John M. Vittone
Chief Judge

Thomas M. Burke
Associate Chief Judge

I. Longshore

   A. Circuit Courts of Appeals

   In Conoco, Inc. v. Director, OWCP, ___ F.3d ___, 1999 WL 979694 (5th Cir. Nov. 12, 1999), the Fifth Circuit affirmed an award of benefits to claimant but noted the Board applied the wrong legal standard to employer's § 20(a) rebuttal burden. The Board noted "[employer], in its reliance on inconsistencies in [claimant's] testimony and discrepancies between her testimony and medical records, failed to rule out the possibility of a causal relationship between [claimant's] employment and her injury." (Emphasis added) The Fifth Circuit noted that the plain language of the statute uses the phrase "substantial evidence to the contrary," and placing this higher standard (ruling out) on the employer is contrary to statute and case law. The Fifth Circuit ultimately held that the Board did not commit a reversible error and "[d]espite the legal error, an objective review of the record and the ALJ's opinion lead us to the conclusion that the legal error is harmless but just barely."

[Topic 20.3 Employer Has Burden of Rebuttal with Substantial Evidence]

   The decision in Bath Iron Works v. Brown, 1999 WL 900442 (1st Cir. Oct. 8, 1999) may be more important for its dicta than for its actual holding. The issue before the First Circuit regarded last responsible maritime employer/carrier. Claimant worked for Bath Iron Works from 1941 until 1984. Commercial Union provided coverage from 1963 until 1981, and Liberty Mutual provided cover from 1981 until 1986. Liberty Mutual initially paid cover and looked to Commercial Union for reimbursement. Commercial Union agreed to reimburse Liberty Mutual if the First Circuit upheld the award for continuing medical benefits to claimant. .

   The Director wanted to extend the last employer rule to impose liability on the last covered maritime employer where there is later exposure at a non-covered employer. The Circuit Court noted that

"The 'last maritime employer rule,' unlike the "last employer rule,' is driven by the fact that there is no jurisdiction over the last employer because the last employer is not covered by the Act.....Critics, however, have pointed out that such an extension is contrary to the rationale for the last employer rule: a last maritime or covered employer rule 'undercut[s] the basic rationale of the last employer rule, that each employer will be the last employer a proportionate share of the time....Furthermore, since the last maritime or covered employer rule holds covered employers liable for exposures that that took place after their liability otherwise ended, 'employers are precluded from limiting their liability by adjusting their conduct.' There is a difference between holding employers (and their insurers) liable for injuries that took place before an employee was hired and for those that took place after an employee left covered employment.

Nonetheless, there are policy arguments to be made to support such an extension of an allocation rule in those situations where, as here, the employee worked for the same employer throughout and was simply transferred by the employer from a covered facility, where he was exposed, to a non-covered facility. Otherwise, an employer could seek to manipulate the system by transferring an exposed employee from a covered to a non-covered facility.

   However, the Circuit Court stated that it did not need to resolve this issue since it upheld the finding of compensability arising out of the claimant's 1941 to 1978 employment at the shipyard and Commercial Union conceded at oral argument that if claimant was entitled to compensation under the LHWCA, the extent of such compensation could be based on the 1983 audiogram and thus, there is no need to either decide a last maritime or covered employer issue.

[Topic 2.2.16 Occupational Diseases and the Responsible Employer/Carrier]

   In Rowe v. Newport News Shipbuilding and Dry Dock Co., ___ F.3d ___, 1999 WL 798875 (4th Cir. Oct. 7, 1999), Claimant filed a claim for additional benefits based on a scheduled injury to his right leg. The ALJ denied additional benefits based on economic factors and because there was no medical evidence showing claimant's disability had increased. The Board affirmed. The Fourth Circuit affirmed the Board's decision and noted that PEPCO, 449 U.S. 268 (1980), did not allow for an accounting of economic factors in calculating disability benefits for a scheduled injury under § 8(c) (1-20).

[Topic 8.3.1 Scheduled Awards Some General Concepts]

New Valley Corp. v. Gilliam, 192 F.3d 150 (D.C. Cir. 1999).

   Claimant is the widow of a now deceased injured employee who had been receiving permanent total disability benefits. Claimant's decedent had been estranged from claimant since 1970 and had provided no support for his wife and their ten children. Claimant never entered into another relationship. The ALJ found claimant was living apart from her decedent for "justifiable cause" (pursuant to § 2(16) of the LHWCA), and that she had not severed the "conjugal nexus" (as required by the U.S. Supreme Court in Thompson v. Lawson, 347 U.S. 334 (1954)). The ALJ, therefore, awarded claimant benefits and the Board and D.C. Circuit affirmed.

