Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 143
August - September 1999
John M. Vittone
Chief Judge (Longshore)
Thomas M. Burke
Associate Chief Judge for Black Lung
I. Longshore
A. Circuit courts of appeal
In Carolina Stevedoring Company v. Davis, 1999 WL 713897 (4th
Cir. 1999) (unpublished), the Fourth Circuit held that Section 3(c) ("No compensation shall be
payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention
of the employee to injure or kill himself or another.") did not apply where the employee
disregarded his own safety by working and not taking his medication [to prevent grand mal seizures].
This activity fell short of a willful intent to injure or kill.
In Sketoe v. Exxon Company,
USA, ___ F.3d ___ (5th Cir. 1999) (1999 WL 710534), an oil drilling case, the Fifth
Circuit held that Section 4(a) premises liability on a finding that the principal is subject to some
contractual obligation which it, in turn, is passed in whole or in part to the subcontractor.
Here, the United States government executed an oil and gas lease of a tract off
the Louisiana coast to Exxon. Exxon subsequently contracted with Dolphin Titan (DT) to drill on the
tract. Sketoe was an employee of DT who worked on the Exxon tract operation. In the course and
scope of his employment, Sketoe injured his hand. DT's compensation carrier, Northumberland
Insurance Company, paid Sketoe's compensation benefits until it became insolvent. Following
Northumberlands's bankruptcy, DT assumed payment of the benefits. Approximately one year later,
DT also became insolvent. Sketoe then filed a claim against Exxon for payment of the benefits, alleging
that Section 4(a) of the LHWCA required Exxon to cover for its "subcontractor," DT.
The Fifth Circuit found that, to attach liability to Exxon for compensation benefits
via the statute, Exxon must have been subject to the same contractual obligation that DT contracted
with Exxon to perform. This is referred to as a "two contract" requirement: " A
general employer will be held secondarily liable for workmen's compensation when the injured
employee was engaged in work either that is a subcontracted fraction of a large project or that is
normally conducted by the general employer's own employees rather than by independent contractual
obligations."
The Fifth Circuit stated that the LHWCA distinguishes between employers who
are owners and those who are general contractors working under contractual obligations to others.
Only if there is a determination that Exxon delegated "the performance of portions of its
contractual obligations" to DT is the Section 4(a) relationship formed making Exxon statutorily
liable for Sketoe's workers' compensation payments. The Fifth Circuit reasoned that because Sketoe
was the employee of a drilling contractor, the determination depends upon the nature of the drilling
obligations that Exxon owed to the United States, the oil and gas lessor. Thus, the Fifth Circuit
examined Louisiana mineral law to determine the drilling obligations of Exxon. The court concluded:
We believe that the obligations to drill found in the present lease arrangement--namely,
express obligations in the primary term and for protection from drainage, and implied
otherwise in the various obligations of prudent operation--are best said to be correlative
and incidental of the real rights transferred by it, namely, the exclusive power to
prospect for, produce, and take possession of oil and gas. It is pertinent to this
decision that the lessee may abandon its exclusive right and, thus, its duty to drill, and
that the lessor's remedy for the lessee's failure to drill is cancellation of the lease. This is
so because the duty to drill flows directly from the real rights created by the lease
agreement. We hold that such an obligation is not the kind that would make the lessee
a general contractor so that the drilling contractor may be considered a
"subcontractor" within the meaning of the LHWCA.
In sum, the Fifth Circuit concluded that Exxon is most appropriately considered
as the owner of a real right, when it engaged the drilling services of DT. It was not a general contractor
passing its own purely contractual obligation to its subcontractor.
