| Longshore News - District VI
Volume 1 - Number 1 - February, 2000
214 N. Hogan Street,
Jeana F. LaRock
Barbara G. Armstrong
MAIL ROOM STAFF
This is the first issue of the Jacksonville Longshore Office's periodic Newsletter. We will attempt to publish a newsletter at least semi-annually and distribute it to all interested parties. Currently, District 6 serves approximately 10,000 open injury claims, 267 attorneys, both plaintiff and defense, 930 insurance carriers and self-insurers, and 2,900 employers.
It is our hope that this publication will be of help as a source of information concerning what is happening in our district. We will attempt to address major issues, answer frequently asked questions, and furnish basic information about important changes in processing claims. We welcome your feedback regarding what you would like to see addressed in our Newsletter so that the publication becomes a genuinely useful means of facilitating communication in the district.
FREQUENTLY ASKED REHABILITATION QUESTIONS
Who can make referrals?
IWs can be referred by anyone, including themselves. Most referrals come from the DOL Claims Examiners, but IWs can be referred by anyone (Claims Adjuster, Attorneys, Physicians, Employers, etc.).
How can I make a referral?
Referrals should be made directly to Ms. Deborah A. Murphy, Rehabilitation Specialist, by correspondence or by telephone (904) 357-4756. Ms. Murphy will then contact the IW to explain the program and to discuss services. If the IW is interested in participating, she will then assign a DOL Certified Vocational Rehabilitation Counselor (RC) to work with the IW.
Who are your Rehabilitation Counselors (RCs) and who pays them?
The USDOL has a certification process that it uses to recruit and train RCs. Our RCs are for the most part some of the same RCs in private practice who do other work for Insurance Companies, Employers, Attorneys, etc. The RCs working for us are paid by us. Involved parties will receive copies of their reports and be kept informed of the progress being made and developments as they occur.
Will this drag out the claim?
NO. The RCs have timeliness standards they must adhere to in the provision of services. We mandate that they quickly assess the IWs and develop a viable plan of service.
Do all IWs receive training?
NO. Training is a last resort to ensure either placement or to restore wage-earning capacity. Training recommendations are closely studied to ensure that they are warranted, that the plan is feasible, and that there is a strong likelihood of a successful outcome. Most IWs receive placement assistance with either their former employer or with a new employer.
Aren’t all training programs lengthy?
NO. Most training is 2 years or less and frequently is only for several months. Training may be provided by vocational technical schools, colleges, proprietary schools, manufacturers, certification programs, and by new employers. On The Job Training (OJT), where we reimburse a new employer's portion of the IW’s wages, has been very successful in helping IWs to quickly get re-established in good jobs in the labor market.
Why use DOL Rehab?
DOL will financially manage all vocational services provided in the file.
DOL goals and your goals are the same…Help the IW return to work at a wage as close as possible to that which they earned at the date of injury, as quickly and effectively as possible.
In District 6 we have moved beyond the traditional entry-level employment positions that many injured workers were limited to in the past. Many of the traditional training programs have been altered to accommodate the specific needs of our injured workers. G.E.D. certificates are no longer mandated pre-requisites for many of the Technical Training Programs. For example, formal education classes are now taking place during morning sessions while vocational technical training may be offered during an afternoon session. Valuable time is not wasted waiting for a high school equivalency diploma to be awarded before instruction in a new technical field can begin. This flexible and innovative approach has assisted injured workers in acquiring new skills that better prepare them for the challenges and rewards of careers that will ensure financial security and inspire pride in a job well done. Our Vocational Rehabilitation Program underscores the belief that there is value in all work and that the well being of all individuals is enhanced when meaningful activity is secured in their vocational futures.
Our most frequent claims questions are jurisdictional in nature. Because of the large number of questions received each week, the office put together a training handout, reprinted here in its entirety. PLEASE NOTE: The opinions of the office are advisory only. The answers given here are based on recognized case law. Also keep in mind that the Jacksonville office handles cases in four different judicial circuits, none of whose decisions are binding on the other.
