Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 137
July 1998 - August 1998
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
A. Circuit Courts of Appeals
In Re CSX Transportation,
Inc., ___ F.3d ___, Case No. 97-2038 (4th Cir. July 16, 1998). The Fourth Circuit held
that a worker who engages in unloading activity 15% of the time, but was not engaged in
maritime activity at the time of his injury, is nevertheless "covered" under the
LHWCA ("While the status test properly inquires whether the employee was engaged in
maritime employment at the time of his injury, this does not mean that his particular duties at the
time of injury needed to be maritime in nature. Rather, the status test turns on whether the
employee's occupation at the time of injury was maritime."). Citing to Fifth Circuit case
law, the court noted that the worker was assigned maritime work as needed at the maritime
terminal and that his maritime work was not merely "momentary or episodic." The
court further noted that this maritime work was an assigned portion of his duties necessary for
Employer to function at the terminal efficiently.
Green v. Vermilion
Corp., ___ F.3d ___, Case No. 97-30782 (5th Cir. June 18, 1998). This is the first time
the Fifth Circuit has interpreted the "club/camp" exclusion delineated at Section
2(3)(B) of the LHWCA. Claimant was injured as he assisted in mooring a vessel which
belonged to his employer. Claimant was actually on the vessel at the time of his injury. He
worked at a duck camp operated by the Vermilion Corporation pursuant to a contract with a
private club. Besides a duck camp, the post was used as a "headquarters" for its
operations in the area which included harvesting and selling alligator eggs, trapping and selling
alligators, fur trapping, shrimping and rice farming. During duck season, Claimant worked as
both cook and watchman at the camp. During the rest of the year he performed general
maintenance and usually cooked a lunch meal for corporation employees. He got to the camp by
boat and stayed there from Monday morning to noon on Friday [except for duck season when his
work hours increased], brought the groceries with him and occasionally assisted in mooring and
unloading supply boats that docked at the camp.
There was testimony to the effect that while the corporation used the camp
throughout the year, the primary reason it maintained the facility was to fulfil its contractual
obligation to the private club to provide a duck camp for hunting season. A corporate officer
testified that but for the lease to the club, the corporation would not have conducted any of its
operations from this site and would not have had any need for claimant's services. Finding that
Claimant was employed solely to render services to promote and maintain a duck camp, the Fifth
Circuit held that Claimant was excluded from coverage under § 2(3)(B).
Relying on the U.S. House of Representative Document accompanying the
1984 Amendments to the LHWCA which added the "club/camp" exception (".
. . exclusions from the definition of employee' contained in the amendments . . . are intended to
be narrowly construed" and that paragraph (B) excludes employees "because of the
nature of the employing enterprise, as opposed to the exclusions in paragraph[(A)], which are
based on the nature of the work which the employee is performing." H. R. Doc. No. 98-570, Part I 98th Cong., 2nd Sess.), Claimant argued that he was employed "by" the
Vermilion Corporation, not a recreational enterprise and that, therefore, the recreational
exception did not apply.
In holding that Claimant was excluded from coverage under the LHWCA
by the exception, the Fifth Circuit stated that in construing the "club/camp"
exception, it is not limited to considering only the nature of Employer's enterprise. The court
noted that while the House document to which Claimant referred expressly stated that businesses
falling under paragraph (B) may have employees that should remain covered under the LHWCA
"because of the nature of the work which they do, or the nature of the hazards to which
they are exposed," the opposite is true: clubs and camps may employ individuals who
should not be covered under the LHWCA because their job responsibilities do not, or only
minutely, involve maritime activities and they are not exposed to hazards associated with
traditional maritime activities.
Interestingly, the Fifth Circuit went on in this matter to hold that Claimant
was injured in the course of his employment while performing the traditional maritime activity of
mooring a vessel and could pursue his unseaworthiness claim as well as his general maritime
negligence claim against Employer.
