more cases.  But in the final analysis, the sole cause burden of proof is still very difficult for the employer.

Maybe the best we can hope for is that the increased use of marijuana occasioned by the state laws legalizing medical marijuana will not result in more on the job injuries.