[Topic 4.1.1 Contractor/Subcontractor Liability]
B. Benefits Review Board
In Gonzalez v. Merchants Building Maintenance, ___ B.R.B.S. ___,
BRB No. 98-1633 (Sept. 21, 1999), Claimant's deceased spouse had worked at the shipyard. His
job duties involved the cleaning and restocking of restrooms and portable toilets throughout the
shipyard, including performing these services in bathroom facilities located aboard ships approximately
two to three times a day. The worker had injured his elbow while cleaning a restroom located in the
shipyard building. The ALJ found that the worker was not covered under Section 2(3) of the LHWCA
as he was not engaged in loading, unloading, repairing, or building a vessel, and thus, his de minimis
connection to maritime activity is insufficient to fulfill the status requirement of the LHWCA.
Claimant appealed arguing that her husband's duties aboard ships facilitated the
work of those actually building the ships, and thus, served as an integral part of the shipbuilding
process. Claimant also argued that her claim falls within the jurisdiction and coverage of the LHWCA
since at least some of decedent's work was performed aboard ships and he was injured on a covered
situs.
In affirming the ALJ, the Board noted that the decedent's duties were not
essential to the overall loading, unloading, building or repairing of vessels. In reaching this conclusion
the Board cited Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23 B.R.B.S. 96
(CRT) (1989) as holding that the maritime employment requirement as applied to land-based workers
whose jobs are not enumerated in Section 2(3) is an occupational test focusing on loading and
unloading. In Schwalb, the claimants sustained injuries while repairing and maintaining
equipment essential to the loading and unloading processes and were found to be covered under the
LHWCA as the process would not continue without the functions of these workers. Applying the
"Schwalb test" to the instant case, the Board found that the ALJ rationally found
that the decedent's work in the instant case falls short of being integral to loading, unloading, building,
repairing ships.
It was held in Galle v. Ingalls Shipbuilding, Inc., ___ B.R.B.S. ___
BRB No. 98-1635 (Sept. 20, 1999) that ALJ Rule of Practice and Procedure at 29 C.F.R. §
18.4 does not govern motions for reconsideration; rather, the Federal Rules of Civil Procedure (FRCP)
apply. The main issue in the instant case was whether a motion for reconsideration was timely filed.
The Board first noted that the general rules for proceedings before an ALJ at 29 C.F.R. Part 18 do not
provide for motions for reconsideration, nor do the longshore regulations at 20 C.F.R. Part 702. Only
the Board's regulation addresses this issue in the context of what constitutes a timely appeal to the
Board. Thus, the Board found that the federal civil procedural rules govern the filing of these motions.
The Board found it necessary to note the historical development of its own regulation at 20 C.F.R.
§ 802.206 which was enacted in 1987.
The authority for the 10-day filing requirement was based on Rule 59(e) of the
FRCP. Rule 59(e) states: "Any motion to alter or amend a judgment shall be filed no later than
10 days after entry of the judgment." The rule did not discuss the applicability of Rule 6(a) which
excludes intermediate Saturdays, Sundays and holidays. Rule 6(a) provides that if the final day of a
period provided in a statute falls on a Saturday, Sunday or holiday, the period runs until the end of the
next day that is not a Saturday, Sunday or holiday. Rule 6(a) also states that the day of the act is
excluded such that counting begins the day following the action.
The Board held that, as Rule 6(a) applies to Rule 59(e), which is the basis for the
10-day filing time limit for motions for reconsideration contained in the Board's regulation at 20 C.F.R.
§ 802.206, Rule 6(a) applies to the filing of motions for reconsideration before the ALJ for
purposes of determining whether the tolling provision of Section 802.206(a) applies.
Of significance is the fact that the Board stated that the ALJ rules of Practice and
Procedure do contain a "general provision on computation of time." The Board noted that,
at the time the provisions at 29 C.F.R. § 18.4 were promulgated, FRCP 6(a) also provided for
the exclusion of intermediate Saturdays, Sundays, and holidays when the applicable time period was
seven days or less. Thus, the two rules were consistent until the FRCP were amended in 1985, and
Rule 6(a) changed to expand the time frame from seven days or less to less than 11 days.