[Topic 2.16 Widow or Widower]

   In Hill v. Director, OWCP, ___ F.3d ___, 1999 WL 1021242 (5th Cir. Nov. 10, 1999), Claimant injured his back while working for employer on 1 October 1980. Claimant did not receive a medical diagnosis regarding his back injury until 23 August 1983. Claimant filed for Louisiana state workers' compensation on 21 February 1984, but the state court denied his claim because it was filed over 3 years after the date of his injury. Claimant appealed to the state circuit court and state supreme court and the district court's decision was ultimately affirmed by 6 November 1992. During the pendency of these state claims, on 24 June 1992, claimant filed a claim under the LHWCA. The ALJ found that claimant should have been aware of his injury on 23 August 1983 (the date of the Dr.'s diagnosis), but the one-year limitations period was terminated by 23 August 1984 (seven and a half years before claimant filed his LHWCA claim). The ALJ held that an untimely state law claim for benefits cannot toll the statute of limitations for the filing of a LHWCA claim. The Board and the Fifth Circuit affirmed.

[Topic 13.4 Section 13(d): Tolling the Statute; 13.4.2 Filing A State Claim]

   In Burton v. Stevedoring Services of America, ___ F.3d ___, 1999 WL 1044372 (9th Cir. 19 Nov. 1999), Claimant filed for compensation benefits and received an award from the ALJ ($257.27/week) on August 9, 1993. The case languished at the Board level with the Board reversing and remanding to the ALJ for a nominal award on September 12, 1996. The ALJ issued a new decision with the nominal benefits ($7.71/week) on March 3, 1997. The Board affirmed this decision on March 23, 1998. The Ninth Circuit reversed and reinstated the ALJ's original decision of August 9, 1993. The Ninth Circuit noted that the Department of Labor Appropriations Act of 1996, P.L. No. 104-134, 110 Stat. 1321, provided that "any ... decision pending a review by the Benefits Review Board for more than one year shall, if not acted upon by the Board before September 12, 1996, be considered affirmed by the Benefits Review Board on that date, and shall be considered the final order of the Board for purpose of obtaining a review in the United States courts of appeals ..." (Emphasis added). Because the Board reversed the ALJ's decision on September 12, 1996, and this came over one year after the ALJ's decision, the Board's decision of September 12, 1996 did not comply with the Appropriations Act of 1996. Therefore, the Board's decision of September 12, 1996 was invalid and a nullity, and the ALJ's decision of August 9, 1993 was deemed affirmed and the final order of the Board "at the instant 11 September 1996 came to a close and 12 September 1996 commenced."

[Topic 21.3 Review by U.S. Courts of Appeals]

   B. Benefits Review Board

   In Timothy W. Clark v. Newport News Shipbuiling and Dry Dock Co., ___ B.R.B.S. ___, BRB No. 98-1508 (Aug. 17, 1999), the Board ruled that a Section 8(i) settlement does not cover an injury not specifically enumerated, even if the agreement includes language designed to encompass future claims. The Board issued the ruling in Clark despite the settlement's statement that it covered "all issues outstanding which were raised or could have been raised between the parties." In addition, the Board concluded the settlement did not absolve the Employer of future liability through the agreement's statement that it covers "any other injuries caused by the Employer." Citing Cortner v. Chevron International Oil Co., 22 B.R.B.S. 218 (1989), the Board stated a settlement is limited to "the claims then in existence."

    The settlement reached in Clark was pursuant to the LHWCA. In the instant case, the settlementinvolved Claimant's appeal of an administrative law judge's denial of medical benefits for a right knee impairment. The administrative law judge ruled that a settlement reached between the Claimant and the Employer contained language that was inclusive enough to cover the impairment to his right knee, even though the injury was not specifically mentioned. The parties had signed a settlement on December 12, 1995, covering injuries he sustained to his back, left knee and left groin. Although Clark had experienced pains in his right knee since 1990 or 1991, he did not file a claim until May 9, 1996. Because the Claimant was aware of the knee injury as much as five years before the settlement, the administrative law judge concluded the Claimant should have known that the agreement also discharged the Employer of liability for the knee injury. Finally, the administrative law judge based his conclusion on cases that addressed the issue of whether settlements approved pursuant to Section 8(i) can be modified under Section 22 of the Act.

   The Board rejected the administrative law judge's reasoning. It noted that the administrative law judge incorrectly relied on cases involving the issue of whether a settlement can be modified pursuant to Section 22. Instead, the Board said the correct issue in Clark was whether the settlement covers an injury not specifically listed in the agreement.

   Next, the Board based its decision on a prohibition against certain waivers in Section 8(i) and on regulations implementing settlements under the Act. The Board noted that claimants are not permitted to waive their right to compensation except through settlements approved by a district director or an administrative law judge under Section 8(i). 33 U.S.C. Sec. 915(b). The implementing regulations governing Section 8(i) settlements state that they must be "self-sufficient documents, which can be evaluated without further reference to the administrative file." 20 C.F.R. Sec. 702.242(a). The regulations continue by requiring a description of the injury, its cause and the degree of impairment. 20 C.F.R. § 702.242(b)(2). Settlements must also be adequate under the regulations. Id. Because the Claimant had not sought medical treatment for his injury when the settlement was adopted and approved, the Board concluded those requirements cannot be met. The costs of treatment for the right knee injuries are unknown, and, therefore, the settlement could not be evaluated for adequacy with regard to injuries not listed. Finally, the Board ruled the administrative law judge incorrectly relied on information not in the settlement when he considered the Claimant's complaints about his right knee.

