Jan 27, 2015
- Jack Martone, The American Equity Underwriters, Inc.
I 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.
ABOUT THE AUTHOR
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 AEU's Longshore Insider.