The Board went on to state in the instant case that "[i]n any event, Section
18.4 specifically states '[i]n computing any period of time under these rules....' 29 C.F.R.
§ 18.4 (emphasis added). As there is no rule regarding motions for reconsideration under the
Part 18 Regulations, Section 18.4 is not applicable on its face. Accordingly, as motions for
reconsideration are governed by Federal Rules through Section 18.1, the computation of time is
similarly governed by those rules."
[Topic 19.5 Motion for Reconsideration]
In Carlisle v. Bunge Corp., ___ B.R.B.S. ___, BRB No. 98-1604
(Sept. 13, 1999), in order to determine whether or not this claim was time barred, the ALJ had to first
determine if Claimant had suffered a traumatic injury or occupational disease. Claimant worked as a
river operator, operating joysticks for usually three to four hours per day, but sometimes this work
would be as much as eight hours a day for several weeks at a time. Claimant's other job duties
included carrying heavy loads, pulling cables through loaded barges, climbing ladders, lifting barge
doors and scooping beans with a shovel. Crediting the testimony of two doctors, the ALJ found that
Claimant had suffered an occupational disease.
Through a series of cases, the Board defined an occupational disease as
"any disease arising out of exposure to harmful conditions of employment, when those conditions
are present in a peculiar or increased degree by comparison with employment generally." The
Board found that "claimant's employment requiring the operation of joysticks and bobcat levers,
involved 'harmful' repetitive hand and arm movements, which are peculiar to his job as a river operator
. . . claimant's use of joysticks would require 'a marked amount of flexion/extension, ulnar and radial
flexion in alternating movements,' and thus, those activities are significantly attributable to his
condition." Affirming the ALJ, the Board found that Claimant's occupational disease afforded
him the benefit of the longer statute of limitations prescribed by Section 13(b)(2) and his claim for
compensation was therefore timely.
[Topics 2.2.13 Occupational Diseases: General Concepts; 2.2.15
Occupational Disease vs. Traumatic Injury; 13.1.2 Starting the Statute of
Limitations--Section 13(b) Occupational Diseases]
In the hearing loss case of Everson v. Stevedoring Services of
America, ___ B.R.B.S. ___, BRB Nos. 98-0104 and 98-1648 (Sept. 24, 1999), Claimant
testified that he worked for Employer at least 90% of the time during the last 15 years of his
employment. The ALJ found the employer liable for benefits and the employer and carrier (Homeport)
filed a Motion for Reconsideration and Section 22 modification to designate Eagle Pacific as the insurer
liable for Claimant's benefits. In the appeal it was also argued that the claimant did not prove that the
employer was the last maritime employer. The ALJ denied this relief noting that the employer and
carrier should have availed themselves of the opportunity to litigate the issue of responsible carrier
during the initial proceeding.
On appeal the Board observed that the ALJ credited Claimant's testimony that
he worked for the employer 90% of his time during his last 15 years of employment and
"although claimant could not testify specifically that he was employed by employer when he last
worked aboard a ship that used a steam winch (source of loud noise), it is employer's burden to
affirmatively establish that is did not expose claimant to potentially injurious stimuli." Since
Employer did not meet its burden, the Board affirmed the ALJ's award of benefits. The Board also
observed that the ALJ "rationally found that since the claimant was alleging many years of
exposure to injurious noise levels, employer and Homeport should have been aware that an insurer
other than Homeport provided longshore coverage during some of those years, and thus, they had
committed error in failing to raise and litigate the issue of responsible carrier at the initial hearing."
Moreover, the Board concurred with the ALJ that permitting an additional carrier
to join the proceedings would require it be given the opportunity to re-litigate the issues in the claim in a
new hearing at considerable time and expense, and the need for finality in decision making outweighs
the carrier's interest in modifying the first decision.
[Topic 8.13.4 Responsible Employer and Injurious Stimuli]
