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                                 BRB No. 99-1081

STEVEN IRWIN                            )
          Claimant-Respondent           )
     v.                                 )
HONOLULU MARINE,                        )    DATE ISSUED:   07/18/2000
INCORPORATED,                           )
dba KEWALO SHIPYARD                     )
     and                                )
MAJESTIC INSURANCE                      )
COMPANY                                 )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order   Awarding Benefits of Michael P. Lesniak, Administrative Law Judge,
     United States Department of Labor.

     Jay Lawrence Friedheim, Honolulu, Hawaii, for claimant.

     Robert C. Kessner and Muriel M. Taira (Kessner, Duca, Umebayashi, Bain & Matsunaga), Honolulu,
     Hawaii, for employer/carrier.

     Before:  SMITH and McGRANERY, Administrative Appeals Judges, and NELSON, Acting Administrative
     Appeals Judge.

        PER CURIAM:

        Employer appeals the Decision and Order   Awarding Benefits (1998-LHC-1622) of Administrative Law Judge
Michael P. Lesniak 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. (the Act).  We must affirm the administrative
law judge's findings of fact and conclusions of law if they 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 was employed as a welder for employer and normally worked between the hours of 7:30 a.m. and 4:00
p.m.  On the date of the injury, March 28, 1997, claimant clocked out just after 4:30 p.m.  He looked for a ride home, but
did not find one, so he stayed at employer's facility to socialize with his friends.  Soon thereafter, Charlie Pires, owner of
both the shipyard and the tugboat claimant had been working on, the J.D. Pringle, asked claimant to help put a
bumper on the tug.  Emp. Ex. 16 at 30; Tr. at 73-74.  Claimant did so and hand-marked an additional two hours of work
on his time card for which he was paid.  Cl. Ex. 12; Emp. Ex. 17 at 32; Tr. at 74.  Afterwards, claimant and some of the
other workers, including George Leitner, captain of the Pringle, gathered to socialize, drink beer and eat in the
Hawaiian shipyards' Friday "tradition" of pau hana.[1]   Cl. Ex. 11 at 9, 15; Emp.
Exs. 16 at 37, 17 at 74, 18 at 53, 22 at 108; Tr. at 72-73.  At approximately 9:00 p.m., Mr. Leitner decided to close up the
tugboat for the night. Emp. Ex. 22 at 24; Tr. at 75-76, 122, 170.  According to claimant's testimony, he followed Mr. Leitner
up the ladder to the tugboat, intending to do a final fire watch, as he stated the cabin had been too smoky from welding at
4:30 p.m. when he previously tried to check for fire.  Emp. Ex. 16 at 42, 47; Tr. at 70, 76-77.  Although Mr. Leitner safely
climbed up the ladder, claimant hit his head on a beam that extended off a building adjacent to the tug's dry-dock position. 
Upon hitting his head, claimant fell to the ground ten to twelve feet below.  Claimant was rendered unconscious.  By the
time the ambulance arrived, claimant regained consciousness but refused treatment, believing it unnecessary.  Because he
did not look well, Mr. Leitner helped claimant board the Pringle, laid him down in one of the bunks and stayed
with him for several hours.  Cl. Ex. 10; Emp. Ex. 22 at 24-31; Tr. at 78-81, 174-177.  The next morning, claimant's friend,
Rusty Kuesinberry, came to the shipyard in search of claimant, was told of the incident, and boarded the tug to talk to him. 
Mr. Kuesinberry convinced claimant to go to the hospital.  Claimant was later diagnosed with a left temporal lobe contusion
with an intercerebral hematoma and a significant midline shift, necessitating brain surgery which rendered claimant
unconscious for nearly one month.[2]   Cl. Ex. 1; Emp. Ex. 19 at 15, 18-23; Tr. at

        Claimant filed a claim for benefits under the Act.[3]   The administrative law
judge found that claimant's injury was caused by his hitting his head and falling from the ladder.  He also found that this
incident occurred "within the boundaries of [claimant's] employment" despite its having occurred so long after he
completed his welding duties, as the administrative law judge found it was reasonable for claimant to believe it was his duty
to ensure the safety of the area in which he had worked.  Decision and Order at 14.  Additionally, the administrative law
judge determined that claimant had been attempting to conduct a final fire watch when he was injured, and, as that task was
not prohibited, and as it benefitted the shipyard by potentially preventing damage, claimant's injury occurred within the
course of his employment. Id.  The administrative law judge further concluded that claimant's injury was not
caused solely by intoxication, and he awarded claimant temporary total disability benefits under the Act.  Decision and
Order at 13, 15-16.  Employer appeals, and claimant responds, urging affirmance.

