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Longshore & Harbor Workers' Compensation Act
Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 141
arch - May 1999
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
I. Longshore
Benefits Review Board
In Spitalieri v. Universal Maritime Services , ___ B.R.B.S. ___, BRB No. 98-743 (Feb. 23, 1999), the case involved the appeal of a Section 22 petition for modification. The ALJ originally found Claimant to be temporarily totally disabled due to a traumatic (neck, head, back and left knee) work-related accident in 1992. On modification, another ALJ found Claimant to be no longer disabled from the traumatic injuries and able to return to work. However, he found Claimant to have sustained a work-related hearing loss caused by the 1992 injury. On reconsideration, the ALJ found that Section 22 provides for a credit for an overpayment of benefits; that Claimant is entitled to disability benefits for his hearing loss, but that those benefits were subsumed by Employer's overpayment of temporary total trauma disability benefits.
In disallowing the credit, the Board noted that Section 22 allows a credit against unpaid compensation where the compensation rate has been decreased; other wise, it provides that the order on modification shall not affect the compensation previously paid. In the instant case, there has been no decrease in Claimant's compensation rate, but rather Claimant's continuing disability benefits for his traumatic injury have been terminated altogether. Thus, according to the Board, the exception permitting a retroactive decrease which may be reflected in a credit under Section 22, does not apply, and the termination, of compensation cannot be effective prior to the date of the decision.
- [Topic 22.1, Modification, generally ]
In Waugh v. Matt's Enterprises, Inc. , ___ B.R.B.S. ___, BRB No. 98-0735 (Feb. 23, 1999), "coverage" under the LHWCA was the primary issue. Claimant's job duties as a truck driver included transporting metal that had been unloaded from barges onto his truck and to the scrap field located at the facility. He also regularly performed tasks that assisted the process of unloading scrap metal from barges to his truck. Claimant performed spotting duties, whereby he would direct the crane operator to the location of scrap at the bottom of the barge. Additionally, Claimant helped move barges, untwisted cables on the crane, spliced cables, took the covers off of barges, changed cables, hooked the magnet on the crane, helped repair the crane, and leveled the crane.
In upholding the ALJ's finding of status, the Board noted that the scrap field constituted an intermediary storage site, since the metal would be subsequently loaded onto trucks for delivery to local steel plants. Thus, Claimant's task of transporting metal from barges to the scrap field involved an intermediate step in the process of moving cargo between ship and land transportation. As Claimant's trucking duties, as well as his other specific tasks which assisted the unloading of barges, were not extraordinary or episodic, and in fact, were found to be a regular part of Claimant's job assignments, the Board affirmed the ALJ's conclusion that Claimant spent at least some of his time engaged in clearly maritime employment.
To determine whether the situs test was met, the ALJ applied the functional relationship test enunciated in Brady-Hamilton Stevedore Co. v. Herron , 568 F.2d 137, 7 BRBS 409 (9th Cir. 1978). Under this test, one must keep in mind: 1) the particular suitability of the site for the maritime uses referred to in the LHWCA; 2) whether adjoining properties are devoted primarily to uses in maritime commerce; 3) the proximity of the site to the watering; and 4) whether the site is as close to the waterway as feasible given all the circumstances.
In finding that the ALJ's application of this test was rational, the Board noted: 1) the site, 500 feet from the water's edge, needed to be close to the waterway in order to provide for the efficient unloading of barges; 2) the surrounding area was engaged in maritime commerce; (3) the scrap field was part of the overall unloading process at the location--scrap was either unloaded from barges to trucks and transformed to steel companies, or loaded from barges to trucks and transported to the field; 4) the field where Claimant was injured was customarily used by employer in the overall process of unloading vessels; 5) the scrap field is part of the waterfront facility wherein the loading and unloading of barges occurs, and therefore, the area where Claimant was injured is part of a general "maritime area" sufficient to constitute an "adjoining area" under Section 3(a) of the LHWCA.
Claimant's work was not outside the scope of Claimant's employment. It did not constitute gratuitous or voluntary employment. The Board noted that the ALJ found that while Employer's official policy was that truck drivers were to stay off the barges, in practice they were asked to go aboard barges either by Claimant's supervisor or Employer's manager, to assist the crane operator in the unloading of barges. The Board, thus concluded, that it is clear from the record that Employer was aware of Claimant's activities and nevertheless took no disciplinary action against him, thereby providing claimant with tacit approval for his actions.
