AEU Longshore Blog ISSUE: Review of Status, Part One: Truck Drivers, Nurses, Railroad Workers, Security Guards, and Safety Managers

Coverage questions about maritime “status” under the Longshore Act arise regularly, and the AEU Longshore Blog has addressed different occupations in various posts.  Most recently we have discussed the “clerical exclusion” and the maritime status of salesmen and estimators.

Following is a compilation of other occupation-specific status discussions from past blogs.  For more information, please refer to the original posts linked below.

First, a review of “status”:  A worker satisfies the status requirement of Section 2(3) (33 U.S.C. 902(3)) if he is an employee engaged in work which is integral or essential to the loading, unloading, construction, repair, or dismantling of vessels.  To satisfy this requirement the employee need only spend some of his time in covered operations.  There is no moment of injury test; status is determined by the overall nature of the employee’s duties.

Status is not limited to those employees who directly load/unload cargo, or build or repair vessels.  Workers who build, repair or maintain the buildings, facilities, and equipment involved in these operations are also covered.

Shipyard Nurses

For a review of status of shipyard nurses, the case of Lucille Galinas v. Electric Boat Corp is a good example.  The claimant’s duties consisted of treating injured employees at the employer’s shipyard medical clinic, responding to ambulance calls in the shipyard, performing physical examinations, audiograms, and EKGs, stocking RADCON (radiological controls) supplies, and participating in RADCON training drills.  The issue was whether this claimant’s duties met status for Longshore Act coverage as integral or essential to the employer’s shipbuilding operations.  The U.S. Department of Labor’s Benefits Review Board (BRB) found that she did not meet the status test for coverage.

While the nurse’s duties were certainly important and useful to the employer, the non-performance of those duties did not have the potential to directly interrupt or impede the ongoing maritime operations, so she was not a maritime employee covered under the Longshore Act.

 

Truck Drivers

Typically there are several steps involved in the process of loading/unloading cargo.  Containers or cargo in other forms come off ships, and are placed at dockside.  The cargo may then be moved by the same or different personnel into a warehouse or storage area.  It may then be emptied by the same or other workers, and again moved around the warehouse or storage area depending on the conditions of its storage and the timing of its delivery to the consignee.  Finally, it is moved to a railhead or trucking area for overland transportation and delivery.

The Longshore Act covers all of the employees involved in the series of intermediate activities up to the point at which the cargo is loaded for overland delivery (or vice versa in the other direction).  Truck drivers who move cargo around terminals and ports, or from one terminal or port to another, are covered by the Longshore Act.

The truck driver whose only duty is to drive the truck transporting cargo from the terminal directly to inland consignees is most likely not covered, as the loading/unloading process has stopped, and he or she is involved only in land transportation.

 

Divers

Coverage for divers is problematic.  They may be covered by the Longshore Act, by state act workers’ compensation, or they may qualify for the seamen’s remedies as members of the crew of a vessel.  Crewmember status was tested under the U.S. Supreme Court decision in Chandris v. Latsis, and described the “Uncertainty Zone” between the mutually exclusive Longshore Act and the Jones Act/General Maritime Law remedies.

Divers often have short-term assignments, mixed duties which can include loading/unloading, and vessel maintenance and repair, and work in a variety of locations ranging from docks and piers to the outer continental shelf to the high seas.

As previously reviewed, there are several examples of coverage situations for divers among the different remedies.  In the case of Chandris, it did not end on an optimistic note.  The conclusion was, “Due to the uncertainty inherent in coverage issues involving divers, the bad news is that maritime employers may find themselves fully insuring workers separately for mutually exclusive remedies.”

 

Railroad Workers

The same considerations of “status” apply to railroad workers as to any other employees, i.e., a worker whose duties are integral or essential to maritime activity has status for Longshore Act coverage.

In the U.S. Supreme Court case of Chesapeake & Ohio Railway v. Schwalb it was held that railroad workers who facilitate the loading or unloading of cargo – in this case, coal – onto vessels are covered by the Longshore Act, which is their exclusive remedy against their employer for workplace injuries.  This includes workers who maintain, repair, and generally clean up around the equipment used in the loading/unloading process.