[Topics 8.10 Section 8(i) Settlements, 8.10.1 Generally, 8.10.2 Persons Authorized, 8.10.3 Structure of Settlement, and 8.10.8 Section 22 Modification]

    In Zeigler v. Department of the Army/NAF, ___ B.R.B.S. ___, BRB No. 99-0122 (Oct. 7, 1999), Claimant was a writer for Stars and Stripes in Czechoslovakia, where he was bitten by a tick and developed a red, circular rash. The ALJ found that Claimant had established the presence of early stage Lyme disease, but that Employer had rebutted the presence of late stage Lyme disease. The ALJ held that, when all of the evidence was weighed, it nevertheless supported a finding that Claimant had suffered a disabling work-related injury. The Employer was responsible for medical treatments administered after the early stage disease had been resolved. Additionally, § 7(d)(4) was found to be inapplicable, and Claimant was found to have suffered a temporarily totally disabling psychological impairment.

   Employer argued that because the ALJ had found no late stage Lyme disease, it was not responsible for treatments administered by a Dr. Davis, who treated Claimant after a Dr. Sanders had diagnosed no late stage Lyme disease. The Board held that although there were conflicting diagnoses, the Claimant was entitled to choose his own course of treatment as long as such treatment could be reasonably seen as necessary. The Employer will be held liable for treatments sought by Claimant as the treatments represent a reasonable course. In this case, Claimant continued to suffer from Lyme-like symptoms and some objective testing indicated the presence of disease; it was reasonable for Claimant to continue to seek treatment. Additionally, the removal of Claimant's gall bladder was a direct consequence of the antibiotic course prescribed by Dr. Davis, and so it is also covered.

   Employer further argued that § 7(d)(4), which allows the ALJ to suspend compensation payments when a Claimant unreasonably refuses to submit to treatment or an examination unless the refusal is justified by circumstances. Unreasonableness is to be judged by an objective standard. Justification is a subjective standard to be evaluated under the totality of the circumstances. Claimant bears the burden if Employer shows unreasonableness. Here, it was justifiable for Claimant to refuse to submit to a second examination by Dr. Sanders when there had been "bad rapport" between Claimant and physician and there was no reason to believe that Dr. Sanders' initial diagnosis would be altered.

   Employer also argued that a psychological impairment caused by an "imagined condition" cannot be the basis for a finding of disability. The Board found, however, that although there was no late stage Lyme disease present, the early stage disease was the precipitating factor and supported a finding of temporary total disability due to psychological impairment. The Board distinguished Hike v. Billeting Fund, 13 B.R.B.S. 1059 (1981), which involved a completely imagined working condition. The ALJ properly determined that the psychological condition prevented Claimant from pursuing any alternate employment after a thorough consideration of the evidence and determination of credibility.

[Topics 7.3.1 Medical Benefits: Medical Treatment Provided by Employer: Necessary Treatment; 7.7 Medical Benefits: Unreasonable Refusal; 2.2.4 Definitions: Injury: Physical Harm as an Injury]

   In Gladney v. Ingalls Shipbuilding, Inc., ___ B.R.B.S. ___, BRB No. 98-1481 (Aug. 4, 1999), the Board considered when a claimant is to be considered a "person entitled to benefits" for purposes of § 33(g). That section states that if a person entitled to benefits enters into a settlement with a third party without prior approval from the employer, and the amount of settlement is less than the person would be entitled to under the LHWCA, that person is barred from seeking compensation under the LHWCA. Here, Claimant had settled with various asbestos manufacturers, but had not obtained the approval of Employer in so doing; further, Claimant, although diagnosed with asbestosis, was not disabled.

   The Board held that entitlement to benefits arises when the disability arises, not at the time a person is entitled to medical benefits, is diagnosed with an occupational disease, or at exposure to the occupation hazard.

   Medical benefits do not trigger the bar of § 33(g) because, as considered in Harris v. Todd Pacific Shipyards Corp., 28 B.R.B.S. 254 (1994), aff'd and modified on recon. en banc, 30 B.R.B.S. 5 (1996)(Brown and McGranery, J.J., dissenting), the language of subsection (1) specifically mentions only compensation, while subsection (2) additionally refers to medical benefits. The plain language of the LHWCA requires that only entitlement to compensation, not medical benefits, triggers the bar.

   Harris also applied the Supreme Court's decision in Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 112 S. Ct. 2589 (1992), to occupational disease cases and "time of injury." An employee does not sustain an injury until he is aware of the relationship between the disease, the disability suffered, and the employment, and the impact on his wage earning capacity or, if a voluntary retiree, his physical ability; therefore, until such awareness arises, a person is not entitled to benefits under the Act, and is not barred by § 33(g) if a settlement is entered without prior approval.

