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Maritime Update: Injury to Employee Driving to Work Deemed Covered by OCSLA and LHWCA

Bill Schwartz - 

The Fifth Circuit issued its ruling on May 14, 2021 in the case of Owensby & Kritikos, Incorporated v. Director, Office of Workers’ Compensation Programs and James Boudreaux. The issue in the case was whether an onshore injury to a worker who was en route to a rig platform on the Outer Continental Shelf (OCS) was recoverable under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq., as extended by the Outer Continental Shelf Lands Act (OCSLA),43 U.S.C. § 1331 et seq.  The answer by the Fifth Circuit Court in this matter is yes.

James Boudreaux was employed by Owensby & Kritikos, Inc. as an equipment-testing technician who worked on platforms located on the OCS. His injury resulted from an automobile accident on his way to work for Owensby on the OCS. Boudreaux sought benefits under LHWCA, as extended by OCSLA. An administrative law judge (ALJ) ruled in his favor, and the Benefits Review Board (BRB) affirmed. The employer took this appeal.

FACTS:

Boudreaux’s work for Owensby was as an Automated/Advanced Ultrasonic Testing (AUT) field supervisor. This required operating a magnetic arm to scan storage tanks—primarily located on rig platforms on the OCS—in which extracted materials from drilling operations, including petrochemicals, were deposited. This work, both offshore and onshore, ensured the continued safe use of tanks. Boudreaux spent significant amounts of time offshore for the job—at one point, he was on a rig for two-and-a-half months. During the year before the accident, Boudreaux worked 2,880 hours, 89% of which were offshore. While Boudreaux was onshore and proceeding to an OCS rig, Owensby paid him for mileage and driving time based upon the distance from Owensby’s office in Broussard, Louisiana, to Boudreaux’s pickup-point for offshore transportation. Owensby also paid for any time Boudreaux spent on a helicopter or boat out to a platform. On the other hand, Boudreaux did not receive travel pay for a trip to his onshore office.

On the day of the accident, Boudreaux left his home in Church Point, Louisiana, to drive to Freshwater City, Louisiana, for pickup for offshore transportation. Near Freshwater City, another vehicle hit Boudreaux’s, causing the accident. Boudreaux sustained significant injury. His doctors, inter alia, prohibited his return to offshore work. Owensby changed Boudreaux’s job responsibilities after he recovered, and now he performs mostly office work, but annually earns approximately $50,000 less than he did as an AUT.

ADMINISTRATIVE AND LEGAL PROCEEDINGS:

Because the parties could not resolve whether Boudreaux’s claim for additional benefits fell under the jurisdiction of LHWCA, as extended by OCSLA, or the Louisiana Workers’ Compensation Act, the matter was referred to an ALJ. The ALJ determined Boudreaux’s injury occurred “in the course and scope” of his employment: “the work he performed in testing the tanks . . . was directly related to outer continental shelf operations”, based on the substantial-nexus test adopted by the Supreme Court in Pacific Operators Offshore, LLP v. Valladolid (hereafter “Valladolid”).

Owensby appealed to the Benefits Review Board (BRB) asserting the ALJ improperly applied the Valladolid test because Boudreaux’s injury was not caused by operations on the OCS. They also asserted the ALJ applied a test rejected by the Court in Valladolid. The BRB rejected both assertions, concluding Boudreaux had satisfied Valladolid’s “substantial-nexus test”, and his claim was covered by LHWCA, as extended by OCSLA.

THE APPEAL:

On appeal, the Fifth Circuit noted: “In determining whether an injury is covered under LHWCA, as extended by OCSLA, we apply the two-part test adopted by the U.S. Supreme court in Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. 207, 222 (2012).”

This left the Fifth Circuit with two steps in their analysis to determine whether Boudreaux sustained a covered injury. First, did the injury arise out of, and occur within the scope of, his employment, under LHWCA’s relevant provision, 33 U.S.C. § 902(2)? And, second, was the injury sustained as the result of operations conducted on the OCS, under OCSLA’s relevant provision, 43 U.S.C. § 1333(b)?

As for the first part of the test, Boudreaux’s job required him to spend most of his time offshore. In fact, at one point he was on a rig for two-and-a-half months straight. He worked offshore 89% of the year prior to the accident. Additionally, Boudreaux was compensated for his travel to and from the OCS—including the portion of his journey onshore—based on the distance from Owensby’s office to Boudreaux’s job site. The parties agreed Boudreaux was acting within the course and scope of his employment.

Owensby’s dispute was with application of the second part of the test. Owensby contended the appropriate test required claimant “establish [a]substantial nexus. . . between the work performed by [his] employer on the OCS and the accident.”

The Fifth Circuit disagreed.

They found that “Owensby’s urging that our holding claimants are required to establish a substantial nexus between their employer’s work performed on the OCS and the accident misreads the text of the two statutes by blurring the requirements of LHWCA’s § 902(2) with those of OCSLA’s § 1333(b).” Instead, they found that “Section 1333(b) says nothing about the scope of the employee’s job or his employer. Valladolid makes clear the only question 1333(b) asks is whether the injury occurred as the result of OCS operations.”

Applying the two-part framework to the facts, they held Boudreaux’s injury was covered under OCSLA. Among the facts relevant, they found it persuasive that Boudreaux was being compensated by Owensby for both time and onshore mileage while traveling to and from the OCS; i.e. thus being on-the-job when he was injured since he was necessarily traveling to an intermediary pickup location to be transported from onshore to the OCS and was transporting his testing equipment in his vehicle.

Click here to read the decision in its entirety.


If you have any questions regarding this maritime matter, please contact Bill Schwartz, David Carrigee, Jill Willhoft or Alexandra Lamothe.


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