Because the Longshore Act covers these workers, they do not have the railroad employee’s negligence tort remedy under the Federal Employer’s Liability Act (FELA).

In these railroad cases, it is necessary to identify the point at which land commerce (traditional railroad activity) ends and cargo handling begins.

 

Safety Directors and Claims Professionals

Does the Longshore Act cover shipyard and terminal safety and claims personnel?  Do they meet the integral or essential test for status?

Duties include accident investigation, inspection of equipment and procedures, regulatory compliance, employee training, maintenance of logs and schedules, possibly emergency medical duties, and handling medical, legal and administrative aspects of injury claims. 

Safety professionals could make a strong case for Longshore Act status, but that the claims staff would have a more difficult time establishing maritime status, since they typically first become involved only in the aftermath of operations that have resulted in an injury.  They are not in a position to interrupt or halt maritime operations.  Their jobs are important, but meeting the “essential” test for maritime status is unlikely.

 

Security Guards

Section 2(3)(A) of the Longshore Act excludes from coverage “individuals employed exclusively to perform office … security … work.”  In order to be excluded from Longshore Act coverage the “security guard” must do “security” work “exclusively” in an “office”.  This is a narrow exclusion.

An occupational analysis of typical security guard duties indicates that if they are on a covered situs then they may have a good argument for status.

The federal Second Circuit Court of Appeals has stated, “… pervasive surveillance conducted by (security guards) on the pier and occasionally on board ship is essential to the longshoring operation” (Arbeeny v. McRoberts Protective Agency, 642 F.2nd 672 (1981)).  Based on this, many security guards have a good argument for status under the integral or essential test.

Duties along the lines of safety roles, fire watch, maintenance, cargo processing, or any work actually over the water strengthen the status case for security guards.

 

As with all of these status discussions, pay attention to the full range of actual job duties and not to the job title. Part Two of this post will include construction workers, bridge workers, and some unusual status situations.

 

 

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

AEU Longshore Blog ISSUE: Maritime “status” for “salespeople” and “estimators”

The question arose recently as to whether salespeople and estimators are covered under the Longshore Act.  This is a very imprecise and incomplete question, but it can be answered easily.  The answer is, “maybe.”

Ordinarily a question like this can only be addressed by asking an interminable number of context and background questions.  It may be useful to go through a “status” analysis of these two very broad occupational classifications, since it will require a consideration of a number of concepts central to the coverage issue of status.

But first we have to define what we mean by “salesperson” and “estimator”.

Salesperson means a person who sells goods and/or services.  It’s that simple.

Estimator, however, is more difficult.  Although it’s a somewhat vague noun, we can take it to mean one who evaluates and renders opinions as to value, time, and approximate charges for work to be done, and who performs appraisals, etc.  We will assume that our “estimator” is one who comes on to a maritime site to perform an estimate for someone seeking to perform work or assess condition.

For this discussion, we’ll assume that “situs” is met for Longshore Act coverage.  Now we can work through an analysis of whether salespeople and estimators meet “status”.

First, a very brief summary of broad general principles with regard to Longshore Act status:

  1. Status is determined by the overall nature of the worker’s duties, and the role of those duties in accomplishing, contributing to, facilitating, interrupting, impeding, and otherwise constituting a necessary part of cargo handling or shipbuilding/ship repair/shipbreaking.
  2. The test that is used is whether those job duties are essential or integral to traditional maritime activity such as cargo handling, shipbuilding, or ship repair.
  3. There is no moment of injury test for status. If any part of an employee’s regular duties is maritime in nature then he or she meets status for his entire employment, even if performing non-maritime work at the moment of injury.
  4. If an injury occurs while the employee is working over the navigable waters of the U.S., then he or she is covered by the Act unless an exclusion applies. The employee does not have to meet status for injuries over the water.

In order to determine whether or not salespeople and estimators may meet status, we’re going to have to separately consider several statutory provisions and coverage concepts.

