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ELLENOR DAVIS                                ) 
                                             )
          Claimant-Respondent                ) BRB No. 98-860
                                             )
     v.                                      )         
                                             )
CAROLINA SHIPPING COMPANY                    )DATE ISSUED:   02/18/1999   
          
                         )
     and                           )
                         )
HOMEPORT INSURANCE COMPANY    )
                         )
          Employer/Carrier-             )
          Petitioners                        ) 
                         )
BRENDA SHAW McNEIL            ) BRB No. 98-861
                         )
          Claimant-Respondent      )
                         )
     v.                            )
                         )
CAROLINA SHIPPING COMPANY          )
                         )
     and                           )
                         )
HOMEPORT INSURANCE COMPANY    )
                         )
          Employer/Carrier-             )
          Petitioners                   )
                         )
JANNIE MAY LAWRENCE           ) BRB No. 98-862
                         )
          Claimant                 )
                         )
     v.                            )
                         )
CAROLINA SHIPPING COMPANY          )
                         )
     and                           )
                         )
HOMEPORT INSURANCE COMPANY    )
                         )
          Employer/Carrier-             )
          Petitioners                   )  DECISION and ORDER

     Appeals of the Decision and Order of Vivian Schreter-Murray,
     Administrative Law Judge, United States Department of Labor.

     E. Paul Gibson (Riesen Law Firm, L.L.P.), North Charleston, South
     Carolina, for claimants Ellenor Davis and Brenda Shaw McNeil.

     Richard P. Salloum (Franke, Rainey & Salloum, PLLC), Gulfport,
     Mississippi, for employer/carrier. 

     Before:  HALL, Chief Administrative Appeals Judge, McGRANERY,
     Administrative Appeals Judge, and NELSON, Acting Administrative Appeals
     Judge.

     PER CURIAM:

     Employer/carrier appeals the Decision and Order (97-LHC-1504, 97-LHC-2608, 97-LHC-2609) of Administrative Law Judge Vivian Schreter-Murray rendered on claims
filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation
Act, as amended, 33 U.S.C. §901 et seq. (the Act).  We must affirm the
findings of fact and conclusions of law of the administrative law judge which are
rational, supported by substantial evidence, and in accordance with law.
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965);
33 U.S.C. §921(b)(3).

     The decedent was a dockman who was killed at work on January 20, 1996, after
being run over by a tractor trailer truck as he was standing on the docks talking
to a co-worker who was operating a forklift.  Moments before hitting the decedent,
the tractor trailer driver sounded his horn, which caused the forklift operator to
move his forklift out of the way.  The decedent did not move, and as the truck
passed the decedent and the co-worker, the front edge of the trailer caught the
decedent's safety vest and pulled him to the ground.  The last two tires of the
trailer ran over the decedent and caused his fatal injury.  

     In 1992 and 1993, the decedent had been diagnosed with a seizure disorder
secondary to alcohol abuse by Dr. Plyler, his neurologist, and was released to
return to work in 1993 with the restriction that he not drive until he was seizure
free for six months.  By December 1994, however, the decedent was released to
return to full duty work after reporting to Dr. Plyler that he had been seizure
free for six months.  In fact, the decedent had suffered a seizure in August 1994,
four months prior to his return to full duty work.  On January 1, 1996, just 19
days prior to his fatal injury, the decedent suffered another seizure.  

     Claims for death benefits were brought by Ellenor Davis and Brenda Shaw McNeil
on behalf of the daughter and son of the decedent, April Davis and Jerome Shaw. 
Jannie May Lawrence, the mother of the decedent, also sought death benefits.  In
her Decision and Order, the administrative law judge awarded death benefits to the
decedent's children, finding that the claims were not barred by Section 3(c) of the
Act, 33 U.S.C. §903(c), and that the decedent's average weekly wage was
$854.35 as stipulated.  The administrative law judge denied Ms. Lawrence's claim
for death benefits because she failed to establish her dependency upon the decedent
at the time of his death. The administrative law judge also denied employer relief
from continuing compensation liability pursuant to Section 8(f) of the Act, 33
U.S.C. §908(f).

     On appeal, employer challenges the administrative law judge's finding that the
claims are not barred by Section 3(c) and that the decedent's average weekly wage
was $854.35.  Claimants Davis and McNeil filed a response brief, urging affirmance
of the awards.[1]  

     Employer initially contends that the administrative law judge erred in
awarding death benefits as Section 3(c) bars this claim, and that the decedent's
own misconduct in concealing his January 1, 1996, seizure and failing to abide by
standard seizure precautions constituted an intervening cause of the fatal accident
which severs the connection between the accident and his employment.  Section 3(c)
states:

     No compensation shall be payable if the injury was occasioned solely by
     the  intoxication of the employee or by the willful intention of the
     employee to injure or kill himself or another.