   The Board additionally interpreted the holding of the Supreme Court in Metropolitan Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121, 31 B.R.B.S. 54 (CRT)(1997) as it applies to nominal awards and occupational diseases. Nominal awards are not based merely upon exposure, but instead upon proof of a significant potential for diminished earning capacity in the future. The type of injury, be it trauma or disease, is irrelevant. Here, the parties had stipulated that Claimant had not at the time suffered any loss of wage earning capacity, nor had any evidence of potential future loss been produced. Therefore, Claimant was not entitled to a nominal award based merely upon exposure to asbestos, and was not therefore a "person entitled to benefits."

   The propriety of allowing Claimant to withdraw his claim without prejudice was not challenged on appeal.

[Topics 2.2.13 Definitions: Injury: Occupational Diseases: General Concepts; 33.7.2 Compensation for Injuries Where Third Parties Are Liable: Ensuring Employer's Rights- Written Approval of Settlement: The Supreme Court- Qualifying for Benefits; 33.7.4 Compensation for Injuries Where Third Parties Are Liable: Ensuring Employer's Rights- Written Approval of Settlement: Medical Benefits]

   In Smith v. Shell Offshore, Inc., ____ B.R.B.S. ____, BRB No. 99- 123 (Oct. 7, 1999), Claimant contended she was the illegitimate daughter of a decedent who died during the course of his employment on February 2, 1978. Claimant filed a claim for death benefits on May 20, 1997, within one year of her twenty-first birthday. Employer filed a motion for summary judgement on the ground that Claimant's claim was untimely, as she should have filed her claim within one year of her eighteenth birthday. The administrative law judge granted the motion relying on 33 U.S.C. § 913(a), which provides a one-year statute of limitations for the filing of a claim. However, the statute of limitations does not begin to run against a minor until he or she becomes of age pursuant to Section 13(c), 33 U.S.C. § 913(c). Since the word "minor" and the phrase "becomes of age" are not defined in the LHWCA, the administrative law judge relied on the LHWCA's definition of "child" to conclude that a minor "becomes of age" under the Act when he or she turns 18.

   The Board reversed the administrative law judge's decision to grant Employer's motion for summary judgment based on findings that: 1) although the administrative law judge stated that the use of "child" as defined in Section 2(14) results in a child becoming "of age" at age 18, he neglected to consider that a child, under the LHWCA's definition, can be almost any age depending on other factors; 2) treatises indicate that "child" and "minor" are not necessarily interchangeable; and 3) Congress did not use the term "child" in Section 13(c).

   Next, the Board set out to define the terms "minor" and "of age" as they appear in the LHWCA. The Board first recognized that under the rules of statutory construction, when interpreting a statute, the starting point is the plain meaning of the words of the statute. In this case, the words "minor" and the phrase "becomes of age" were not defined by Congress. Undefined terms have been defined by using the common meaning of a term or by relying on appropriate state law when there is no common meaning. Previously, the Board has determined that resorting to state law is appropriate for an undefined term if that term does not have a clear and common meaning and reasonable doubt exists as to the proper meaning. Concluding that there was no "federal common law" and that the term "minor" is neither defined by the LHWCA nor has a clear common meaning, the Board held that the use of state law is appropriate to determine when an individual is entitled to file a claim under the LHWCA in her own right.

   In Spitalieri v. Universal Maritime Services, ____ B.R.B.S. ____, BRB No. 98-743 (Oct. 7, 1999), Claimant sustained work-related injuries in an accident on April 10, 1992. At hearing, the administrative law judge found that Claimant was temporary totally disabled due to the work injuries, and awarded benefits in November of 1993. On July 10, 1996, Employer filed a motion for modification pursuant to Section 22 of the Act, 33 U.S.C. § 922, on the ground that Claimant's condition had changed and he was no longer disabled. After modification proceedings, the administrative law judge found that Claimant was no longer disabled as of August 31, 1994. He also found that Claimant sustained a work-related hearing loss of 6.9 percent caused by the 1992 injury and was entitled to a hearing aid at the Employer's expense.

   Claimant filed a motion for reconsideration, and the administrative law judge found that Claimant is entitled to disability benefits for the hearing loss, but that since Section 22 provides for a credit for an overpayment of benefits, those benefits were subsumed by Employer's overpayment of temporary total disability benefits since August 31, 1994. Claimant appealed to the Board. The Board held that the administrative law judge erred in terminating claimant's temporary total disability benefits retroactively. The administrative law judge credited the February 21, 1996 opinion of Dr. Sweraingen to find that Claimant was no longer disabled, yet relied on the opinion of Claimant's treating physician that Claimant reached maximum medical improvement on August 31, 1994, to terminate benefits. Accordingly, the Board held that February 21, 1996, was the earliest date that compensation could be terminated. Moreover, the Board held that since the decision on modification terminated Claimant's temporary total disability benefits and did not decrease them, and as the plain language of Section 22 prohibits an order on modification from affecting compensation previously paid, the termination cannot be effective prior to the date of the decision on modification.

