John M. Vittone
Chief Judge

Thomas M. Burke
Associate Chief Judge

I. Longshore and Harbor Workers' Compensation Act

   A. Circuit Court of Appeals

   In Marine Power & Equipment v. Dept. of Labor [Quan], ___ F.3d ___, ___ B.R.B.S. ___ (CRT), 2000 WL 95994, Case No. 98-70049 (9th Cir. Jan. 31, 2000), the Ninth Circuit was faced with the issue of whether an employer is eligible for second-injury reduction in liability for benefits payable for a worker's permanent partial disability that may be substantially and materially greater as a result of his pre-existing medical condition. In 1968, while working for the Navy, Johnny Quan developed Bell's palsy which resulted in the partial paralysis of the right side of his face. The palsy rendered him unable to close his right eye completely and caused him to occasionally drool. These symptoms triggered a depressive reaction and restricted Quan to jobs that involved limited contact with the public. Quan retired from the Navy in 1970 and in 1974, he received a 40% disability award from the Veterans Administration. In 1978, Quan became employed by Marine Power & Equipment (Marine Power) as a ship scaler. On June 7, 1983, Quan injured his right shoulder while ship scaling. He worked light duty with Marine Power until he was laid off in August 1984. Quan underwent rotator cuff surgery in May 1985, and by May 7, 1986, he had reached maximum medical improvement vis-a-vis his shoulder injury.

   On November 9, 1983, Quan filed a claim for compensation benefits under the LHWCA against Marine Power. Because of his shoulder injury, he was unable to return to his former employment as a ship scaler, and did not return to work after his August 1984 layoff until February 14, 1988, when he obtained a part-time job as a security guard on the weekends. On December 9, 1991, the ALJ awarded Quan PPD compensation beginning February 14, 1988. The ALJ further concluded that Marine Power was entitled to second-injury relief under Section 8(f). On appeal by the Director, the Board vacated the ALJ's grant of 8(f) relief. The Board held that the vocational evidence supported the conclusion that Quan's palsy and depression limited Quan's opportunities for suitable employment, but that the ALJ had not clearly delineated whether the ultimate PPD was materially and substantially greater than it would have been from his shoulder injury alone. On remand, another ALJ denied 8(f) relief, finding that Quan's palsy did not affect his wage-earning capacity following his shoulder injury, and the Board affirmed. Subsequently, Marine Power appealed to the Ninth Circuit.

   The narrow issue before the Ninth Circuit was whether Marine Power established that Quan's shoulder injury is materially and substantially greater because of his Bell's palsy than it would have been as a result of the shoulder injury alone, and whether the ALJ who made that determination should have considered more than just the possible wages that Quan was able to obtain after his injury.

   Marine Power argued that Quan's pre-existing Bell's palsy, combined with his shoulder injury, foreclosed Quan from some types of employment that he could otherwise perform had he suffered only the shoulder injury, even though it may not have affected the wages he could earn at the jobs that have been identified as proper for him. Accordingly, Marine Power avers that Quan's ultimate PPD is materially and substantially greater in the economic sense due to the palsy, and Marine Power is entitled to second-injury relief.

   The Ninth Circuit noted that the LHWCA itself requires a comparison of wage rates if actual earnings fairly represent the worker's earning capacity. The contribution requirement, therefore, dictates that the ALJ determine the employer's current compensation liability, though in appropriate cases, there may be some value in looking at the range of jobs available to the disabled worker. The Ninth Circuit further noted that wages alone may not always represent a worker's actual wage-earning capacity. An ALJ may thus need to consider alternative factors when, for instance, a disabled worker is spared demanding physical exertion by the benevolence of his employer or coworkers in shielding him from such work on the job, or if a worker must spend greater time and effort to achieve his pre- injury production, or medical or other circumstances indicate probable future wage loss due to injury. In each of these situations, the fact that a worker earns as much or more after his injury does not accurately reflect his reduction in wage-earning capacity in the current or probably future labor market. Marine Power did not suggest that Quan's condition will deteriorate in the future, that he has a sympathetic employer and coworkers who enable him to work when otherwise he would not be able to or that any other factor affecting his current wage-earning capacity would not be valid in the future. The Ninth Circuit concluded that Marine Power did not meet its burden of showing that Quan was precluded by his Bell's palsy from employment that would not also have been precluded by his shoulder injury.

   Marine Power alternatively argued that the contribution requirement was satisfied by the fact that Quan was 40% disabled when he started to work at Marine Power. The Ninth Circuit felt that the fact Quan was 40% disabled at the time he began working for Marine Power was irrelevant because the issue was whether the palsy and related depression contributed to his ultimate disability after his shoulder injury and the Ninth Circuit held it did not. Therefore, the Ninth Circuit, affirming the ALJ and the Board, held that Marine Power did not qualify for 8(f) relief because Quan's shoulder injury was not substantially and materially greater as a result of his pre-existing palsy.

[ 8.7.5, Section 8(f): The Disability Must Not Be Due Solely to the New Injury ]

   In Taylor v. Director, OWCP, ___ F.3d ___, ___ B.R.B.S. ___ (CRT), 2000 WL 85317, Case No. 98-71004 (9th Cir. Jan. 28, 2000), the Ninth Circuit was faced with the question of whether the phrase "person entitled to compensation" meant the same in Section 33(f) as it does in Section 33(g). Section 33(f) of the LHWCA describes the rights and responsibilities of a "person entitled to compensation" who enters into a settlement with a third party. The Supreme Court, in Yates, 519 U.S. 248 (1997), held that "before an injured worker's death, the worker's spouse is not a 'person entitled to compensation' for death benefits within the meaning of LHWCA Section 33(g), and does not forfeit the right to collect death benefits under the LHWCA for failure to obtain the worker's employer's approval of settlements entered into before the worker's death." 519 U.S. at 261-62.

