Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 142
June - July 1999
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
I. Longshore
A. Circuit Courts of Appeals
In the "coverage" case of McGray Construction Co. v. Director,
OWCP (Hurston), ___ F.3d ___ (Ninth Cir. 1999)(Docket No. 96-70041), the Ninth Circuit
followed Papai v. Harbor Tug and Barge Co., 520 U.S. 548, 117 S.Ct. 1535 (1997) to realign
its position on the "status" issue so that it conforms to the Supreme Court holding. In
Papai, the Court held that although seaman status could be based on a connection with a fleet
rather than a single vessel, common ownership or control of vessels established who should be treated as
the employer, not hiring out of the same union hall. The Ninth Circuit's paraphrasing of Papai is
enumerating: "Considering prior employments with independent employers in making the seaman
status inquiry would undermine the interests of employers and maritime workers alike in being able to
predict who will be covered by the Jones Act (and, perhaps more importantly for purposes of the
employers' workers' compensation obligations, who will be covered by the LHWCA) before particular
work day begins."
Hurston was working as a pile driver on a pier when a load fell from a crane and
seriously injured him. While the "pier" on which he was working was not used to dock ships
(nor did it reach water except at high tide) previous circuit law had held that it was an "adjoining
pier" under the LHWCA. As a result, for purposes of the instant case, it was established that
Claimant had maritime situs. In actuality, a pipe brought oil from a well in the Santa Barbara channel to the
pier. Machinery on the pier separated out the water and gas, and stored the oil in big tanks along with oil
from other wells. Once every five or ten days the oil from the tanks was pumped out into a pipe that
deposited it into an offshore barge, which would take it to a refinery.
Thus, Claimant's "status" became the main issue. When one looked at
claimant's "overall employment history" it was determined that he had spent 90% of his time
in almost three decades preceding the accident as a marine diver and only 10% as a pile driver. Different
companies hired him out of a union hall that represented both trades. After noting Supreme Court case
history, the Ninth Circuit determined that Claimant did not meet the status test since "His engagement
was for piledriving, which was pier construction, not ship construction." Determining that Claimant
was neither a ship repairman, ship-builder, ship-breaker, nor longshoreman, the Ninth Circuit stated that
the 1972 amendments were not meant to cover employees who are not engaged in loading, unloading,
repairing, or building a vessel and that Herb's Welding prevents the expansive reading of the word
"harbor-worker" as advocated by the Director.
The Director argued that claimant was a "harbor-worker" under a
previous Board decision that defined the term to include "persons directly involved in the
construction, repair, alteration or maintenance of harbor facilities (which include docks, piers, wharves, and
adjacent areas used in the loading, unloading, repair or construction of ships).'' The Ninth Circuit noted that
Claimant was not working on a pier used to accommodate ships, or on any sort of shelter or facility for
ships, nor does the record establish that he was working in a harbor.
The Director further argued that Claimant's overall employment history where he is
hired by companies out of a union hiring hall representing both maritime and non-maritime trades gives him
status. However, the Ninth Circuit found that "working out of a union hall from which employers
regularly hire maritime workers, and a history of maritime employment, do not make one a maritime
employee, when an employer hires the individual for a non-maritime job."
Significant is the Ninth Circuit's interpretation of the wording of the LHWCA itself.
According to the Ninth Circuit, an employee "engaged in maritime employment" means that
an employer hired the individual to perform maritime work in this particular contract of
employment. In focusing on only present employment, the Ninth Circuit does not comment as to
whether this Claimant, in the past, did maritime employment for this employer. In fact, the circuit concluded
that "Congress did not in the [LHWCA] create an aristocracy of labor, so that long-time maritime
workers would be compensated more amply than others, even when hired for non-maritime employment,
keeping their superior status while between maritime jobs."
[Status, Topic 1.7.1; Harbor-worker, Topic 1.7.2]
In American Grain Trimmers, Inc. v. O.W.C.P. (Janich), ___ F.3d ___
(7th Cir. 1999)(Docket No. 97-3080), Claimant suffered a heart attack and the issue presented was
"what exactly must an employer do to rebut [the Section 20(a)] presumption by 'substantial evidence
to the contrary.'" The employee in the instant case had suffered from heart problems for some time
and had a mycardial infarction several years earlier. Eventually he developed intermittent claudication,
a deficiency in the blood flow to leg muscles due to the obstruction of the arteries that supply that area.
