John M. Vittone
Chief Judge

Thomas M. Burke
Associate Chief Judge

I. Longshore

   A. United States Supreme Court

American Grain Trimmers v. OWCP and Janich, ___ U.S. ___ (S.Ct. No. 99-696 ) cert. denied February 28, 2000.

   [Ed. Note: Many had hoped that the Supreme Court would take this opportunity to clarify the employer's rebuttal standard to be used in connection with the Section 20(a) presumption. The Board has developed a "ruling out" standard wherein an employer must identify specific and comprehensive evidence ruling out a causal relationship between a claimant's employment and injuries. The Fifth Circuit has most recently taken issue with this standard in Conoco, Inc v. Director, OWCP, ___ F.3rd ___ (5th Cir. Nov. 12, 1999). In American Grain Trimmers, Inc. v. OWCP [Janich],, No. 97-3080 (7th Cir. June 21, 1999), the Seventh Circuit, however, as noted below, avoided addressing this issue.]

   The central issue in this matter involved the Section 20(a) presumption. At issue was whether the ALJ had applied the correct legal standards and properly found that a medical opinion was hedged and speculative as to the cause of a longshoreman's death, and thus insufficient to rebut the presumption of entitlement under Section 20(a) of the LHWCA. The Seventh Circuit, in an en banc decision, had held that the ALJ applied the correct legal standards in making the Section 20(a) rebuttal inquiry and properly rejected the physician's opinion offered by Employer as too speculative to establish rebuttal.

    The Seventh Circuit first had examined the language of Section 20(a) itself. It noted that the language has been interpreted to mean that the claimant must establish a prima facie case, and then the "burden" shifts to the employer to show that "substantial evidence exists that indicates that the claim does not fall within the statute. "Embedded within that statement, however, are two fundamental questions: first, what kind of burden shifts to the employer, a burden of production or a burden of persuasion: and second, what quantity or quality of evidence is enough to satisfy that burden, whether it relates to production or persuasion.

   The Seventh Circuit quickly came to the conclusion that the burden in LHWCA cases that shifts to the employer is a burden of production only. It next addressed whether or not Employer successfully rebutted the Section 20(a) presumption. The Circuit Court noted that the ALJ had described the "substantial evidence" burden of the employer as a requirement of introducing "specific and comprehensive evidence, not speculation," before the Section 20(a) presumption would be defeated. The court saw nothing inconsistent in this formulation and noted that a requirement of specificity is not the same thing as a shift in the burden of proof.

   The Court noted that Dr. Carroll said that he was confident that the longshoreman's occupation and work did not cause his death, but the doctor also said in effect that he had no idea what work the longshoreman had been performing in the days and weeks leading up to his death. Thus the court reasoned that "this was not simply a problem of the doctor's indicating that he could rule out one cause of death while he remained unable to pinpoint a different cause. Deeper evidentiary flaws existed with Dr. Carroll's testimony, and since Employer came forth with nothing else that filled in the gaps, the ALJ was entitled to find that [Employer] did not did not introduce substantial evidence to rebut the Section 20(a) presumption of coverage."

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

   B. Circuit Courts of Appeal

Maersk Stevedoring Co. v. Container Stevedoring Co., 2000 WL 27883, ___ F.3d ___, (9th Cir. Jan. 11, 2000) (unpublished)

   The Ninth Circuit reversed the BRB and found Container was the last employer liable under Section 8(c)(13) of the LHWCA.

   On May 27, 1993, while employed at Container, Claimant was examined by a doctor and received an audiogram. Importantly, the audiogram was not administered in accordance with AMA guidelines (as required by §8(c)(13)(E)). At that time, the audiogram revealed a permanent 20.7% biaural hearing loss. Claimant continued to work for various employers until his retirement on January 28, 1994. His last employer was Maersk. Claimant subsequently filed claims against both Container and Maersk under Section 8(c)(13) of the Act.

   In September 1995, Claimant received another audiogram administered by the same physician as the 1993 audiogram. However, the 1995 audiogram was conducted in accordance with AMA guidelines. This test revealed a permanent hearing loss of 22.5%.

   Claimant subsequently received two more audiograms conducted by different doctors. A February 11, 1997 audiogram revealed a 21% hearing loss; and a February 27, 1997 audiogram revealed an 18.7% hearing loss. All the doctors concurred that the results of all 4 audiograms were "essentially the same."