[1.11.8, Employed by a club, camp, recreational operation, restaurant,
museum, or retail outlet; 1.4.3.1, Floating Dockside Casinos]
In Moyle v. Director,
OWCP, ___ F.3d ___, Case No. 96-70875 (9th Cir. June 29, 1998), the circuit court
upheld ALJ's finding that garnishment of Claimant's compensation benefits paid by the Trust
Fund is permitted. The 1975 Social Security Garnishment provision impliedly repealed the
LHWCA Alienation provision.
[16.1, Garnishment]
In Pleasant-El v. Oil Recovery
Company, Inc., ___ F.3d ___, Case No. 97-6500 (11th Cir. Aug. 6, 1998), the Eleventh
Circuit held that the plain meaning of Section 14(f) is that a compensation award must be paid
within 10 calendar days after it becomes due. Thus, the Eleventh Circuit joins with the
First and Fourth Circuits as well as the Benefits Review Board, leaving only the Fifth Circuit on
record as holding that the 10 day period should be 10 business days.
The Eleventh Circuit also found that Section 18(a) of the LHWCA gives
the federal district court a general grant of authority to determine whether the imposition and
enforcement of a supplemental order is lawful although the federal district court lacks authority
to consider the validity of the underlying compensation order.
[14.4, Compensation Paid Under Award; 18.2, Supplemental
Order Declaring Default]
In Director, OWCP v. Sun Ship,
Inc., ___ F.3d ___, Case No. 96-3648 (3rd Cir. July 29, 1998), nine years after Claimant
retired he was diagnosed with asbestosis resulting from his years of work-related asbestos
exposure. The same month he was diagnosed, doctors discovered he also had a work-related
pulmonary malignancy. At issue was whether Employer qualified for Section 8(f) relief because
of the pre-existing (yet unknown) asbestosis.
The court held that the 1984 amendments to the LHWCA did not eliminate
the judicially created "manifest" requirement of Section 8(f) Trust Fund relief. In
this case the pre-existing injury [asbestosis] did not become manifest until after the employee had
retired and therefore the pre-existing disability was not manifest to Employer. Thus, the court
found that Employer was not entitled to Section 8(f) relief.
[8.7.4, Pre-Existing Disability Must Be Manifest To Employer]
DM & IR Railway Company v.
Director, OWCP, ___ F.3d ___, Case Nos. 97-3215 & 97-3220 (8th Cir. Aug. 21,
1998). Here the Circuit Court found that, in Director, OWCP v. Greenwich Collieries,
512 U.S. 267 (1994), the Supreme Court did not diminish the scope of the fact-finding and
credibility-determining roles traditionally assigned to ALJs. Thus, the long-held standard that
the LHWCA is to be liberally construed in favor of awarding benefits survived the
Collieries decision in all but "true doubt" situations where the ALJ
expresses doubt about which testimony to credit. For example, the ALJ was free to discredit the
testimony of a lay witness (owner of a fitness center) that contradicted the opinions of numerous
medical experts.
[23.5, ALJ Can Accept or Reject Medical Testimony; 23.7, ALJ
May Draw Inferences Based on Evidence Presented; 23.7.1, The "True
Doubt" Rule Is Inconsistent with § 7(c) of the Administrative Procedure
Act]
B. Benefits Review Board
In Serio v. Newport News Shipbuilding, ___ B.R.B.S. ___, BRB
No. 97-1269 (June 11, 1998), the Board held that Section 8(f) must be raised and litigated at the
first hearing of a case. In this case, at hearing, the parties informed the ALJ that the only
remaining issue was Section 8(f) relief. Shortly thereafter, by letter, Employer informed the ALJ
that it was withdrawing its request for Section 8(f) relief and that it would not pursue a claim for
Section 8(f) relief at that time. A compensation order awarding benefits consistent with the
parties' stipulations was issued. Subsequently, Employer submitted a second request for Section
8(f) relief by way of a petition for modification. The Director opposed the Section 8(f) claim on
the ground that Employer's withdrawal of that claim in the first hearing constituted a waiver
which precludes employer's pursuit of that issue in a second hearing. Agreeing with the Director,
the Board stated that the purpose of requiring an employer to raise and litigate Section 8(f) relief
in the first proceedings wherein the permanency of a claimant's disability is at issue, is to
facilitate the policy of finality in litigation and to avoid the bifurcation of issues.