   Employer contended in its motion for reconsideration that the termination of benefits is a "decrease" in compensation within the meaning of Section 22 such that it is entitled to a credit for its overpayment of temporary total disability benefits against its liability for the hearing loss. The Board explained that in the event an award of benefits is modified, Section 22 mandates that prior payments of compensation shall not be affected by the modifying order except in two circumstances, where there has been an increase or decrease in the compensation rate awarded. Section 22 specifically allows a credit against unpaid compensation due where the compensation rate has been decreased. Noting that the statutory provision uses both the words "terminate" and "decrease" in the same sentence, the Board held they must have different meanings which must be used consistently within the same statutory provision. Accordingly, based on the plain language of the statute, the Board held that the termination of benefits is not a "decrease" within the meaning of Section 22 such that the order terminating compensation may be effective prior to the date of the administrative law judge's order. The Board rejected Employer's contention that the cases cited in the Board's initial decision, Stevedoring Services of America v. Eggert, 953 F.2d 552, 25 B.R.B.S. 92 (CRT)(9th Cir. 1992); and Parks v. Metropolitan Stevedore Co., 26 B.R.B.S. 172 (1993), do not support this conclusion. Lastly, the Board held that Employer was not entitled to a credit pursuant to either Section 22 or 14(j), as there was no overpayment in the case.

[Topic 22.1 Modification Generally]

   In Hansen v. Caldwell Diving Co., ____ B.R.B.S. ____, BRB No. 98-1596 (Sept. 7, 1999), Claimant, a commercial diver for Caldwell, suffered work-related injuries while working aboard the barge COHEN 165. At the time of the accident, Claimant served as a member of a dive team employed to facilitate the barge's mission, which was installing underwater cable. The administrative law judge found that COHEN 165 was a vessel, the Claimant's work as a diver furthered the mission of the vessel, and that Claimant's connection to the vessel was substantial in nature and duration. Thus, the administrative law judge found that Claimant was a "member of a crew" of a vessel under Section 2(3)(G) of the Act, 33 U.S.C. § 902(3)(G)(1994), and thus not entitled to benefits under the LHWCA.

   Claimant appealed to the Board arguing that the administrative law judge erred in finding that he had a connection to COHEN 165 that was substantial in either nature or duration. The Board affirmed the administrative law judge's finding that Claimant's connection to the COHEN 165 was substantial in nature and duration, and thus affirmed his conclusion that Claimant was a "member of a crew" of a vessel and excluded from coverage under the LHWCA.

   According to the Board, the administrative law judge correctly determined that Claimant's work aboard COHEN 165 was substantial in nature. Even though Claimant neither assisted in the barge's navigation while underway nor lived onboard, he worked on the barge daily for four weeks prior to his accident preparing it for the assignment of underwater cable installation. This preparation work included setting up and maintaining dive equipment, maintaining the compressor, surveying the surrounding waters, and performing and assisting in underwater dives. Claimant conceded this work was essential to the completion of the COHEN 165's mission. Further, the administrative law judge correctly found that Claimant's work was maritime in nature, regularly exposing him to the perils of the sea.

   Additionally, this conclusion is consistent with applicable law. In Harbor Tug & Barge Co. v. Papai, 117 S.Ct. 1535, 31 BRBS 34 (CRT)(1997), the Supreme Court established the following test to determine whether an employee has a substantial connection to a vessel: "for the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee's connection to the vessel must concentrate on whether the employee's duties take him to sea." The Court held the claimant in Papai was not a seaman under this test because he was hired for one day to paint a tugboat, and thus, his assignment was of a transitory and sporadic connection to the vessel. On the other hand, the United States Court of Appeals for the Third Circuit held that an employee's connection to a vessel was substantial in nature when a commercial diver's work, namely a 10 day job to build an artificial reef, was necessary for the successful completion of the mission of the vessel. See Foulk v. Donjon Marine Company, Inc., 144 F.3d 252 (3d Cir. 1998).

   The Board also affirmed the administrative law judge's determination that Claimant's connection to the COHEN 165 was substantial in duration. Claimant began his preparatory work four weeks prior to his injury, and testified that the actual laying of the cable would have taken 2 to 3 weeks had he not been injured. The administrative law judge found that seven weeks to complete the mission was of substantial duration. This conclusion is consistent applicable law. For instance, in Chandris v. Latsis, 515 U.S. 347, 363 (1995), the Court held that "in evaluating the employment-related connection of a maritime worker to a vessel in navigation, courts should not employ a 'snapshot' test for seaman status, inspecting only the situation as it exists at the instant of injury; a more enduring relationship is contemplated by the jurisprudence." In Foulk, the court did not evaluate the employee's connection to the vessel at the moment of injury, but rather, considered his intended relationship as if he had completed the mission uninjured. See Foulk, 144 F.3d at 259.

[Topic 1.4.1 LHWCA v. Jones Act Generally; 1.4.2 Master/member of the Crew (seaman); 1.4.3 Vessel]

   In Gacki v. Sea-Land Service, Inc., ___ B.R.B.S. ___, BRB No. 97- 1755 (Aug. 27, 1998), Claimant, while working as a mechanic for the employer, sustained multiple serious injuries when a tire he was changing exploded. After Claimant filed a claim for permanent total disability benefits and continuing medical benefits, the administrative law judge found that Claimant established a prima facie case of total disability based on the medical evidence of record. Additionally, he found that Employer failed to rebut Claimant's contention because it offered no evidence of suitable alternate employment and because he credited Claimant's physician, Dr. Rosa, over Employer's medical experts. Therefore, the administrative law judge awarded claimant permanent total disability and medical benefits. Employer appealed this decision to the Board, contending Claimant had no disability and can return to his usual work without restrictions. Employer also argued that the ALJ's reason for discrediting its witnesses is irrational and that Dr. Rosa's opinion is not entitled to the weight he gives it.

