LHWCA News

​© Copyright 2023 Washington USL&H Assigned Risk Plan

Disclaimer: Neither the Washington USL&H Assigned Risk Plan (WARP), nor any committee, committee member, attorney, officer, or employee of WARP warrants the accuracy, reliability or timeliness of any information published on this website, nor endorses any content, viewpoints, products, or services linked from this website, and shall not be held liable for any losses caused by reliance on such information. Any person or entity who relies on any information obtained from this website does so at their own risk. The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information. This website contains links to other third-party websites.  Such links are only for the convenience of the reader, user or browser; WARP does not recommend or endorse the contents of the third-party sites.

Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter.  No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction.  Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.  Use of, and access to, this website or any of the links or resources contained within the site do not create an attorney-client relationship between the reader, user, or browser and WARP or any WARP committee, committee member, attorney, officer, or employee of WARP.

Davis-Bacon Act Update

The U.S. Department of Labor has announced that a new rule updating the Davis-Bacon and Related Acts will ensure wages paid to workers on federally funded construction projects better reflect the realities of today’s labor market. The department notes that:

​On August 8, 2023, the Department announced the issuance of the final rule, “Updating the Davis-Bacon and Related Acts Regulations.” The final rule updates regulations issued under the Davis-Bacon and Related Acts that set forth rules for the administration and enforcement of the Davis-Bacon labor standards that apply to Federal and federally assisted construction projects. As the first comprehensive regulatory review in nearly 40 years, revisions to these regulations will promote compliance, provide appropriate and updated guidance, and enhance their usefulness in the modern economy.

​A comparison of what is changing can be found here:  Davis-Bacon Act Comparison Chart​​

Working Waterfront Presentation in Bellingham
Thank you to the Working Waterfront Coalition of Whatcom County (whatcomworkingwaterfront.org) for hosting WARP! It was terrific to see so many waterfront employers from diverse industries and engage in conversation about how USL&H applies in Washington State. 

​​WARP Governing Committee Member receives the Seattle Propeller Club Puget Sound Maritime Achievement Award

Doug Dixon, a long-term member, and Treasurer, of the Governing Committee of the Washington USL&H Assigned Risk Plan (WARP) has received the 2021 Seattle Propeller Club Puget Sound Maritime Achievement Award. (This award was formerly known as the Puget Sound Maritime Man of the Year award from 1951-1992).

Doug receives the award as he is retiring from his 20-year role as an Executive and General Manager at Pacific Fishermen Shipyard and Electric in Seattle. Doug joins an illustrious list of Washingtonians who have won this award in past years, including former United States Senator Warren G. Magnuson and former Governor of the Washington, Dr. Dixy Lee Ray, among others.

The members of WARP congratulate Doug, and thank him for his continued voluntary service to the Assigned Risk Plan!

Alternate Employer Endorsement

LHWCA CASELAW SUMMARY
This summary is republished with permission from Norm Cole at Brownstein / Rask. It was originally distributed December 2020.

Norm Cole's LHWCA Quarterly Caselaw Summary

Below is the current edition of my quarterly LHWCA caselaw summary.  There were no landmark decisions this quarter.  Interesting decisions include:

• Kniceley v. Michael Bybovich & Sons Boat Works the Board held claimant was excluded from coverage because before the injury he constructed recreational vessels under 65 feet and his employer had no vessels under construction greater than 65 feet.  Therefore, he did not “engage in” qualifying maritime employment and could not have been assigned to work on vessels exceeding 65 feet.  That the employer, when the business was started, intended to engage in construction of vessels in excess of 65 feet and assigned claimant to work on vessels exceeding 65 feet after the injury (on light duty) did not undermine the conclusion employer did not engage in such work and it therefore was not assignable to claimant until after his injury.
• Calvert v. Vigor Marine LLC (unpublished) claimant’s request for PPD necessarily included a request for de minimis award even though de minimis was not specifically raised as an issue until claimant requested reconsideration of the ALJ’s Decision and Order.  Yet, in Carrasco v. Triple Canopy, Inc. (unpublished), the Board interpreted pleadings as raising separate claims for a psychological condition and sleep disorder, finding the sleep disorder compensable but untimely claimed and the psychological condition not compensable.  Dissent argued the majority imposed a heightened pleading and proof requirement. 
• Two circuit court cases addressed the Jones Act exclusions.  In Sanchez v. Smart Fabricators Texas LLC (5th Cir.) a worker who tripped on a pipe welded to the deck of a jack-up drilling rig contributed to the vessel and had a connection that was substantial in duration.  ALJ held the connection was not substantial in nature because the rig was jacked up next to a dockside pier and plaintiff was not exposed to the perils of the sea.  The Court reversed because he could be exposed to perils of the sea even if his duties were on a vessel jacked up next to the pier or at anchor in navigable waters.  Dissent argued the court’s holding was contrary to the Supreme Court’s decision in Harbor Tug and Barge Co. v. Papai because all of plaintiff’s work was done when the rig was jacked up next to the dock, he was never assigned to sail on it, and he took two steps off the rig to land after every shift and did not sleep on the rig.  Dovy v. Tappan Zee Constructors, LLC (2d Cir.) (unpublished), held a worker who maintained and repaired vessels and equipment appurtenant to materials barges, tug boats, work boats, and crane barges was not a Jones Act seaman when injured on a crane barge.  He did his work on stationary vessels rather than vessels navigating over water, did not assist in navigation of any vessel, and went home after every shift. 
• §905(a) states workers’ compensation is the worker’s exclusive remedy unless the employer failed to secure payment of compensation, i.e., failed to obtain insurance or qualify as a self-insured employer.  In Raicevic v. Fieldwood Energy, LLC, plaintiff argued there was no excusive remedy unless the insurer actually paid compensation.  The 5th Circuit disagreed.  Purchase of the insurance was sufficient even if the insurer paid nothing. 
  

COVID-19 Screening Tool from the CDC
https://www.apple.com/covid19/

U.S. Department of Labor Issues OSHA Guidance As
Non-Essential Businesses Reopen and Employees Return to Work
https://www.osha.gov/news/newsreleases/national/06182020

These articles are republished with permission from The American Equity Underwriters, Inc. They were originally published in the Longshore Insider on March 27, 2020.

 Coronavirus in the Maritime Industry: Guidelines for Keeping Workers Safe
https://www.amequity.com/longshore-insider/article/coronavirus-guidelines-for-keeping-workers-safe

Ideas to Combat COVID-19 in Maritime Work Environments
https://www.amequity.com/longshore-insider/article/ideas-to-combat-covid-19-in-maritime-work-environments​