The determination of whether a particular claim falls within the coverage of the Longshore Act is based upon:
SITUS: Injury or death resulting from an accident occurring on the navigable waters of the United States, or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used in the loading, unloading, repairing, dismantling, or building of a vessel.
STATUS: Any person who is performing maritime employment and is not specifically excluded from coverage under the Longshore Act. This would include: Longshore workers and others engaged in longshoring operations such as winch operators, hold workers, marine clerks, dock workers, forklift operators, and warehouse workers performing tasks as an integral part of the loading and unloading process.
Also, any Harbor Worker including but not limited to ship repairers, shipbuilders, ship-breakers, pile drivers, and workers constructing piers, sewer outfalls, or any facility used as an aid to navigation or maritime commerce.
Notice must be given to the employer within 30 days after the date of the injury or death or within 30 days of the date that the employee (or dependent) becomes aware that there is a relationship between the injury, or death, and employment.
1) Is an employee who delivers food to a cruise ship but does not go on board covered?
NO. Employees temporarily doing business on the premises of a maritime employer, but who are not engaged in work normally performed by the employees of the maritime employer are not covered under the Act.
2) Employees engage in diesel engine repair on recreational powerboats. The repair work is either done in the shop or on the boat. About 80% of the boats worked on are under 65 feet in length. Is coverage needed?
YES. Coverage must be provided for those directly involved in the installation or repair of diesel engines on board a recreational vessel 65 feet or more in length.
3) The insured installs flooring services on ships both inside and out. The work is being done for the Navy. Are these employees covered?
YES. The employer has definite exposure under the Longshore Act, as the activities constitute ship repair.
4) Would an employer who rents out recreational boats be subject to the Longshore Act?
NO. Section 2(3)(b) of the Longshore Act excludes such individuals from coverage. (See # 13 above)
5) Would a business that rebuilds and remanufactures small boat motors, whose owner occasionally goes out on the water to test these motors, need Longshore coverage?
NO. Not unless the boats were commercial vessels or recreational vessels over 65 feet in length.
6) An employer repairs stoves and refrigerators. They occasionally go onboard ship to repair such items. Would they need coverage?
YES. A worker who goes on board a ship to repair equipment that is installed or attached to the ship is performing maritime employment.
7) If an employee is building a residential dock, (not at a marina), which will be used by recreational vessels under 65 feet in length, is he covered by the Longshore Act?
YES. The 65-foot recreational boat limitation would not be applicable. This limitation only applies to individuals engaged in building, repairing or dismantling a recreational vessel under 65 feet in length. The dock builder would be covered, even if only part of his work is performed over the water.
8) Employer does a small amount of the cleaning of officers’ quarters on a ship, less than $500 per year payroll. It is a very small part of their operation, and the U.S. Navy does not employ them. Do they need Longshore Coverage?
YES. The services provided are not specifically excluded under the Longshore Act.
9) A commercial electrical contractor performs work around the Southeast consisting of electrical wiring within buildings. This contractor is in the process of bidding the electrical work, as a sub-contractor, for the electrical portion of the renovation work for a warehouse at the Alabama State Docks. He will perform only the electrical wiring, installing of light fixtures, inside and on the warehouse. He will not perform any work on any ships or cargo carrying vessels. His work will be no different from any other of his jobs, except for the fact that the location is the Alabama State Docks. Does the employer need Longshore coverage?
YES. The employer would need Longshore coverage inasmuch as he is repairing a harbor facility, an integral part of the loading and unloading process.
A debate currently rages in the District 6 Longshore community. Small dock builders and small marine construction companies are asking why they need Longshore coverage for their employees. In the last several months, the office has responded to the concerns of business owners in South Florida, as well as in the state of Tennessee, who are attempting to ensure a level playing field when estimating the costs for "over the water" jobs for which they bid. As we all know, Longshore and Harbor Workers’ Insurance coverage is two to three times the cost of state workers’ compensation coverage, and an employer who incorrectly insures their employees under the state’s workers’ compensation scheme has an unfair advantage when bidding on a job covered under the Longshore Act. Those employers who are providing the correct coverage for their employees are rightly upset that they are paying very high insurance costs and are losing jobs to lower bidders who are not providing correct insurance coverage for the work they are doing.