   On May 30, 1997, the ALJ found Container was the "last employer" and required Container to reimburse Claimant for expenses related for his hearing loss. The ALJ found that even though the 1993 audiogram was not conducted within the AMA's guidelines, it established the onset of Claimant's disability. Furthermore, the ALJ noted that all doctors agreed that the results of the audiograms were "essentially the same." Citing Port of Portland v. Director, OWCP, 932 F.2d 836 (9th Cir. 1991), the ALJ reasoned that, based on the three nearly identical audiograms, Claimant's exposure to injurious stimuli while at Maersk bore no rational connection to his hearing loss disability which existed in 1993 while working for Container. Consequently, Container was held to be the "last employer."

   The BRB reversed the ALJ and held that Maersk was the "last employer." The BRB reviewed the relevant case law and found it "perfectly clear" that an "actual causal relationship between the last exposure and the disability need not be established." Furthermore, the BRB held that there need not be "medical proof that the last exposure advanced the disability or worsened the condition." In dissent, Judge McGranery reasoned that when an employer presented uncontradicted medical evidence that exposure did not worsen a claimant's condition, case law holds that such an employer cannot be the "last employer" for purposes of the LHWCA. Subsequently, Maersk filed a petition for review with the Ninth Circuit.

   Initially, the Ninth Circuit noted that its decision to grant Maersk's petition in no way vitiates the requirements of Section 8(c)(13)(E) of the LHWCA that an audiogram must comply with AMA guidelines in order to be considered determinative under the Act. The Ninth Circuit went on, "The unique facts of this case, however, show that the purpose of Section 908(c)(13)(E) was effectuated." The court noted that all the doctors agreed that the four audiograms were essentially the same, and the first two audiograms were conducted by the same physician. These facts established the requisite uniformity and predictability of results desired by section 8(c)(13)(E). The three subsequent audiograms, therefore, confirmed that the initial audiogram demonstrated the existence of a hearing loss while Claimant was employed at Container. Therefore, the Ninth Circuit granted Maersk' petition and reversed the BRB.

[Topic 8.13.4 Responsible Employer and Injurious Stimuli]

Davila-Perez v. Lockheed Martin Corp., 202 F.3d 464 (1st Cir. Feb. 8, 2000)

   The First Circuit was faced with the issue of whether Puerto Rico was a "territory" under the LHWCA, as extended by the Defense Base Act (DBA), such that Employer could claim statutory immunity under the LHWCA. The First Circuit held that Puerto Rico is still a territory for purposes of the DBA and that Employer is entitled to immunity under the LHWCA.

   Bienvenido Gonzalez was employed by Employer, an independent contractor retained by the U.S. Navy, to work at Roosevelt Roads Naval Station in Ceiba, Puerto Rico. On May 12, 1995, while Gonzalez was conducting a test on new equipment, an explosion occurred and Gonzalez suffered second and third degree burns over 30% of his body. He was hospitalized until his death on July 8, 1995.

   The survivors of Gonzalez his widow, Libertad Davila-Perez, their children, his mother and his sister brought this personal injury action against Employer in U.S. District Court for the District of Puerto Rico. Employer filed a motion for Summary Judgment asserting that it had insured Gonzalez under the CIGNA policy and that it had immunity from tort claims under the LHWCA, as extended by the DBA, to cover employees in military installations in U.S. territories and possessions. The survivors objected, arguing that the DBA no longer applies to Puerto Rico because it ceased to be a territory following the enactment of the Constitution of the Commonwealth of Puerto Rico on July 25, 1952.

   Without resolving the applicability of the DBA, the district court entered judgment for Employer based on the Puerto Rico statutory employer defense because "the objective of workers' compensation, i.e., provide benefits and medical care to employees injured while at work without regard to fault, was squarely met and that decedent and his family received compensation justly due." The survivors of Gonzalez appealed to the First Circuit.

   The First Circuit noted that "[a]lthough [it] has yet to resolve whether Puerto Rico's Constitution, enacted in 1952 ... altered Puerto Rico's status under the DBA, the Puerto Rico Supreme Court did not consider the issue when it applied the DBA to Puerto Rico in 1967." See W.R.A. v. Superior Ct. of P.R., 94 P.R.R. 314, 323-24 (1967) (finding that the language of the statute "outside the United States" clearly includes Puerto Rico).