   Glenn Taylor worked as a shipfitter in the 1950s at the shipyards of both Bethlehem Steel Corporation (Bethlehem) and Plant Shipyard Corporation (Plant), where he was exposed to asbestos. After retiring in 1980, due to poor health, Mr. Taylor filed a state worker's compensation claim and a third-party action against several asbestos manufacturers in October 1984. On December 28, 1984, he filed his initial claim for benefits under the LHWCA, which he later amended to name Bethlehem and Plant as possible responsible employers. Between October 21, 1987, and November 17, 1990, Mr. Taylor entered into five separate third-party settlements totaling $434,000. In each settlement, Mrs. Lois Taylor, Mr. Taylor's wife, co-signed each settlement as a co-releasor, thereby settling her loss of consortium and potential wrongful death actions against these third-parties. In February 1989, the ALJ determined that Plant was the last responsible employer and awarded Mr. Taylor PPD and found Plant entitled to receive a credit pursuant to Section 3(e) of the LHWCA for the amount Mr. Taylor received from his state worker's compensation claim, as well as credit under Section 33(f) for the entire amount of the net proceeds from his third-party settlements.

   On February 13, 1991, Mr. Taylor died of lung cancer, and thereafter, Lois Taylor (Claimant) filed a claim for death benefits pursuant to Section 9 of the LHWCA. On September 3, 1993, the ALJ awarded Mrs. Taylor death benefits, but concluded that Plant was entitled to offset its death benefit liability by the net amount apportioned to Mrs. Taylor for her wrongful death action in the third-party settlements. Both parties appealed to the Board. Plant appealed the ALJ's refusal to apply the forfeiture provision in Section 33(g) and Mrs. Taylor appealed the ALJ's determination that Plant was entitled to Section 33(f) credit in the amount of her third-party recoveries.

   The Board determined that under Cretan v. Bethlehem Steel Corp., 1 F.3d 843 (9th Cir. 1993), the ALJ abused his discretion by failing to consider the Section 33(g) forfeiture provision and consequently vacated the ALJ's decision and remanded the case. Shortly after the Board's decision, the Supreme Court issued its decision in Yates, in which it declared that a surviving spouse was not a "person entitled to compensation" under Section 33(g) of the LHWCA prior to the death of the employee-spouse, and thus, the claimant did not forfeit her right to collect death benefits under the LHWCA for failure to obtain the employer's written approval of third-party settlements entered into prior to the employee's death. On remand, the ALJ, citing Yates, determined that Mrs. Taylor's right to death benefits was not barred by Section 33(f) and additionally found that Mrs. Taylor was not a "personal entitled to compensation" under Section 33(f) before her husband died. Therefore, Plant was not entitled to offset the amounts Mrs. Taylor recovered from third-party settlements entered into prior to her husband's death. Again, Plant appealed to the Board.

   The Board reversed the ALJ and reasoned that Mrs. Taylor was a "person entitled to compensation" at the time of the compensation award and that Plant was therefore entitled to a credit of $41,272. The Board also denied Mrs. Taylor's request for attorney's fees because her claim was unsuccessful on the merits. Mrs. Taylor appealed to the Ninth Circuit.

   The Ninth Circuit initially noted that the Supreme Court, in Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992), concluded that an employee became a person entitled to compensation under the LHWCA "at the moment his right to recovery vested," and not when his employer admitted liability. See id. at 477. The Ninth Circuit also noted that its holding in Cretan was "no longer viable in light of the Supreme Court's teachings in Yates." The Ninth Circuit remarked that the Yates Court hinted that "person entitled to compensation" should have the same meaning in both Sections 33(f) and 33(g). See id. at 261. The Ninth Circuit concluded that "person entitled to compensation" should have the same meaning in both Sections 33(f) and 33(g) absent an absurd or glaringly unjust result.

   Plant argued that if the phrase has the same meaning, then the effect would be glaringly unjust and absurd because claimants would be allowed to recover twice for the same claims so long as they settle before their injured spouses die. The Ninth Circuit concluded that "an interpretation of Section 33 of the LHWCA that permits double recovery is not an absurd result so as to influence us to depart from the plain meaning of the statute." The Ninth Circuit noted that the Yates Court explained that double recoveries are not strictly prohibited under the LHWCA. The Ninth Circuit emphasized that "we will not look beyond the plaint meaning of the statute simply because under some scenarios a claimant may recover twice under the same claim.

   The Ninth Circuit also noted that the Director agreed that Mrs. Taylor was not a "person entitled to compensation" under 33(f). Therefore, the Ninth Circuit held that the Board erred by awarding Plant the Section 33(f) credit because Mrs. Taylor was not a "person entitled to compensation" when she entered into third-party tort settlements prior to her husband's death. Furthermore, the Ninth Circuit noted that Mrs. Taylor successfully prosecuted her claim and was entitled to attorney's fees.

[33.6, Section 33: Employer Credit for Net Recovery by "Person Entitled to Compensation"]

   In Pennsylvania Tidewater Dock Co. v. Director, OWCP [Lewis], ___ F.3d ___, ___ B.R.B.S. ___ (CRT), 2000 WL 92251, Case No. 98-6325 (3d Cir. Jan. 28, 2000), the Third Circuit was faced with an Employer's appeal of the Board's determination that there was not enough "substantial evidence" that the Claimant would have been able to work after his accident if he had not already been suffering from a PPD.

