New Longshore Case from Third Circuit – Consolidation Coal Co. v. Benefits Review Bd.

New Longshore case from the Third Circuit Court of Appeals relating to the status of the injured claimant and the situs of the injury. There appears to be a circuit split on the meaning of "adjoining area" in 903(a) of the LWHCA, so stay tuned for higher review. The case is Consolidation Coal Co. v. Benefits Review Bd., 2010 U.S. App. LEXIS 25979 and can be found here. Facts: a diesel mechanic was injured in a garage at a facility that moved coal onto barges on the Monongahela River in Pennsylvania. The garage was 100 yards from the river. The employer challenged the claimant's entitlement to benefits under the Longshore and Harbor Workers' Compensation Act. Issue: Was the claimant's injury compensable under the LHWCA? Analysis: As to status, the court stated: With regard to status, § 902(3) of the Act states that a covered employee must be a "person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include-" certain enumerated categories of employees under § 902(3). Schwalb, 493 U.S. at 45. Finding the claimant to have been employed as a mechanic who contributed to the loading process, he had the "status" for benefits under the LHWCA. As to situs, the court stated: Section 903(a) states: Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring 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). 33 U.S.C. § 903(a). Because Smith was not actually on navigable water or on a pier, wharf, dry dock, terminal, building way, or marine railway at the time of his injury, the determinative question is whether the garage in which Smith‟s injury occurred is an "adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel." Id. As such, the claimant only fulfilled the situs test if he was injured on an "adjoining area." The court found that it should liberally construe the term "adjoining area" to find that the claimant did satisfy the "situs" test. In doing so, it set up a circuit conflict with the Fourth Circuit case of Sidwell v. Express Container Servs., Inc., 71 F.3d 1134, 1138 (4th Cir. 1995)(requiring the are to be continguous with or touch navigable waters). The claimant also had to show that the adjoining area was used in the loading/unloading of cargo. The court of appeals held that he had satisfied that burden.

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