   The First Circuit then concluded that, "by the plain meaning of the [statute], Puerto Rico is still covered by the DBA because (1) it is still subject to the plenary powers of Congress under the territorial clause ... (2) Congress has exclusive jurisdiction over the lands occupied by Roosevelt Roads ... and (3) 'continental United States' is defined to include only 'the States and the District of Columbia.'" The First Circuit further emphasized that this conclusion is supported by legislative history specifically indicating that Puerto Rico is within the reach of the DBA. To support that conclusion, the court noted that Congress had never specifically changed Puerto Rico's status as a territory since its holding in Royal Indemnity, 142 F.2d 237, 239 (1st Cir. 1944), where Puerto Rico was held to come under the DBA.

[Topic 2.8 Section 2.8 State]

Henry v. Coordinated Caribbean Transport, 2000 WL 198418, ___ F.3d ___, (5th Cir. Feb. 18, 2000)

   The Fifth Circuit was faced with issue of whether an agreement among an injured longshoreman's attorney, the employer, and its insurance carrier is enforceable where the longshoreman died before a settlement application conforming to LHWCA regulations was prepared or executed. The Fifth Circuit affirmed the ALJ and the BRB and held that no valid settlement agreement existed pursuant to Section 8(i) of the LHWCA.

   In 1984, Johnnie Henry suffered a severe injury to his left hand while working for Employer. A claim was eventually brought under the LHWCA. While the claim was pending before the BRB, the parties stayed the appeal to discuss settlement. On November 22, 1993, Employer faxed to Henry's counsel an offer to settle the future compensation and medical claims for $180,000 and attorney's fees for an additional $20,000. That same day, via facsimile, Henry's counsel confirmed acceptance of the lump sum settlement offer.

   One day later, on November 23, 1993, Henry died of causes unrelated to his hand injury. This fact unbeknownst to Employer, Employer reconfirmed the settlement on November 29, agreeing to prepare the application required by Section 8(i) to secure approval by the District Director. Henry's attorney then notified Employer of Henry's death sometime in December and suggested opening a succession and executing the settlement through Henry's son. A week later, Employer wrote a letter to the District Director advising that it intended to withdraw from the undocumented and unapproved settlement. Henry's attorney moved to enforce the settlement, relying upon Oceanic Butler, Inc. v. Nordahl, 842 F.2d 773 (5th Cir. 1988). The ALJ denied the motion and the Board affirmed. Henry' widow timely appealed to the Fifth Circuit.

   The Fifth Circuit noted that "[a]ll parties must sign a 'settlement application,' a 'self-sufficient document which can be evaluated without further reference to the administrative file.' 20 C.F.R. § 702.242. The contents of the settlement application are comprehensively prescribed, as emphasized by the provision's title 'Information Necessary for a Completely Settlement Application.' Id. The regulations forbid an adjudicator to approve or disapprove a settlement until a complete application, fulfilling section 702.242, has been submitted to him. Sections 702.243 (a) and (b)."

   The court distinguished Nordahl, which dealt with withdrawal rights only in terms of a settlement that has been executed pursuant to the regulations and submitted for administrative approval. "Nordahl does not support the enforcement of agreements that have been made in principle among the parties but have not been documented according to the regulations and lack a self-sufficient settlement agreement that can fulfill the purposes of administrative review." In the instant case, the parties' settlement never conformed to the requirements of the regulations, and therefore, cannot be enforced.

   The Fifth Circuit further noted that if it were required to enforce the instant settlement, then "a District Director would require authority to enforce specific performance of improperly documented settlement agreements, to compel employers and their insurers to participate in the preparation of settlement applications, and even to allow employees' counsel unilaterally to prepare, sign, and submit settlement applications."

[Topic 8.10.1 Settlements Generally; Topic 8.10.6 Withdrawal of Claim/Settlement Agreement]

Artis v. Norfolk & Western Railway, 204 F.3d 141 (4th Cir. 2000)

   The Fourth Circuit was faced with the question of whether a brakeman, who moved marine railcars, was barred from bringing an action under the LHWCA when he had already settled a state claim against his employer under FELA. The Fourth Circuit reversed the BRB and the ALJ and held that Claimant's claim was barred under the doctrine of election of remedies.