- [ Topic 1.7.1, status ; Topic 1.6.2, situs--"Over land" ; Topic 2.2.2, arising out of employment ]
In Gavranovic v. Mobil Mining and Minerals , ___ B.R.B.S. ___, BRB No. 98-741 (Feb. 23, 1999), "coverage" (both situs and status) was at issue. Employer was a fertilizer manufacturer whose facilities adjoin the Houston Ship Channel. It received raw materials (sulphur, anhydrous ammonia, phosphate rock, and sulfuric acid) by truck, railway and barges, and produced sulfuric acid, phosphoric acid, ammonium thiosulfate (liquid fertilizer), and two grades of solid fertilizer called dioammonium phosphate and monoammonium phosphate.
The sulphur arrived by trucks, the ammonia and phosphate rock arrived by barge, and the sulfuric acid arrived by both railway and barges. With the exception of the sulfur, all materials were unloaded from their respective modes of transportation by Employer's operators. The finished product was shipped out by railway or trucks 80 to 85 percent of the time and by barges or ships 15 to 20 percent of the time.
Employer's personnel in "Shipping and Receiving" are divided into various "classes" of operators with "A" operators having the most seniority as well as being qualified for the most jobs.
As an "A" operator, Claimant Jones regularly worked the overhead cranes in Buildings 9 and 10. Those buildings sit adjacent to the Houston Ship Channel and they act as storing houses for the finished product (fertilizer). However, from Building 9, fertilizer was loaded by crane onto a conveyor belt which leads to the dock where a marine loader loads it onto barges or other sea-going vessels for shipment. From Building 10, fertilizer was loaded onto trucks or rail cars, or was transferred to Building 9 to replenish its supply.
Claimant Gavranovic was a "C" operator who also performed some class "B" and "A" jobs. He often worked as a "B" operator driving a front-end loader both in the rock barge and in Building 9, and, was qualified to perform certain "A" jobs such as driving the diesel locomotive, working in Buildings 9 and 10, and relieving "A" operators on the marine loader.
The injuries to both Claimants occurred on employer's facility in Building 10 which is adjacent to navigable water. Building 10 was used to store finished product and to load rail cars and trucks. When the supply of fertilizer to be transported by barge or vessel in Building 9 ran low, product was transferred from Building 10 to Building 9. Neither building was used in manufacturing or processing fertilizer.
Employer contended that neither its facility nor Building 10 was a covered situs. The Board rejected this contention for a number of reasons. First, Employer's assertion that the definition of "marine terminal" found in OSHA regulations should be relied upon, was rejected. OSHA regulations were not developed at the same time or for the same purpose as the LHWCA. Second, the Board noted that Fifth Circuit law, and not the more restrictive Fourth Circuit law governs.
The Board distinguished this case from Stroup v. Bayou Steel Corp ., 32 B.R.B.S. 151 (1998) (worker injured in a warehouse shipping bay at a steel manufacturing plant was not injured on a covered situs.) in that part of Employer's business involves sending and receiving goods by barges or vessels--a distinctly maritime activity. Moreover, the geography of the facility herein can be distinguished from the facility in Stroup , as here, the entire facility and the building in question were adjacent to navigable water and to the docks where barges are loaded and unloaded. Thus, the Board found that, in light of the location of employer's facility and because significant maritime activity (loading and unloading barges) occurs on the docks at employer's facility, the injuries occurred on a covered situs.
The Board rejected Employer's argument that because neither claimant was performing maritime work at the time of his injuries, neither satisfied the status requirement. The Board correctly noted that the Fifth Circuit uses a "moment of injury" test (covered if engaged in maritime employment at the time of injury) not to narrow but to broaden coverage under the LHWCA.
Therefore, the fact that both claimants were injured during the course of performing non-maritime work is insufficient in and of itself to deny them coverage.
The Board agreed with the ALJ that Both claimants regularly engage in maritime work. In addition to the testimony of the claimants, the Board noted employer's concession that Jones had loaded and unloaded barges, and that Gavranovic unloaded barges. This evidence was sufficient to support the ALJ's conclusion that claimants loaded and unloaded vessels "at least some of the time" and, therefore, meet the status requirement of Section 2(3).
- [ Topic 1.6.2, situs "Over land" ; Topic 1.7.1, status-- "Maritime Worker" ]
The appeal in Bustillo v. Southwest Marine, Inc. , ___ B.R.B.S. ___, BRB No. 98-0824 (Mar. 8, 1999) involves a claim by Claimant, a shipyard worker whose duties included sandblasting and painting, for compensation for the aggravation of his pre-existing asthma by work-related exposure to toxic substances. Claimant worked for Employer until November 1, 1992, when he sustained a sandblasting injury to his face. Claimant did not return to work after recovering from his sandblasting injury because his respiratory condition had worsened. The ALJ found that the claim is not barred by Claimant's failure to give timely notice of his injury under Section 12(a) inasmuch as Employer failed to meet its burden of proof under Section 12(d) that it was prejudiced by Claimant's failure to provide timely notice of his injury. In the initial Decision and Order the ALJ found that Claimant's asthma was causally related to his employment, but that the claim was not timely filed pursuant to Section 13(b)(2).
