New Jersey, Texas, Washington and Louisiana are currently the only states that specifically exclude longshoremen and harbor workers from their workers’ compensation acts.
The master and crew of any vessel are excluded from both the LHWC and the New Jersey Workers’ Compensation Act. The Merchant Seaman Protection and Relief Act, otherwise known as the “Jones Act,” provides any seaman who suffers personal injury in the course of his employment the ability to maintain an action for damages at law with the right of trial by jury. 46 U.S.C.S. Sec.6.
To qualify for protection under the Jones Act, several issues must be examined, including: whether the vessel was in navigation, the seaman’s duration and attachment to a vessel or particular fleet. A land-based worker who happens to be injured on a boat may not be eligible for Jones Act protection whereas a seaman who happens to be on land while the boat is docked may be eligible for protection. Visit www.shipguide.com. When an injured worker serves on a freighter, tugboat, tanker, dredge, barge or fishing boat, that worker may be entitled to Jones Act protection and fall outside the New Jersey Division of Workers’ Compensation.
Other New Jersey workers who are not part of the Workers’ Compensation system are railroad workers – including New Jersey Transit train employees – subject to The Federal Employer’s Liability Act (45 U.S.C. 51) and all independent contractors.
An independent contractor is defined as:
[O]ne who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. Lesniewski v. WB Furze, 308 N.J. Super. 270 (App. Div. 1998).
There are two tests to determine if an individual is an employee or independent contractor for workers’ compensation purposes: the “control test” and the “relative nature of work” test. Under the control test the following factors are considered: evidence of the right of control, right of termination, furnishing equipment and method of payment. Under the relative nature of work test an employer-employee relationship exists if there is functional integration of their respective operations. The court must determine whether the work performed was an integral part of the regular business of respondent and whether petitioner demonstrated substantial economic dependence upon the employer.
Finally there are those New Jersey workers who, while subject to the state’s Workers’ Compensation Act, are granted the benefit of a presumption. Generally, in a workers’ compensation action the claimant bears the burden of proof to establish all elements of the case. However, N.J.S.A. 34:15-7.3 states that any permanent or temporary member of a paid or part-paid fire or police department, any volunteer fire company or first aid rescue squad receives a rebuttable presumption that injury or death from cardiovascular or cerebrovascular condition is compensable while that individual is engaged in response to an emergency. In addition, a volunteer fireman’s respiratory condition is presumed to be an occupational disease. N.J.S.A. 34:15-43.2. There is currently pending legislation to extend the rebuttable presumption for police and firemen to include cancer if exposed to carcinogens and to afford a rebuttable presumption to public safety workers who are exposed to and contact communicable diseases.
Rachinsky is an associate at Wilentz, Goldman & Spitzer of Woodbridge. He concentrates his practice in workers’ compensation.
