Longshore Added to Workers’ Compensation Book

The 2023 edition of Workers’ Compensation in Oregon is due out in June. The first revision of this important volume since 2008, the 2023 edition has been reorganized, updated with new case law, and includes two brand new chapters. One of those new chapters is on the Longshore and Harbor Workers’ Compensation Act. This comprehensive, 70-page chapter was written by Norman Cole, who is Of Counsel with Brownstein Rask LLP in Portland. Because this is such a specialized area of practice, the editorial review board brought in guest editorial reviewer James R. Babcock with Babcock Holloway Caldwell & Stires PC in Lake Oswego to peer review the chapter before in-house editing.

This post is an excerpt from the introduction to that chapter. The full chapter can be accessed via the full print book available for pre-order here, purchased as a stand-alone eBook here, or viewed on the BarBooks™ online library.

§ 4.1-1 Brief History of the Longshore and Harbor Workers’ Compensation Act

In 1908, Congress passed a workers’ compensation act covering certain federal employees. Pub L 60-176, 35 Stat 556 (1908). It did not apply to maritime workers who were subject to federal jurisdiction in many aspects of their employment. Some states attempted to apply their acts to longshore and harbor workers, but in 1917 the United States Supreme Court ruled such application was unconstitutional with respect to injuries occurring over the navigable waters of the United States. Southern Pacific Co. v. Jensen, 244 US 205, 37 S Ct 524, 61 L Ed 1086 (1917). Article III, § 2 of the United States Constitution relegated jurisdiction over maritime matters to the federal government. The application of different state compensation laws to maritime matters would have the effect of defeating the uniformity necessary for the regulation of matters of maritime commerce. Southern Pacific Co., 244 US at 214–15. Thus, no state workers’ compensation jurisdiction existed over maritime employees when their injuries occurred seaward of the boundary of navigable waters. This was known as the “Jensen line.”

In response, Congress twice attempted to amend the Judiciary Act to allow the application of state workers’ compensation schemes to maritime injuries. Both times the Supreme Court declared the enactments unconstitutional. Knickerbocker Ice Co. v. Stewart, 253 US 149, 40 S Ct 438, 64 L Ed 834 (1920); Washington v. W.C. Dawson & Co., 264 US 219, 44 S Ct 302, 68 L Ed 646 (1924). In the second decision, the Court suggested Congress could enact a federal compensation scheme to cover maritime workers. W.C. Dawson & Co., 264 US at 227.

Congress passed the Longshore and Harbor Workers’ Compensation Act (LHWCA) (Pub L 69-803, 44 Stat 1424 (1927)), modeled after New York’s workers’ compensation statute. It was substantially amended in 1972. See Pub L 92-576, 86 Stat 1251. Amendments extended coverage to workers engaged in shoreside maritime activities so they would not walk in and out of coverage when crossing the “Jensen line”.

In 1984 the LHWCA was again amended. See Pub L 98-426, 98 Stat 1639. There were no significant amendments thereafter.

§ 4.1-2 Exclusive versus Concurrent Jurisdiction

ORS 656.027(4) states all workers are subject workers except “[a] person for whom a rule of liability for injury or death arising out of and in the course of employment is provided by the laws of the United States.”

Note: Other states, such as California and Alaska, assert concurrent jurisdiction over at least some workers subject to the LHWCA.

Laws subject to the exclusion in ORS 656.027(4) include:

  • The Jones Act, 46 USC § 30104 (covering “seaman” injured in the course of employment);
  • Federal Employees’ Compensation Act (FECA), 5 USC § 8101 et seq.(covering employees of the federal government);
  • Outer Continental Shelf Lands Act, 43 USC §§ 1331–1356c (covering injuries that have a substantial nexus to extraction operations on the outer continental shelf). See Pacific Operators Offshore, LLP v. Valladolid, 565 US 207, 132 S Ct 680, 181 L Ed2d 675 (2012);
  • Defense Base Act, 42 USC §§ 1651–1655 (covering employees of government contractors injured overseas in certain circumstances).

