Adjuster X

Call of the Sea

By: | August 31, 2015

This column is based on the experiences of a group of long-time claims adjusters. The situations they describe are real, but the names and key details are kept confidential. Michelle Kerr is the editor of this column and can be reached at [email protected]

The accident report indicated that a pleasure boat marina employee, Doug Sanders, was injured while pumping fuel into a 42-foot yacht. He allegedly slipped and injured his back. I arranged to meet with Sanders at his apartment. He was clearly in distress.

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“My back is killing me,” he said as I walked in.

Sanders was a supervising dock hand with Lighthouse Marina. His fall while pumping gas was witnessed by the boat owner as well as a co-worker, who confirmed Doug’s report.

“What type of insurance covers me for this?” he asked. I told him it was the state workers’ compensation act.

Sanders furrowed his brow. “What about Longshore?” he asked, referring to the Longshore and Harbor Workers’ Compensation Act. “My friend’s brother-in-law was hurt two years ago working on a bridge over the Intra Coastal Waterway. He got Longshore benefits, they were higher than state comp. That’s what I want.”

“Let me finish my investigation and I’ll give you a call tomorrow,” I said.

After confirming that Lighthouse had Longshore coverage in place, I went to speak with the manager, Frank Stevens.

“I need to know what duties Doug Sanders performs for Lighthouse Marina,” I said.

“My friend’s brother-in-law was hurt two years ago working on a bridge over the Intra Coastal Waterway. He got Longshore benefits, they were higher than state comp. That’s what I want.”

Doug’s job duties and responsibilities, he said, were all centered around serving the marina’s clients. This included patrolling the docks to make sure nothing was amiss with the berthed vessels, manning the waste pump-out station, hosing down docks, supervising the “ship’s store,” and pumping fuel.

“Doug is not employed in any capacity as a mechanic or marina yard maintenance worker?” I asked.

“That’s correct,” he said, “He only deals with retail marina sales and customer interface.”

I went to see Sanders the following afternoon, where he sat on his couch with books around him.

“Hey, I’ve been reading about this Longshore Act and it looks like I’m covered under it. I work adjacent to a navigable body of water and was hurt performing my job duties. I should qualify for the higher benefits.”

“Well, it would seem that way to the casual reader,” I replied, “but I’m afraid it’s not the case.”

Sanders asked the obvious question, “Why not?”

“According to the USL&H Act,” I said, “people engaged in maritime employment are covered unless they fall under enumerated exclusions. This includes individuals employed by a marina who are not engaged in construction, replacement, or expansion of the marina except for routine maintenance. There are other exclusions, but this one speaks to your case.

“Since one of the exclusions of the Longshore Act covers you, you’re only covered under state law.”

“What if I asked a lawyer that question?” Doug asked.

“If he was competent,” I replied, “he’d give you the same answer I just did.”

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“I’ll lose a much higher benefit level than I’d get under state law!” Doug declared.

“Not really, Doug. Your wages determine your indemnity benefits up to a prescribed state maximum. At your salary level, the state WC rate fully compensates what you are owed. The lost time benefits under Longshore would be no different.”

“Heck, I really thought I qualified under Longshore,“ he said.

As I was leaving I thought, “a little knowledge can be a dangerous thing.”

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The R&I Editorial Team can be reached at [email protected]