   In 1985, Lewis, a longshoreman, injured his lower back in a car accident. Since the accident, he has suffered from intermittent back pain. In 1991, his back pain worsened and was suddenly accompanied by numbness in his feet and legs. In January 1992, he visited a series of doctors and one of these doctors conducted an MRI which revealed a bulging disc. After nerve conduction velocity studies, a different doctor found nerve root irritation that was compatible with early findings of a neuropathic process.

   In April 1993, Lewis suffered a work-related accident causing injury to his elbow, neck and lower back. After this injury, Lewis was out of work for almost 6 months. In November, he returned briefly to the workplace, but after a day and a half, decided he was still too injured to perform any work. As he was leaving the workplace, he slipped and fell, further exacerbating his back injuries.

   After the November accident, Lewis was treated by several doctors. Most of his medical problems were resolved, for the exception of his back pain. Eventually, several doctors diagnosed a radiculopathy and opined that Lewis was PTD.

   Lewis then filed a claim under the LHWCA. On January 18, 1996, an ALJ declared Lewis to be PTD and awarded him total disability benefits. The ALJ also found that at the time of his work injury, Lewis was suffering from manifest, pre-existing, permanent partial disabilities and these disabilities were partly responsible for Lewis' permanent total disability. Accordingly, the ALJ awarded Tidewater special fund relief pursuant to 8(f).

   The Director appealed the ALJ's decision to the Board on the 8(f) issue. The Board vacated the 8(f) award and remanded to the ALJ, asking him to cite evidence from the record supporting his conclusion that a manifest, pre-existing disability was partly responsible for Lewis' permanent partial disability. On remand, the ALJ reconfirmed his original findings and pointed to Lewis' medical records and also to the testimony of several doctors.

   Again, the Director appealed and once again the Board reversed the ALJ, concluding that the evidence cited by the ALJ did not constitute "substantial evidence" that Lewis would have been able to work after his work accident if he had not already been suffering from a PPD. Subsequently, Tidewater appealed to the Third Circuit.

   In evaluating the Board's review of the ALJ's decision, the Third Circuit noted that "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Third Circuit further noted that it was undisputed that Lewis had been suffering from back pain before his April 1993 injury, that he suffered an injury to his back in April 1993, and that he was permanently totally disabled as of July 20, 1993. Because no expert testimony explicitly addressed the question of whether Lewis' injury on its own would have rendered him completely partially disabled, the court concluded that it must make its own inference. The Third Circuit considered "the perceived severity of the pre- existing disabilities and the current employment injury, as well as the strength of the relationship between them." Ceres Marine Terminal v. Director, OWCP, 118 F.3d 387, 391 (5th Cir. 1997).

   The Third Circuit noted the various incidents of Lewis' complaints of back pain before his work accident and that "his April injury had caused him new back pains, that had never gone away." The Third Circuit noted that there was some competing evidence as to the causation of Lewis' back pain, but that "the ALJ found that the truth fell somewhere between the two extremes. The bulk of Lewis' back pain could be attributed to Lewis' pre-existing back condition, but the workplace injury also contributed to this pain. Given the conflicting testimony on this point, [the ALJ's] conclusion is reasonable." Accordingly, the Third Circuit concluded that "[t]here is evidence on the record to support the conclusion that Lewis was not suffering significantly more pain after the accident than he had been before." Furthermore, the court emphasized that Lewis' work injury "caused enough pain ... to tip a permanently partially disabled man over the edge into permanent total disability." Therefore, the Third Circuit reversed the Board on the issue of contribution.

   The Third Circuit next considered the manifestation requirement and concluded that there were test results and the diagnosis in Lewis' medical files which were available to Lewis' employer before his work injury. Accordingly, the Third Circuit held that the back condition was manifest to Tidewater. Thus, the Third Circuit reversed the decision of the Board as to the 8(f) issue and reinstated the ALJ's award of special fund relief to Tidewater.

[8.7.5, Section 8(f): The Disability Must Not Be Due Solely to the New Injury]

   B. Benefits Review Board

   In Kee v. Newport News Shipbuilding & Dry Dock Co., ___ B.R.B.S. ___, BRB No. 99-0442 (Jan. 19, 2000), the Board had to determine whether the ALJ erred by placing the burden of proof on Claimant to prove that he was unable to perform suitable alternative employment (SAE) during his participation in a vocational training program.

   On February 13, 1992, Claimant injured his right hand during the course of his employment for employer. On September 25, 1992, he reached MMI with a resulting 40% impairment rating. Employer paid PPD pursuant to the schedule (Section 8(c)(3)). From June 23, 1993, until January 9, 1994, claimant received vocational assistance from the Department of Labor. From January 10, 1994, to April 21, 1994, he successfully participated in a tractor-trailer driver training program. On August 8, 1994, Claimant secured employment as a tractor-trailer driver. Thereafter, Claimant sought benefits under the LHWCA for TTD from June 23, 1994, to August 6, 1994.

   The ALJ found that employer had established the availability of suitable alternative employment based on the parties' stipulation that minimum wage entry-level jobs were available to Claimant during the period he sought compensation and that Claimant was qualified to perform these jobs. The ALJ next found that Claimant was not eligible for benefits during the periods he received vocational evaluation and job placement. Furthermore, the ALJ denied benefits during the periods of tractor-trailer driver training because "claimant failed to offer any evidence he was unable to work while participating in the training program." Accordingly, the ALJ denied benefits to Claimant.