 

Vendor Exclusion

First, let’s take the case of an injury to a salesperson or estimator that occurs while he or she is selling or estimating over the navigable waters of the United States.  We know from the U.S. Supreme Court’s decision in Director, OWCP v. Perini North River Associates (Churchill), 459 U.S. 297 (1983) (so-called Perini coverage) that situs confers status, and an injury over the water is covered under the Act.  This was the basis of coverage for an electrical repair estimator on board a vessel in the case of Scott v. Tug Mate, Inc., 22 BRBS 164 (1989).

So injury over the water is covered, unless a statutory exclusion applies – and there is one that might apply.

Section 2(3)(D) of the Longshore Act states:

“Sec. 2(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 …, but such term does not include –

(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of a (maritime employer), and (iii) are not engaged in work normally performed by employees of that employer under this Act.”

This exclusion only covers 1) employees of vendors, suppliers, and transporters 2) who come on to a maritime situs temporarily and 3) are not engaged in work normally performed by employees of that employer under the Act.

Note:  the condition for the application of the exclusion is that the worker is covered by the state’s workers’ compensation law.

Examples of workers excluded under section 2(3)(D) include employees selling a product, such as the salesperson of cellular telephone air time (Daul v. Petroleum Communications, Inc., 196 F.3d 611 (5th Cir. 1999)) and the truck driver employed by a transporter whose sole responsibility was to pick up, transport, and deliver containers of sealed cargo from a storage area outside of the maritime facility who never left the truck.

So, a salesperson or estimator who is injured while working over the navigable waters of the U.S. is covered under the Longshore Act, unless this “vendor exclusion” applies. Although this exclusion is narrower than generally believed, salespeople are prime candidates for exclusion, depending on the circumstances and job duties.  Estimators, though, are less likely to be excluded by section 2(3)(D).  First, they have to be employed by a vendor, supplier, or transporter.  This rules out application of the exclusion for most estimators, who are more likely to be employed by a ship repairer, construction firm, insurance company, surveyor, etc.

For any injury that occurs over the water and coverage is uncertain, it is best first to consider whether Perini coverage applies and then consider whether any of the statutory exclusions in section 2(3) may apply.

To summarize so far, salespeople and estimators are covered by the Longshore Act if they are injured while working over the navigable waters, unless an exclusion such as the vendor provision applies to them.

 

What if the injury occurs on land and no exclusion applies?

We’re still assuming that they are on a covered situs, either an enumerated site or another adjoining area customarily used for maritime employment under Section 3(a).  In this case, we fall back on the general test for status, i.e., the employee has at least some regular job duties that are integral or essential to maritime activity.

This is a familiar issue, and it involves the question of whether the non-performance of the job duties in question has the potential to impede or interrupt the ongoing maritime activity at the site.  Under this test, I think that finding Longshore Act status for salespeople or estimators, as we have defined them, would be a stretch.  Their jobs are important, but they would usually fall short of the integral or essential test.

There is a broad range of jobs that have been found to be helpful and convenient to the maritime employer, but not essential.  These include shipyard nurses, claims adjustors, courtesy van drivers, terminal mess hall cooks, and office custodians. In most cases, salespeople and estimators can be added to this list.

Of course, there are other circumstances that can affect the coverage determination.

What if the salesperson delivers products on board vessels and actually helps to store/install the products?  The fact that he or she stores or installs the products most likely rules out the vendor exclusion (since the salesperson is doing work normally done by employees of the maritime employer), and if Perini doesn’t apply (injury not actually over the water) may he or she meet status?

The case of Felt v. San Pedro Tomco, 25 BRBS 362 (1992) involved a salesperson who delivered cleaning supplies and equipment to vessels several times daily.  Status was denied in this case since the time spent leading and discussing deliveries was minimal and episodic compared to his overall duties.  But this case could go the other way with a small change in circumstances.

Summary

Here is the checklist for coverage for a salesperson or estimator:

  1. Does Perini apply, i.e., did the injury occur over the water?
  2. If so, does an exclusion, such as the vendor exclusion in section 2(3)(D), apply?
  3. If neither 1 nor 2 apply, then does the worker meet the integral or essential test for status?

 

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

AEU Longshore Blog ISSUE: New Truck Driver Case

We have a new truck driver case from the U.S. Department of Labor’s Benefits Review Board (BRB).