   Under the LHWCA, a claimant has the burden of establishing the nature and extent of his disability by establishing a prima facie case that he cannot perform his usual work due to his injury. If the claimant meets this burden, the employer has the burden of presenting evidence of the availability of suitable alternate employment, thereby establishing the claimant's disability is, at most, partial. Here, Dr. Rosa stated Claimant cannot return to his usual work based on the injuries he sustained. The remaining medical experts, including an impartial orthopedic surgeon selected by the Department of Labor, who were aware of the serious nature of Claimant's injuries, concluded that Claimant could return to his usual work and that he does not have any residual disability. In determining Employer failed to overcome Claimant's prima facie case of total disability, the ALJ credited Dr. Rosa's opinion, rejecting the opinions of the other physicians because they did not know Claimant's usual job duties.

   The Board held that it is not rational for the ALJ to reject the medical opinions of Employer's experts as well as that of the impartial examiner on this basis. Because those physicians determined that Claimant has no disability and no work restrictions, it is irrelevant whether they were aware of Claimant's job duties as a mechanic. These experts believed claimant to be fully recovered with no loss of ability, and thus, if he is determined to be restriction-free, he can do anything he could do before the injury, and any comparison between his work requirements and his residual abilities is immaterial. See Goins v. Noble Drilling Corp., 397 F.2d 392 (5th Cir. 1968); Howell v. Einbinder, 350 F.2d 442 (D.C. Cir. 1965). For this reason, the Board vacated the administrative law judge's award of benefits and his determination that Claimant established a prima facie case of total disability, and remanded the case for further consideration. If, on remand, the administrative law judge determines that Claimant cannot return to his usual work, then Claimant is entitled to total disability benefits because Employer has not presented evidence of suitable alternate employment.

   In Compton v. Avondale Industries, Inc., ___ B.R.B.S. ___, BRB No. 99-118 (Oct. 8, 1999), Claimant, a sandblaster/painter for Employer, was injured during working hours on Employer's property. Claimant alleged that he left his work area to find a broom and that while searching for the broom below deck, he fell through a hole that led to a ballast tank.

   In contrast, Employer alleged that the Claimant had left his work area in order to smoke marijuana and was injured by falling from a ladder as he attempted to leave the ballast tank. In support of its contentions, Employer presented evidence that the path between Claimant's work area and the place in which Claimant was found was obstructed, that the distance between the two areas was 300 feet, that the area in which Claimant was located was "powerless and dark" and that a half-smoked marijuana cigarette was found in the same compartment as Claimant. Further, marijuana and rolling papers were discovered in Claimant's lunch box. Finally, the Employer presented testimony that considering the size of the hole through which Claimant alleged he fell, and Claimant's physical size and stature, Claimant's physical injuries were inconsistent with his explanation for them.

   The administrative law judge found Claimant's testimony unworthy of credit and found the marijuana-smoking theory more plausible. The administrative law judge further found that even if the Claimant had been injured while looking for a broom, he searched in an unreasonable area. The administrative law judge concluded that Claimant had been injured in what was described as an "unauthorized/unsanctioned personal mission which did not benefit his employer." Therefore, the administrative law judge concluded that Claimant was not injured while in the course of employment and was not entitled to benefits.

   The Board noted that, in order for an injury to be found to be in the course of employment, the injury must take place at a time and place within the boundaries of the employment and while the claimant is involved in an "activity whose purpose is related to the employment." The Board further observed that the Section 20(a) presumption was applicable to this issue.

   In this case, the issue was whether the injuries occurred while Claimant was engaged in an activity related to work. Claimant contended that the administrative law judge erred in finding that the presumption in favor of coverage had been successfully rebutted by Employer's circumstantial evidence. The Board noted that circumstantial evidence may be considered substantial evidence and may be relied on by the administrative law judge. The Board considered the evidence and testimony relied upon by the administrative law judge and concluded that his decision was supported by substantial evidence. The Board noted that Claimant was acting for personal reasons, was violating Employer's policy regarding the use of drugs and alcohol, and was participating in an illegal activity. The Board held that "claimant's detour from his job to a remote area of the ship to smoke marijuana was a personal frolic which served no purpose related to his employment and was sufficient to sever the employment nexus." On this basis, the Board concluded that Claimant was not injured in the course of his employment and affirmed the administrative law judge's denial of benefits.