Conversely, small businesses are dismayed at the high costs of Longshore coverage, and lament that they cannot stay in business when their insurance coverage costs are more than their entire business’s payroll.
A BIT OF HISTORY: Prior to the enactment of the 1972 Amendments to the Act, in order to be covered by the Act, a claimant had to prove that his injury occurred upon the navigable waters of the United States, including any dry dock. In 1972, Congress amended the Act to add the status requirement of Section 2(3) and to expand landward the sites covered under Section 3(a). In Director, OWCP v. Perini North River Associates, 459 U.S. 297, 15 BRBS 62 (CRT)(1983), the United States Supreme Court determined that Congress expanded coverage with their amendment, and did not withdraw coverage under the Act from workers injured on navigable waters who would have been covered by the Act before 1972. The Court said that when a worker is injured on actual navigable waters while in the course of his employment on those waters, he is a maritime employee under Section 2(3). Regardless of the nature of the work being performed, such a claimant satisfies both the situs and status requirements and is covered under the Act, unless he is specifically excluded from coverage by another statutory provision. The Court considered ``these employees to be "engaged in maritime employment' not simply because they are injured in a historically maritime locale, but because they are required to perform their employment duties upon navigable waters.'' 3 Perini, 459 U.S. at 324, 15 BRBS at 80 (CRT).
When the Act was amended and coverage was expanded in 1972, many small marinas and boat builders went out of business due to the higher costs of Longshore insurance premiums. A cry went up from those business folks affected, and Congress heeded that cry (a mere 12 years after the 1972 amendments!). With the 1984 amendments, Congress excluded certain workers from coverage. (Those exclusions were enumerated previously in this Newsletter.)
Unfortunately for dock builders, they were not included in the list of those excluded from coverage under the Longshore Act. Hence, dock builders or marine contractors who build docks behind private homes, or do any kind of marine construction, even if they are working in two feet of "navigable water" (or less!) have Longshore exposure, and under the law, must have Longshore insurance coverage. Failure to have coverage is against the law, and carries serious consequences for an employer who fails to satisfy the insurance requirement.
The Act provides that an employer who fails to satisfy the insurance requirement shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than $10,000 or by imprisonment for not more than one year, or by both. Also, where the employer is a corporation, the President, Secretary, and Treasurer shall be severally liable to such fine and imprisonment, and also liable, jointly and severally with such corporation, for any compensation or other benefit which may accrue under the Act.
An uninsured employer may also be subject to civil suit by an injured employee pursuant to Section 5 of the Act. The injured worker or his legal representative may elect to claim compensation under the Act, or to maintain an action at law or in admiralty for damages on account of the injury. In such action, the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that an employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.
Having Longshore coverage is expensive, but not having it could turn out to be more expensive than merely paying the insurance premiums. Unless and until the law is amended again, employers whose employees are working on the navigable water (and are not specifically excluded under the current statute) need Longshore coverage. The Department of Labor, in conjunction with the State of Florida Workers’ Compensation Compliance Bureau, is working to ensure that those businesses with Longshore exposure have the correct insurance coverage. Those who continue to ignore the law may find themselves in "deep water" when auditors come to call, beginning as early as the end of February for certain businesses in Florida.
Each Newsletter will feature a concern voiced by our readers. The following account concerning the necessity of Longshore insurance coverage was submitted by Melanie I. Jones of SteMic Marine Construction in Ft. Myers, Florida.
Let us hear from you. What information would be helpful to you? How can we better serve the needs of our Longshore community? We want your input!
Because of the high cost of postage, we will only be able to send our Newsletter to those who wish to receive it. Our first issue may be your last issue if we do not hear from you! Please let us know if you would like to receive further issues by completing the following information and mailing it back to our office. Thanks!
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