OALJ Judge’s Benchbook (2002):
When considering the concept of “coverage” under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901 et. seq., it must be kept in mind that employment is best thought of as a linear continuum with three major groupings. First, there will be situations where the employment will not be considered “maritime” at all, and therefore, not covered under the LHWCA. (Such employment would more properly be covered under a state workers’ compensation system.) Second, there will be the situation where the claimant is a longshore/harbor worker or other “maritime” worker and, thus, is clearly covered under the LHWCA. Third, there will be situations where the employment is maritime in nature, but the worker is more properly classified as a seaman attached to a vessel and entitled to a recovery under the Jones Act (Merchant Marine Act). 46 U.S.C. § 688.
Sections 2(3) (status) and 3(a) (situs) of the LHWCA set forth the requirements for coverage. “Status” refers to the nature of the work performed; “situs” refers to the place of performance. Prior to the enactment of the 1972 Amendments, the LHWCA contained only a situs test. Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969) (recovery was limited to those injured on navigable waters, including any dry dock). (For a complete discussion of the development of jurisdiction/coverage under the LHWCA, see Topic 1.4, infra.)
One of the motivations behind the 1972 Amendments, however, was the recognition that modern cargo-handling techniques had moved much of the longshore worker’s duties off of vessels and onto the land. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977). Accordingly, the covered situs of Section 3(a) was expanded, and a status test was added, extending coverage to “maritime employees,” including, but not limited to longshore workers, harbor workers, ship repairers, shipbuilders, and ship breakers. When the definition of “employee” was changed, the definition of “maritime employer” was changed accordingly.
Subsequently, the LHWCA was again amended in 1984. These amendments primarily affect the concept of jurisdiction by adding several exclusions to coverage.
[ED. NOTE: The question of status under the LHWCA is now essentially a question of fact unique to each claim. See, e.g., Sylvester v. Bath Iron Works, 34 BRBS 759 (ALJ, 2000) (shipyard security guard determined to be statutory employee because his duties included patrolling and investigating aboard ships); Wakely v. Eastern Shipbuilding, Inc., 34 BRBS 788 (ALJ, 2000) (commercial diver determined to be self-employed subcontractor based on nature and design of his business and work performed).]