By excluding from the definition of subject worker those workers subject to a federal act for injury or death arising out of and in the course of employment, Oregon, like Washington, is an “exclusive jurisdiction” state. Other states, such as Alaska and California, are “concurrent jurisdiction” states and allow workers to pursue claims under both acts but typically allow a credit for compensation paid for the same injury under the LHWCA.

The LHWCA does not exclude coverage if a state chooses to provide coverage for the injury. But, LHWCA § 3(e) (33 USC § 903(e)) states that “any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed” under the LHWCA must be credited against any liability imposed by the LHWCA.

§ 4.1-3 Administration and Hearings

The LHWCA is administered by the United States Department of Labor (DOL), Office of Workers’ Compensation Programs (OWCP), Division of Longshore and Harbor Workers’ Compensation. The OWCP states its mission is “to minimize the impact of land based, maritime employment injuries and deaths on the injured employees and their families by ensuring that workers’ compensation benefits are provided promptly and properly under the . . . (LHWCA), Defense Base Act (DBA), Non-Appropriated Fund Instrumentalities Act, and the Outer Continental Shelf Lands Act.” OWCP, Longshore Program, www.dol.gov/agencies/owcp/dlhwc.

The longshore program now has three districts, Eastern, Southern, and Western. Each district has a district director and two or more suboffices. See the DFELHWC’s website at www.dol.gov/agencies/owcp/dlhwc/lscontac. In the Western District, which includes Oregon, there is a San Francisco, Seattle, and Long Beach suboffice staffed by OWCP claims adjusters and other employees. Post-COVID, however, many employers continue to work from home.

The district director has very limited authority to adjudicate factual disputes in claims. When disputes cannot be resolved at the OWCP level, any party can request transfer of the claim to the Office of Administrative Law Judges (OALJ) level. See Longshore and Harbor Workers’ Compensation Act Frequently Asked Questions, www.dol.gov/agencies/owcp/dlhwc/FAQ/lsfaqs.

Administrative law judges (ALJs) adjudicate claims in a wide variety of cases, but cases under the Black Lung Benefits Act, the LHWCA, and the DBA are the largest part of the office workload. The OALJ has offices in eight cities, but in 2021 the national office (in Washington, D.C.) tended to assign LHWCA claims to judges in Boston, Covington, Newport News, and San Francisco. See OALJ Organizational Chart, www.dol.gov/sites/dolgov/files/OALJ/OALJ_OrgChart.pdf. Before COVID, judges traveled to cities where injured workers and their attorneys tended to cluster to hear cases. Typically, 20 to 25 cases were listed on a notice of calendar call set three to four months later, and cases that did not settle or were not postponed were left for formal trial. During COVID, hearings were held virtually, via video conferencing. Although some judges have convened in-person hearings, virtual hearings continue and are likely to remain available even if the pandemic ends. Virtual hearings allow more flexibility in scheduling, and the DOL avoids the expense of sending its judges and reporters to other cities and allows parties to call witnesses who are unwilling or unable to travel to a courthouse in the assigned city.

Oregon hearings typically are assigned to judges in the San Francisco OALJ office.

Hearings are governed by 29 CFR part 18, Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges. Federal Rules of Civil Procedure control if the 29 CFR part 18 rules do not. In general, like Oregon, applicable state formal rules of evidence do not apply, though parties can engage in formal discovery methods, such as depositions, request for admissions, and interrogatories, and ask the ALJ to approve subpoenas for records or commanding people to provide records or appear for hearings.

After a formal hearing, judges commonly solicit written argument. It is not uncommon to wait a year or two for a decision, though there are exceptions.

ALJ decisions may be appealed to the Benefits Review Board (BRB) (20 CFR §§ 702.391–701.394), a panel of five judges sitting in Washington, D.C., created in 1972 to review decisions arising under the LHWCA and Black Lung Benefits amendments to the Coal Mine Health and Safety Act of 1969. The BRB conducts review for substantial evidence and errors of law. 20 CFR § 702.392. Oral argument is very rare. Appeals from BRB decisions may be filed in the United States court of appeals for the circuit in which the injury occurred. Court of appeals decisions may be appealed to the Supreme Court of the United States, subject to the court’s agreement to grant certiorari.