1 Since the first opinion in this matter
was issued on January 11, 1999, it has been revised three times.
[ 1.6, Situs ]
B. Benefits Review Board
In Zeringue v. McDermott, Inc., ___ B.R.B.S. ___, BRB No.
98-435
(Dec. 8, 1998), situs and status were at issue in this hearing loss claim. Claimant participated in
"load-out operations" using a bulldozer to help load jackets and deck sections onto
barges where they then would be taken to an offshore location to be used in oil and gas
production.
[A deck section is the top section of an offshore oil platform which is used for the collection,
separation, or drilling of oil and gas. A jacket section is the bottom section of a platform which
secures itself to the ocean floor and allows the deck section to sit on top of it.]
The load-outs were conducted at sections of Employer's yards adjacent to
water where employees customarily loaded the complete decks and jackets of oil rigs onto barges
for shipment. Noting that the Fifth Circuit has adopted a broad view of the situs requirement
under
the LHWCA, and has defined "other adjoining area" as a site close to or in the
vicinity
of navigable waters or in a neighboring area customarily used in loading or unloading a vessel,
the
Board stated that the area's exclusive use need not be maritime. Further, the Board noted the
Fifth
Circuit's conclusion that a determination of whether an "adjoining area" is covered
under
the LHWCA focuses on the functional relationship or nexus between the "adjoining
area" and marine activity on navigable waters. In the instant case, Claimant performed
load-
out operations at two yards which were adjacent to navigable waters. The Board noted that the
ALJ
correctly found that these sites are "customarily used for significant maritime
purposes"
because the rig sections are loaded onto barges and shipped from these points. Thus, as the yards
are used for loading vessels, and have both a functional and geographical nexus with navigable
waters, Claimant had situs.
While Claimant's main job with employer was that of a bulldozer operator
whose duties encompassed grading roads and filling in holes on the Employer's yards, Claimant
regularly participated in load-outs on an as-needed basis. Claimant testified that he participated
in
the load-outs about every two months at one yard and every three to four months at another yard
owned by Employer for approximately 6.84 percent of his work time. The Board found that,
although Claimant did not participate in every load-out and that the load-outs occurred
infrequently,
he met the status requirement because he participated in indisputably maritime activities as part
of
his regular duty assignments and the assignments were more than episodic, momentary, or
incidental.
In Piceynski v. Dyncorp, ___ B.R.B.S. ___, BRB No. 97-1451
(Dec.
7, 1998), an ALJ had issued a Decision and Order which was subsequently appealed to the Board
by the Claimant. While the matter was on appeal, the Claimant moved for modification and
abeyance. Subsequently, the Board issued a remand on the appeal and the modification request
simultaneously. Employer has now filed a "Motion to Annul Void Decision" which
the
Board has treated as a timely motion for reconsideration of the Board's Decision and Order.
Employer's argument is purely procedural; it maintains that the Board's previous decision in this
matter is a legal nullity because the Board violated its own procedural rule, 20 CFR §
802.301(c), when it denied Claimant's request to have the appeal stayed pending resolution of
Claimant's modification petition before the ALJ.
First, the Board rejected Employer's motion noting that Employer is
without
standing since it was Claimant who filed the appeal, modification request and abeyance.
However
the Board, after examining the history of the pertinent regulation, went on to address the
procedural
matter on its merits.
Section 802.301(c) states that where a modification request has been filed,
the
Board "shall dismiss the case [on appeal] without prejudice." This codification had
its
origins in Molnar v. Harman Coal Co., BRB No. 83-576 BLA (Jan. 9, 1985)
(unpublished
order) (when modification is sought in a case pending before the Board, the Board dismisses the
appeal and remands the case to the ALJ for consideration of the modification petition; the party
who
filed the original appeal may seek reinstatement of its appeal to the Board after the ALJ rules on
the
modification petition, and any aggrieved party may also appeal the decision on modification.).
The Board stated that its action in this matter complied with the regulation
"as the Board's decision effectuates the action contemplated by the regulation" since,
at the time the Board learned of Claimant's modification request, its decision remanding the case
on
the merits was "pending." The Board concluded the following:
Accordingly, it was a more efficient use of administrative resources for the Board to
act on the notice of modification in its Decision and Order, since remand was
required due to both the original appeal and the request for modification . . .. Finally,
any error the Board may have made remanding for modification in its decision, rather
than in a separate order, is harmless as employer has not been prejudiced."
[22.3.8 Modification of Orders Which Are on Appeal]
In Everett v. Ingalls Shipbuilding, Inc., ___ B.R.B.S. ___ , BRB
No.
