John A. "Jack" Martone, American Equity Underwriters, Inc. (AEU)
If the Act is to be opened for Amendment, there are other key issues currently the subject of conflict in the jurisprudence that can be addressed.
1. The definition of “adjoining” in section 3(a) can be clarified. Currently in the federal
Fourth and Fifth Circuits, the word means touching or contiguous with navigable
waters in order for a location to be considered a covered situs. In every other
circuit, the word means in the neighborhood or vicinity of navigable waters, and the
courts apply varying versions of functional and geographic connection tests. This
can be fixed one way or the other.
2. Currently, Defense Base Act appeals from the Benefits Review Board in some
cases go to federal district courts while others go to the federal courts of appeal,
depending on the law of the federal circuit. This can be fixed and made uniform.
3. Section 33(g) can be amended to correct current Board case law to the effect that
the “gross” amount of a third-party settlement rather than the “net” amount is to be
used to determine whether the injured worker has met his prior written approval
obligation under section 33(g)(1). The Board says use the gross amount. It should
be the “net” amount.
4. Case law and U.S. Department of Labor proposed regulations can be corrected
regarding the phrases “currently receiving” and “newly awarded” in determining
what maximum weekly rate applies. The Average Weekly Wage/applicable
maximum rate set at the date of injury should apply throughout the claim.
5. Maybe an amendment can clear up the question of whether the navigable waters
of the United States includes the high seas, and under what conditions, if any, and
also whether navigable waters includes the territorial waters and adjoining land
areas of foreign countries.
6. Finally, here’s a real long shot. Repeal the Longshore Act’s exclusion of “a master
or member or a crew of a vessel” in Section 2(3)(G) and the pertinent language in
Section 3(e) regarding a credit to the Longshore employer for a Jones Act
recovery. Then also repeal the Jones Act’s liability provision granting the
negligence remedy to seamen. Presumably, this would result in seamen, including
the apparently impossible to define at the margins “crewmembers” of “vessels”
being covered under the Longshore Act for workplace injuries. Seamen, and others
on board vessels doing seamen’s work, would still have the general maritime law
remedies of unseaworthiness and maintenance and cure. The crewmembers
formerly covered by the Jones Act would also have the Longshore Act’s Section
905(b) remedy against the vessel for vessel negligence. They would also still have
the Death on the High Seas Act remedy. And they would also have the Longshore
Act’s Section 33 remedy against negligent third parties. What would be
accomplished is that employers who don’t own or operate vessels would no longer
have to contend with the “Uncertainty Zone”, the overlap between the Longshore
Act and the Jones Act where liability often can go either way. This would simplify
insurance liability issues and reduce litigation.
There are many other conflicts in interpretation, such as the treatment of “per diem” in calculating the average weekly wage, the coverage issue of workers “transiently and fortuitously” over navigable waters when injured, meeting the evidentiary burden of establishing suitable alternate employment, attorney fees pre- and post-controversion, the “manifest” requirement in occupational disease cases under section 8(f), and so forth that maybe it is better not to try to resolve by legislative amendment.
This concludes my list of potential Longshore Act Amendments.
Article from AEU's Longshore Insider blog.
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.
The opinions and comments expressed in this article are those of the authors and do not reflect the opinion of ALMA, AEU or AmWINS. None of ALMA, AEU, AmWINS or the authors are responsible for any inaccuracy of content or for any loss or damages incurred by any party as a result of reliance on information contained in this article. Content may not be published or reproduced without the written consent of the authors. Prior articles may not be updated for accuracy as pertinent information changes over time. The Longshore Insider is intended to provide general information about the industry and should not be construed as legal advice.
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