Board says car wreck is OCSLA-covered

by Matthew H. Ammerman on February 5th, 2016

The Benefits Review Board took on the inevitable issue of whether OCSLA applied to an offshore worker hurt in a car on his way to work in the Boudreaux case decided December 21, 2015. [1]

James Boudreaux, a field-testing supervisor, was hurt in a car accident on August 3, 2012, traveling from his home in Church Point, Louisiana, to pick-up area at a dock in Freshwater, Louisiana, from which he would have been transported to the Outer Continental Shelf (OCS). Boudreaux worked 89.2% of his time offshore in the year prior to his accident and regularly traveled by his personal car to specific locations at specific times to be transported to offshore sites. He typically carried the equipment in his personal vehicle that he would use offshore, and he received mileage reimbursement and compensation for his travel time from his employer, Owensby & Kritikos, Inc. His mileage payment, however, was a block reimbursement determined by the customer and a pre-determined distance chart prepared by his employer rather than actual mileage.[2]

Travel to and from work is not typically covered activity pursuant to the “coming-and-going” rule. But the Board affirmed the administrative law judges’ finding that Boudreaux was hurt in the course and scope of his employment citing the trip-payment exception to the coming-and-going rule. Boudreaux transported equipment he would use offshore, was paid pre-set mileage and for his travel time to job site on the OCS on the date of his car accident.

With regard to the substantial-nexus issue, the administrative law judge found that Boudreaux’s duties examining offshore facility storage tanks for defects directly furthered operations at the offshore facility. The Board affirmed that finding, re-stating a key sentence from the Supreme Court's Valladolid case that workers onshore may receive OCSLA benefits if they can show a “‘substantial nexus’ between their injuries and employer’s extractive operations on the OCS.” The Board reasoned the substantial-nexus test was satisfied because: (1) the injury occurred in the course of Boudreaux’s employment; (2) he was traveling with work equipment; (3) he was traveling to meet a crew boat to be transported to the OCS; and, (4) his work on the OCS related to extractive operations. In dicta, the Board rejected the employer’s argument that there was no unique, OCS-related risk associated with traveling on land in a personal vehicle because that inquiry would add “unwarranted complexity.”

Citing the trial judge’s “broad discretion” in applying the substantial-nexus test, the Board affirmed the finding that there was a significant causal link between Boudreaux’s injuries from the car accident and his employer’s on OCS-extractive operations. The Board remanded the case to the administrative law judge on a procedural issue because a full compensation order had not been issued awarding benefits.

However, if a car wreck on the way to work in your personal vehicle is covered -- where is the logical end to such coverage? The carrier in the Boudreaux case is contemplating a repeat appeal to the Board following issuance of a complete compensation order, and, thereafter, to the U.S. Court of Appeals for the Fifth Circuit.

[1] Boudreaux v. Owensby & Kritikos, Inc. and Louisiana Workers’ Compensation Corp.,
2015 DOLBRB LEXIS 268, BRB No. 15-0117 (December 21, 2015)(pending publication); Available here: http://www.dol.gov/brb/decisions/lngshore/published/15-0117.htm

[2] Boudreaux v. Owensby & Kritikos, Inc. and Louisiana Workers’ Compensation Corp., 2014-LHC-00489 (December 12, 2014)(Administrative Law Judge Clement Kennington).




Posted in not categorized    Tagged with Valladolid, OCSLA

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