He also suffered from diabetes mellitus, mycoplasma bronchitis with chronic obstructive pulmonary
disease, congestive heart failure, dilated cardiomyopathy and arrhythmia. "In lay terms, Mr. Janich
had a dilated, enlarged, and weak heart."
While employed as a foreman, the employee stood on the dock and watched as his
work crew stopped loading grain and left a barge so that elevator workers could close hatches to prevent
spoilage from the rain. The employee collapsed and never recovered. The death certificate reported that
he had died of cardiopulmonary arrest due to dilated cardiomyopathy and diabetes mellitus.
The employee's widow, the claimant herein, established a prima facie case by
showing an obvious harm occurred to the worker during the course of employment and medical testimony
which showed that either physical exertion or workplace stress could have caused his heart attack--in the
moments before his death, the worker had walked to the barge and ordered, "perhaps by shouting,
that the loading stop because of heavy rain, activities that involved both physical exertion and stress."
First, the Seventh Circuit noted historical cases that had found that in order to rebut
the presumption, employer had a production burden, not a persuasion burden, and that, ultimately the
claimant had to bear the ultimate burden of persuasion. Next the court distinguished the concepts of
"substantial evidence" and "preponderance of the evidence," concluding that
"The critical point is thus whether the evidence that the trier of fact chooses to believe is substantial
enough in quantitiy to support the findings that was made." In its discourse on evidence, the court
noted that once the employer has carried its burden by offering testimony sufficient to justify a finding with
a cause unrelated to the workplace, the presumption falls out of the case; this does not mean that any
burden of persuasion has shifted to the employer. The court noted that the ALJ correctly stated that once
"the presumption is rebutted, it drops from the case and the claim must be decided on the record as
a whole," and that the employer needs to "produce specific and comprehensive evidence, not
speculation, to overcome the presumption that working conditions caused the injury or death."
However, the court noted that on reconsideration, after correctly speaking in terms of a "bursting
bubble" the ALJ made reference to Board dicta which spoke of the burden of proof shifting. This
was declared harmless error by the court which then let the ALJ's findings stand.
Very noteworthy in this matter is the dissent which opined that Employer had
submitted sufficient evidence to support a finding that the death was not caused by the worker's
employment. Employer's evidence consisted of a highly qualified cardiologist who opined that Janich had
a type of heart condition, involving potentially fatal arrythmias, that had caused his death, and that this type
of arrythmia (ventricular arrhythmia) is aggravated by neither mental stress nor physical exercise. However,
this doctor acknowledged that since there had been no autopsy and he had not been with Janich when he
died, his opinion about the cause of Janich's death was inherently "speculative." The majority
latched on to this to hold that while the presumption may have been rebutted, there was not substantial
evidence supporting a finding that this was not a work-related injury and death. The dissent argued that
the word "speculative" was used by the doctor to merely acknowledge the limitations of
medical science, not to denote the class of evidence that a tribunal might refuse to credit.
[ Topic 2.2.18, Representative Injuries/Diseases; Topic 20.3, Burden
of Rebuttal with Substantial Evidence; Topic 23.7, ALJ May Draw Inferences
]
B. Benefits Review Board
In Dobey v. Johnson Controls, ___ BRBS ___ (1999) (BRB No. 98-
1211)(May 17, 1999), the Board found that a traffic officer who also did marine patrol work was not
excluded from coverage by the"security" exclusion found at Section 2(3)(A) of the LHWCA.
Employer was the contractor hired to provide security both on land and in the water for the Air Force and
Navy at Cape Canaveral. The purpose of the facility was to launch unmanned missiles--many of which are
launched from submarines. Employer's mission was to provide ingress and egress security on the entire
installation, including the water, traffic control, boat services to keep the Trident Basin secure, to patrol the
Navy docks, and to provide maintenance services as necessary to the security boats.
Claimant worked for employer as a traffic officer on the Air Force facility at Cape
Canaveral. During his five years of employment he primarily worked on land as a traffic officer, having
much the same duties as those of a police officer: He controlled the flow of traffic, controlled the speed
of traffic via radar, investigated traffic accidents and made out reports. These activities occurred on the
entire facility, including the port area. His land-based duties also included patrolling certain zones and
assuring the security of buildings. Additionally, claimant was one of a few officers who also was qualified
to work marine patrol when that division was short of help. When such duties arose, Claimant was
required to take out a patrol boat, to verify the security of the basin and the Navy docks by keeping
unauthorized vessels away, to escort submarines into and out of the port, and to rescue any sailors who fell
off the submarines.
