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                                 BRB No. 99-0297


MILLIE MAE JOHNSON                      )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
ARMY & AIR FORCE EXCHANGE               )    DATE ISSUED:   12/03/1999
                                             1999
SERVICE                                 )
                                        )
     and                                )
                                        )
CONTRACT CLAIMS SERVICES                )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Order Granting Employer's Motion for Summary Decision and
     the Order Denying Motion for Reconsideration of Clement J. Kennington,
     Administrative Law Judge, United States Department of Labor.

     Millie Mae Johnson, Columbus, Georgia, pro se.

     William F. Sayegh (Army & Air Force Exchange Service), Dallas, Texas,
     for employer/carrier.

     Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY, 
     Administrative Appeals Judges.

     PER CURIAM:

     Claimant, without the assistance of counsel, appeals the Order Granting
Employer's Motion for Summary Decision and the Order Denying Motion for
Reconsideration (97-LHC-2120) of Administrative Law Judge Clement J. Kennington
rendered on a claim filed pursuant to the provisions of the Longshore and Harbor
Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq., as
extended by the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §8171
et seq. (the Act).  In an appeal by a claimant without a lawyer, we will
review the administrative law judge's decision to determine if the findings of fact
and conclusions of law are supported by substantial evidence, are rational, and are
in accordance with law.  33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965).

     Claimant initially sustained injuries to her back and neck on October 18,
1985, while in the course of her employment as a cook with employer, when she fell
and hit her head on a mop bucket.  Claimant received immediate medical treatment
following this incident, and subsequently received treatment for psychiatric
problems related to her back pain.  On April 7, 1986, claimant underwent a lumbar
laminectomy.  While being transported home from the hospital by ambulance on May
8, 1986, claimant sustained a cervical contusion when she was dropped from a
stretcher by the ambulance attendants.  Claimant subsequently filed a third-party
suit against the ambulance service for the injuries sustained on May 8, 1986, and,
on December 28, 1987, claimant settled this third-party claim for $15,000, without
the prior written approval of employer.  On March 22, 1988, employer suspended its
payments of  temporary total disability benefits that it had been voluntarily
paying to claimant pursuant to Section 8(b) of the Act, 33 U.S.C. §908(b), on
the basis of claimant's failure to obtain employer's prior written approval of the
third-party settlement in accordance with the requirements of Section 33(g) of the
Act, 33 U.S.C. §933(g).  Following referral of the case to the Office of
Administrative Law Judges, employer moved for summary decision on the ground that
further compensation was barred by Section 33(g) because claimant entered into a
third-party settlement for an amount less than the amount to which she would have
been entitled under the Act, without obtaining the prior written approval of
employer.  In a Decision and Order on Motion for Summary Decision-Denial of
Benefits issued on February 27, 1990, Administrative Law Judge Joel R. Williams
granted employer's motion for summary decision, ruling that further entitlement to
compensation and medical benefits for claimant's October 18, 1985 work-related
injury is barred by Section 33(g).  Claimant did not timely appeal Administrative
Law Judge Williams' Decision and Order, and, thus, his ruling that the provisions
of Section 33(g) bar further compensation for the 1985 work-related injury is
final.  

     Claimant, who never returned to work following the October 1985 work-incident,
averred that she continued to report to employer's personnel office on a semiannual
basis in order to update her employment status.  Claimant asserted that when she
visited employer's office on April 1, 1994, she was advised that computer records
listed her as having been on administrative leave without pay (LWOP), but that
effective April 1, 1994, she would be  terminated.  According to claimant, before
leaving employer's building on April 1, 1994, she suffered chest pains, which were
later diagnosed as symptoms of a panic attack.[1] 
 Subsequent to this incident, claimant underwent psychiatric treatment for a panic
disorder.  On May 5, 1997, claimant filed a claim for compensation under the Act
for depression, post-traumatic stress, and chest pain related to the April 1, 1994,
incident in employer's personnel office.  After referral of the case to the Office
of Administrative Law Judges, employer moved for summary decision on the basis that
claimant was not an employee at the time of the alleged April 1, 1994 injury, and,
thus, her claim is not cognizable under the Act.  In support of its motion,
employer produced personnel records and the affidavit of employer's human resources
manager indicating that claimant was placed on LWOP status on October 19, 1985
because of her workers' compensation injury and was separated from LWOP on June 19,
1987, in accordance with Army regulations restricting LWOP to a period of one year.

