Florida workers are almost always entitled to compensation for workplace injuries. Some employees receive that compensation after filing a workers’ compensation petition for benefits with the State of Florida. Other employees receive benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA). Employees who are injured offshore while working in the oil or gas extraction industry might receive benefits under the Outer Continental Shelf Lands Act (OCSLA), a close relative of the LHWCA.

Does it matter which law governs the payment of benefits? Since the benefits can be quite different, including the ability to choose a physician to treat the work injury, the law does matter. However, workers do not decide which law applies. That choice is determined by the language of the various laws and how that language applies to the facts of the case.

The Florida Workers’ Compensation Act will not pay compensation if an injury is covered by the LHWCA. In the end, it is important that the worker receives benefits. To make that happen, it is important that the worker identifies and makes a claim for benefits under the correct law.

Choosing the Right Compensation Law

In most cases, the correct law is easily identified. Florida employees who are injured at work are usually covered by the Florida Workers’ Compensation Act. However, the injury is probably covered by the LHWCA if two conditions are met. 

First, the injury must occur while the employee working on “navigable waters” or adjacent land that an employer uses to load, unload, repair, or build ships. Adjacent land typically includes piers, docks, wharfs, terminals, and other places where large ships are loaded, unloaded, built, or repaired. 

Second, the employee must be engaged in “maritime employment.” Longshoremen and harbor workers are typically engaged in maritime employment, as are most shipbuilders, shipbreakers, and ship repairmen if they are building or repairing vessels larger than 18 tons.

While the requirements for LHWCA coverage seem clear, coverage disputes do arise. They usually focus on the kind of work that an employee was performing when the employee was injured. The Huelsman case, decided by a Florida Workers’ Compensation Judge, illustrates a typical coverage dispute.

The Huelsman Case

Ronald Huelsman was employed by W.F. Davis Marine Construction as a carpenter. He worked in marine construction, building docks, seawalls, boathouses, boatlifts, and other structures. The company often built “dune walkways,” essentially wooden paths that extend for a few hundred feet from the dock or beach to another structure or location. The company owns barges that it uses to transport construction materials to building sites. 

Huelsman was assigned to a residential project. He was building a structure that included a dock. The dock extended about 90 feet into the Mallet Bayou. The Mallet Bayou is a navigable waterway.

The project also included construction of a gazebo about 60 feet from the dock. The plan was to connect the gazebo to the dock by a series of walkways and rope bridges. 

Huelsman finished building the dock. He then turned his attention to building the gazebo. He intended to finish the project by building the walkway and bridges that connected the dock to the gazebo.

Huelsman was injured when he fell from a scaffolding that surrounded the gazebo. At that point, no walkways connected the gazebo to the dock. Huelsman was not working from a barge and no barge was present at the construction site.

The employer considered its employees to be engaged in maritime employment since they typically worked on navigable waterways. The employer had LHWCA insurance, but it had no state workers’ compensation insurance.

The employer notified its LHWCA insurer of Huelsman’s injury. The insurer advised the employer that the injury was not covered. When the insurer refused coverage, Huelsman made a claim under the Florida Workers’ Compensation Act.

The workers’ compensation judge decided that Huelsman was eligible for Florida workers’ compensation benefits rather than federal LHWCA benefits. If Huelsman had been working on a barge installing pilings to build a residential dock on navigable waters, his injury would have been covered by the LHWCA. However, Huelsman was not working on the water or on a pier or dock. The workers’ compensation judge agreed that the LHWCA did not apply because Huelsman was working on a gazebo that was some distance from, and not yet connected to, the dock.

Difficult Questions

What would the outcome have been if a walkway had connected the gazebo to the dock? The gazebo was probably too far from the dock to be regarded as “adjoining” the dock, so the injury would probably not have been covered by the LHWCA. However, the judge did not need to answer that question. At the time of the injury, there was only a planned connection, rather than an actual connection, between the gazebo and the dock, so it was easy for the judge to conclude that the LHWCA did not cover the injury.

What if Huelsman had been building a maritime-related warehouse instead of a gazebo? The judge decided that a work injury on a warehouse on dry land would be covered if the warehouse was related to the maritime industry, even if the warehouse was not located on the water’s edge. Building a warehouse that will be used to store goods unloaded from a ship is probably “maritime employment” covered by the LHWCA. Building a gazebo is a different story.

The Huelsman case illustrates the difficult questions that may need to be answered when an employee is injured while doing work that might or might not be covered by the LHWCA. Lawyers who handle workplace injuries must make a careful investigation of the facts and law to protect their clients by making a claim under the correct statute.

What happened to the unfortunate employee? His claim proceeded under Florida’s workers’ compensation law. His employer had not been able to obtain workers’ compensation insurance because insurance companies incorrectly determined that all of its activities were covered by the LHWCA. Fortunately, the employer had sufficient assets that it was able to settle Mr. Huelsman’s claim.