        Under the Act, an injury occurs within the course of employment if it occurs within the time and space boundaries
of employment and in the course of an activity whose purpose is related to the employment. Durrah v. Washington
Metropolitan Area Transit Authority, 760 F.2d 322, 17 BRBS 95(CRT) (D.C. Cir. 1985); Boyd v. Ceres
Terminals, 30 BRBS 218 (1997).  The Section 20(a), 33 U.S.C. §920(a), presumption applies to this question.
Id.; Wilson v. Washington Metropolitan Area Transit Authority, 16 BRBS 73 (1984). If an employee deviates from
his work for personal reasons or becomes so thoroughly disconnected from the service to the employer that it would be
unreasonable to say that the injury occurred in the course of employment, his employer is not liable for any resulting
injuries. O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504 (1951); Compton v. Avondale Industries, Inc.,
33 BRBS 174 (1999); Bobier v. The Macke Co., 18 BRBS 135 (1986), aff'd mem., 808 F.2d 834, 19 BRBS
58(CRT) (4th Cir. 1986).

        Employer first contends the administrative law judge erred in finding it failed to rebut the Section 20(a)
presumption.  33 U.S.C. §920(a).  It appears the administrative law judge did not apply the Section 20(a) presumption
to this issue.  Nevertheless, this error in not applying the presumption is harmless, as he found claimant's evidence
persuasive on the record as a whole. The result is thus the same as if he had invoked the presumption, found that employer
presented substantial  evidence to rebut it, and then based his decision on the record as a whole.  Consequently, it would
serve no purpose to remand this case for application of the Section 20(a) presumption.  Therefore, we reject employer's
initial argument. See Merrill v. Todd Shipyards Corp., 25 BRBS 140 (1991); Fortier v. General Dynamics
Corp., 15 BRBS 4 (1982) (Kalaris, J., concurring and dissenting), aff'd mem., 729 F.2d 1441 (2d Cir. 1983).

        Employer next contends that the administrative law judge erred in concluding that claimant's injury occurred within
the course of his employment because the injury did not occur while claimant was performing or attempting to perform a
work-related duty, as it was neither required nor expected of him to conduct fire watches on this particular job. While there
is evidence supporting employer's assertion that claimant was not required to perform fire watches,[4]  the administrative law judge clearly credited testimony that it is part of claimant's
overall job as a welder to be sure his work area was left in a safe condition.  Decision and Order at 14.  Specifically,
claimant testified that it was his job "not to burn the boat up[,]" and no one prohibited him from performing a fire watch. 
Emp. Ex. 16 at 43.  He stated that he was not looking to be paid for performing the final check because it was not extra
work, as checking for fires goes with the job. Id. at 66-67, 143; Tr. at 97-98.  Mr. Pires stated that the crew of the
Pringle was assigned the fire watch but that he expected his shipyard employees to be safety conscious and take
care of potential fire hazards even if they have already punched out.  Emp. Ex. 17 at 42, 89.   Mr. Leitner stated that,
although the responsibility was with him and his crew for performing fire watches on the Pringle, it was
conscientious of a shipyard worker to also personally check for fires.  Tr. at 196-197.  Moreover, although there is no
testimony to corroborate claimant's assertion that he was climbing the ladder to board the Pringle to perform a final
fire watch, the administrative law judge credited claimant's testimony on the matter of his motive for being on the ladder,
as is within his discretion.  In light of the testimony of record, and given that the administrative law judge has the authority
to evaluate conflicting evidence and to assign dispositive weight to it as he deems fit, Calbeck v. Strachan Shipping
Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963); John W. McGrath Corp. v.
Hughes, 289 F.2d 403 (2d Cir. 1961); Perini Corp. v. Heyde, 306 F.Supp. 1321 (D.R.I. 1969), and as the
administrative law judge's credibility determination is neither inherently incredible nor patently unreasonable, Cordero
v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979),  we
affirm the administrative law judge's determination that claimant's purpose in climbing the ladder was to board the
Pringle to perform a final fire watch, as such finding is supported by substantial evidence. See generally Burns
v. Director, OWCP, 41 F.3d 1555, 29 BRBS 28(CRT) (D.C. Cir. 1994); Miffleton v. Briggs Ice Cream Co.,
12 BRBS 445 (1980), aff'd, No. 80-1870 (D.C. Cir. 1981).