98-0492 (Dec. 16, 1998), Decedent filed a claim for benefits based upon his alleged work-related
hearing impairment. Employer later accepted liability for the claim and voluntarily paid benefits
on
October 24, 1994, prior to any formal adjudication of the claim. Thereafter, Claimant's counsel
submitted a petition for an attorney's fee for work performed before the district director. The
district
director denied any time for attorney services rendered after the date that employer paid benefits
based on her finding that no further benefits were derived from services performed subsequent to
that
date.
In vacating the district director's denial of all attorney's fees after October
24,
1994, the Board held that the district director must consider the necessity and reasonableness of
the
time requested as it may relate to any services performed to "wind-up" the case.
Claimant's counsel argued that the requested fees were for "wind-up" work and
included
time spent involving the forwarding of the compensation payment to Claimant, an explanation to
Claimant that Employer had not provided the wage records necessary to determine whether the
proper amount of benefits had been paid, and counsel's subsequent efforts to procure the requisite
records and ensure that the proper amount of compensation had been paid. Additionally, counsel
noted that Claimant did not receive reimbursement for a covered payment to one medical
provider
until February of 1995 and that any work up to that date in order to obtain those medical benefits
is
compensable. The Board agreed.
[ 28.1.2 Successful Prosecution; 28.6.2 Compensable Services;
28.7.1 Authority To Award Fees--Level of Proceedings ]
The case of Sharib v. Navy Exchange Service, ___ B.R.B.S. ___,
BRB
No. 98-0525 (Dec. 17,1998) arises under the Non-appropriated Fund Instrumentalities Act.
Claimant, employed as a program analyst at the Navy Exchange Service, sustained injuries to her
right leg as a result of a fall which occurred when she was on her way to work from Employer's
parking area to her office. Claimant had fallen into an obscured rut in a grass area abutting a
partially destroyed walkway. The Board found that the ALJ incorrectly applied the
"comings
and goings" rule which provides that, generally, injuries sustained by employees on their
way
to or from work are not compensable, as traveling to and from work is not within the scope of the
employees' employment. The Board held to the contrary that, as to employees having fixed
hours
and places of work, injuries occurring on the premises while they are going to and from work
before
or after working hours are compensable.
The Board found that it need not distinguish between whether Claimant's
injury occurred on Employer's premises, or whether the "employer control"
exception
to the coming and going rule applied since the resolution of either question turns on the degree of
control exercised by Employer. The Board cited to Shrivers v. Navy Exchange, 144 F.3d
322, 32 B.R.B.S. 99 (CRT) (4th Cir. 1998)(although employer did not own parking lot where
claimant was injured, employer directed its employees to park there and had an active hand in
controlling the lot and maintaining the grounds and sidewalks around the office building, such
that
the parking lot was part of the employer's premises for purposes of recovery).
Claimant was required by her Employer to park in a designated parking lot
behind her office building. The record established that Employer parked large moving trucks
atop
the curb, sidewalk and surrounding area, up to the doors of Claimant's building over the course
of
several months. In this regard, the Board noted that, although Employer may not be responsible
for
the maintenance of the area surrounding its building as there is no evidence of record on this
issue
either way, it is nevertheless responsible for the deteriorated condition of that area where
Claimant's
injury occurred. Consequently, the instant case includes an affirmative act on the part of
Employer
in operating its business, which created a risk of employment not shared with the public. Thus,
the
Board found that Employer exercised sufficient control over the area in which Claimant's injury
occurred, such that the area in question is to be considered part of Employer's premises and
therefore, the coming and going rule would not apply.
[2.2.11, Coming and Going Rule]
In Farrel v. Norfolk Shipbuilding & Dry Dock Corp., ___ B.R.B.S.
___, BRB No. 97-1317 (Dec. 28, 1998), the Board reconsidered its former opinion in this matter
found at 32 B.R.B.S. 118 (1998). Employer filed its claim for Section 8(f) relief with the district
director based on prior injuries to Claimant's knee and back, as well as a lymphedema condition,
but
it did not raise a claim with respect to Claimant's pre-existing mental impairment. The ALJ,
however, determined that an employer's timely filing of a Section 8(f) claim on one ground
permitted an employer at a later time to argue additional grounds and assert an entirely different
basis for Section 8(f) relief. In its first decision in the instant case, the Board affirmed the denial
of
Section 8(f) relief based on the pre-existing back injury, but vacated the denial of Section 8(f)
relief
based on claimant's pre-existing mental impairment and remanded for further consideration of
Employer's evidence as it relates to Claimant's pre-existing mental impairment to discern
whether
the ultimate permanent partial disability is materially and substantially greater than that due
solely
to the work-related injury.