   Claimant appealed to the Board, charging that the ALJ erred by placing the burden of proof on Claimant to establish that he was unable to work in SAE due to his participation in vocational evaluation, training and job placement.

   The Board noted that Louisiana Ins. Guaranty Ass'n v. Abbott, 40 F.3d 122, 128, 29 BRBS 22, 27 (CRT) (5th Cir. 1994), stated that it would be unduly harsh and incongruous to find that SAE was reasonably available if the claimant demonstrated that, through his own diligent efforts at rehabilitation, he was ineligible for a job. The Board interpreted this language to hold that the Fifth Circuit contemplated that the claimant bore the burden of proving that he was unable to perform SAE due to his participation in a vocational training program. Furthermore, the Board noted that this result is consistent with well-established case law placing the burden of proof on a claimant to show he was unable to obtain alternative employment despite a diligent effort in order to be entitled to total disability benefits notwithstanding a showing by employer of SAE.

   Accordingly, the Board held that the ALJ properly placed the burden of proof on claimant to establish that suitable alternate jobs were realistically unavailable while he was in the tractor-trailer driver program. Because claimant failed to produce any evidence that he diligently sought but was unable to obtain SAE while receiving vocational assistance before his training, while in the training program, and during job placement services after his training, the Board held that the ALJ properly denied total disability benefits during these periods.

[8.2, Extent of Disability Partial Disability/Suitable Alternate Employment: Burdens of Proof]

   In Uresti v. Port Container Industries, Inc., ___ B.R.B.S. ___, BRB No. 99-432 (Jan. 10, 2000), a case involving situs-status, relying on what it termed a liberal Fifth circuit view, the Board reversed the ALJ's finding of no coverage.

   In this case, the Employer contracts with steel companies to take direct discharge off vessels, trucks and rail cars at the Port of Houston and to store the steel for later delivery or to deliver it to the consignees' locations. The owner of the steel is Employer's customer and Employer acts as the customer's agent at the port. Employer's facility is located within the Port of Houston and includes warehousing and open storage areas. Claimant was a truck driver who would drive his truck to the dock next to the appropriate vessel so that longshoremen would load the truck with steel plates, steel coils, etc. Claimant would then transport the materials from the dock to a warehouse or yard in the port area for storage. Claimant drove only within the port area; he did not have a commercial license. Claimant's duties would entail waiting for the loading to occur, "flagging" or guiding the crane operator so that the load was placed properly on the trailer, and securing the load to the trailer prior to driving it to its place of storage within the port facility.

   On the day of Claimant's injury, there was not any truck driving work available so he was assigned to work in a warehouse to assist in the unloading of angle irons from a rail car. Claimant subsequently fell from a ladder attached to a rail car.

   The ALJ found that there was not a covered situs in the instant case. He based this on the testimony of the operations manage who stated that the sole function of the warehouse in which claimant was injured is to load and unload rail cars. Additionally, the ALJ credited the manager's statement that approximately 95 percent of the cargo which moves through that warehouse is transported only by land 9rail or truck0 and that only 5 percent goes to or comes from a vessel. The ALJ concluded that Claimant was not performing maritime employment at the time of his injury and that he is not assigned or expected to perform maritime employment during the regular course of his work. The ALJ acknowledged Claimant's testimony that he sometimes boarded a vessel to remove dunnage and sometimes unhooked cables, but the ALJ concluded that, while Claimant may have performed these duties, he did so only episodically and without the approval of his employer. The ALJ found that Claimant was a truck driver and that securing the load and directing the crane operator are insufficient to consider his employment part of the unloading process.

   However, the Board found that the unloading process is not complete until the cargo enters the stream of land transportation, which in this case occurs once the cargo departs the Port of Houston

   The Board reasoned that as a portion of the steel received at the rail warehouse has been offloaded from a vessel and moves through the warehouse en route to overland transport to employer's customers, the site is used as a step in the unloading process. "That only five percent of the cargo is shipped via vessel does not alter this result, as it is clear that the site is regularly used in the transfer of goods from ship to land transportation. Thus, as a portion of [E]mployer's ordinary business operation involves this work, the warehouse is a site customarily used in the process of loading and unloading vessels....As the building where [C]laimant was injured is located within the Port of Houston and serves a maritime purpose, it satisfies the Fifth Circuit's geographical and functional requirements for situs under the Act."

   Noting that the Employer's facility is located within the Port of Houston, the Board (in a 2 to 1 decision) found that this satisfies the Fifth Circuit's geographic requirement that the site be in the vicinity of navigable waters. The Board specifically held that the warehouse had sufficient functional nexus to maritime activity to warrant a finding of coverage. The Board noted that steel comes into the facility by truck or rail, either arriving by truck for loading onto a rail car or vice versa, and that 95 percent of these goods are in the domestic stream of commerce, and thus move through the warehouse in the course of their land-based transit. However, the Board specifically noted that the remaining five percent of the materials transported through the warehouse are in maritime transportation, i.e., they arrive at the Port via ship, with Employer's truck drivers transporting the goods within the Port between the docks, storage area and warehouse.

   The Board noted that an employee is covered if some portion of his activities constitutes covered employment, those activities must be more than episodic, momentary or incidental to non-maritime work. While Claimant occasionally went onto the ship to get dunnage and he occasionally helped the longshoremen by unhooking the materials from the crane, these activities were not assigned to Claimant nor were they expected of him and therefore they were on an episodic basis only.