In a subsequent Decision and Order Awarding Benefits on Modification, the ALJ found that the claim was not barred under Section 13(b)(2) in as much as the statute of limitations was tolled pursuant to Section 30(f) by Employer's failure to file a timely first report of injury under Section 30(a). Claimant worked for Employer until November 1, 1992, when he sustained a sandblasting injury to his face. Claimant did not return to work after recovering from his sandblasting injury because his respiratory condition had worsened.
The ALJ found that the claim is not barred by Claimant's failure to give timely notice of his injury under Section 12(a) inasmuch as Employer failed to meet its burden of proof under Section 12(d) that it was prejudiced by Claimant's failure to provide timely notice of his injury.
The issues on appeal were: (1) whether the claim was time barred under Section 13; and (2) finding that the Employer was not prejudiced by Claimant's failure to provide timely notice of his injury under Section 12.
As to the Section 12 issue, the Board rejected Employer's assertion on appeal that the delay in receiving notice made it difficult to identify witnesses and precluded employer from supervising Claimant's medical care. Employer's "conclusory allegation" on appeal that the delayed notice made the identification of witnesses difficult was unsupported by evidence in the record. Moreover, while Employer generally asserted that it was prejudiced by its inability to supervise Claimant's medical care, it did not allege that the medical care received by Claimant was inappropriate.
As to the time bar issue, the Board noted that Section 20(b) provides a presumption that the claim was timely filed and to overcome the presumption, Employer must preliminarily establish that it complied with the requirements of Section 30(a).
For Section 30(a) to apply, the employer or its agent must have notice of the injury or knowledge of the injury and its work-relatedness. According to the Board, Employer may overcome the Section 20(b) presumption by proving it never gained knowledge or received notice of the injury for Section 30 purposes. Knowledge of the work-relatedness of an injury may be imputed where employer knows of the injury and has facts that would lead a reasonable person to conclude that compensation liability is possible so that further investigation is warranted.
Agreeing with the ALJ, the Board found that one could rationally conclude that the information contained in the doctor's report and Claimant's counsel's letter were sufficient to impute to employer the knowledge that claimant suffered from a work-related respiratory impairment and that, on the basis of this information, Employer should have concluded that compensation liability was possible and thus, that further investigation was warranted.
- [ Topic 30.2, Employer must report injury within 10 days ]
In the en banc decision of Everett v. Ingalls Shipbuilding , ___ B.R.B.S. ___, BRB No. 98-0492 (Mar. 26, 1999)( en banc on recon. ), the Board upheld it previous decision to state that the district director can reject a request for an attorney fee for services rendered after the date Employer paid benefits, but the fact finder must first consider the necessity and reasonableness of the time requested as it may relate to any services performed to "wind-up" the case.
The Board drew support for this decision from its previously published decision in Nelson v. Stevedoring Services of America , 29 BRBS 90 (1995). Furthermore, the Board distinguished the instant case from that of the Wilkerson v. Ingalls Shipbuilding, Inc ., 125 F.3d 904, 31 BRBS 150 (CRT)(5th Cir. 1997), which the Employer had argued was controlling. In Wilkerson , the employer began paying the claimant compensation prior to the time the case was transferred to OALJ. Despite this payment, the claimant continued to pursue his claim before an alj seeking additional benefits, prejudgment interest, Section 14(e) penalties and an attorney's fee. The Fifth Circuit held that claimant was not entitled to any additional compensation, or to interest and a Section 14(e) assessment, and thus concluded that the claimant's counsel is not entitled to recover an attorney's fee for the work performed in pursuing the claimant's unsuccessful claim.
According to the Board, the distinguishing feature in the instant case is that, unlike Wilkerson , here Claimant never sought any additional compensation without success. Rather, Claimant obtained a voluntary payment form Employer. The Board opined that counsel's work subsequent to the payment was an effort to "wind-up" Claimant's claim and ensure that Claimant received everything to which she was entitled pursuant to Employer's voluntary payment of benefits.
The Board stated, "Where an employer is held liable for an attorney's fee pursuant to Section 28(a) or (b). . ., it is not unreasonable for it to be held liable for a fee for services such as counsel's explaining the implication of a decision or an employer's payment to the claimant, or for counsel to ascertain that the correct sum has been paid. The Board noted that the time involved in most cases is minimal, and for illustration, noted that involved in the instant case: time associated with obtaining reimbursement for a covered payment to a medical provider (.875 hours) which was incurred prior to Employer's paying benefits but not paid by Employer until several months after the Employer paid benefits (the cut off date originally used by the district director); time associated with informing Claimant of Employer's voluntary payment of compensation (.25 hours); and time associated with counsel's efforts to obtain requisite documents from Employer, which had been requested from Employer much earlier than the cut-off date, and therefore, in order to calculate Claimant's award of benefits, as well as the subsequent calculation of those benefits (.75 hours).