This one deals with the issue  of situs as well as status.  The decision also ducks the question of whether the driver was an independent contractor, not an employee and thus not covered by workers’ compensation, either state act or federal USL&H.

The case is Abdulaziz A. Ahmed v. Western Ports Transportation, Inc., BRB No. 16-0067, 9/21/16.

The claimant is a commercial truck driver.  His “employer” contracts with independent truck owner/operators to transport domestic and international containers between rail yards, retail outlets, piers, and warehouses.

He usually worked as part of the employer’s “rail” operations, moving containers between the Port of Seattle terminals and rail yards.

He was injured at a rail yard, the Union Pacific Intermodal Facility.  The Facility is two to three miles from the Port and the claimant’s route from the Port to the Facility involves, “… turns onto several streets and Highway 99, as well as crossing a drawbridge …”.

So, based on where the injury occurred, is the Facility a covered situs under the Longshore Act?

The situs provision of the Act, section 3(a), states:

“Except as other wise provided in this section, compensation shall be payable under this chapter 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 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).”

Our truck driver here was not injured over the water or at any of the specifically enumerated sites, so that leaves us with the question of whether the Union Pacific Intermodal Facility is an “other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel”.

NOTE:  This injury occurred in the jurisdiction of the federal Ninth Circuit Court of Appeals (states of WA, OR, MT, ID, CA, NV, AZ, AK, HI).  In the Ninth Circuit an “adjoining” area does not have to actually touch or be contiguous with the water as it does in the Fourth (states of MD, VA, WV, SC, NC) and Fifth (states of TX, LA, MS) Circuits, “adjoining” means with “contiguous with”.  In the Ninth Circuit, “adjoining” depends on:

“… the particular suitability of the site for the maritime uses referred to in the statute; whether adjoining properties are devoted primarily to uses in maritime commerce; the proximity of the site to the waterway; and whether the site is as close to the waterway as is feasible given all of the circumstances in the case.” (Brady-Hamilton Stevedore Co. v. Herron, 568 F.2nd 137 (9th Cir. 1978))

In our case, the Facility is surrounded by mixed use properties (maritime and non-maritime), is several miles from the Port, and generally does not function as an area of maritime commerce.

Even in the relatively broad approach to situs used in the Ninth Circuit, the BRB affirmed the Administrative Law Judge’s (ALJ) finding that the claimant’s injuries did not occur on a covered situs.

NOTE:  Although the Facility is located “several miles” from the Port, distance alone was not the reason that it was not a covered situs.  Distance from the water is one among several factors considered in the Ninth Circuit.

So, the claimant in this case does not meet situs, and since both status and situs have to be independently satisfied for Longshore Act coverage, the case could have ended here.

But the BRB also discussed the status of the claimant, and affirmed the ALJ’s finding that the claimant did not meet status.

The claimant moved cargo from the Port of Seattle’s terminals to an intermodal rail facility.  In the landmark case of P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979), the U.S. Supreme Court held that workers engaged in intermediate steps of moving cargo between ship and land transportation were covered by the Longshore Act.  And in another landmark case, Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), the Supreme Court rejected the “point of rest” theory.  Unloading of cargo does not consist only of moving the cargo from the vessel to its initial point of rest at dockside.

Was the driver’s job an intermediate step in the process of moving cargo between the Port of Seattle’s terminals and the Intermodal Facility?

This issue involves the identification of the point at which cargo handling ends and land transportation begins.  Workers on one side are engaged in maritime employment and meet status under the Longshore Act.  Workers on the other side of this point are not engaged in maritime employment.

In addressing the status issue in the Ahmed case the BRB reviewed a number of prior truck driver cases.  It considered several cases in which drivers who transported cargo between port terminals and facilities located outside the port were involved in the land based stream of commerce rather than an intermediate step in the loading/unloading process.  The key point in several of the cases is that the drivers were transporting sealed containers to destinations outside the ports area.

On the other hand, transporting containers within the port area, such as from the dockside to terminal storage facilities and other destinations within the port, were considered to be still part of the loading/unloading process, i.e., an intermediate step since the cargo had not yet entered land transportation.

Since the driver in our case was transporting between the port and the Intermodal Facility outside the port he was involved in land transportation and did not meet status under the Longshore Act.