   Zeb Artis, a brakeman for Employer, assisted in moving loaded and empty railcars with the terminal in effectuating the transloading of coal from railcars to ocean-going vessels. The job required him to uncouple cars and to use a pinch bar to move the cars. On April 25, 1984, Artis injured his back while moving a railcar. On May 6, 1984, he re-injured his back while throwing a rail switch and has not returned to his previous work since that date.

   Following his injuries, Artis filed an action in Virginia state court under FELA against Employer. In January 1985, the parties settled the claim for $150,000, and the cause was dismissed. The law of the Fourth Circuit had been that a brakeman's exclusive remedy against his employer was under FELA and not the LHWCA. See Conti v. Norfolk & Western Ry. Co., 566 F.2d 890 (4th Cir. 1977). However, after Artis' settlement, the law changed. The U.S. Supreme Court held that a brakeman was acting in a fashion that was integral or essential to the loading or unloading of a vessel and was thus covered under the LHWCA. See Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989).

   Subsequently, on April 23, 1991, Artis filed a claim for the same injuries under the LHWCA. The ALJ held Artis' claim was within the jurisdiction of the LHWCA and implicitly found that the FELA settlement previously entered into was not a jurisdictional bar. The ALJ awarded Artis TTD from May 7, 1984 through December 27, 1984, and PPD from December 28, 1984 and continuing. The ALJ further granted Employer a credit for the $150,000 pursuant to Section 3(e). Both parties appealed to the BRB. The Board administratively affirmed the ALJ and the parties appealed to the Fourth Circuit.

   The Fourth Circuit held that the doctrine of election of remedies barred Artis' LHWCA. The court noted that the "clearest remedial dimension of election doctrine is found in decisions that simply seek to prevent double recovery for a single injury." (quoting 18 Wright & Miller, Federal Practice & Procedure § 4476 at 775 (1981)). The court concluded that "[w]hile the text cited state that the doctrine of election of remedies is not favored, in this case we are of opinion to apply it. Because the injury in question is the same and the claims arise from the same facts; because recovery under the FELA and LHWCA rest on different substantive theories, the first on negligence, the second on a workers' compensation statute based on liability without fault; because Artis proceeded entirely consistent with circuit precedent under the FELA to sue the railway and collected $150,000 in the settlement; because the later Schwalb decision was entirely fortuitous; and because, in this case, permitting first, a suit for complete recovery under the FELA, and second, a claim under the LHWCA, would permit a double recovery for the same injuries; we are of opinion that Artis elected his remedy when he prosecuted his FELA suit to judgment and the doctrine of election of remedies would bar his LHWCA claim." Therefore, the Fourth Circuit reversed the BRB and barred Claimant's LHWCA claim.

   A vigorous dissent was filed by Circuit Judge Michael. Judge Michael noted that the doctrine of election of remedies is not only not a favored doctrine, but also does not even apply to the case because the doctrine refers to situations where an individual pursues remedies that are legally or factually inconsistent. Because the proof and theories are not identical in FELA and LHWCA claims, and when Artis established his LHWCA claim, he did not offer facts or arguments that were inconsistent with positions he took in his earlier FELA suit, Judge Michael concluded that res judicata applies to the case. Judge Michael then determined that Artis' LHWCA is not barred by res judicata. Judge Michael reasoned that Virginia law applies to the res judicata elements and "[b]ecause the cause of action under FELA and the LHWCA are not identical, res judicata does not bar Artis' second (LHWCA) claim." Therefore, Judge Michael "would affirm the ALJ's award of PPD ... [and] remand for the ALJ to recalculate the railroad's credit for the FELA settlement by excluding the amount that went for attorney's fees."

[Topic 85.1 Res Judicata, Collateral Estoppel, Full Faith and Credit, Election of Remedies]

St. Romain v. Industrial Fabrication & Repair Service, Inc., 203 F.3d 376 (5th Cir. Feb. 22, 2000)

   The Fifth Circuit was faced with the issue of whether a "plug and abandon" (p&a) worker is a Jones Act seaman. The Fifth Circuit affirmed the District Court's grant of summary judgment to Employer as St. Romain did not establish that he worked aboard an identifiable fleet of vessels.