The Board concluded that questions regarding the necessity and reasonableness of the requested time are to be left to the discretion of the fact-finder.
- [ Topic 28.6.2, compensable services ]
In Ezell v. Direct Labor, Inc. , ___ B.R.B.S. ___, BRB Nos. 98-0826, 98-0826A and 98-0826B (Mar. 8, 1999), the Board issued its first published "coverage" decision in the Fifth Circuit since the circuit court issued Bienvenu v. Texaco, Inc. , 164 F.3d 901 (5th Cir. 1999)( en banc ). [ Bienvenu was issued subsequent to the ALJ's decision in this matter.]
Employer is a company that supplied labor for a contractor company. Claimant was assigned to work as a rigger on an inshore oil production facility which was surrounded by water and marsh and accessible only by boat via various canals. Claimant was injured while riding on a boat returning from a job site. The ALJ found "coverage" under the LHWCA.
Employer, on appeal to the Board has argued that Claimant was "transiently and fortuitously" on navigable waters at the time of his injury, and, therefore, pursuant to Bienvenu , Claimant should not be covered under the LHWCA. Claimant argues that he was not fortuitously on board a vessel at the time of his injury, since employer owned and maintained a fleet of vessels which were used to regularly transport its employees to job sites.
The Board noted that the court in Bienvenu was not specifically asked to decide the question of whether an employee who regularly travels by boat during the course of his work day to a work site or sites, and is injured during transport on navigable waters, is covered under the LHWCA. The Board noted that while Bienvenu rules out coverage for employees who are transiently and fortuitously on navigable water during the time of the injury, it does not hold that a worker injured on navigable water during the course of his employment should be denied coverage under the LHWCA if he is regularly required by his employment to travel by boat over navigable water, as well as where he performs some work on a vessel.
[Because Bienvenu's work on equipment aboard the vessel was sufficient to confer coverage, the Fifth Circuit specifically did not consider whether that claimant's time on the vessel while being shuttled from platform to platform should be included in determining whether he spent more than a modicum of his work time on navigable waters.]
The Board correctly noted that while Bienvenu focuses on the Supreme Court's statement in Perini regarding those "transiently and fortuitously" on navigable waters, Bienvenu must be applied consistently with the Supreme Court's holding in that case that those employees who would have been covered prior to 1972 by virtue of their injuries on navigable water remain covered post-1972. Older case law thus provides guidance in applying Perini and Bienvenue ..
In the instant case, prior to his injury, Claimant's job consisted of cleaning up Employer's yard, stacking pallets, and relocating oxygen bottles, pipes and saws that were about the yard. In addition, he worked in the mechanic shop, where he ground welled, stored a drag line and disposed of welding rods. Claimant also on occasion mopped and swept the trailer, cut the grass and cleaned employer's barges. On the day of his accident, he was assigned to assist in the threading of pipe on an inshore platform which was located approximately 35 to 40 minutes away by boat from employer's shore side facility, and accessible only by boat through a series of bayous, canals and the Intercoastal Waterway.
The Board found that "applying Bienvenu , it is clear that Claimant suffered his injury on navigable waters during the course and scope of his employment." However, it was unclear to the Board from the record how often Claimant was required to travel by boat over navigable waters in the course and scope of his employment and how much work he performed on water, and thus, under Bienvenu , whether Claimant's presence on water at the time of his injury was transient and fortuitous. Thus the Board remanded for consideration of whether Claimant was "transiently and fortuitously" over navigable water at the time of his injury, taking into consideration how often he was required to go aboard a vessel to work or travel by boat in order to perform his employment duties.
Interestingly, the Board noted that, if the ALJ finds that Claimant was "transiently and fortuitously" on navigable water, and thereby not covered pursuant to Perini , the ALJ must then consider whether Claimant's overall employment duties independently satisfy the status requirement.
The Board's most important observation in the instant case came in dicta. The Board compared the facts of Brockington v. Certified Electric, Inc. , 903 F.2d 1523 (11th Cir. 1990), cert. denied , 498 U.S. 1026 (1991), to a "hypothetical" situation closely related to the facts of the instant case. In Brockington , the land-based electrician employed by a non-maritime employer, an electrical contractor, whose only connection to maritime activity was riding in a boat to an island where he was to work. This worker, in Brockington , "thus was only transiently on water." The Board contrast that situation with that of a employee who works for an employer who maintains a fleet of vessels and assigns employees to travel and work on those vessels. In this hypothetical situation, a connection with the hazards of the maritime environment is not "fortuitous" but is part of the regular work environment of the employer.
- [ Topic 1.6.1, situs--"Over water" ]