33 U.S.C. §903(c)(1994)(formerly 33 U.S.C. §903(b)(1982)).  Section 20(d)
of the Act, 33 U.S.C. §920(d), affords a claimant the benefit of the
presumption "that the injury was not occasioned by the willful intention of the
injured employee to injure or kill himself or another."  33 U.S.C. §920(d). 
Thus, even if an injury has arisen out of and in the course of employment pursuant
to Sections 2(2) and 20(a) of the Act, 33 U.S.C. §§902(2), 920(a), it is
not compensable if the injury was occasioned by the willful intention of the
employee to injure himself. See O'Connor v. Triple A Machine Shop, 13 BRBS
473, 476-477 (1981)(Miller, J., concurring in part and dissenting in part);
Kielczewski v. The Washington Post Co., 8 BRBS 428, 431 (1978).  

     In the instant case, the administrative law judge found that employer failed
to establish that the decedent willfully intended to injure himself.[2]   She found, moreover, that even if the decedent
were negligent in failing to follow medical advice, the decedent's actions bore no
relationship to his death, which was due to a crush injury.  Consequently, the
administrative law judge concluded that the claims were not barred by Section 3(c). 

     Initially, we reject employer's argument that the decedent's misconduct in
concealing his most recent seizure and not abiding by proper seizure precautions
constitutes an intervening cause sufficient to sever the causal link between the
accident and his employment.  Where there is a subsequent non-work-related event
following an initial work injury, the relevant inquiry is whether the second injury
resulted naturally or unavoidably from the work injury; the claimant's actions must
show a degree of due care in regard to his injury and the claimant must take
reasonable precautions to guard against re-injury. Jackson v. Strachan Shipping
Co., 32 BRBS 71 (1998)(Smith, J., concurring and dissenting).  Thus, a claimant
may not recover if the remote consequences of his work injury are the direct result
of his intentional post-injury misconduct, and are only the indirect, unforeseeable
result of the work-related injury. Id., citing Bludworth Shipyard, Inc. v.
Lira, 700 F.2d 1046, 15 BRBS 120 (CRT)(5th Cir. 1983); Cyr v. Crescent Wharf
& Warehouse Co., 211 F.2d 454 (9th Cir. 1954); Grumbley v. Eastern
Associated Terminals Co., 9 BRBS 650 (1979)(Miller, J., dissenting in part and
concurring in part).  

     The instant case does not involve a second, non-work-related accident or event
occurring subsequent to the work injury; the only injury at issue here occurred at
work on January 20, 1996.  Thus, the cases relating to an intervening cause are
inapposite.  Moreover, as the Board stated in Jackson, the Act specifically
excludes the consideration of fault in assessing the cause of injury, see
33 U.S.C. §904(b),  and thus the courts and the Board have explicitly rejected
the suggestion that the duty of care required of a claimant to guard against a
subsequent injury applies to an initial work injury. Jackson, 32 BRBS at 73,
citing Bludworth, 700 F.2d at 1050 n. 2, 15 BRBS at 123 n. 2 (CRT);
Cyr, 211 F.2d at 454; Hallford v. Ingalls Shipbuilding Div., 15 BRBS
112, 114 (1982)(Ramsey, J., dissenting); Hall v. Newport News Shipbuilding & Dry
Dock Co., 674 F.2d 248, 14 BRBS 641 (4th Cir. 1982), aff'g 13 BRBS 873
(1981).  Consequently, we hold that the decedent's conduct does not constitute an
intervening cause severing  the causal link between the work accident and his
death.  