        Employer also argues that claimant's attempted fire watch was not in the course of his employment because it was
of no benefit to employer.  It so avers because Mr. Leitner's purpose in boarding the vessel was to perform a final fire watch
and to close up the boat.  Claimant's efforts, employer asserts, were duplicative and therefore not beneficial to it.  Although
there is testimony that performing a fire watch at so long an interval after the welding is complete is unnecessary,[5]  the administrative law judge found that it served a work-related purpose for
employer's benefit, and he noted that even Mr. Leitner was going to check for fire when he locked up for the night, despite
the fact that welding had been completed four or five hours previously.  The administrative law judge did not discuss the
redundancy of claimant's efforts but he did conclude they were for employer's benefit.  As Mr. Pires testified that he
required his employees to be aware of and prevent any hazards, it was reasonable for the administrative law judge to
conclude that claimant's attempted off-hours final fire watch was for the benefit of employer in that it may have prevented
damage to the shipyard or to property therein. See Boyd, 30 BRBS at 218.  As the administrative law judge's
findings are supported by substantial evidence and within his authority as fact-finding, we affirm the conclusion that
claimant's efforts were for the benefit of employer.

        Employer lastly contends that claimant's injury did not occur within the time boundaries of his employment. 
Specifically, it argues that claimant had ceased work for the day, consumed beer and food, and was not an employee but
was merely a guest looking for a place to sleep when he attempted to board the tugboat.  As a general rule, to be covered
an injury "must occur within the period of employment, at a place or area where the employee may reasonably be expected
to be, and while the employee is performing his work duties or engaged in an activity at least incidental to his employment." 
82 Am. Jur. 2d Workers' Compensation §272 (1992) (footnotes omitted) (Am. Jur.).  It is not required that the injury
occur within the "regular working hours or during hours of active labor." Id.  Injuries which occur outside the
normal working hours have been held compensable if they occur within a "reasonable interval" of the employee's working
hours, and whether they are within this period depends on the length of time involved as well as the circumstances and the
nature of the activity.[6]   2 Larson's Workers' Compensation Law
§21.06[1][a] (2000) (Larson's).  Courts have also awarded compensation if there are special reasons for the claimant's
presence on the premises, before or after work, for a period which is "longer-than-usual." Id., §21.06[1][b].

        For example, in Wilson, 16 BRBS at 73, the claimant arrived at work five hours early to obtain supervisory
authorization to purchase a uniform shirt.  After obtaining the approval, the claimant fell down the stairs and injured his
back.  The Board held that it was unnecessary to look, as the administrative law judge did, at whether five hours was within
a "reasonable interval" of his official work hours. Wilson, 16 BRBS at 76.  Rather, because the claimant was on
the employer's premises for a work-related errand and because the employer did not set a specific time for seeking
authorization, the time factor was irrelevant. Id. at 76.  Thus, the claimant's injury was held to be compensable. 
Id.  In Ex parte Strickland, 553 So.2d 593 (Ala. 1989), reh'g denied (Sept. 8, 1989), benefits were
awarded to an employee who was injured after hours when he sought to retrieve tools he had left on the employer's lot but
might need because of his "on-call" status.  Another employee was awarded compensation when he was injured one hour
after his work-shift ended while waiting for a co-worker, with whom he usually got a ride home, to finish his shift.
Blattner v. Loyal Order of Moose, 264 Minn.79, 117 N.W.2d 570 (1962).

        Generally, however, loitering on the premises before or after work severs the employment relationship.  For
example, where an employee of a supermarket completed work but remained in the store to shop for her mother, her slip-and-fall injuries were not covered, as she had been on a personal mission at the time of her accident. Zahner v.
Pathmark Stores, Inc., 321 N.J. Super. 471, 729 A.2d 478 (1999); but see Briley v. Farm Fresh, Inc., 240 Va.
194, 396 S.E.2d 835 (1990) (slip-and-fall injury while shopping for self in supermarket within 15 minutes of clocking out
was not enough of a deviation to sever the link).  Similarly, where an employee who tended bar on the evening of his death
stayed nearly three hours after his shift ended talking and drinking at the bar with the manager, and was shot as a result of
an argument with the manager, the injury was not in the course of his employment.  The court held that he was a customer
at the time of his demise. Lona v. Sosa, 420 N.E.2d 890 (Ind. Ct. App. 1981).  In a case under the Act, where a
claimant socialized on the premises with co-workers immediately after work and was injured when exiting a vehicle, the
Board held that the administrative law judge erred in failing to address whether the claimant's participation in the social
gathering severed the link between her employment and her injury. Alston v. Safeway Stores, Inc., 19 BRBS 86
(1986).  The case was remanded for further consideration.

