Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 130
May and June 1997
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
A. United States Supreme Court
In Harbor Tug & Barge Co. v.
Papai, ___ U.S. ___, 1997 LEXIS 2846 (May 12, 1997), the Supreme Court refined the
"substantial connection" language of the seaman test articulated in Chandris.
In order for an individual to qualify as a seaman under the "fleet doctrine," there
must be some degree of common ownership or control over the fleet of vessels to which the
individual is "substantially" connected. In the instant case, Claimant worked for
various employers on various vessels, most of which were independently owned and operated.
The Court determined that Claimant had not established his substantial connection to a fleet of
vessels and, therefore, there was insufficient evidence for a jury to reasonably conclude that he
was a seaman for purposes of the Jones Act. The court did not, however, resolve the issue of
whether a decision by the district court will preclude a subsequent determination by an
administrative law judge that an injured worker is a maritime employee.
[ 1.4.1 and 1.4.2, LHWCA v. Jones Act ]
B. Circuit courts of appeals
In Gautreaux v. Scurlock
Marine, Inc., 107 F.3d 331 (5th Cir. 1997)(en banc), the Fifth Circuit reversed prior
case law to hold that (1) seamen in Jones Act negligence cases are bound to a standard of
ordinary care in the exercise of care for their own safety, not to a lesser duty of slight care, and
(2) Jones Act employers are not held to a higher standard of care than that required under
ordinary negligence. Whether this will cause fewer claimants to opt out of LHWCA coverage to
pursue Jones Act claims in the Fifth Circuit remains to be seen.
[ 1.4.1, LHWCA v. Jones Act; 8.11.1, withdrawal of claim
]
In Wood v. U.S. Department of
Labor, ___ F.3d ___, Case No. 96-2055 (1st Cir. May 8, 1997), the court held that, in
determining how earning capacity should be calculated when an employee moves to a new
community after he is injured, an "on the facts" approach should be utilized.
Specifically, the court held that the employee's chosen community is presumptively the proper
choice for determining earning capacity. Employer then bears the burden of demonstrating that
the original move, or a refusal to move again, is "unjustified." If an employee's
reasons for moving are economically sound, the employer may suffer "undue
prejudice," i.e. where the disparity in wages between the new and old locations is
extreme. Thus, some equitable adjustment may be required to set the earning capacity at some
point between the two extremes.
The court further held in determining whether the original move and a
refusal to move again is "justified," economic judgments should generally control.
The court, however, was quick to note that a higher paying job in one area may not outweigh a
reasonably good paying job with no apparent risk of layoff and with some prospect of promotion
in another location. All economic factors must be weighed under a standard of reasonableness.
[ 8.9.1, wage-earning capacity ]
In Ceres Gulf, Inc. v. Director,
OWCP, ___ F.3d ___, Case No. 96-60478 (5th Cir. Apr. 10, 1997), the court held that
where evidence establishes that a claimant completed his LS-203 claim form but did not file it
with OWCP, he cannot successfully argue that he was unaware of the "true nature of his
condition" which would thereby toll the statute for filing. In this matter, the court found
that the LS-203 clearly demonstrated Claimant's knowledge of the relationship between the
accident and his injury, as of the date he completed the form.
[ 13.3, awareness standard ]
C. Benefits Review Board
In Zube v. Sun Refining & Marketing Co., ___ B.R.B.S. ___, BRB
Nos. 96-1068 and 96-1068S (May 16, 1997), the Board held that once petroleum products left a
barge and entered storage containers, the commodity's maritime journey ceased. Claimant, who
operated a tanker-truck and removed petroleum products from the storage tanks, which was not
simply a "point of rest," was not covered under the LHWCA; rather, they marked the
product's exit from maritime commerce and its transfer into land transportation. Placing the
product into the tanker-truck was simply a duty ancillary to driving the truck.
[ 1.7.1, status; 1.8, functional relationship test ]
In Harmon v. Sea-Land Services, Inc., ___ B.R.B.S. ___, BRB
Nos. 96-1058 and 96-1058A (May 14, 1997), the Board held that in determining a claimant's
disability level in a traumatic injury case, unlike an occupational disease injury, the type of
retirement taken by a claimant and its affect on his disability status is not at issue. The sole
relevant inquiry with regard to the claimant's burden of proof on disability is whether his work
injury precludes his return to his usual work. Claimant need not demonstrate that he retired
voluntarily because entitlement to disability benefits is not equivalent to entitlement to longevity
retirement benefits.
[ 8.2, extent of disability ]
In Reggio v. Maher Terminals, Inc., ___ B.R.B.S. ___, BRB No.
96-1136 (May 27, 1997), the Board concluded that an office delivery clerk, who occasionally
worked as a checker, was injured while performing his clerical duties and is not
"exclusively" a clerical employee and the exclusion at § 2(3)(A) is not
applicable. In so holding, the Board reaffirmed its positions in Caldwell v. Universal
Maritime Service Corp., 22 B.R.B.S. 398 (1989) (office clerk subject to reassignment as a
checker is covered under the LHWCA) and McGoey v. Chiquita Brands International,
___ B.R.B.S. ___, BRB No. 96-593 (Jan. 28, 1997) (a person is engaged in "maritime
employment" under § 2(3) if he spends "at least some of (his) time" in
maritime work).
[ 1.7.1, status ]
In Greenhouse v. Ingalls Shipbuilding, Inc. ___ B.R.B.S. ___,
BRB No. 96-1002 (Apr. 25, 1997), Claimant argued that Federal Rule of Civil Procedure (FRCP)
60(b), which provides that " the court may relieve a party or [his] legal representative from
final judgment . . . for . . . fraud, misrepresentation, or other misconduct of an adverse
party,'" should be applied to reopen a supplemental decision and order regarding
representative's fees. Specifically, Claimant's counsel argues that the fee request was reduced by
the administrative law judge based upon fraudulent affidavits submitted by Employer.
Upon noting that fee awards do not constitute "compensation"
under the LHWCA, the Board concluded that they cannot be modified under § 22. The
Board also held that Rule 60(b) was inapplicable because "a motion made (under Rule
60(b)) may not be made more than one year after the judgment, order, or proceeding was entered
. . .." In Greenhouse, Claimant's motion to reopen the administrative law judge's
fee award was filed more than one year after the Board's affirmance of that order had become
final.
[ Rule 60(b) and relief from final judgment due to fraud ]
By unpublished decision in Wagner v. Department of the Army,
___ B.R.B.S. ___, BRB Nos. 96-1038 and 96-1038A (May 9, 1997), the Board followed Ninth
Circuit precedent in a case arising within the Third Circuit to hold that time spent preparing a fee
petition is compensable. The Ninth Circuit's decision in Anderson v. Director, OWCP,
91 F.3d 1322 (9th Cir. 1996) constitutes a departure from prior Board decisions to the contrary.
See Shaller v. Cramp Shipbuilding & Dry Dock Co., 23 B.R.B.S. 140 (1989).