St. Romain was employed with Employer as a p&a helper. P&a work involves the decommissioning of oil wells under offshore platforms. Cement plugs are inserted into the wells beneath the ocean floor and the casing pipe is removed. Most of Employer's p&a work is done from fixed platforms, but other projects are performed partly from liftboats, which are support vessels that use a crane to pull the casing. The vessels also transport p&a equipment and crew to the platform. The vessels provide a place for the Employer's crew to eat and sleep. The p&a team usually remain on the platform until the job is complete. The work may extend from a few days to several weeks.

   On March 4, 1995, St. Romain was on an offshore platform, permanently affixed to the Outer Continental Shelf off the coast of Louisiana, assisting in the removal of casing when a spreader bar used to lift the pipe failed and a shackle and sling struck his hard hat. St. Romain sought and received benefits under the LHWCA. He then filed a negligence claim against Employer claiming status as a seaman under the Jones Act. The district court found St. Romain's work contributed to the function of a vessel or to the accomplishment of its mission, but that he did not establish a substantial connection to either a single vessel or to an identifiable fleet of vessels. St. Romain appealed to the Fifth Circuit.

   The Fifth Circuit went through the usual two-part Jones Act seaman test (First, an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission; second, a seaman must have a connection to a vessel in navigation or to an identifiable group of such vessels that is substantial in terms of both its duration and its nature).

   St. Romain contended that he was a member of the crews of the several liftboats used in the p&a jobs performed by Employer, and that these boats constituted an identifiable fleet of vessels. The Fifth Circuit noted, however, that St. Romain did not work aboard vessels under common ownership or control. During his work with Employer, he had eleven different offshore work assignments. He worked aboard liftboats owned by nine different companies and chartered to five different entities. Employer did not own any of the liftboats. Typically, they were chartered by the oil companies that hired Employer to do the p&a work. On four occasions, Employer chartered the liftboats for its customer. Evidence reflected that the captain of the liftboat, and its owner, had at all times ultimate authority with respect to the navigation, management, and operation of the vessels. Accordingly, the Fifth Circuit determined that the liftboats at issue were not commonly controlled by any single entity. Therefore, St. Romain failed the second prong of the Jones Act seaman status test.

   St. Romain further contended that he was regularly exposed to "the perils of the sea." However, the Fifth Circuit stressed that regular exposure to the perils of the sea is not outcome determinative of seaman status. Thus, St. Romain is not a seaman under the Jones Act.

[Topic 1.4.2 Coverage Master/member of the Crew (seaman)]

Ingalls Shipbuilding, Inc. v. Wooley, 2000 WL 177966, ___ F.3d ___, (5th Cir. March 2, 2000)

   The Fifth Circuit was faced with the res nova issue of whether a claimant may be permitted to treat 120 hours as four "vacation days," by which his total annual earnings would be divided to determine average weekly wage (AWW), and "sell back" eleven days to Employer which would not be treated as "days worked." The Fifth Circuit affirmed the Board and the ALJ in allowing Claimant to make such an AWW calculation pursuant to Section 10(a).

   Wooley was permanently disabled by an injury sustained while employed with Employer. Wooley received an award of benefits, based on the calculation that his AWW had been $575.43. Employer appealed to the Board and prevailed to the extent that the Board concluded that Wooley's AWW was only $551.70, using a different method of factoring in his vacation and holiday compensation. On Motion for Reconsideration, the Board vacated its first decision and affirmed the ALJ's original calculation. Employer appealed to the Fifth Circuit.

   The Fifth Circuit initially noted that because Wooley was a five- day worker who had worked substantially the whole of the year immediately preceding his injury, Section 10(a) of the LHWCA controls the method of calculated his AWW. Wooley's daily work record contained work-entries on 256 different days in the 52 weeks prior to the date of injury, including four entries for vacation compensation, with total earnings of $29,462.10. The ALJ counted the four entries for vacation pay as four days, although it was undisputed that Wooley was paid for a total of 120 vacation hours. The days were broken down as follows:

   Employer contended that the 120 hours should be counted as 15 8-hour days. The ALJ divided the total earnings by 256 days to arrive at a daily wage of $115.08. [$29,462.10 / 256 = $115.08]. The ALJ then multiplied this daily wage by 260, pursuant to § 10(a), to arrive at an annual wage of $29,922.44. He then divided the annual wage by 52 to arrive at an AWW of $575. 43. Employer argued that Wooley's $29,462.10 earnings should have been divided by 267 [252 days worked + 15 8-hour vacation days] to arrive at an average daily wage of $110.34.

