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                                 BRB No. 98-1254

MICHAEL LEE SCHAD             )    
          Claimant-Petitioner      )
     v.                       )
TETRA TECHNOLOGIES,      )    DATE ISSUED:   05/12/1999 1999    
INCORPORATED                  )
     and                      )
          Employer/Carrier-        )
          Respondents              )    DECISION and ORDER

     Appeal of the Order Granting Employer's Motion for Summary Decision of
     Larry W. Price, Administrative Law Judge, United States Department of

     Michael C. Palmintier (deGravelles, Palmintier & Holthaus, L.L.P.),
     Baton Rouge, Louisiana, for claimant.

     Craig W. Marks (Briney & Foret), Lafayette, Louisiana, for

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

     Claimant appeals the Order Granting Employer's Motion for Summary Decision
(98-LHC-1025) of Administrative Law Judge Larry W. Price 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 Outer
Continental Shelf Lands Act, 43 U.S.C. §1331 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).
     Claimant, employed as fluids engineer by Tetra Technologies, Incorporated
(Tetra, employer) sustained a lower back injury on April 25, 1994, while working
aboard an off-shore oil rig on a platform owned by Enron Corporation (Enron). 
Enron contracted with Tetra to provide completion fluid monitoring services and
claimant's presence on the platform was in furtherance of that contract.  After six
weeks of conservative treatment, claimant returned to full, unrestricted duty with
employer.  In April 1995, claimant allegedly re-injured his back while in the
course and scope of his employment with employer.

     On February 12, 1996, claimant filed suit against Enron, Marine Drilling
Company,[1]  and Tetra for injuries sustained as
a result of the April 25, 1994, accident.  The claim against Tetra was dismissed
on December 20, 1996, as claimant was unable to establish the requisite seaman
status under the Jones Act, 46 U.S.C. §688 et seq.  On September 19,
1997, claimant entered into a third-party settlement for $8,000 with the remaining
litigants without first obtaining employer's written consent.  

     Meanwhile, on March 5, 1997, claimant filed a claim for benefits under the
Longshore Act, in response to which employer moved for dismissal pursuant to
Section 33(g), 33 U.S.C. §933(g).  Claimant opposed employer's motion by
arguing that while the third-party settlement foreclosed any recovery under the Act
for injuries sustained in the April 25, 1994, accident, his claim was viable as he
sought compensation solely for injuries sustained as a result of the April 1995
accident.  The administrative law judge determined that the only claim before him
concerns the April 25, 1994, accident, and thus, in light of claimant's unapproved
third-party settlement, he dismissed the claim pursuant to Section 33(g).  

     On appeal, claimant challenges the administrative law judge's dismissal of his
claim.  Employer responds, urging affirmance.

     Claimant argues that the administrative law judge's interpretation of the
language "person entitled to compensation" in dismissing his claim under Section
33(g) is far too harsh as it precludes him from obtaining a complete recovery for
his work-related injuries.  In support of his argument, claimant urges the Board
to adopt the Director's "alleged" interpretation of a "person entitled to
compensation," i.e., that written approval is only required when employer
or its carrier is actually paying benefits at the time of settlement, as
argued before the Fifth Circuit in Nicklos Drilling Co. v. Cowart, 927 F.2d
828, 24 BRBS 93 (CRT)(5th Cir. 1991)(en banc), and adopted by the dissent
in that opinion.  In addition, claimant argues that it is in the interests of
justice to interpret the statute liberally and to allow his claim for compensation
under the Act.  Claimant's contentions lack merit, inasmuch as the Supreme Court
specifically rejected the interpretation of Section 33(g) espoused by claimant.
     Section 33(g)(1) requires that a "person entitled to compensation" obtain
employer's prior written consent where he enters into third-party settlements for
an amount less than the compensation to which he would be entitled under the Act.[2]   See Estate of Cowart v. Nicklos Drilling Co.,
505 U.S. 469, 26 BRBS 49 (CRT)(1992).  The United States Supreme Court has held
that an individual becomes a "person entitled to compensation" at the moment his
right to recovery vests, and he need not be receiving compensation or have had an
adjudication in his favor in order to be such . Id., 505 U.S. at 477, 26
BRBS at 51 (CRT). See also Ingalls Shipbuilding, Inc. v. Director, OWCP
[Yates], 519 U.S. 248, 31 BRBS 5 (CRT)(1997).  The right to recovery vests when
the claimant satisfies the prerequisites attached to that right, i.e., when
the claimant suffers the work-related injury. Cowart, 505 U.S. at 477, 26
BRBS at 51-52 (CRT); Goody v. Thames Valley Steel Corp., 31 BRBS 29 (1997),
aff'd sub nom. Thames Valley Steel Corp., 131 F.3d 132 (2d Cir. 1997).   In
Yates, the Supreme Court reiterated that a "person entitled to compensation"
means only that the person satisfies the prerequisites attached to the right to
compensation regardless of whether the right "has been acknowledged or
adjudicated."  519 U.S. at 258-59, 31 BRBS at 8(CRT), citing Cowart, 505
U.S. at 477, 26 BRBS at 51 (CRT). 

     As the administrative law judge found, it is clear from the record in the
instant case that claimant sought compensation only for those injuries sustained
as a result of the work-related accident occurring on April 25, 1994.[3]   Specifically, the administrative law judge
observed that claimant's Claim for Compensation (Form LS-203) describes only the
accident of April 25, 1994.  In addition, the administrative law judge found that
there is no evidence that the claim included an accident occurring in April 1995. 
As such, claimant became a "person entitled to compensation" with regard to the
instant claim at the time of his work-related injury on April 25, 1994.
Cowart, 505 U.S. at 469, 26 BRBS  at 49 (CRT).  Consequently, as the
unapproved third-party settlement was executed subsequent to that date, the
administrative law judge properly concluded that claimant forfeited all rights to
compensation under the Act for that accident by operation of Section 33(g).[4]   Id. We therefore affirm the
administrative law judge's dismissal of claimant's claim under Section 33(g). 
     Accordingly, the Order Granting Employer's Motion for Summary Decision issued
by the administrative law judge is affirmed.


                         JAMES F. BROWN
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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1)Enron contracted with Marine Drilling Company to provide the rig and to conduct drilling operations. Back to Text
2)Pursuant to Section 33(g)(2), claimant need only notify employer of a judgment or of a settlement for an amount more than his compensation entitlement. Cowart, 505 U.S. 481, 26 BRBS at 53 (CRT). Back to Text
3)Claimant does not contend otherwise on appeal. Back to Text
4)Inasmuch as claimant conceded before the administrative law judge that the unapproved third-party settlement foreclosed any recovery under the Act for injuries sustained in the April 25, 1994, accident, it was unnecessary for the administrative law judge to determine whether the settlement involved amounts which were less than claimant would have been entitled to under the Act. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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