Finally, the claimant in this case did not board vessels or handle cargo.  He just drove the truck.  His activities were the first step in land transportation.  In the other direction, his activity would be the last step in land transportation of cargo to be put aboard vessels.

NOTE:  The ALJ had also found that the claimant was an independent contractor and not an employee.  It would have been an interesting discussion if the BRB had also taken up this issue.

NOTE:  This claimant was also out of luck with his compensation claim under the state act, in which he was adjudicated to be an independent contractor, not covered by workers’ compensation.

 

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: Landmark Case Number 10

The case of P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979), is another early “status” case.  It is “early” (dates of injury April 12, 1973 and May 2, 1973) in the sense that at that time the courts were struggling to interpret the brand new “status” coverage provisions that had been created in the 1972 Amendments to the Longshore Act.  Remember that prior to the 1972 Amendments the test for coverage was based only on the location of the injury.  Anyone injured in the course of employment over the navigable waters of the United States or on a dry dock was covered.  The Amendments added coverage in specified landside areas for employees engaged in “maritime employment”.

The key issue in these early cases was the interpretation of what constituted maritime employment.

Ford is a “status” case involving two workers who were injured while performing their duties landward of the “point of rest” alongside the vessel on the dock. The U.S. Department of Labor’s (DOL) Administrative Law Judges (ALJ) had originally denied the workers’ claims by application of the “point of rest” doctrine.

NOTE: The now discredited so-called “point of rest” doctrine argued that maritime employment includes only the portion of the unloading process that takes place before the longshoremen place cargo from the vessel onto the dock and the portion of the loading process that takes place to the seaside of the last point of rest on the dock.  In other words, loading and unloading only occurs between the vessel and the dock.

The DOL’s Benefits Review Board reversed the ALJ’s denials and found that the workers were covered by the Longshore Act. The federal Court of Appeals for the Second Circuit affirmed.  Then on remand from the Supreme Court for reconsideration in light of its intervening Caputo decision the Court of Appeals reaffirmed its earlier opinion awarding benefits.  So what were these workers doing that complicated the coverage question?

Mr. Ford, a warehouseman, was injured while fastening military vehicles on to railroad flat cars. The vehicles had been delivered to port by ship, put in storage, and then placed on the rail cars by longshoremen on the day prior to the injury.

The consolidated case involved Mr. Bryant, who was injured while unloading a bale of cotton from a dray wagon into a pier warehouse. Cotton arriving at the port from inland shippers entered cotton compress warehouses, then went by dray wagon to pier storage warehouses, and subsequently was moved by longshoremen from the warehouse onto vessels for shipping.

Mr. Ford had been working out of the Warehousemen’s local union on the day of the accident. Union rules limited the types of jobs that warehousemen could perform.  They could not move cargo directly from a vessel either to a point of rest on the dock or, in this case, on to a railcar.  These movements were performed only by longshoremen.

Neither claimant was directly involved in handling cargo between the dock and the vessel. Did their duties constitute “maritime employment”?

NOTE: Remember, these were early cases.  Today these activities would be considered clear instances of maritime employment.  The issue was not clear back when these cases were being adjudicated.

Held: Ford and Bryant were engaged in maritime employment at the time of their injuries because they were engaged in intermediate steps of moving cargo between ship and land transportation.

The principle is that persons moving cargo directly from ship to land transportation are engaged in maritime employment, and a worker responsible for some portion of that activity is as much an integral part of the process of loading or unloading a ship as a person who participates in the entire process.

NOTE: The truck driver carrying the cotton away from or to the terminal and the locomotive engineer transporting the military vehicles away from the terminal are not engaged in maritime employment even though they were present on a covered situs.  They are engaged in land transportation.  Ford’s job of fastening the vehicles to the railroad flatcars was the last step in transferring the cargo from sea to land transportation.

The Longshore Act is going to follow cargo handling from the vessel to the warehouse, from warehouse to warehouse, from terminal to terminal, until it is placed on to land transportation. In the other direction, the Longshore Act will follow cargo from where it is removed from land transportation until it ends up on a vessel.  All intermediate steps are covered.

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.