        In this case, there is no question that claimant's injury occurred after his normal hours of work.  Undisputed also
is the fact that claimant remained on the premises after work hours to partake in the pau hana socializing.  While it is
established that an injury during the socializing would not have occurred within the course of employment, see Vitola
v. Navy Resale & Services Support Office, 26 BRBS 88 (1992) (injury in after-hours softball game not in course of
employment as relevant factors were not present); Alston, 19 BRBS at 88, it was not unreasonable for the
administrative law judge to find that claimant re-entered the course of his employment after the socializing ended.  Indeed,
that very same evening, claimant had begun to socialize after his regular work day when he was recalled to work for an
additional two hours;  those hours were noted informally by hand on claimant's time card, and claimant was paid for this
time.  Thus, employer did not enforce a rule that once an employee clocked out for the day he became a "guest" until he
arrived for work the next day.  By crediting claimant's testimony that he was boarding the ship in order to perform a fire
watch, the administrative law judge essentially found that claimant re-entered the scope of his employment following his
deviation for a social activity.
        Although claimant's injury did not occur within the strict time frame of his regular work hours, we reject employer's
assertion that this alone is sufficient to hold that the injury did not occur within the course of employment.  It is clear from
the evidence credited by the administrative law judge that it was not unusual for a worker to perform work-related duties
after normal working hours.  Moreover, the precedent is well-established: injuries can be covered even if they do not occur
within the employee's regular working hours if they occur during the course of a work-related activity.[7]   Wilson, 16 BRBS at 73; Larson's, §21.06[1][a]; Am. Jur. §272. 
Consequently, the administrative law judge correctly found that the time of the occurrence of claimant's injury, alone, is
an insufficient reason to deny benefits. Thus, as we have affirmed the administrative law judge's finding that claimant's
purpose for climbing the ladder to board the tugboat was to conduct a fire watch, and that such activity is beneficial to
employer, we affirm the administrative law judge's conclusion that claimant's injury occurred within the course of his
employment, and the consequent award of benefits.  Wilson, 16 BRBS at 73; Larson's §21.06[1][a]-[b]; Am.
Jur. §272.

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

        SO ORDERED.

                            ROY P. SMITH
                            Administrative Appeals Judge

                            REGINA C. McGRANERY
                            Administrative Appeals Judge

                            MALCOLM D. NELSON, Acting
                            Administrative Appeals Judge

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1)Claimant testified he had two hamburgers and two or three beers. Tr. at 92. Mr. Leitner testified that claimant had five or six beers, the same as he, but that neither was intoxicated. Tr. at 171. Back to Text
2)As a result of this injury, claimant testified that he remains on anti-seizure medicine, and that he cannot smell or taste, he has blurred vision, his equilibrium is poor, fumes make him ill, and he is often anxious. Tr. at 84. Back to Text
3)Employer voluntarily paid temporary disability insurance benefits for a limited period of time, classifying this injury as non-industrial. Emp. Ex. 18 at 70, 75-76; Tr. at 85. Back to Text
4)The determination of who was to perform fire watches was on a case-by-case basis depending on the agreement between the owner of the vessel being repaired and the shipyard. Emp. Ex. 18 at 88; Emp. Ex. 25 at 10. Mr. Pires and Mr. Leitner both testified that fire watches on the Pringle were conducted by the crew of the Pringle pursuant to the work agreement. Emp. Ex. 22 at 10, 14, 32-33; Emp. Ex. 25 at 20, 72. Additionally, Mr. Leitner testified that, contrary to claimant's assertion, Tr. at 76, 93-94, claimant did not discuss performing a final fire watch with him. He also testified that he was going to perform the final fire watch when he closed up the vessel for the night, and that he was unaware claimant was going to follow him up the ladder. Emp. Ex. 22 at 24-27; Tr. at 172-174. Back to Text
5)The testimony regarding the length of time a fire hazard continues after welding has been completed varied from as little as 20 minutes to several hours. Emp. Ex. 18 at 87-90; Emp. Ex. 22 at 135; Emp. Ex. 25 at 11. Back to Text
6)See Osbun v. Workers' Compensation Appeals Board, 93 Cal. App. 3d 163 (1979) (sheet rock installer injured on his employer's premises on a Sunday was not covered because stocking sheet rock was not part of his duties as an installer, stocking sheet rock did not benefit the employer because it was the general contractor's job, and the premises were closed and locked on Sundays). Back to Text
7)Contrary to claimant's assertion, however, the "bunkhouse rule" is inapplicable to this situation. Although claimant testified that he intended to sleep on employer's premises the evening of the injury, such intention does not invoke the bunkhouse rule. Rather that rule is an extension of the "reasonable interval" rule and pertains to those employees who, by virtue of their work contract, live on the employer's premises because of the nature of their job or because of its remote location. Those employees injured after hours are generally acting within the scope of their employment, even if they are engaged in leisure activities, if they are making a reasonable use of the premises, Randolph v. Budget Rent-a-Car, 97 F.3d 319 (9th Cir. 1996), or if the injury is "reasonably attributable or incidental to the nature of the employment." Am. Jur. §274; see Deffenbaugh Industries v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992); United States Fidelity & Guaranty Co. v. Slaughter, 836 S.W.2d 745 (Tex. App. 1992). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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