You can be covered for injuries sustained commuting to worksite.

The Parties

Mr. Boudreaux worked for Owensby testing tanks, which required him to use special equipment.

Owensby & Kritikos Inc. is located in Gretna, Louisiana. In 2012, the company merged with Savoy Technical Services to form Versa Integrity Group.

The Facts

Mr. Boudreaux injured multiple body parts as a result of a car accident on August 3, 2012, which allegedly occurred in the course of his work, as an Advanced/Automated Ultrasonic Testing field supervisor, for Owensby & Kritikos.  Mr. Boudreaux’s job required him to use specialized equipment to test tanks. These were on off-shore oil platforms located on the Outer Continental Shelf (OCS), for defects.  In order to perform his work, Mr. Boudreaux would regularly travel by personal car to specific locations at specific times in order to be transported to those offshore sites.  Mr. Boudreaux would receive mileage reimbursement and compensation for his travel time.  In the year just before his accident, Mr. Boudreaux spent a good 89.2% of his time working offshore.

On the date of the accident, Mr. Boudreaux, while traveling in his personal car from his home in Church Point, Louisiana, to a designated pick-up area on a dock in Freshwater City, Louisiana, was struck by a driver who ran a stop sign.  As a result of his injuries, Mr. Boudreaux was thereafter restricted to sedentary work in company offices at a significantly lower wage.

Employment Conditions

The injuries

Mr. Boudreaux sustained injuries to several body parts and had to undergo a total of seven surgeries.

The employer’s actions

Owensby & Kritikos voluntarily paid Mr. Boudreaux temporary total disability benefits under the Longshore and Harbor Workers’ Compensation  Act from August 3, 2012 through August 13, 2013, and ongoing temporary partial disability benefits after that.

Results of the Initial Hearing

Mr. Boudreaux filed a claim seeking benefits under the Longshore and Harbor Workers’ Compensation Act, as it has been extended by the Outer Continental Shelf Lands Act (OCSLA).  Owensby & Kritikos disputed Mr. Boudreaux’s position that he was covered by the OCSLA.  The administrative law judge found that Mr. Boudreaux had established the requisite “substantial nexus” between his injuries and the extraction of natural resources on the Outer Continental Shelf Lands.  The administrative law judge therefore concluded that Mr. Boudreaux’s claim falls within the coverage of the Longshore and Harbor Workers’ Compensation Act.

The Appeal

On appeal, Owensby & Kritikos challenged the administrative law judge’s finding that Mr. Boudreaux’s injury was covered under the OCSLA. Mr. Boudreaux and the Director, Office of Workers’ Compensation Programs (the Director), both responded by urging affirmance of the administrative law judge’s decision.  Mr. Boudreaux’s counsel also sought an attorney’s fee for work performed before the Board in defense of this appeal.  Owensby & Kritikos did not file any objections to counsel’s fee petition.

Owensby & Kritikos contended that the administrative law judge erred in concluding that Mr. Boudreaux’s claim fell under the coverage of the OCSLA because it was based “upon a disjointed and incomplete” evaluation of the Supreme Court’s decision in Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. ___, 132 S.Ct. 680, 45 BRBS 87(CRT) (2012).  Owensby & Kritikos maintained that the “substantial nexus” test espoused by the Supreme Court in Valladolid did not mean a “substantial nexus” between the injured worker’s general job duties and the Owensby & Kritikos’ operations on the OCS, but rather that the injury was actually “caused by” those operations.  Applying this reasoning to the facts in this case, Owensby & Kritikos maintained that claimant’s injuries, caused by a car accident in Louisiana, were not sufficiently related to operations it conducted on the Outer Continental Shelf Lands so as to warrant coverage under the Longshore and Harbor Workers’ Compensation Act.

The Ruling on Appeal

The administrative appeals judges rejected Owensby & Kritikos’ contention that Mr. Boudreaux’s injury did not occur in the course and scope of his employment.  Generally, while injuries sustained during commuting are not compensable, as traveling to and from work is not within the course of the employee’s employment, i.e., a kind “coming and going” rule, there are several exceptions to this “coming and going” rule. These exceptions have been recognized in situations where “the hazards of the journey may fairly be regarded as the hazards of the service.”

Exceptions to the “coming and going” rule include situations where: (a) an employer pays the employee’s travel expenses, wages for travel time, or furnishes the transportation; (b) the employer controls the journey; or (c) the employee is on a special errand for the employer. The administrative law judge determined that Mr. Boudreaux was compensated by the mile and for his travel time to the job site on the Outer Continental Shelf Lands on the date of his injury.

Because the injury occurred in the course of Mr. Boudreaux’s employment and he was traveling with his work equipment to meet a crew boat to get transportation to his offshore duty station, where he performed work relating to extractive operations on the Outer Continental Shelf Lands, the administrative law judge rationally found Mr. Boudreaux to be covered under the “substantial nexus” test.

In light of the broad discretion given to the administrative law judge to apply the substantial nexus test, and as the administrative law judge’s finding that the evidence established a significant causal link between Mr. Boudreaux’s injuries and Owensby & Kritikos’ on-OCS extractive operations was supported by substantial evidence, the administrative appeals judges affirmed the administrative law judge’s conclusion that Mr. Boudreaux’s claim fell under the coverage of the OCSLA. The administrative appeals judges also awarded attorney’s fees to Mr. Boudreaux, as Owensby & Kritikos had never filed any objections to counsel’s fee petition.

The Takeaway

Most interesting in this case is the fact that the administrative appeals judges essentially ruled that even when Mr. Boudreaux commuted to the job site, that he was covered under the Longshore and Harbor Workers’ Compensation Act.  And coverage came about because his employer paid for his mileage expenses and travel time.

James Boudreaux v. Owensby & Kritikos Inc.
https://www.dol.gov/brb/decisions/lngshore/published/15-0117.htm