The Long Arm of OCSLA: OCSLA Employee En Route Offshore Entitled To LSHWCA Benefits
Owensby & Kritikos, Incorporated, et al. v. Director, Office of Workers’ Compensation Programs, (No. 19-60619, CV, 2021 WL 1940599 [5th Cir. May, 14, 2021])
The U.S. Supreme Court in Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. 207 (2012) expanded the reach of the Outer Continental Shelf Lands Act for employees seeking workers’ compensation benefits from their employers and adopted the “significant nexus” test to determine if an employee was covered under OCSLA and thus receive the greater benefits of the federal Longshore Act. This requires a two-part analysis: (1) “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 (2) “was the injury sustained as the result of operations conducted on the OCS, under OCSLA’s relevant provision, 43 U.S.C. § 1333(b)?” 2021 WL 1940599 *2.
The facts were undisputed. The employee, James Boudreaux, who over the past year of employment spent 89% of his work time offshore, was driving to Fresh Water, Louisiana to be taken offshore when he was involved in a vehicular collision caused by a third party. As a result, the employee sustained severe injuries. He received travel pay when working offshore but not when working onshore. The parties could not agree on whether compensation benefits were owed under the Louisiana Workers’ Compensation Act or the LSHWCA as extended by OCSLA. The matter was submitted to the Administrative Law Judge who held in favor of the employee. On appeal, the BRB affirmed but remanded for factual determinations (2021 WL 1940599 *2). Again the ALJ held in favor of the employee who obtained summary affirmance for Fifth Circuit review. Id.
The parties agreed Boudreaux was in the course and scope of his employment. The only issue was whether he satisfied the substantial nexus test of Valladolid. The employer maintained that the ALJ and BRB applied the “but-for” test which the Supreme Court rejected in Valladolid. The panel noted that the Supreme Court while rejecting that test “did not bar holding covered an injury resulting from an onshore accident while an employee was traveling onshore to go offshore” (Id. at *3).
The unanimous panel also rejected the employer’s interpretation of Valladolid that the employee must prove a substantial nexus between the employer’s work and the accident. This, according the court, conflates the requirements of LHWCA’s § 902(2) with those of OCSLA’s § 1333(b) Id. at *4. OCSLA only requires a link between the injury and shelf operations.
Counsel for the employee also requested attorney’s fees for the appeal which was not contested by the employer Id. at *5. The attorney was ordered to submit a fee for the court to determine the award.
The opinion may be obtained from the Fifth Circuit’s website following this link:
https://www.ca5.uscourts.gov/opinions/pub/19/19-60610-CV0.pdf