   Thus, the Board reasoned, Claimant's status must be determined based upon his duties as a truck driver: driving to the dock, receiving the materials, guiding the crane operator on the placement of the materials, securing the load to the trailer, and driving to the warehouse or storage yard all within the Port of Houston. Citing P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 11 BRBS 320 (1979) (claimants were performing maritime employment because they were "engaged in the type of duties longshoremen perform in transferring goods between ship and land transportation."), the Board noted that Claimant did not deliver cargo to the consignee, or drive outside the Port and thus was engaged in an intermediate step analogous to the work performed in Ford.

[ 1.6, Situs; 1.7, Status ]

   In Dunn v. Lockheed Martin Corp., ___ B.R.B.S. ___, BRB No. 99-0343 (Dec. 22, 1999), the Board found that an ALJ erred in finding that a Claimant was collaterally estopped from raising a Section 48(a) descrimination claim because of a district court's judgment in the Claimant's ADA lawsuit. The ADA claim and the LHWCA discrimination claim are two distinct causes of action involving different standards, and the issues presented by the LHWCA discrimination claim could not have been litigated in the ADA action.

   The basis of the district court's dismissal of his ADA claim was its determination that Claimant's jaw deformity, skin condition and emotional condition do not constitute a disability protected by the ADA. This determination by the court did not involve an examination of any of the issues relevant to the inquiry under the LHWCA discrimination section. The Board stated: "In finding collateral estoppel applicable, the [ALJ] apparently relied on the court's brief discussion of the reasons why claimant's claims of unlawful inquiry and retaliation under the ADA are groundless. This discussion is at most, peripheral to the court's judgment and, thus, fails to satisfy the requirement that, to be given collateral estoppel effect, the determination of the issue must have been a critical and necessary part of the court's judgment. Moreover, the court's discussion of unlawful inquiry and retaliation is confined to whether employer's actions were prohibited by the ADA, and the court applied standards specific to that statute. Thus, even if these findings could be considered essential to the court's judgment, they are not dispositive of the issues presented by claimant's [LHWCA discrimination claim] arising under the LHWCA.

   This is but one of the LHWCA discrimination cases involving Section 48(a) of the LHWCA which the Board continually incorrectly addresses as a "Section 49 claim." The discrimination section numbering was changed from 49 to 48(a) in 1984. Indeed, the Board indirectly acknowledges a change by citing the pertinent section as "Section 49 of the Act, 33 U.S.C. §948a."

[ 48a.1, Discrimination Against Employees Who Bring Proceedings ]

   In this Section 33(g) claim, Flanagan v. McAllister Brothers, Inc., ___ BRBS ___ (BRB Nos.99-0355)(Dec. 23, 1999), the Board found that the ALJ incorrectly placed the burden of proving prior written approval of settlement agreements on the Claimant rather than on the Employer to prove an affirmative defense. The Board cited Barnes v. Liberty Mutual Ins. Co., 30 BRBS 193 (1996) for the proposition that the employer bears the burden of proving that claimant entered into fully executed settlements without its prior written approval in order to bar claimant's receipt of future benefits as Section 33(g) is an affirmative defense.

   The Board noted that in the instant case, the ALJ had found that there was no evidence of record and no allegation by claimant that he obtained written approval from employer prior to executing the third-party settlements This placed the burden of proof on the claimant to establish compliance with Section 33(g) rather than on employer to establish claimant's non-compliance. While the Board acknowledged that there is evidence that the claimant entered into settlement agreements with the third parties, as well as testimony that he received the funds from those settlements, it noted that there is no affirmative evidence that employer did not approve the settlement. The sole evidence of record on this issue was claimant's testimony; when asked whether employer's written approval was obtained, claimant testified that he had "no knowledge" of that issue. Employer submitted no other evidence to establish that it did not give written approval of the settlement agreements. Thus, there is a complete lack of evidence that claimant did not obtain employer's written approval of the third-party settlement. Employer's argument that it cannot be made to prove a "negative fact" is not persuasive in the instant case. The Board found that employer failed to utilize routine discovery tools on the approval issue, or to produce its own witnesses to testify that approval was not sought or given.

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

   The case of Stilley v. Newport News Shipbuilding & Dry Dock Company, ___ B.R.B.S. ___, BRB Nos. 99-0456 and 99-0456A (Jan. 27, 2000) is a Section 8(f) issue case involving both a disability claim and a death claim (mesothelioma). The Board noted that where an employer claims Section 8(f) relief and the case involves two separate claims--in the instant case, a claim for total disability and a claim for death benefits the employer's entitlement for relief must be separately evaluated with regard to each claim. [Ultimately, if Section 8(f) applies to both claims, the employer is liable for only one period of 104 weeks.]

   In order to establish entitlement to relief under Section 8(f), Employer has the burden of establishing that the decedent had an existing permanent partial disability manifest prior to the injury for which compensation is sought, and that the resulting permanent total disability and death were not due solely to the subsequent injury. In this case, Employer based its request for Section 8(f) relief on decedent's hypertension which was noted in his medical records prior to the diagnosis of mesothelioma, but after he ceased working for Employer.

   The Director argued that this condition was insufficient to satisfy any of the criteria necessary for Section 8(f) relief. The Board held that Employer's evidence was legally insufficient to establish that the decedent's death was not due solely to mesothelioma. How the Board arrived at this result is noteworthy.

   An employer is entitled to Section 8(f) relief in a death claim if the death is not due solely to the work injury, a standard which can be met if the pre-existing condition hastens the employee's death. Requiring the employer to prove that the decedent would not have died at the time he did had he not suffered from the pre-existing condition is consistent with the hastening standard. Brown & Root, Inc. v. Sain, 162 F.3d 813, 32 B.R.B.S. 205 (CRT)(4th Cir. 1998).