[Topic 2.2.2 Arising Out Of Employment; 20.1 Presumptions]

   In Smith v. Jones Oregon Stevedoring Co., ___ B.R.B.S. ___, BRB Nos. 99-0127 and 99-0127A (Oct. 7, 1999), Claimant's husband died of mesothelioma after having been exposed to asbestos in the workplace. Claimant filed a longshore claim against several of her husband's former employers and also filed civil actions against manufacturers and distributors of asbestos. Subsequently, Claimant entered into two third-party settlements, one with the Center for Claims Resolution (CCR) and another with Bartells Company (Bartells). She subsequently consented to dismissal of the civil actions with prejudice. The Bartells settlement agreement contained a provision requiring approval by the workers' compensation carrier. The CCR settlement agreement did not contain such a provision; however, a letter from CCR counsel to Claimant's counsel states that the agreement was conditioned upon carrier approval. All settlement funds were paid into a trust account. Thereafter, Claimant's counsel requested written approval of the settlements from the employers, none of whom approved the settlements. Employers contested liability pursuant to 33(g) and, during the course of the hearing, Claimant's counsel returned the settlement funds to CCR and Bartells.

   Relying on Barnes v. General Ship Service, 30 B.R.B.S. 193 (1996), the administrative law judge concluded that Employer approval was a condition precedent to each of the agreements, but that such condition was waived when the claimant consented to the dismissal with prejudice of the pending civil actions. The administrative law judge also found that the settlements were fully executed, as CCR and Bartells had paid the funds to Claimant and Claimant had consented to the dismissal of the actions. He also concluded that neither the return of the settlement funds to CCR and Bartells nor the lack of the approval of the settlements by the Oregon probate court relieved Claimant of the Section 33(g) bar. As the administrative law judge found that the amount of money for which Claimant settled the claims against CCR and Bartells was less than the amount which she could have received under the LHWCA, and as Claimant settled the claims without the consent of Employers, Claimant's claim for compensation was barred under Section 33(g).

   On appeal Claimant alleged that the agreements were voided when Employers withheld approval of them and that the lack of approval by the Oregon probate court made the agreements incapable of being fully executed. Section 33(g) requires that if Claimant settles for less compensation than he or she is entitled to under the LHWCA, Claimant must obtain written approval of the third-party settlement prior to its execution. The Board distinguished the instant case from Barnes, because in Barnes the court found that cover letters which provided for the employer consent contingency did not create a condition precedent.

   In the instant case, the administrative law judge specifically found that the CCR letter containing Employer consent contingency had the effect of placing that condition upon the settlement agreement. Also, the Bartells settlement agreement stated a contingency upon employer consent. Further, unlike the situation in Barnes, in the instant case the proceeds of the settlements had been returned. Although Claimant did consent to a dismissal of her civil actions with prejudice, this dismissal had no effect upon Employers' rights or obligations. Accordingly, the Board held that Employer did not satisfy its burden of proving that the settlement agreements into which Claimant entered had been fully executed prior to gaining the approval of Employer in violation of Section 33(g). The Board agreed with the administrative law judge that the Oregon statute relied upon by the claimant was inapplicable to the instant case. Therefore, the case was remanded for consideration of the remaining issues, including determination of the responsible operator.

[Topic 33.7 Ensuring Employer's Rights Written Approval of Settlement]

   In Ricks v. Temporary Employment Services, Inc., ____ B.R.B.S. ___, BRB No. 98-1227 (June 8, 1999), a borrowed employee case, the Board addressed whether a "lending employer" could be held liable for the workers' compensation benefits under the LHWCA of a "borrowed employee." Ricks was employed by Temporary Employment Services, Inc. ("TESI"), a temporary employment company that provides labor to shipyards. While on assignment at Trinity Marine Group, Inc. ("Trinity"), Ricks hit his head and back on the ground after tripping over a piece of steel. An ALJ held that Trinity was liable for Claimant's temporary total disability compensation from January 11, 1993 to January 6, 1996, based on the borrowed employee doctrine. On appeal, the Board vacated the administrative law judge's decision with respect to Trinity's liability and ordered the administrative law judge to consider the contractual provisions between TESI and Trinity with regard to indemnification. On remand, the administrative law judge found that the indemnity clause between TESI and Trinity was ambiguous and relied on the parol evidence of TESI's president, who testified that he did not believe that Trinity was liable for Ricks' benefits based on the contract between the two; further, the administrative law judge found that Trinity was not liable because TESI had indemnified Trinity from any claims arising in connection with work performed at Trinity's shipyard.

   On second appeal, TESI and its insurer, Maryland Casualty Company ("Maryland"), challenged the administrative law judge's finding that Trinity was not liable for Ricks' compensation. First, the Director and Maryland argued that the administrative law judge lacked jurisdiction to interpret the relevant contractual provisions in order to determine the responsible employer. The Board held that the administrative law judge had jurisdiction; administrative law judges have the authority to hear and resolve insurance issues that are necessary to the resolution of a claim under the LHWCA. Citing Schaubert v. Omega Service Industries, Inc., 31 B.R.B.S. 24 (1997); and Barnes v. Alabama Dry Dock & Shipbuilding Corp., 27 B.R.B.S. 188 (1993). The Board also cited Pilipovich v. CPS Staff Leasing, Inc., 31 B.R.B.S. 169 (1997), in which the Board held that an administrative law judge should, when in the interest of judicial economy, resolve issues of contractual indemnity and insurance between the employers and insurers. Because the issue of carrier liability "arises out of, and is ancillary to, the responsible employer issue," the issue was properly before the administrative law judge.

