Commercial Diver Was A Longshoreman

In an unpublished decision, the Ninth Circuit determined that a commercial diver qualified for coverage under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).  The Employer argued that the diver should be considered a “member of a crew of [a] vessel,” which would preclude him from LHWCA coverage.  The Ninth Circuit disagreed, and it applied the coverage test established by the Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995).  Under Chandris, a maritime worker who has a substantial connection to a vessel in navigation is excluded from LHWCA coverage.  The “rule of thumb” is that a worker who spends less than thirty percent of his time in the service of a vessel in navigation should not be excluded from the benefits offered by the LHWCA.  Here, substantial evidence supported the ALJ’s finding that the claimant was a longshoreman.

American Marine Corp. v. Director, OWCP, No. 09-73328 (9th Cir. Dec. 20, 2010).