   The opinions of three doctors were entered into evidence in this matter, two of which supported entitlement to Section 8(f). Dr. Reid opined that the decedent's "weak heart" and "hypertensive cardiovascular disease" materially and substantially contributed to and hastened decedent's death. The ALJ found that Dr. Reid did not provide a well-reasoned opinion as to the contribution of the hypertension to the death. Dr. Quinlan disagreed with Dr. Reid, but according to the Board-- the ALJ did not determine the weight this opinion should be accorded. Dr. Maddox opined that "it is reasonable to assume that hypertension had some degree of negative effect on Mr. Stilley's pulmonary function, and thus hastened his death to some degree." The ALJ, while finding that Employer's argument was thin regarding contribution to the fatal event, nevertheless found that Dr. Maddox's statement as to a "negative effect" caused by hypertension, to be sufficient for a grant of Section 8(f) relief.

   The Board noted that the proper contribution standard is whether Employer established that the decedent's death is not due solely to the work injury and that reliance on Dr. Maddox's opinion as to the "negative effect" played by the hypertension on the mesothelioma is insufficient to afford employer relief under Section 8(f). Moreover, the Board noted that since the decedent died within the expected time frame after the diagnosis of mesothelioma, Dr. Maddox's opinion did not support a finding that decedent's death was hastened by hypertension. Importantly, Dr. Maddox did not state that the decedent would not have died when he did if not for the hypertension. "His statement that death was hastened 'to some degree' is vague and plainly insufficient to meet the standard discussed in Sain."

   Significantly, the Board noted that the opinion of Dr. Maddox was capable of more than one interpretation, i.e., did the hypertension hasten death, or did decedent's mesothelioma worsen the hypertension? "Because Dr. Maddox found that decedent's hypertension was non-contributory to any disability prior to his death,..., and that the fatal cancer may have caused a rise in blood pressure, it is unclear whether it was pre-existing hypertension, if any, which had a contributory effect on decedent's death or whether the rise in blood pressure resulting from the mesothelioma itself had the negative effect. Furthermore, the Board noted that the fact that decedent's death occurred within the expected time frame further undermines Dr. Maddox's opinion. Thus, the Board found that Dr. Maddox's opinion was legally insufficient to establish that the decedent's death was not due solely to mesothelioma.

[8.7.5, The Disability Must Not Be Due Solely to the New Injury; 8.7.7.1, Multiple Disability Periods and Multiple Injuries ]

   In Bobby D. Cochran v. Matson Terminals, Inc. and Director, OWCP, ___ B.R.B.S. ___; B.R.B. No. 99-0307 (Dec. 14, 1999), the Board found that § 8(i)(4) acts to bar liability of the Special Fund even when the parties request that an ALJ consider § 8(f) issues before acting to approve a settlement under § 8(i).

   On June 19, 1998, Employer and Claimant submitted a joint stipulation on the facts and a proposed settlement. Simultaneously, Employer filed a motion seeking relief under § 8(f), along with supporting joint stipulations. Employer requested that the ALJ consider first the § 8(f) motion, and then, after ruling on that issue, approve the settlement agreement. The ALJ's Decision and Order awarded benefits to Claimant in accordance with the settlement agreement, and found that § 8(i)(4) barred Employer from relief under § 8(f)

   Employer argued that because it had requested that the ALJ rule on the § 8(f) issue before considering the § 8(i) settlement agreement, § 8(i)(4) is inapplicable. The bar triggers, Employer argued, upon approval of a settlement, not upon agreement among the parties or submission to the ALJ. The Director raised a procedural objection to the appeal, based upon timeliness, as well as arguing that the bar to § 8(f) relief arose when a binding settlement agreement is entered into, and not when the settlement is approved by the ALJ. Further, the Director raised a policy argument that, because settlements are to be given "immediate consideration under 33 U.S.C. § 908(i)(1), the ALJ could not delay consideration of the settlement agreement once received.

   The Board found that the appeal had been filed in a timely manner. A settlement (where both sides are represented by counsel) is deemed approved 30 days after submission if not disapproved by the ALJ, and in this case the ALJ approved the settlement on July 15, 1998. This was within 30 days of filing with the ALJ, and so the 30 day appeal period of 20 C.F.R. § 702.241(d) was inapplicable. Further, because the starting point for all other procedural matters is the date the Decision is filed by the Director, in this case September 3, 1998, Employer was within the 10 day appeal period by filing on September 15, 1998, accounting for weekends and holidays.

   Regarding the substantive argument, the Board held that the 1984 Amendments to the Act insulated the Special Fund from liability in cases of settlement. Strike v. S.J. Groves & Sons, 31 B.R.B.S. 183 (1997), aff'd sub nom, S.J. Groves & Sons v. Director, OWCP, 166 F.3d 1206 (3d Cir. 1998)(table). The Board agreed with the Director in finding that, under Oceanic Butler, Inc. v. Nordahl, 842 F.2d 773, 21 B.R.B.S. 33 (CRT)(5th Cir. 1988), settlement occurs upon the execution of the document, and not upon approval by an ALJ. Therefore, the § 8(i)(4) bar is triggered when the parties agree, and may not be avoided merely by asking that the ALJ decide the § 8(f) issue before approving the settlement agreement. Further, as Director argued, the ALJ is not permitted to set aside the proposed settlement to consider other issues, nor can he toll the 30 day period for approval, under § 8(i)'s speedy resolution mechanism; thus employer is prevented from litigating § 8(f) issues once settlement is proposed, and the pre-1984 Amendment mechanism under Brady v. J. Young & Co., 17 B.R.B.S. 46, aff'd on recon., 18 B.R.B.S. 167 (1985) is no longer available.