     In an Order Granting Employer's Motion for Summary Decision, the
administrative law judge ruled that the injury allegedly sustained by claimant did
not arise out of and in the course of employment pursuant to Section 2(2) of the
Act, 33 U.S.C. §902(2), inasmuch as there was no employer-employee
relationship between employer and claimant at the time of the alleged April 1,
1994, incident which resulted in claimant's present psychological condition.  The
administrative law judge found, in this regard, that there was no evidence to
indicate a continued employer-employee relationship after June 19, 1987, even
assuming that claimant was not notified of the termination of her employment prior
to April 1, 1994.[2]   In an Order Denying Motion
for Reconsideration issued November 16, 1996, the administrative law judge ruled
that the initial Decision and Order issued by Administrative Law Judge Williams on
February 27, 1990 is final and, thus, is not subject to attack in this proceeding. 
In addition, the administrative law judge rejected claimant's contention that she
remained an employee as of April 1, 1994, that contention having been considered
and found to be without merit in his previous October 21, 1998 Order.

     On appeal, claimant, without the assistance of counsel, challenges the
administrative law judge's denial of her claim.  Employer responds, urging
affirmance.

     As an initial matter, we hold that the administrative law judge properly
decided this case in a summary decision.  Under the Rules of Practice and Procedure
for Administrative Hearings Before the Office of Administrative Law Judges,  any
party may move, with or without supporting affidavits, for summary decision at
least twenty days before the hearing.   See 29 C.F.R. §18.40(a).  Any
party opposing the motion may serve opposing affidavits or countermove for a
summary decision. Id. If the pleadings, affidavits, material obtained
through discovery or otherwise, or matters officially noticed show that there is
no genuine issue of material fact, the administrative law judge may enter summary
judgment for either party.  29 C.F.R. §§18.40(d), 18.41(a).

     The purpose of the summary judgment procedure is to promptly dispose of
actions in which there is no genuine issue as to any material fact. Hall v.
Newport News Shipbuilding & Dry Dock Co., 24 BRBS 1, 3-4 (1990).  Not only must
there be no genuine issue as to the evidentiary facts, but there must also be no
controversy regarding inferences to be drawn from them. Id.  In determining
if summary judgment is appropriate, the court must draw all reasonable inferences
in favor of the party opposing the motion and must look at the record in the light
most favorable to the party opposing the motion. See Brockington v. Certified
Electric, Inc., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S.
1026 (1991); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975), cert.
denied, 425 U.S. 904 (1976).  To defeat a motion for summary judgment, the
party opposing the motion must establish the existence of a genuine issue of
material fact; a fact is material if it affects the outcome of the litigation.
See Hahn, 523 F.2d at 464; Hall, 24 BRBS at 4.

     In the instant case, the administrative law judge found that, even accepting
claimant's account that she did not receive notification of her termination prior
to April 1, 1994, the lack of notice is not dispositive of whether she was an
employee as of April 1, 1994, the date of her alleged injury.  As will be discussed
below, we hold that any dispute as to whether claimant received prior notice of her
termination is not material to resolution of the issues raised by this appeal.
Therefore, we affirm the administrative law judge's determination that there was
no genuine issue as to any material fact, and that the case was appropriate for
summary decision.

     We will now address the administrative law judge's determination that claimant
was not an employee as of April 1, 1994 and, thus, any injury occurring on that
date did not arise out of and in the course of employment.  Section 2(2) of the Act
defines the term "injury" as follows:

     The term "injury" means accidental injury or death arising out of and in
     the course of employment, and such occupational disease or infection as
     arises naturally out of such employment or as naturally or unavoidably
     results from such accidental injury, and includes an injury caused by
     the willful act of a third person directed against an employee because
     of his employment.

