The Florida Workers’ Compensation Act excludes coverage for any injury covered by the Longshore Act or its extensions, such as the Defense Base Act (DBA). Fla. Stat. §440.09 (2). These questions of jurisdiction are not waivable. As the federal statute and case law changes, the proper forum for litigation is changing, and in some cases there may be no United States coverage available.
In 2009, the president and Congress reduced Longshore coverage by excluding shipbuilders who build recreational vessels less than 65 feet in length, 33 U.S.C. Section 902 (3)(F) (amended 2009) (supp. 2011). In Czikowsky v. Ocean Performance, BRB No. 13-0108 (2013), the ALJ found that a hearing loss claim in April 2009 by a man working for a company that manufactured recreational vessels was excluded from coverage. The extension was held to apply even though the manufacturer also sold the vessels to fire departments and charter boat businesses. On appeal, the Benefits Review Board reversed, holding that a hearing loss claim is a repetitive trauma and exposure claim, and because some of the man’s work and exposure occurred before the act was changed, the injury was covered. An employer must maintain both coverages in the near future to cover repetitive trauma claims.
In Delgado v. Air Serv, BRB No. 12-0283 (2013), the Benefits Review Board reversed an ALJ who dismissed a Defense Base Act claim from a man injured working on humanitarian transportation in Chad, Africa, as not covered by the act. The general rule had been that a DBA claim required that the employer be under a contract to provide service to the United States government, but in Delgado, the Benefits Review Board held that if the United States government provides even partial funding for services and approves employment contracts, there is DBA coverage.
The employment contract is becoming more important to the issue of appropriate jurisdiction and coverage in Florida and elsewhere. In Owens II v. CCJ Transport, OJCC 07-0342000 (2/11/10), the claimant was from Tampa, was retained by a company from Utah to drive trucks from state to state, sometimes drove through Florida, and was injured in Georgia, but there was no employment contract addressing workers’ compensation coverage. It was held that Florida did not have jurisdiction. The claimant in Owens II was not prevented from filing a claim in Georgia, but what if this injury had occurred while the claimant was driving a truck in Mexico or Chad, Africa?
The Longshore recreational vessel exclusion only applies if there is state workers’ compensation insurance available to cover the injury, so the injured worker is not left with nothing. What is more troubling is the possibility that a Florida worker could travel to a job overseas only to find no DBA coverage and no Florida jurisdiction. An employee traveling to a job overseas should be counseled to get language on workers’ compensation coverage in an employment contract, and an employer who puts such language in such an agreement will have better control over claims.