   The Fifth Circuit determined that Section 10(a) of the LHWCA envisions an AWW calculation that will allow the employee LHWCA benefits based on the amount that employee could have ideally been expected to earn. The court declined to create a bright-line rule concerning how all vacation compensation will be treated under Section 10(a). Rather, the court found it more appropriate to charge the ALJ with making fact-findings concerning whether a particular instance of vacation compensation counts as a "day worked" or whether it was "sold back" to the employer for additional pay.

   The Fifth Circuit concluded that, in this case, the ALJ correctly determined that Wooley took four vacation days, which were treated as days worked, and "sold back" eleven more 8-hour days, which were not treated as days worked, but rather as additional compensation to be added to Wooley's annual wage.

[Topic 10.1 Average Weekly Wage In General; Topic 10.2.1 Section 10(a) Generally]

H.B. Zachry Co. v. Quinones, 2000 WL 263430, ___ F.3d ___, (5th Cir. March 8, 2000)

   The Fifth Circuit was faced with questions of (1) what would be the standard of review from a district court decision on agency action under the Defense Base Act (DBA) and (2) whether the value of meals and lodging exempted from federal income taxation by Section 119 of the Internal Revenue Code (IRC) is included in "wages" pursuant to Section 2(13) of the LHWCA. Initially, the Fifth Circuit held that in reviewing a district court decision on agency action, the appellate court need accord no particular deference to the district court's conclusion as to whether the identical administrative record does or does not support the administrative determination. On the second question, the Fifth Circuit, reversing the lower courts, held that Section 2(13) of the LHWCA excludes meals and lodging exempted from federal income taxation by Section 119 of the IRC from the definition of "wages."

   Quinones worked on and off for Employer from 1980 until 1984. In 1993, he accepted a one-year position with Employer as a construction foreman on the Kwajalein Army base in the Marshall Islands. He began experiencing back troubles while in the Marshall Islands and made several visits to doctors there. Upon returning to the U.S., Quinones sought further medical treatment. Because of some debate regarding the cause of his symptoms, Employer and its carrier refused to pay any more of Quinones' medical bills. Quinones then brought a claim for compensation benefits under the LHWCA, as extended by the DBA.

   The ALJ awarded Quinones ongoing TTD benefits, basing his calculation of Quinones' average weekly wage (AWW) in part on the value of meals and lodging that Employer provided Quinones while he was working in the Marshall Islands. The Board affirmed. Employer then petitioned the U.S. District Court for the Southern District of Texas for review of the Board decision. [Under the DBA, review of the Board decision is sought first in the district court, and an appeal of the district court's judgment can then be brought in the circuit court. See 42 U.S.C. 1653(b).] The district court denied the petition and Employer appealed to the Fifth Circuit.

   The Fifth Circuit initially considered its standard of review for a case appealed from the district court. The court held that in reviewing a district court decision on agency action, the appellate court need accord no particular deference to the district court's conclusion as to whether the identical administrative record does or does not support the administrative determination. Therefore, the Fifth Circuit proceeded as though it were reviewing the decision of the Board in the first instance.

   The Fifth Circuit then considered whether the value of meals and lodging exempted from federal income taxation by Section 119 of the IRC is included in wages under Section 2(13) of the LHWCA. To answer that question, the court determined that it must find the proper construction of Section 2(13). The Director and the Employer made three arguments. First, the phrase "including the reasonable value of any advantage which is received from the employer and included for purposes of any withholding of tax" is one of expansion, explaining that the section "provides that the term 'wages,' in general, means the monetary rate at which work is paid, but expands the term to also include the reasonable value of non-monetary advantages received, if subject to withholding tax." Second, the Board's construction of Section 2(13) reads out part of the statute. Because the Board includes in wages an advantage not subject to withholding (the value of § 119 meals and lodging), the limiting phrase "and included for purposes of any withholding tax" becomes superfluous. Third, an examination of changes made to Section 2(13) evinces congressional intent to exclude the value of Section 119 meals and lodging from the definition of wages. For example, Congress codified the Supreme Court's holding in Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624 (1983), in which the value of certain employer-paid fringe benefits was not included in Section 2(13) wages.