33 U.S.C. §902(2).  Thus, for a claim to be compensable under the Act, the
injury must arise out of and in the course of employment; therefore, an employer-employee relationship between the employer and claimant necessarily must exist at
the time of injury.  See Clauss v. Washington Post Co., 13 BRBS 525 (1981),
aff'd mem. 684 F.2d 1032 (D.C. Cir. 1982).

     In the instant case, it is uncontroverted that claimant last performed work
duties for employer on October 18, 1985, that employer voluntarily suspended its
payment of compensation on March 22, 1988, and that Judge Williams ruled that
further entitlement to compensation was barred by Section 33(g) in a Decision and
Order issued on February 27, 1990.  The record in this case, viewed in the light
most favorable to claimant, reveals that the sole connection between employer and
claimant subsequent to the issuance of Judge Williams' Decision and Order consisted
of claimant's semiannual visits to employer's personnel office to update her
employment status.  That the record is capable of supporting the reasonable
inference that claimant was not notified of her termination prior to her visit to
employer's personnel office on April 1, 1994, is insufficient to confer on the
parties an employer-employee relationship at the time of the April 1, 1994 injury. 
Rather, the record reflects that employer had no control over claimant, that
claimant performed no services for employer, and that claimant received no wages
or other employment-related benefits from employer as of April 1, 1994.[3]   See Clauss, 13 BRBS at 527.  Thus, based
on the facts of this particular case, we uphold the administrative law judge's
finding that an employer-employee relationship no longer existed between employer
and claimant at the time of the April 1, 1994 incident.  We therefore affirm the
administrative law judge's determination that claimant was not an employee at the
time of her alleged injury on April 1, 1994 and, thus, her claim based upon an
incident occurring on that date is not compensable under the Act.[4]  
     Accordingly, the administrative law judge's Order Granting Employer's Motion
for Summary Decision and Order Denying Motion for Reconsideration are affirmed.

     SO ORDERED.




                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)Claimant's statements regarding these events were made during a telephonic, pre-hearing conference call before the administrative law judge on October 5, 1998. Back to Text
2)The administrative law judge additionally found that receipt of workers' compensation benefits is not tantamount to continued employee status and, even if it were, claimant's compensation ceased on March 22, 1988. Back to Text
3)Generally, the Board has applied three tests to determine whether an employer-employee relationship exists within the meaning of the Act; the tests are: 1) the relative nature of the work, 2) the right to control details of the work, and 3) those listed in Restatement (second) of Agency, Section 220, subsection 2, which encompass factors set forth in each of the other two tests. The administrative law judge should apply whichever test is best suited to the facts of the particular case. See Herold v. Stevedoring Services of America, 31 BRBS 127 (1997); Reilly v. WMATA, 20 BRBS 8 (1987); Tanis v. Rainbow Skylights, 19 BRBS 153 (1986). In the instant case, the administrative law judge's failure to explicitly apply one of these three tests in his analysis of the employer-employee relationship issue does not constitute error. At the time of the alleged injury employer possessed no control over claimant, claimant performed no services for employer, and claimant received no wages or other employment-related benefits from employer; thus, application of any of the three tests would compel the conclusion reached by the administrative law judge that no employer-employee relationship existed at the time of the alleged injury. Back to Text
4)We note, in accordance with the principle that an employer is liable for a condition that is the natural and unavoidable result of the original work-related injury, that claimant's panic disorder might be viewed, not as the result of a new injury suffered on April 1, 1994, but, rather, as the natural and unavoidable result of claimant's original 1985 work-related injury. See generally Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140, 144-145 (1991). Viewing the compensation claim for claimant's panic disorder in this light would not render the claim compensable, however, inasmuch as compensation for any disability arising out of the 1985 work-related injury is barred by Section 33(g) of the Act, 33 U.S.C. §933(g), in accordance with Judge Williams' 1990 Decision and Order which, not having been timely appealed, is final. 33 U.S.C. §921(a). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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