Back to Basics: Recalling Perini

11/06/2013

Coverage under the Longshore and Harbor Workers Compensation Act has a somewhat tortured history. In today’s application, we throw around words like “situs” and “status,” but when a tough case comes along, it can help to recall the origins of the buzz words by tracing the history of Longshore coverage to see where your scenario fits in – if at all.

How many of you have heard of “Perini coverage?” Do you really know what it is? In need of a quick refresher? Here goes.

When the Longshore Act was enacted in 1927, and up until the 1972 amendments, coverage under the Act was determined by the situs of the injury.  If a worker suffered a work related injury upon the navigable waters of the United States, or on a dry dock, regardless of what his job was, he was covered by the Longshore Act.

The 1972 amendments expanded coverage landward, “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, building, or repairing a vessel).” The 1972 amendments also added a “status,” or maritime employment, requirement to limit coverage to only maritime employees in the newly expanded “situs.”

But the question arose: is a worker injured upon navigable water, who would have been covered prior to the 1972 amendments, no longer covered unless he can establish that he meets the new “status” requirement?

In Perini the Supreme Court held that Congress, in the 1972 amendments, did not intend to withdraw coverage from any worker who would have been covered prior to the amendments.  This is regardless of occupation.  If you are injured in the course of employment “upon the navigable waters of the United States,” or on a dry dock, then you are covered by the Longshore Act.  There is no “status” test. This is “Perini coverage.”

There are two ‘exceptions’ to Perini coverage. The first is where the worker is excluded from coverage by an express statutory exception as found in Section 2(3) of the Act. Examples include clerical workers, security guards, and Jones Act seamen. These exceptions were added in the 1984 amendments; if Congress had wanted to overrule Perini, it could have done so at this time, but it chose not to.

The second is a judicial “exception” that has been carved out to varying degrees by the Circuit Courts. It concerns workers who are upon navigable water “transiently or fortuitously” when injured. If the injured worker’s connection to the water is tenuous, under certain circumstances, courts have denied Longshore coverage. This a factual inquiry and the outcome can vary by judge, court, and circuit.

So, the bottom line is, if the worker was injured “upon the navigable waters of the United States,” and his regular job duties require that he be there, and  he is not excluded by a specific statutory exclusion, then he is covered by the LHWCA.

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