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Bridging the Gap — Ohio’s Marine Industry Fund

By: Michael Reidy | 4/1/2012 | Category: Workers Compensation-Premiums
You operate a construction company that successfully bid a Sandusky Bay Bridge repair contract. You are a state-funded employer for purposes of workers’ compensation in the state of Ohio and your premiums are current. In order to do the work, your crane must be placed on a barge under the bridge. Are you covered in the event of an on-the-job injury? The answer is no, unless you have secured additional insurance coverage required by the Federal Longshore and Harbor Workers’ Compensation Act ("Act"). Your existing Ohio coverage does not protect you.

Accordingly, two questions will arise when submitting such a bid. First, is the work covered by the Act? Second, if it is, how do you secure coverage?

The Act requires workers engaged in maritime employment, in whole, or in part, to be covered. "Maritime employment" means any work "upon the navigable waters of the United States" and extends to work on a bridge, pier, wharf, dry dock, terminal, or marine railway. However, not all bodies of water are considered "navigable waters of the United States." The Sandusky Bay is, but what about a small tributary of the Cuyahoga River? For the most part, "navigable waters of the United States" has been defined as "those waters subject to the ebb and flow of the tide shoreward to the mean high water mark and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the water body and is not extinguished by later actions or events which impede or destroy navigable capacity." Clearly, you will need to enlist the help of legal counsel to determine the navigability of any one particular body of water, and thus whether additional coverage under the Act is necessary.

Fortunately, the second question is much easier to answer. Once it is determined that additional coverage is needed, your company has two options, regardless of whether the company is state-funded or self-insured. You can purchase an appropriate policy from a private insurer, although few insurance companies offer such a policy. You can also apply for coverage through Ohio’s Marine Industry Fund ("Fund"), which is the most common method of securing coverage. Believe it or not, this form of coverage is price competitive with private industry.

In providing this coverage, the Bureau of Workers’ Compensation (BWC) acts much like a private insurer. It underwrites policies and accounts, sets rates, manages claims, and acts as a liaison with the federal government. When a claim is filed under the Act, which is the injured worker’s exclusive remedy, the BWC is a party of interest, providing legal defense on all contested matters.

You can apply for Fund coverage through the BWC’s legal division. The application includes a detailed description of the work to be performed and an estimate of payroll for the job.

Please feel free to contact Mike Reidy or any of the experienced workers’ compensation attorneys at RBS with questions or concerns regarding the Federal Longshore and Harbor Workers’ Compensation Act or Ohio’s Marine Industry Fund.

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