     Moreover, we affirm the administrative law judge's conclusion that these
claims are not barred by Section 3(c) as the administrative law judge's finding
that employer failed to establish that the decedent willfully intended to injure
himself is in accordance with law and supported by substantial evidence. See
Jackson, 32 BRBS at 71; Decision and Order at 2-4; Emp. Exs. 8, 35; Tr. at 119-120.  We reject employer's contention that the decedent's concealment of his recent
seizures and his failure to abide by proper seizure precautions constituted a
willful intent to injure himself or others.  In Jackson, a case
similar to the facts of this case with the exception that the claimant in that case
was engaged in the prohibited conduct of driving at the time of his work injury,
the Board held that an employee's disregard of medical advice does not establish
the willful intent to injure oneself required by Section 3(c). Jackson, 32
BRBS at 75, citing Glen Falls Indemnity Co.  v.  Henderson, 212 F.2d 617
(5th Cir. 1954), and General Accident, Fire & Life Assur.  Corp.  v. 
Crowell, 76 F.2d 341 (5th Cir. 1935).  Furthermore, the Board held that there
was no evidence that the claimant deliberately intended to have the motor vehicle
accident in which he was injured.  Likewise, we have reviewed the evidence that
employer alleges establishes decedent's willful intent, but we agree with the
administrative law judge that it does not do so.[3] 
 Regardless of how negligent or inadvisable decedent's course of conduct was in
working as a longshoreman despite having had a seizure just 19 days prior to his
fatal injury, concealing this seizure, and not following the seizure precautions
of which he was aware, the claimants are entitled to compensation in the absence
of substantial evidence of a specific intent by the decedent to  injure himself.
Jackson, 32 BRBS at 75; Glen Falls, 212 F.2d at 618.  Employer's
evidence does not establish that decedent intended to be struck and killed by a
truck.  We, therefore, hold that the decedent's disregard of medical advice is
insufficient, in and of itself, to prove the requisite willful intent to rebut the
Section 20(d) presumption.  Consequently, the administrative law judge's
determination that the claims are not barred by Section 3(c) is affirmed.
     Employer lastly contends that the administrative law judge erred in finding
that the decedent's average weekly wage was $854.35 as stipulated, since the
decedent should not have been working as a longshoreman on the date of his fatal
injury and that if he were employed elsewhere, he would be earning between $4.75
and $6 an hour according to Ms. Favaloro.  In support of its contention, employer
asserts that "wages" are defined in the Act as "the money rate at which the service
rendered by an employee is compensated by an employer under the contract of hiring
in force at the time of the injury . . . ."  33 U.S.C. §902(13), and that
claimant's contract prohibited an epileptic from working unless certain conditions
were met.[4]  

     We affirm the administrative law judge's use of the stipulated average weekly
wage.  An employee's average weekly wage is to be determined as of the time of
injury. See generally  Hastings v. Earth-Satellite Corp., 8 BRBS 519 (1978),
aff'd in pert. part, 628 F.2d 85, 14 BRBS 345 (D.C. Cir. 1980), cert.
denied, 449 U.S. 905 (1980); 33 U.S.C. §910.  An administrative law judge
can rely on a voluntary stipulation as to average weekly wage which is based on a
reasonable method of calculation under the Act. See Thompson v. Northwest Enviro
Services, Inc., 26 BRBS 53 (1992).  The administrative law judge rejected
employer's argument that the decedent's average weekly wage should not be that of
a longshoreman, because he arguably was working in violation of this contract.  The
administrative law judge rationally found that inasmuch as the decedent died in a
work accident in the course of his employment as a longshoreman, his average weekly
wage should be calculated in reference to his wages as a longshoreman.  As the
administrative law judge's use of decedent's actual weekly earnings of $854.35
calculated as of the time of injury is in accordance with law, it is affirmed.
See Thompson, 26 BRBS at 53; Decision and Order at 4-5.

     Accordingly, the administrative law judge's Decision and Order is affirmed. 


     SO ORDERED.





                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge




                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge




                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1) Mr. Gibson, Ms. NcNeil's attorney, filed a response brief on behalf of both Ms. McNeil and Ms. Davis, and stated that Ms. Lawrence is not a participant in this appeal. Claimant's Response Br. at 1-2 and n. 3. Back to Text
2) Employer attempted to rebut the Section 20(d) presumption through the opinions of Dr. Plyler, the decedent's neurologist, Ms. Favaloro, employer's vocational expert, and Mr. McKevlin, employer's head of stevedoring operations. Dr. Plyler's opinion was that the decedent should not drive unless he was seizure free for six months. Emp. Ex. 8. Ms. Favaloro testified that Dr. Plyler would have reinstated restrictions on the decedent's driving until he was seizure free for six months as well as restricted the decedent from working around hazardous machinery or along the water's edge based on Dr. Plyler's previous imposition of work restrictions and her knowledge of general seizure precautions. Tr. at 119-120. Mr. McKevlin stated in his affidavit that he would not have hired the decedent as a longshoreman had he known of all of his seizures. Emp. Ex. 35. Back to Text
3) Indeed, employer's vocational expert, Ms. Favaloro, testified that she did not recall seeing anything in the record that the decedent, on the date of his death, intended to injure or kill himself. Tr. at 127. Back to Text
4)The contract states that an epileptic will not be referred to work unless he obtains a physician's written certification that he is receiving medication to control his seizures, that he has not had and probably will not have a seizure while on his medication, and that his epilepsy will not otherwise impair his ability to work. Emp. Ex. 34. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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