The Board held that Claimant's work as a marine patrol officer was not
"episodic, momentary or incidental to non-maritime work. Additionally, the Board held that this type
of security work was not intended to be excluded from coverage by the 1984 amendments.
While his marine patrol duties were infrequent, they cannot be excluded from his list
of regular job responsibilities since the record clearly indicated that Claimant could have been assigned to
marine patrol duty at any time on an as-needed basis. Claimant was officially designated as an
"alternate" by employer and consequently was required to keep his marine patrol skills current
by attending a yearly training program. As an alternate, Claimant had a reasonable expectation of being
called upon to perform marine patrol work at any time, and on the day he was injured, despite his
objections, Employer transferred him to the marine patrol division for the day.
The Board further noted that despite the fact that his duties as a marine patrol officer
may have been for security purposes, these duties nonetheless subjected him to the traditional hazards of
maritime work on navigable waters. The Board stated that "[p]ursuant to the legislative history,
Section 2(3)(A) was not intended to exclude those employees who are subjected to such traditional
dangers even if, in broad terms, they are engaged in activities that can be categorized as 'security'
work." It then quoted the following Congressional committee statement:
The Committee intends that this exclusion be applicable to [office clerical, secretarial,
security, or data processing] employees, because the nature of their work does not expose
them to traditional maritime hazards. The Committee intends that this exclusion be read
very narrowly.
Slip opin. at 7 citing H.R. Rep No. 98-570, reprinted in 1984 U.S.C.C.A.N. 2734, 2736. Quoting
Congressman Miller, the Board stated that Congress intended that covered employees:
are to be distinguished from those other employees of waterfront employers, such as office
clerical, secretarial, security or data processing workers, who are not intimately concerned
with the movement and processing of ocean cargo, and who themselves are confined,
physically and by function, to the administrative areas of the employer's operations.
130 Cong. Rec. H9731 (Sept. 18, 1984; see also H. Conf. Rep. No. 98-1027, reprinted in 1984
U.S.C.C.A.N. 2734, 2736.
[ Topic 1.11.6, Exclusions to Coverage--security ]
In Kinlaw v. Stevens Shipping and Terminal Co., ___ B.R.B.S. ___,
BRB No. 98-1180(May 17, 1999), the Board found that the case law does not support the contention that
an ALJ must reopen a claim when a party alleges a mistake in fact, absent egregious
circumstances.
The Board upheld an ALJ's denial of a Section 22 modification request where
Employer's only explanation for not developing testimony previously was its erroneous belief that it was
unnecessary. Section 22 is not intended to provide a back-door route to retrying a case, or to protect
litigants from their counsel's litigation mistakes.
Inasmuch as the record reflected that there was an unexplained change in a doctor's
opinion between March 4 and March 10, 1994; that his later opinion conflicted with that of one of his
medical partners; and that Claimant specifically disputed the validity of the doctor's March 10, 1994
opinion, the ALJ rationally concluded that employer should have anticipated the need to have the doctor's
opinion clarified at the time of the initial proceedings.
[Topic 23.3.1, Determining What Constitutes a Valid Request for
Modification]
In Firth v. Newport News Shipbuilding and Dry Dock Company, ___
B.R.B.S. ___, BRB No. 98-1172 (May 26, 1999), the Board held that the fact that a claim is processed
pursuant to Section 22 is of no relevance to the applicability of Section 8(f)(3). While the Director did not
dispute Employer's entitlement to Section 8(f) on the merits, he invoked the absolute defense pursuant to
Section 8(f)(3), contending that the employer was aware of the permanency of claimant's condition while
the claim was pending before the district director yet did not request Section 8(f) relief at the time.
In the instant case, Claimant requested an original award of temporary partial
disability be modified to an award of permanent partial disability due to a change in condition. Employer's
response to the Director was that this was "not a matter which can be resolved at the Department
of Labor level (since it involves the A.L.J.'s order) please do not schedule an informal conference....
." The Director responded stating in part "[i]nasmuch as the employer has requested the case
go forward for a formal hearing without benefit of conference and has not requested 8(f) relief nor
submitted a fully documented, duplicate 8(f) application as is required, the Prehearing Statement, Form LS-
18, filed by claimant's counsel will be forwarded for formal adjudication and the [OALJ] and the Solicitor
advised that the Absolute Defense applies."
