The Benefits Review Board (“BRB”) recently affirmed a denial of benefits to a claimant who injured his back. It was an opportunity for the BRB to address exemptions to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) granted by the Department of Labor (“DOL”). At issue was Section 3(d) of the LHWCA, and the proper focus of an exemption inquiry:
(d)(1) No compensation shall be payable to an employee employed at a facility of an employer if, as certified by the Secretary, the facility is engaged in the business of building, repairing, or dismantling exclusively small vessels…unless the injury occurs while upon the navigable waters of the United States or while upon any adjoining pier, wharf, dock, facility over land for launching vessels, or facility over land for hauling, lifting, or drydocking vessels.
(2) Notwithstanding paragraph (1), compensation shall be payable to an employee–
(A) who is employed at a facility which is used in the business of building, repairing, or dismantling small vessels if such facility receives Federal maritime subsidies; or
(B) if the employee is not subject to coverage under a State workers’ compensation law.
(3) for purposes of this subsection, a small vessel means–
(A) a commercial barge which is under 900 lightship displacement tons; or
(B) a commercial tugboat, towboat, crew boat, supply boat, fishing vessel, or other work vessel which is under 1,600 tons gross.
Despite Claimant’s arguments otherwise, the BRB determined that the Administrative Law Judge correctly focused on the site of the injury. The employer’s facility, known as Plant Number 48, was located adjacent to the Intracoastal Waterway, a navigable body of water, where hopper barges were built. The claimant’s injury occurred in an area that was covered by the “Certificate of Exemption From Coverage” issued by the DOL. As such, and in the absence of arguments to the contrary, the claimant’s injury occurred in an area subject to the small vessel exemption and he was excluded from LHWCA coverage.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)