[8.7.9.2, Timeliness of Employer's Claim for Relief]
Brooks v. General Dynamics Corp., ___ B.R.B.S. ___, BRB No.
96-666 (June 17, 1998). While the term "in loco parentis," is not defined by the
LHWCA and must be defined by using the appropriate state law, it is not necessary to cite
pertinent state law in defining the phrase in order to assess legal status, provided the ALJ notes
the primary elements conforming to the state definition. In this particular case, the ALJ noted
that the phrase "in loco parentis" contains an element of intent and that it is the intent
of the adult, as revealed by his actions, which defines whether an adult stands in loco parentis to
a child.
[2.14, Child]
Farrel v. Norfolk Shipbuilding & Dry Dock Corp., ___ B.R.B.S.
___, BRB No. 97-1317 (June 19, 1998). The ALJ's determination that Employer was not entitled
to Section 8(f) relief was vacated and the matter was remanded. Claimant had a pre-existing
mental impairment, evidenced by low Intelligence Quotient (IQ) test scores. Employer's
vocational expert performed a transferable skills analysis to discern "what types of jobs or
percentage of jobs were available first with regard to his work injury, and then upon
consideration of his additional mental impairment." The vocational expert testified that
Claimant's pre-existing mental impairment increased the number of jobs no longer available to
Claimant for "generally transferable occupations" from 80 percent to 97 percent and
for "unskilled occupations" from 48-49 percent to 76 percent. The ALJ had found
that this does not meet the "Harcum test" [see Director, OWCP v. Newport News
Shipbuilding & Dry Dock Co. (Harcum I), 8 F.3d 175 (4th Cir. 1993); and Director,
OWCP v. Newport News Shipbuilding & Dry Dock Co. (Harcum II), 131 F.3d 1079 (4th Cir.
1997)], that is, the percentages given by the vocational expert did not reflect the extent of
disability or impairment sustained by Claimant.
The Board, however, found that the evidence, if credited, demonstrated the
level of impairment that would ensue from the work-related injury alone and thereby provides
the ALJ with a basis to determine if Claimant's ultimate permanent partial disability is materially
and substantially greater than his disability caused by the work-related injury alone. Since the
ALJ had not considered this evidence, the matter was vacated and remanded.
[8.7.6, In Cases of Permanent Partial Disability, the Disability Must be
Materially and Substantially Greater than that Which Would Have Resulted from the
Subsequent Injury Alone]
Livingston v. Jacksonville Shipyards, Inc., ___ B.R.B.S. ___, BRB
No. 97-1339 (June 24, 1998). After Claimant's injury, but prior to the date of MMI and the
establishment of suitable alternate employment (SAE), Claimant's driver's license was suspended
for five years as the penalty for two driving under the influence (DUI) convictions. The Board
upheld the ALJ's finding that three driving jobs constituted SAE.
The Board noted the existence of jurisprudence wherein a criminal
conviction/record in existence at the time of the work injury can prevent certain jobs from being
realistically available to a claimant. [For instance, a convicted felon can not reasonably obtain
employment as a bank worker or security guard.] However, the Board distinguished the instant
case from other criminal conviction cases in several respects. In the instant case, the DUI
convictions were not a prior impediment to Claimant's obtaining employment which was
otherwise suitable for him. The Board stressed that the events which Claimant contends make
the driving positions unavailable and unsuitable, occurred after he was injured and before
Employer engaged the job search. Additionally, in the instant case, Claimant's license was
suspended only temporarily, whereas other criminal convictions may forever prohibit a claimant
from obtaining certain jobs.