In initially addressing the argument raised by the Director, that the
absolute
defense of Section 8(f)(3) is applicable as Claimant's mental impairment was not raised as a basis
for Section 8(f) relief in a timely fashion before the district director, the Board held that as the
Section 8(f)(3) bar is an affirmative defense, it is the Director's burden to come forward with the
necessary evidence to support the claim that the Employer failed to comply with Section 8(f)(3),
i.e., that Employer could have reasonably anticipated the liability of the Special Fund as
to
Claimant's mental condition in this case while the case was before the district director. The
Board
then observed that, in order to address this issue, it would be required to remand the case for
findings
of fact regarding whether Employer could have reasonably anticipated the liability of the Special
Fund on the basis of Claimant's mental impairment while the case was before the district
director.
Consequently, the Board held that since consideration of the Director's contention regarding the
absolute defense of Section 8(f)(3) would require remand, and thus would not maintain the
status quo of the ALJ's decision, his contention should have been raised in a timely filed
cross-appeal. The Board, therefore, concluded that it could not consider the merits of the
Director's
contention as it was raised in a response brief.
In this reconsideration, the Board now agrees that the Director's contention
that the absolute defense of Section 8(f)(3) is applicable must be addressed inasmuch as it
supports
the ALJ's ultimate denial of employer's request for Section 8(f) relief.
In its Motion for Reconsideration, the Director argued that the Board's
holding
was in conflict with both the regulations and case law in that the statute does not require proof
that
Special Fund liability could be reasonably anticipated, but rather that it could not be reasonably
anticipated, which the Director maintains places the burden on Employer, not on the Director.
Noting the wording of Section 8(f)(3) as well as case law, the Board modified its decision and
now
places the burden on Employer, rather than on the Director, to show that it could not have
reasonably
anticipated the liability of the Special Fund as to Claimant's pre-existing mental condition.
Ultimately the Board remanded the matter for the ALJ to consider the
relevant
evidence requiring a factual determination, as to whether Employer has demonstrated that it
could
not have "reasonably anticipated" the liability of the Special Fund with regard to
Claimant's pre-existing mental impairment at the time of its initial application with the district
director.
[ 8.7.9.2 Timeliness of Employer's Claim for Relief ]
The matter of Pascual v. First Marine Contractors, Inc., ___
B.R.B.S.
___, BRB No. 97-1283 (Jan. 20, 1999) came to the Board once more by way of a Motion for
Reconsideration. When the matter was first appealed to the Board, the Board held that the ALJ's
conclusion that the Claimant was not entitled to either disability or medical benefits was
inconsistent
with his finding that it is uncontested that Claimant suffered some disabling pain as a result of
the
work incident. Accordingly, the Board vacated the ALJ's denial of benefits to Claimant.
In its motions for reconsideration, Employer alleges (1) that the Board's
decision in this case was based upon an erroneous interpretation of the evidence, and (2) that
pursuant to the Appropriations Act of 1998, Pub. L. 105-78, and the decision of the United States
Court of Appeals for the Third Circuit in Director , OWCP v. Sun Ship, Inc., 150 F.3d
288,
32 B.R.B.S. 132 (CRT) (3d Cir. 1998), the ALJ's decision in the instant case was automatically
affirmed on June 17, 1998 [the 365th day after the June 16, 1997 appeal], the date on which the
Board rendered its decision on appeal. [In other words, the Employer argued that the date of the
appeal, June 16, 1997, should be counted as the first day for counting the 1998 Public Law's one
year
period. and that, therefore, the Board was one day late in rendering its decision.]
First, the Board noted that Sun Ship is not dispositive of the issue
raised in this case, which arises within the jurisdiction of the Fifth Circuit. Second, the Board
noted
that Sun Ship dealt with the 1996 public law while the instant case was filed under the
1998
Appropriations Act and that a comparison of the 1998 and the 1996 appropriation acts reveals a
significant change in the statutory language. The holding of the court in Sun Ship,
addressed
the 1996 Appropriations Act which refers to issuance of decisions "before" a specific
date, i.e., September 12, 1996. This is not applicable to the instant case, which requires
interpretation of the language of the 1998 Appropriations Act, referring to "more than one
year."
The Board turned to the Federal Rules of Civil Procedure as well as the
Board's regulations which contain specific provisions governing this question. Both indicated
that
the day from which the designated period of time begins to run shall not be included in the
computation. See Fed. R. Civ. Proc. 6(a); 20 C.F.R. § 802.221(a).
Thus, the Board held that for purposes of calculating the one year period
set
forth in the Appropriations Act of 1998, the time period begins with the day following the filing
of
an appeal. As the Board's decision in the instant case was issued within the one year/365 days/12
month statutory period set forth in the 1998 Appropriations Act, it did not violate the statutory
provisions for not exceeding one year or twelve months.
[ 21.3 Review By U.S. Courts of Appeals; 21.3.2 Process of
Appeal
