Court – Situs for Purposes of the Longshore and Harbor Workers’ Compensation Act (LHWCA)
The U.S. Court of Appeals for the Fifth Circuit in the case of “MMR CONSTRUCTORS, INCORPORATED v DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS” ruled on March 26, 2020 that a quality assurance and control technician for electrical systems was covered by the Longshore Act for compensation benefits.
The individual, Henry Flores, worked for MMR Constructors (“MMR”) as a quality assurance and control technician for electrical systems. He assisted with electrical wiring for the construction of Chevron’s tension-leg platform named Big Foot. While working on the platform on January 20, 2014, Flores’ left foot got caught on a cable and he tore his Achilles tendon. The parties do not dispute that the injury occurred during the course and scope of his employment.
While Big Foot is currently located at its permanent home in the outer Continental Shelf of the Gulf of Mexico, at the time of Flores’ accident, it was under construction at a shipyard in Corpus Christi Bay. During construction of what would ultimately become Big Foot, the platform floated in the bay on pontoons, connected to land by steel cables and utility lines.
The first challenge was for the Court of Appeals to determine whether Flores, injured on a floating platform, would have satisfied the “situs” test under the LHWCA prior to 1972. In short, if Big Foot was on navigable waters, then Flores would have been covered under the pre-1972 LHWCA. The U.S. Supreme Court case of Perini taught us that he would also be eligible for coverage under the amended Act, despite his inability to otherwise meet the “status” test. If, however, Big Foot did not rest on navigable waters, then Flores’ claim would fail because he could not satisfy the situs or the status test required by the post-1972 amendments to the LHWCA.
It was clear that if a craft resting on navigable waters is permanently attached to land, then the water underneath the craft is removed from navigation and is not navigable under the LHWCA. While Big Foot was attached to land bordering Corpus Christi Bay, its attachment was not permanent. Big Foot was attached only temporarily while under construction—it was built to be moved offshore to drill for oil and gas in the Gulf of Mexico. Because it was not permanently attached to land, the water underneath it was not removed from navigation. Thus, Flores was injured on navigable waters and is entitled to benefits under the Act if MMR was a statutory “employer.”
Turning to that question, the Court held that because Flores was regularly employed by MMR on navigable waters under Perini, he met the “employee” definition. Accordingly, it followed that MMR had at least one employee engaged in maritime employment. This conclusion was that the Court should not read the “status” test as narrowing the definition of a statutory employer, and, consistent with the reasoning of the Supreme Court in Perini, Congress sought to expand, not limit, coverage under the LHWCA with the 1972 amendments. MMR was thus an employer under the Act.
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