Recently, the Fifth Circuit published an important Longshore and Harbor Workers’ Compensation Act decision: International-Matex Tank Terminals v. Director, OWCP. The issues included maritime situs, maritime status, the concept of maximum medical improvement, and the claimant’s efforts to locate suitable alternative employment.
The Longshore Act applies to claimants injured “on a maritime situs.” That means an injury must have “occurr[ed] 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.” See 33 U.S.C. 903(a).
“Situs” has both a geographical and a functional component. The geographical component asks whether the area of injury “adjoined” navigable waters. “Adjoining” means “border on” or “be contiguous with” navigable waters.
The functional component asks whether the area of injury is either included expressly in the list of possible injuries in 33 U.S.C. 903(a), or whether the “other adjoining area” where the injury happened is “customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.”
In International-Matex, both the geographical and the functional components were satisfied. The facility where the claimant’s injury occurred–as well as the platform where the claimant was injured–were geographically connected to water. “It is the parcel of land underlying the employer’s facility that must adjoin navigable waters, not the particular part of that parcel upon which a claimant is injured.” New Orleans Depot Servs., Inc. v. Zepeda, 718 F.3d 384, 387 (5th. Cir. 2013) (en banc). Further, the Fifth Circuit found the functional component satisfied because the facility where the injury occurred was a marine “terminal” (a word which includes facilities tangentially used for loading and unloading vessels). See 29 C.F.R. 1917.2.
Another requirement for Longshore coverage is that the employee successfully demonstrate maritime “status.” That simply means that the employee must have been “engaged in maritime employment.” The Fifth Circuit concluded that the status requirement was satisfied, reasoning:
The Board correctly noted that a worker is “engaged in maritime employment’ under 902(3) if he is loading or unloading a vessel at the time of injury or if his employment as a whole entails loading or unloading vessels. Hudson, 555 F.3d at 439. To meet the latter criterion, the worker need not spend a “substantial” amount of time loading or unloading. Boudloche v. Howard Trucking Co., 632 F.2d 1346, 1347 (5th Cir. 1980); see also id. (worker covered despising spending only 2.5 to 5 percent of his time loading and unloading); Hudson, 555 F.3d at 440 (worker covered despite spending only 10 percent of his time in maritime activities). Instead, as the Board wrote, the worker need only spend “some” time during maritime work. Caputo, 432 U.S. at 273, 97 S.Ct. 2348.
Maximum Medical Improvement:
In my opinion, the most interesting aspect of the International-Matex decision is its treatment of the concept of maximum medical improvement–often called MMI. Essentially, a claimant is not automatically at MMI if he does not rush into surgery. What matters is whether a physician believes that “further medical improvement is possible until such treatment has been completed.” La. Ins. Guar. Ass’n v. Abbott, 40 F.3d 122, 126 (5th Cir. 1994). A claimant can choose how to proceed with medical care.
While there “may be a point after which a claimant’s unreasonable delay in electing further treatment leads to a de facto MMI,” there was no articulation by the petitioner in International-Matex explaining when that might occur. And the petitioner was wrong in suggesting that the claimant had the burden of proving the delay in treatment was reasonable. There was no “slipping into MMI” in the absence of affirmative and immediate medical treatment involving “every kind of treatment available.” Instead, a claimant only reaches MMI when “an injury has received the maximum benefit of treatment such that the patient’s condition will not improve.” See Methe, 396 F.3d at 605; Abbott, 40 F.3d at 126 (MMI not reached “[I]f a physician determines that further treatment should be undertaken.”)
Suitable Alternative Employment:
When a claimant cannot return to their pre-injury job because of a work-related injury, then the claimant is presumed to be “totally” disabled. An employer can rebut that presumption by demonstrating the existence of suitable alternative employment. Usually, this is demonstrated with a labor market survey identifying the existence of jobs for which the claimant can reasonably compete. The burden then shifts back to the claimant to show that he diligently tried by was unable to secure such employment. If diligence is proven, then the claimant remains totally disabled. If suitable alternative employment is proven but diligence is not, then the claimant’s disability changes from “total” to “partial.” See Abbott, 40 F.3d at 127.
In International-Matex, the carrier commissioned a labor market survey. The claimant applied for the jobs in the labor market survey. He also kept a “job application log” identifying several applications that he submitted. Further, testimony existed that the claimant’s wife and daughter drove the claimant to workplaces to apply for other jobs. This evidence was sufficient to demonstrate claimant’s diligence.
Application to Defense Base Act Claims:
International-Matex is a Longshore and Harbor Workers’ Compensation Act claim. While the maritime situs and maritime status sections do not apply to Defense Base Act claims, the maximum medical improvement and suitable alternative employment sections of the decision to apply to DBA claims. Moreover, the MMI and suitable alternative employment sections are precedential for future DBA claims falling under the Fifth Circuit’s jurisdiction. Fifth Circuit caselaw applies to all DBA claims where the District Director in Houston and New Orleans serve the DBA decision and order.