   Second, the Board addressed whether parties can contractually abrogate the liability of a responsible employer. The Board cited Total Marine Services, in which the Fifth Circuit held that "a borrowing employer is required to compensation benefits of its borrowed employee, and, in the absence of a valid and enforceable indemnification agreement, the borrowing employer is required to reimburse an injured worker's formal employer for any compensation benefits it has paid to the injured worker." Total Marine Services, Inc. v. Director, OWCP, 87 F.3d 774, 779, 30 B.R.B.S. 62, 66 (CRT), reh'g en banc denied, 99 F.3d 1137 (5th Cir. 1996). Therefore, the Board held that TESI, as the lending employer, and Maryland, as it's insurer, could be liable to Ricks under a contract indemnifying the Trinity, the borrowing employer.

   Third, TESI argued that Trinity had not explicitly raised the issue of the indemnity clause before the ALJ, and thus had waived its right to use it as a defense. However, the Board noted that it had previously ruled that Trinity was not barred from using the indemnity clause as its defense to liability because, at the original hearing before the ALJ, Trinity had maintained that TESI was responsible for Ricks' workers' compensation benefits due to the contract between TESI and Trinity. That Trinity did not explicitly mention the "indemnification clause" was not persuasive and the former holding by the Board was the law of the case.

   Fourth, TESI argued that the administrative law judge erred in considering the parol testimony of TESI's president in interpreting the contract between TESI and Trinity. The administrative law judge had found that the indemnification clause in the contract was ambiguous; the last section of the paragraph said that TESI would indemnify Trinity for any claims "in connection with the Work occurring prior to acceptance of the Work caused by the alleged negligence of willful act of the Contractor." The Board noted that it previously has affirmed the admission of parol evidence with regard to contracts ancillary to claims under the LHWCA, in which an administrative law judge had determined that the terms of the contract were ambiguous. Citing, Sellman v. I.T.O. Corp. of Baltimore, 24 B.R.B.S. 11 (1990) (Brown, J., dissenting on other grounds), rev'd in part on other grounds, 954 F.2d 239, 25 B.R.B.S. 101 (CRT)(4th Cir.), modified in part on reh'g, 967 F.2d 971, 26 B.R.B.S. 7 (CRT) (1992), cert. denied, 507 U.S. 984 (1993).

   Fifth, the Board ruled on the merits of the instant case. Noting that the parties acknowledged that Ricks was a borrowed employee, the Board stated that the borrowing employer would be liable unless there was a valid and enforceable agreement indemnifying the borrowing employer. The central issue was whether Maryland's coverage of TESI extended to employees borrowed by Trinity. Maryland argued that the indemnification clause would only apply if TESI had acted negligently or willfully to cause Ricks' injury; however, the BRB disagreed with this contention and found that the phrase, which ended, "caused by the alleged negligence or willful act of [TESI]," but began with the word "including," was meant to be exemplary, not exclusive. Given that wording, in addition to the testimony of TESI's president, the BRB held that the parties' intention was for TESI to indemnify Trinity for any and all claims arising out of injury or death or loss of property, which would include any claim arising out of the negligence or willful act of TESI. Further, the Board upheld the administrative law judge's findings that: (1) the contract between TESI and Maryland required TESI to carry workers' compensation insurance for claims under the LHWCA; (2) TESI did in fact have a policy with the insurer for workers' compensation coverage under the LHWCA; (3) Claimant received salary from TESI and TESI reported CL's payroll information to Insurer to be included in the policy; and (4) the parties stipulated that the insurance policy contract contained a waiver, which, in effect, provided that the insurer would not attempt to recover payments from Trinity. Thus, the BRB held that the ALJ correctly determined that TESI and the Insurer were responsible to protect and indemnify Trinity from liability for workers' compensation claims brought under the LHCWA, and were liable for the Claimant's benefits, based on the relevant contracts, the stipulation of the parties that the Insurer waived its right to recover payments from Trinity, and the testimony of TESI's president. The BRB affirmed the ALJ's findings that: TESI agreed to provide longshore workers' compensation insurance coverage which inured to the benefit of Trinity, that the policy between Maryland and TESI extended insurance coverage to Trinity for injuries sustained by its borrowed employees covered under the LHWCA, and that Maryland, pursuant to the policy it issued to TESI, had waived its right to seek reimbursement from Trinity.

   Finally, the Board addressed a fee petition submitted by Trinity's counsel. The Board held that it was without statutory authority to award an attorney's fee to an employer's counsel because it was not a "'question in respect of a claim' within the meaning of Section 19(a) of the LHWCA and neither Section 928, nor any other provision of the LHWCA provides for an award of any attorney's fee to an employer."

[Topic 2.5 Carrier; 4.1.1 Employer Liability; 15.1 Insurance Agreements]