[8.7, Special Fund Relief; 8.7.9.6, The Effect of Settlement and Stipulations; 8.10, Section 8(i) Settlements; 8.10.9, Section 8(f) Relief]

   In Mary J. Hawkins (Widow of Gilbert W. Hawkins) v. Harbert International, Inc. and Insurance Company of North America, ___ B.R.B.S. ___; B.R.B. Nos. 99-0369 and 99-0369A (Dec. 21, 1999), the Board addressed the definition of "student" under § 2(18) for purposes of determining entitlement to dependent augmentation of awards, and liability for attorney fees under § 28(b).

   Claimant was initially awarded benefits for the death of her husband under the Defense Base Act. Included in this award was an amount for the minor, dependent children of the decedent. A controversy arose regarding payments for one child, who turned eighteen on October 23, 1993, while a sophomore at Parkview Baptist School. He graduated from Parkview in May, 1996, and entered a vocational college, from which he graduated in December 1997. The case was reviewed by two separate claims examiners. One found that benefits should have ended on May 1, 1995, while the other found that benefits should have continued through December 1997, with the exception of the 1995-1996 school year. Employer ceased payments for the child and reduced subsequent payments to recoup the overpayment determined by the first examiner.

   An ALJ found that the child was not a student following his eighteenth birthday, as Parkview did not meet any of the requirements of an educational institution set forth in § 2 (18)(A-D). It was not operated by the government, was not accredited, an credits from the school were not accepted elsewhere. Therefore, Claimant was not entitled to benefits while still attending Parkview after turning 18 on October 23, 1993. Benefits were awarded for the May 1996-December 1997 period when the child was a student at a vocational college.

   Claimant appealed, arguing that § 2(18)'s definition of school was not intended to apply to high schools, and therefore the child was entitled to benefits until graduation. In the alternative, it was argued that by defining "school" as § 2(18) does, the regulations violate the First Amendment right to freedom of religion by penalizing parents who send children to religious, non-accredited institutions. Finally, Claimant argued that Employer should not receive a credit for overpayments. Employer urged affirmance of the ALJ decision, and cross appealed regarding the award of attorney fees to Claimant. Employer argued that because Claimant had not obtained greater benefits, it was not liable for fees.

   The Board rejected all of Claimant's arguments. First, it relied on the plain meaning of § 2(18) to determine that "school" included high schools. "School or college or university" is clearly intended to refer to distinct institutions, the more general of which includes all schools other than colleges or universities, including secondary schools and vocational schools. Second, the Board found that the First Amendment right to freedom of religion was not violated because there is a mechanism in the law for private, non-accredited schools to meet the definition. Additionally, it is permissible for the government to regulate schools in areas such as accreditation if it is done in a reasonable and nondiscriminatory manner. Board of Education v. Allen, 392 U.S. 236 (1968). Third, the Board found that because § 9(b) contemplated a single award to the survivor, augmented by amounts for dependent children, overpayment could be credited against the unpaid benefits to Claimant under § 14(j). The child benefits were not a separate claim, as Claimant had argued. The Board also rejected the contention that Employer had a positive duty to raise the change of the child's status before it occurred, or at some earlier time. A showing of bad faith on the part of Employer might impose such a duty.

   Regarding the award of attorney fees, the Board found that Claimant had succeeded in obtaining greater benefits than those paid or offered by Employer. Employer had in fact refused to pay any compensation for the child following the initial determination by a claims examiner, and so recovery of some part of that did represent partially successful defense of benefits. Further, the Board, in footnote 6, while distinguishing FMC Corp v. Perez, 128 F.3d 908, 31 B.R.B.S. 162 (CRT)(5th Cir. 1997), found that, although technically no informal conference had been held, the review of the claim by two claims examiners satisfied the informal process requirements of the Act. Benefits were allowed under § 28(b).

[2.18, Section 2(18) Student; 28.1.2, Attorney's Fees; 28.2.6, Avoidance of Attorney's Fees Under Section 28(b)]

   In Huff v. Mike Fink Restaurant, Benson's, Inc., ___ B.R.B.S. ___, BRB No. 99-0269 (November 22, 1999) (per curiam), Employer filed an interlocutory appeal seeking review of the ALJ's determination that Claimant was covered under the Act. Claimant was employed as a harbor master by Mike Fink, Incorporated (Mike Fink), a subsidiary corporation of Benson's, Incorporated. Mike Fink consists of a restaurant housed on a permanently-moored vessel and a floating dock. Employer asserted that the claimant was excluded from coverage pursuant to the "restaurant exclusion" in the Act, found at 33 U.S.C. § 902(3)(B). The ALJ concluded that the restaurant exclusion applied to all restaurant employees regardless of their duties, but that the claimant in this case had been an employee of the entire Benson's enterprise, rather than solely the Mike Fink Restaurant.

   The Board affirmed the decision of the ALJ on grounds other than those relied upon by the ALJ. The Board first noted that Claimant was injured upon navigable waters in the course of his employment, and was therefore covered under the Act unless a specific exclusion applied. The Board then discussed in detail the Fifth Circuit case of Green v. Vermilion Corp., 144 F.3d 332, 32 BRBS 180 (CRT) (5th Cir. 1998), cert. denied, 119 S.Ct. 1251 (1999). In that case, the claimant had been employed at a duck camp and was injured while assisting a vessel in mooring. The Fifth Circuit rejected the claimant's contention that he was not employed by the camp, but rather was employed by a corporation involved in many business ventures. The court concluded that the claimant had been employed for the purpose of promoting and maintaining the duck camp; therefore, he was not covered under the Act. The court, citing legislative history, determined that the claimant's work as a cook, general repairman, and watchman did not constitute "maritime activities."    The Board also discussed the case of Shano v. Rene Cross Construction, 32 B.R.B.S. 221 (1998), in which the Board dealt with the Section 2(3)(C) marina exclusion. In that case, the Board concluded that the corporate structure and purpose of the employer were not the basis of inquiry into coverage under the Act. Rather, the central inquiry should be the "claimant's assignable duties at the time of the injury."

