OFFSHORE WORKER; ONSHORE INJURY; LHWCA COVERAGE? .

• Author: Dulle, Claire

1. Introduction 118 II. Facts and Holdings 118 III. Background 120 IV. The Court's Decision 124 V. Legal Analysis 125 VI. Conclusions 126 I. Introduction

   Working on oil rigs is a dangerous job. Significant hazards include petroleum fires, explosions, and severe natural disasters. Many individuals understand the stress of being on a rig for 85% of one's work year, away from family and friends. But what people tend not to consider is how dangerous working onshore can be where machinery accidents and malfunctions are commonplace. The danger surrounding oil rig work is part of the reason that Workers' Compensation Offices exist on the state and federal level to protect the employees. Part One of this note discusses workers' compensation laws and statutes, specifically in the case of Owensby and Kritikos, Inc., v. Director, Office of Workers' Compensation and Programs v. Boudreaux. (1) In Part Two, this note evaluates the facts and holding of the case at hand. Part Three evaluates the statutes at issue, the changes in tests over time, and outlines a critical Supreme Court decision. Subsequently, Part Four reviews the Fifth Circuit Court of Appeals decision in Owensby. Finally, Part Five concludes with an analysis of the Owensby court's opinion and discusses how the court could have clarified its reasoning.

2. Facts and Holdings

   The court in Owensby and Kritikos, Inc. v. Director, Office of Workers' Compensation and Programs v. Boudreaux (2) considered whether an onshore accident en route to a rig platform on the Outer Continental Shelf (OCS) (3) was eligible for compensation under the Longshore and Harbor Workers' Compensation Act (LHWCA) (4) as extended by the Outer Continental Shelf Lands Act (OCSLA) (5). Mr. Boudreaux, the defendant, was an employee of plaintiff Owensby and Kritikos, Inc., a company that provided inspections and testing services to the petrochemical, petroleum, and offshore industries. (6) The defendant worked as an Advanced Ultrasonic Testing field supervisor and spent significant time offshore. (7) In a single year, the defendant worked 89% of his hours on an offshore rig platform on the OCS of Louisiana. (8) Owensby compensated Mr. Boudreaux for his travel expenses only once he arrived at the offshore office. (9) Therefore, Mr. Boudreaux was not compensated for traveling from his home to the onshore office but was compensated for traveling from the onshore office to his onshore pickup point and from the pickup point to his offshore worksite. (10)

   The Owensby case arose after the defendant was severely injured in a car accident while driving to his offshore transport pickup point. (11) The doctor's instructed that the defendant would no longer be able to work offshore due to his significant injuries. (12) Following the incident, Owensby reassigned the defendant to office work, resulting in a $50,000 decrease in his salary. (13) Due to the accident, the defendant received disability benefits until 2016 and temporary total disability benefits until he fully recovered. (14) Ultimately, the parties disagreed on whether the defendant's claim fell under LHWCA and OSCLA or only the LHWCA. (15)

   Mr. Boudreaux's claim went through the ordinary proceedings. First, the plaintiff reported the accident to the company. (16) Next, the case was sent to an Administrative Law Judge (ALJ), who reviewed the claim. (17) The ALJ decided that the defendant's injury happened in "'the course and scope of his employment and 'the work he performed in testing the tanks... was directly related to outer continental shelf operations.'" (18) The ALJ based its findings on the substantial nexus test in Pacific Operators v. Valladolid (Pacific Operators). (19) After the ruling from the ALJ, Owensby appealed to the Benefits Review Board (BRB) in Washington, D.C. (20) Owensby believed that the ALJ inappropriately applied the test from Pacific Operator as the defendant's injuries were "not caused by operations on the OCS," and the Pacific Operators court rejected the test. (21) Ultimately, the BRB rejected this claim, deciding that the defendant satisfied the substantial nexus test and that LHWCA extended by OCSLA covered the claim. (22) Subsequently, the BRB remanded the case to resolve additional facts. (23) After the second remand, the ALJ determined that the defendant was entitled to an award based on total disability. (24) Owensby challenged the outcome and received a summary affirmance to petition the Fifth Circuit Court of Appeals. (25)

   Owensby continued to claim that the BRB improperly applied the substantial nexus test and that the defendant should not be compensated for his injuries under LHWCA extended by OSCLA. (26) However, the court affirmed the judgment of the BRB and the ALJ, holding that the court properly used and applied the substantial nexus test from Pacific Operators. (27) Ultimately, the Fifth Circuit held that the LHWCA, as extended by OSCLA, covered the defendant's injury because it had a link to the operations conducted on the OCS. (28)

3. Background

   To understand the decisions of the ALJ, BRB, and Fifth Circuit in the Owensby case, one must first understand the LHWCA and OSCLA. The LHWCA provides "compensation for the disability or death of a maritime employee 'if the disability or death results from an injury occurring upon the navigable waters of the United States.'" (29) The navigable waters include "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." (30) Employee is defined as "any person engaged in maritime employment," (31) so all claimant must establish a maritime situs and status.

   Further, OSCLA extends the...