   The Fifth Circuit concluded that adopting the view of Section 2(13) that all advantages received from the employer are included in wages would read the phrase "and included for purposes of any withholding of tax under subtitle C of title 26" out of the statute. Moreover, the court reasoned that Section 2(13) is clear on its face and it provides that "wages" equals monetary compensation plus taxable advantages. Accordingly, Section 2(13), on its face, excludes from the definition of "wages" the value of IRC Section 119 meals and lodgings.

[Topic 2(13) Wages; Topic 60.2 Defense Base Act]

Pool Company v. Director, OWCP [White], 2000 WL 257192, ___ F.3d ___, (5th Cir. March 23, 2000)

   The Fifth Circuit was faced with an issue, res nova in the Fifth Circuit, of whether the location of the injury or the character of the resulting disability is determinative under the LHWCA's Section 8 schedule scheme. The Fifth Circuit, affirming the Board and the ALJ, followed the Board (Andrews v. Jeffboat, Inc., 23 BRBS 169 (1960)), the First Circuit (Barker v. U.S. Dept. of Labor, 138 F.3d 431 (1st Cir. 1998)), and the Ninth Circuit (Long v. Director, OWCP, 767 F.2d 1578 (9th Cir. 1985)) in holding that a claimant seeking compensation for the loss of use of a scheduled member resulting from an injury to an unscheduled body part may recover only under § 8(c)(21).

   On April 13, 1993, White, working on a fixed drilling platform located on the Outer Continental Shelf, injured his shoulder in the course and scope of his employment with Employer. Employer paid White TTD from April 1993 through May 1994. On April 25, 1994, White underwent a functional capacity evaluation that concluded White had sustained the following impairments:

Employer then paid White PPD benefits pursuant to the schedule [§ 8(c)(1) and (19)] from May 1994 to December 1994. No further benefits were due White under the Section 8 Schedule.

   On January 18, 1995, White filed a claim for compensation alleging that his shoulder injury was not subject to the Section 8 Schedule and requested reinstatement of his benefits. The ALJ held that the schedule of compensation benefits for arm disabilities did not apply here because White had injured his shoulder, which is a non-scheduled injury. The ALJ concluded that Employer must pay additional benefits to White pursuant to § 8(c)(21). The BRB affirmed and Employer appealed to the Fifth Circuit.

   The Fifth Circuit initially addressed Employer's argument that the plain language of Section 8(c) dictates that it is the character of the disability, and not the situs of the injury, that controls. The Fifth Circuit was not convinced. The court noted that "[i]f there is an injury to a member covered by the schedule, subsection (18) provides that if there is a total loss of use from the injury, then the recovery is the same as for loss of the member. Similarly, subsection (19) provides that if there is an injury to a member that results in a partial loss, then the compensation is for the proportionate loss of that member (as opposed to compensation for a total loss.)." Therefore, the court concluded, considering the shoulder injury as non-scheduled does no violence to the plain language of the statute.

   Next, Employer argued that dicta in PEPCO inferentially shows that the U.S. Supreme Court would support the statutory interpretation that Employer advances. The Supreme Court held that the provision for non-scheduled injuries did not provide an alternative for claimants who could not realize adequate compensation through the Section 8 Schedule. See PEPCO, 449 U.S. 268, 271 (1980). The Fifth Circuit concluded that PEPCO does not purport to answer the present issue. The court reasoned that all PEPCO explained was that the Section 8 Schedule covers 20 different specific injuries and that § 8(c)(21) applies to any injury not included within the list of specific injuries.

The Fifth Circuit then examined the New York ancestry of the LHWCA, along with the prior Ninth and First Circuit cases, and concluded that the purpose and Congressional intent behind the LHWCA led to the conclusion that if an individual suffers an injury to an unscheduled body part, then the individual must recover under § 8(c)(21), "no matter that the [claimant's] symptoms extend beyond the injured area. The schedules were set up to ameliorate administrative burdens by providing a simple method of determining the effect on the wage-earning capacity of typical and classifiable injuries. [See PEPCO, supra at 435.] Streamlining compensation for arm injuries, which are unlikely to effect other body parts, while leaving open the question of appropriate compensation levels for injuries that may effect multiple body parts, such as an injury to a neck, is consistent with these goals."