The Board found that Employer's non-compliance with Section 8(f)(3) should not
be excused and that Section 22 is of no relevance to the applicability of Section 8(f)(3). It held that
"[a]lthough a district director may not 'modify' a decision of an [ALJ] regarding an issue in dispute,
modification proceedings are properly initiated at the district director level and the district director does
have the power, pursuant to Section 22, to review a compensation case in accordance with the procedure
prescribed in respect of claims under Section 19 [of the LHWCA]." The statute does not provide
an exception, applicable in modification cases, to the rule that a claim for Section 8(f)(3) relief must be
raised before the district director; by its specific terms Section 8(f)(3) applies to all claims for Section 8(f)
relief.
[ Topic 8.7.9.2, Section 8(f)--Timeliness of Employers' Claim for Relief;
Topic 22.3.7, Raising Section 8(f) ]
In Ricks v. Temporary Employment Services, Inc., ___ BRBS ___
(1999)(BRB No. 98-1227)(June 8, 1999), an ALJ is acting within his discretion in determining that an
indemnity clause in a lender-employer/borrowing-employer contract was ambiguous, and in considering
parol evidence in interpreting the contract. The lending-employer and its carrier argued that the contract
was one in admiralty and therefore the parol evidence rule should not govern. The Director argued that
the ALJ has jurisdiction to answer only the question of who is the responsible employer or carrier under
the applicable law, and that contractual issues outside this question are beyond the jurisdiction of the ALJ.
The Director further contended that the identity of a liable employer cannot be changed by virtue of a
contractual agreement.
The Board rejected the Director's contention that the ALJ lacked jurisdiction to
consider relevant contractual provisions in determining whether the carrier of the lender-employer was
entitled reimbursement for the payment of claimant's benefits. The Board cited prior caselaw wherein it
held that a ALJ should resolve contractual indemnity and insurance issues between the lending-employer,
its insurer, and the borrowing employer, where the arguments raised were ancillary to the responsible
employer issue and it was not in the interest of judicial economy to defer adjudication of related issues to
another place and time.. Furthermore, the Board noted that it has previously decided that an ALJ has the
requisite jurisdiction to decide issues involving the liabler employer or carrier, including whether the
borrowed employee doctrine is applicable, even if the claimant is not an "active" participant
in the adjudication proceedings.
As to the Director's position that parties cannot contractually abrogate the liability
of a responsible employer, or require the LHWCA's compensation scheme to enforce a claimant's rights
to compensation against a party other than the responsible employer, the Board noted that the Fifth Circuit
has already contravened this position in Total Marine Services, Inc. v. Director, OWCP, 87 F.3d 774, 30
BRBS 62 (CRT)(5th Cir.1996), reh'g en banc denied, 99 F.3d 1137 (5th Cir. 1996), aff'g Arabie v.
C.P.S. Staff Leasing, 28 BRBS 66 (1994)(lending employer and its insurer may be liable to an injured
worker under a contract indemnifying the borrowing employer).
As to the argument that, as an admiralty contract any ambiguity should be construed
against the drafter of the contract, the Board noted that in prior caselaw it has affirmed the admission of
parol evidence with regard to contracts ancillary to claims under the LHWCA where the ALJ has
determined that the terms of the agreement were ambiguous. It is noted that in announcing that it was
following its precedent, the Board did not specifically address the admiralty contract argument.
In a case involving average weekly wage, Wooley v. Ingalls Shipbuilding
Inc., ___ B.R.B.S. ___, BRB No. 98-0501(June 22, 1999), both parties agreed that Section 10(a)
should be used to calculate claimant's average weekly wage. The ALJ had determined that only the
number of days claimant actually worked should be used in the calculation. On reconsideration, the Board
vacated its prior decision, Wooley v. Ingalls Shipbuilding, Inc., BRB No. 98-0501 (Nov. 30,
1998), and now affirms the ALJ's calculation of claimant's average weekly wage.
Previously on appeal, the Board had agreed with employer's contention that the ALJ
erred in failing to include in Claimant's average weekly wage the days in which claimant received vacation
pay in lieu of vacation. On Motion for Reconsideration, Claimant argued that the Board erred in
"creating" additional work days based on the number of hours for which claimant received
vacation pay, thereby reducing claimant's average weekly wage below his actual earnings.
