Section 3(a) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) states:
“Except as otherwise 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 adjoining 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).”
With that statutory language in mind, consider whether the location described below is covered by the LHWCA?
“The North Yard Parking Lot is situated on the premises of employer’s shipyard; however, it is separated from the working areas by a fence. It is owned and maintained by employer for use by its employees, Navy personnel, and contractors who have business with employer, and is used solely for parking. There is no access to navigable waters from the parking lot, and employees must swipe their badges at a security turnstile at one end of the lot to enter the production area.”
The Benefits Review Board (“Board”) recently determined that the North Yard Parking Lot is a covered situs. Pursuant to Fourth Circuit caselaw, the situs test requires a determination as to whether the “overall area which includes the location [of the injury] is part of a [shipyard] adjoining water.” Here, the Board accepted the claimant’s argument that the Parking Lot was part of the “overall shipyard” and “within the boundaries of a marine terminal that is contiguous with navigable waters.” In doing so, the Board rejected the employer’s argument that the fence separating the Parking Lot from the working area should be treated like the public roads or railroad tracks that severed workplace contiguity in prior Board decisions. See McCormick v. Newport News Shipbuilding & Dry Dock Co., 32 BRBS 207 (1998), Griffin v. Newport News Shipbuilding & Dry Dock Co., 32 BRBS 87 (1998), and Kerby v. Southeastern Public Serv. Auth., 31 BRBS 6 (1997), aff’d mem., 135 F.3d 770 (4th Cir. 1998), cert. denied, 525 U.S. 816 (1998).
Williams v. Northrop Grumman Shipbuilding, Inc., BRB No. 11-0132 (Sept. 29, 2011).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
