Legal Talk
Onshore injury, offshore platform? By Cindy Muller
R
ecently, in Ownesby & Kritikos Inc. v. Dir. OWC, the U.S. 5th Circuit allowed an automated/advanced ultrasonic testing (AUT) field supervisor who tested storage tanks primarily on platforms located on the Outer Continental Shelf (OCS) to recover under the Longshore & Harbor Workers’ Compensation Act (LHWCA). It was for injuries sustained in an automobile accident on his way to the offshore pick-up point for work on a platform on the OCS. The injured worker, James Boudreaux, spent 89% of his time working offshore. His employer paid him for mileage and driving time to the offshore pick-up point based on the distance from the employer’s home office in Broussard, La., and the pick-up point for offshore transportation. His employer also paid him for time spent on a helicopter or crewboat to get to the platform. By contrast, he did not receive travel pay to his onshore office. On the day of the accident, Boudreaux had his testing equipment in his vehicle. After the accident, a co-
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worker travelled to the accident site to retrieve the testing equipment and transport it offshore. The Fifth Circuit applied a two-step analysis from the substantial-nexus test adopted in Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. 207, 132 S. Ct. 680, 181 L.Ed. 675 (2012): (1) did the injury arise out of and occur within the scope of the employee’s employment; and (2) was the injury sustained as the result of operations conducted on the OCS. The parties agreed that Boudreaux was acting within the course and scope of his employment when the accident occurred. The dispute concerned whether the injury was sustained as a result of operations conducted on the OCS. The court rejected application of a “situs-of-injury” test. Instead, the court applied the substantial-nexus test which depends on the individual circumstances of each case and requires a link only between the employee’s injury and extractive operations conducted on the OCS. Cindy Muller is a maritime partner in Jones Walker’s Houston office. She can be reached at 713-437-1859 or cmuller@joneswalker.com.
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