ISSUE: Perini Coverage

Jack_crop 72dpiI think that this is a good time to mention again a longstanding but perennially overlooked coverage concept.  (I resisted the urge to use Perini-ally overlooked.  You’re welcome.)

It’s a straightforward coverage principle.

There is no maritime “status” requirement for an employee injured in the course of his employment over the navigable waters of the United States and who is not otherwise excluded by a provision of the Longshore Act.   Under these circumstances, “situs” confers “status”.

We’re referring to the U.S. Supreme Court’s 1983 decision in the case of Director, Office of Workers’ Compensation Programs v. Perini North River Associates (Churchill), 459 U.S. 297.

Let’s start at the beginning.  When the Longshore Act was enacted in 1927, and up until the 1972 Amendments, coverage under the Act was determined by the location of the injury.  If the injury occurred over the navigable waters of the U.S. or on a dry dock then the worker was covered by the Longshore Act, unless an express exclusion applied, such as “master or member of a crew of any vessel”.

Pre-72 Amendments coverage was simply a function of the location of the injury.  Any worker over the water, regardless of the work he was doing, was covered.

The ’72 Amendments expanded coverage landward and added a maritime “status” requirement, but nothing in the language of the Amendments withdrew coverage from any employee who had been covered prior to the Amendments.

This is the basis of “Perini” coverage.  As the Supreme Court held, Congress, in the 1972 Amendments, did not intend to withdraw coverage from any worker who would have been covered prior to the Amendments.  There is no “status” test for injuries occurring over the navigable waters.

In the 1984 Amendments Congress added certain exclusions for occupations or employees of certain types of enterprises as listed in sections 2(3)(A)-(F) (33 U.S.C. 902(3)(A)-(F)).  These exclusions apply even if the injury occurs over navigable waters.  There was nothing in the 1984 Amendments, however, that indicated that injuries occurring over the water did not remain covered.  In other words, Congress did not overrule Perini.

So, the usual maritime “status” issues that I have discussed many times are irrelevant when the injury occurs over the navigable waters.  I know that I keep repeating myself.  Perini coverage does not depend on the nature of the worker’s duties (unless, of course, an express exclusion applies).

There is one other issue (along with the question of the applicability of an exclusion) to be alert for when considering “Perini” coverage.

The question may arise whether a worker who commutes to and from land based work as a passenger on a boat over the water is eligible for “Perini” coverage if he is injured during the commute.

The issue is whether the worker was over the water transiently or fortuitously and not in the course of his employment.

What is “transiently or fortuitously”?  I don’t exactly know, but here’s a hint.  “A worker injured on the water who performs a ‘not insubstantial’ amount of his work on navigable waters is neither transient nor fortuitous.

How much is “not insubstantial”?  I don’t exactly know.  It must be “more than a modicum”.

How much is “more than a modicum”?  I don’t know.

Let’s say that if more than 5% of an employee’s regular duties require him to be over the water then this would be considered “not insubstantial” and “more than a modicum”.  This would separate the (transient and fortuitous) commuter from the worker eligible for “Perini” Longshore Act coverage.  As long as traveling over the water is a regular part of a worker’s job duties then you have a real issue of “Perini” coverage.  It’s working as opposed to merely commuting as a passenger.

So, don’t forget.  Work over the water is covered by the Longshore Act regardless of the maritime status of the worker.

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 and Financial Management, and the 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.

ISSUES – “PERINI” Coverage

You’ve probably seen references to so-called “Perini” coverage when the issues of situs and status under the Longshore Act are being discussed.  I make frequent reference to it myself, usually assuming that others know what I’m talking about.

The reference is to the U.S. Supreme Court’s 1983 decision in the case of Director, Office of Workers’ Compensation Programs v. Perini North River Associates (Churchill), 459 U.S. 297. 

It’s probably overdue, but now I’ll take a few minutes to discuss what “Perini” coverage is.

Let’s start at the beginning.  When the Longshore Act was enacted in 1927, and up until the 1972 amendments, coverage under the Act was determined by the situs of the injury.  If a worker suffered a work related injury over the navigable waters of the United States, or on a dry dock, he was covered, unless excluded by one of the express statutory exclusions, such as “master or member of a crew of any vessel”.  If the worker was working over the water in the course of employment, regardless of what his job was, he was covered by the Longshore Act.

The 1972 amendments expanded coverage landward, “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, building, or repairing a vessel)”.

The 1972 amendments also added a “status”, or maritime employment, requirement to limit coverage to only maritime employees in the newly expanded “situs”.

So the question arose: is a worker injured over the navigable water who would have been covered prior to the 1972 amendments no longer covered unless he can establish that he meets the new “status” requirement?

In Perini the Supreme Court held that Congress, in the 1972 amendments, did not intend to withdraw coverage from any worker who would have been covered prior to the amendments.  This is regardless of occupation.  If you are injured in the course of employment over the navigable waters of the United States, or on a dry dock, then you are covered by the Longshore Act.  There is no “status” test.  This is “Perini” coverage.

There are two issues to be alert to.  If you are expressly excluded from coverage by a statutory provision, such as the coverage exclusions in section 902(3) added by the 1984 amendments, then you are not eligible for “Perini” coverage.

Also, in the federal circuit courts of appeal there are varying interpretations of the issue of whether the worker was over the navigable water “transiently or fortuitously” when injured and what this might mean with regard to coverage.  This is a factual issue, and the result may vary by circuit. 

But the main point is, if you are injured over the navigable water, and your regular job duties require you to be there, and you are not excluded by a specific statutory exclusion, then you are covered by the Longshore Act.  There is no “status” test under “Perini”.