   Applying the aforementioned cases, the Board affirmed the ALJ's finding that Claimant was engaging in traditional maritime activities. The Board found that not every restaurant employee is excluded from coverage under the Act. Rather, "the focus is properly on [a] claimant's overall job duties and whether they further the operation of a restaurant within the plain meaning or that term, or whether they are duties that further maritime commerce and expose the claimant to maritime hazards." The Board determined that "as claimant's duties furthered maritime commerce on the Ohio River, and were not solely and exclusively in furtherance of a restaurant within the plain meaning of that term, . . . claimant is not excluded by Section 2(3)(B) of the Act." On that basis, the Board awarded Claimant's counsel attorney's fees, contingent upon Claimant's receiving benefits based on the merits of the case.

[1.11.8, Employed by a club, camp, recreational operation, restaurant, museum or retail outlet]

   In Frederick M. Stallings v. Newport News Shipbuilding and Dry Dock Co.,___B.R.B.S.____, BRB No. 99-0330 (Dec. 20, 1999), Claimant was a welder who contracted metal fume disease as a result of an injury he incurred. The parties agreed that he was temporarily totally disabled from June 24, 1993 until September 28, 1993, when he returned to work. Claimant was limited to outdoor work by his physician's instructions. Employer provided him with such work, but Claimant was sent home without work on days of inclement weather. Claimant sought benefits for those days when he was sent home because of lack of work that met his physical restrictions. Claimant additionally sought nominal benefits for potential future losses of wage earning capacity. The administrative law judge awarded permanent partial benefits and granted Employer's request for Section 8(f) relief.

   Both the Employer and Director filed motions for reconsideration and the judge denied Employer's while granting the Director's motion by ruling that 8(f) relief was not appropriate when a de minimis award is granted. Employer appealed the ALJ's award of benefits and his denial of 8(f) relief to the Board.

   Employer argued that because Claimant's post injury earnings exceeded his pre-injury wage, there was no evidence of a loss of wage earning capacity due to a work related injury. The Board found that Claimant did suffer an economic loss on the days he was sent home due to the restrictions placed upon him as a result of his injury. Contrary to Employer's contention, the Board found the loss in wage earning capacity to be work related. The limitations imposed on Claimant as a result of his injuries caused him to miss work opportunities and caused a reduction in his wage earning capacity. The Board cited Mangaliman v. Lockheed Shipbuilding Co., 30 B.R.B.S. 39 (1996) for the proposition that a Claimant whose post injury earnings exceed or are equal to his pre-injury wage has not automatically failed to demonstrate that they suffered a loss of wage earning capacity.

   Employer further argued that Claimant was receiving a double recovery in light of the CBA in place which compensated Claimant for work missed on days when the weather prevented him from working. The Board rejected this argument because the CBA only provided compensation for 4 hours of missed work which was half as much as Claimant would have received had he been able to perform 8 hours of indoor welding work.

    The Board also addressed the issue of Claimant's entitlement to a de minimis award. The Board ruled that the Administrative Law Judge mischaracterized the award of $3.78 per week for permanent partial disability as a nominal award pursuant to Metropolitan Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121, 31 B.R.B.S. 54 (CRT) (1997). In Rambo II, nominal awards were deemed to preserve a Claimant's right to modification when a loss in present wages was not established, but there was proof of a potential for the injury to cause future economic harm. The Board found that the award for continuing permanent partial benefits represented Claimant's current loss and could be classified as an award for a future loss, as intended by Rambo II.

   Employer next asserted that because the award was not de minimis as intended in Rambo II, there existed no grounds to deny 8(f) relief. The Board disagreed and found that the same policy concerns underlying the decision in Porras v. Todd Shipyards Corp., 17 B.R.B.S. 222 (1985), aff'd sub nom. Todd Shipyards Corp. v. Director, OWCP, 792 F.2d 1489, 19 B.R.B.S. 3 (CRT) (9th Cir. 1986) applied in the present case despite that fact that the award at issue was not an award for future loss, as was the situation in Rambo II. The Board determined that the policy behind 8(f) would be undermined by allowing an employer to get 8(f) relief for a nominal award and, thereby, allowing the Employer to avoid liability for a future substantial injury.

   The Board further concluded that it was impossible for Employer to establish the third requirement for 8(f) entitlement: a showing that the ultimate permanent disability is "materially and substantially" greater than that caused by the last injury alone. Director, OWCP v. Newport News Shipbuilding & Dry Dock Co. [Harcum I], 131 F.3d 175, 27 B.R.B.S. 116 (CRT) (4th Cir. 1993). The Board declined to bind Director to his earlier concession of 8(f) relief because it found stipulations non-binding when they were the product of erroneous application of the law. Puccetti v. Ceres Gulf, 24 B.R.B.S. 25 (1990).

[8.2.2, De Minimis Awards; 8.7, Special Fund Relief; 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; 8.7.7.1, Multiple Disability Periods and Multiple Injuries; 8.7.9.4, The Effect of Settlements and Stipulations; 8.9, Wage Earning Capacity]