The Board now agrees that only the actual number of days Claimant worked should
be utilized to calculate his average daily wage under Section 10(a). Further, the Board agreed with
Claimant that Duncan v. Washington Metropolitan Area Transit Authority, 24 B.R.B.S. 133
(1990), cited by the Board in its previous decision, did not support its prior determination. In
Duncan, the Board held that, as vacation pay received in lieu of days off is included in average
weekly wage, actual vacation time should be included as time actually worked in determining whether a
claimant works "substantially the whole of the year, " a prerequisite to the application of
Section 10(a). However, the Board now notes that the case does not mandate that every eight hours of
vacation pay received in lieu of vacation be fashioned into a "day" for purposes of determining
claimant's average daily wage under Section 10(a). In fact, the Board noted that the Fourth Circuit has
recently rejected a similar approach. Universal Maritime Corp. v. Moore, 126 F.3d 256, 31
B.R.B.S. 119 (CRT) (4th Cir. 1997).
In sum, the Board agreed with claimant that diluting his earnings by creating
additional work days, resulting in Claimant's having "worked" more days than a 5-day a week
worker can work in reality and more than the statutorily mandated number of days for a five-day per week
worker, is not supported by the LHWCA. The use of only the number of actual days worked is consistent
with the language of Section 10(a) stating that a Claimant's earnings are those extrapolated from the
average daily wage earned "during the days when so employed." (emphasis added)
In Jensen v. Weeks Marine Inc., ___ BRBS ___ (1999)(BRB Nos. 96-
1159 and 98-1275) (June 25, 1999), Employer appealed the Decision and Order, Order on
Reconsideration and Order of Denial of Request for Modification and Supplemental Decision and Order
Awarding Attorney Fees. In his Decision and Order, the ALJ concluded that claimant's lack of
cooperation with employer's alternate employment searches had no impact on either "the extent of
disability" issue or employer's burden in establishing the availability of suitable alternate employment.
Employer maintained that the lack of specificity in its evidence of suitable alternate employment is a direct
result of claimant's unwillingness to assist employer in its effort to identify alternate employment. Employer
asserted that claimant's actions should act as a bar to an award of permanent total disability benefits.
However, as the Board noted, the ALJ explicitly considered and found immaterial
Claimant's failure to cooperate with employer's vocational rehabilitation specialist. The Board found that
Employer's evidence as to the availability of suitable alternate employment is otherwise flawed as it lacks
the necessary information for the ALJ to address the jobs' suitability. Claimant's refusal to cooperate with
Employer's vocational specialist did not prevent employer from conducting a job search and the deficiency
in employer's evidence, i.e., the lack of specificity regarding the physical and mental requirements of the
identified employment, was not due to claimant's failure to cooperate. Employer's alternate employment
consisted only of a list of alternate job areas with generic job and industry descriptions, the general
backgrounds needed for this employment, average annual salaries in those areas and job trend information.
Thus, the ALJ found that he could not evaluate the suitability of the identified jobs as Employer's evidence
lacked a description of the specific job duties, as well as their physical and mental requirements.
In the Denial of the Request for Modification the ALJ determined that Employer's
evidence in support of its modification request, i.e., (the labor market survey, accompanying vocational
expert testimony) were insufficient to establish that the jobs now identified for purposes of modification
were not available at the time of the first hearing or became available only after the ALJ's decision was
issued. The ALJ concluded that Employer now merely possessed evidence of suitable alternate
employment which it did not choose to develop adequately at the time of the first hearing and thus its
request for modification must be barred since Section 22 is not intended to be a back door for retrying or
litigating an issue which could have been raised at the initial proceedings.
While the Board agreed with the ALJ that Modification is not intended as a method
for a party "to correct errors or misjudgments of counsel, the Board did find that the ALJ erred in
refusing to reopen the instant case in order to determine whether modification of the total disability award
was warranted. The Board noted that the employer's labor market survey submitted with he request for
modification, was based on new medical and vocational evidence. Additionally, the Board found that
although the ALJ rationally had concluded that Claimant's lack of cooperation with Employer's vocational
efforts did not hinder its ability to identify suitable alternate employment at the time of the initial hearing,
Claimant's subsequent cooperation with Employer's vocational experts provides a basis for Employer's
pursuit of modification.
In sum, the Board noted that Claimant's failure to cooperate with vocational efforts
at the time of the initial proceeding should not preclude Employer's attempt to improve its evidence of
suitable alternate employment upon its receipt of additional vocational information, as this would permit
Claimant to benefit through his lack of cooperation.