   The Fifth Circuit further noted that Employer's proposed interpretation opens the door for White to claim recovery under both § 8(c)(1) [arm] and § 8(c)(21) [unscheduled injury to shoulder]. This potential for double compensation further undercuts the simplifying purpose of the schedule. Therefore, the Fifth Circuit held that a claimant seeking compensation for the loss of use of a scheduled member resulting from an injury to an unscheduled body part may recover only under § 8(c)(21).

[Topic 8.3.1 Scheduled Awards Some General Concepts; Topic 8.4 Conflicts Between Applicable Sections]

   C. Benefits Review Board

Spitalieri v. Universal Maritime Services, ___ BRBS ___, (BRB NO. 98-743) (February 23, 1999).

   This is an appeal of a Section 22 Modification Motion. The ALJ had originally found Claimant to be temporarily totally disabled due to a traumatic (neck, head, back and left knee) work-related accident in 1992. On modification, another ALJ found Claimant to be no longer disabled from the traumatic injuries and able to return to work. However, he found Claimant to have sustained a work-related hearing loss caused by the 1992 injury. On reconsideration, the ALJ found that Section 22 provides for a credit for an overpayment of benefits; that Claimant is entitled to disability benefits for his hearing loss, but that those benefits were subsumed by Employer's overpayment of temporary total trauma disability benefits.

   In disallowing the credit, the Board noted that Section 22 allows a credit against unpaid compensation where the compensation rate has been decreased; other wise, it provides that the order on modification shall not affect the compensation previously paid. In the instant case, there has been no decrease in Claimant's compensation rate, but rather Claimant's continuing disability benefits for his traumatic injury have been terminated altogether. Thus, according to the Board, the exception permitting a retroactive decrease which may be reflected in a credit under Section 22, does not apply, and the termination, of compensation cannot be effective prior to the date of the decision.

[Topic 22.1 Modification Generally]

Waugh v. Matt's Enterprises, Inc., ___ BRBS ___, (BRB No. 98-0735)(February 23, 1999).

   "Coverage" under the LHWCA is the primary issue in this case. Claimant's job duties as a truck driver included transporting metal that had been unloaded from barges onto his truck and to the scrap field located at the facility. He also regularly performed tasks that assisted the process of unloading scrap metal from barges to his truck. Claimant performed spotting duties, whereby he would direct the crane operator to the location of scrap at the bottom of the barge. Additionally, Claimant helped move barges, untwisted cables on the crane, spliced cables, took the covers off of barges, changed cables, hooked the magnet on the crane, helped repair the crane, and leveled the crane.

   In upholding the ALJ's finding of status, the Board noted that the scrap field constituted an intermediary storage site, since the metal would be subsequently loaded onto trucks for delivery to local steel plants. Thus, Claimant's task of transporting metal from barges to the scrap field involved an intermediate step in the process of moving cargo between ship and land transportation. As Claimant's trucking duties, as well as his other specific tasks which assisted the unloading of barges, were not extraordinary or episodic, and in fact, were found to be a regular part of Claimant's job assignments, the Board affirmed the ALJ's conclusion that Claimant spent at least some of his time engaged in clearly maritime employment.

[Topic 1.7.1 Coverage-Status]

   To determine whether the situs test was met, the ALJ applied the functional relationship test enunciated in Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 7 BRBS 409 (9th Cir. 1978). Under this test, one must keep in mind: 1) the particular suitability of the site for the maritime uses referred to in the LHWCA; 2) whether adjoining properties are devoted primarily to uses in maritime commerce; 3) the proximity of the site to the watering; and 4) whether the site is as close to the waterway as feasible given all the circumstances.

   In finding that the ALJ's application of this test was rational, the Board noted: 1) the site, 500 feet from the water's edge, needed to be close to the waterway in order to provide for the efficient unloading of barges; 2) the surrounding area was engaged in maritime commerce; (3) the scrap field was part of the overall unloading process at the location--scrap was either unloaded from barges to trucks and transformed to steel companies, or loaded from barges to trucks and transported to the field; 4) the field where Claimant was injured was customarily used by Employer in the overall process of unloading vessels; 5) the scrap field is part of the waterfront facility wherein the loading and unloading of barges occurs, and therefore, the area where Claimant was injured is part of a general "maritime area" sufficient to constitute an "adjoining area" under Section 3(a) of the LHWCA.

[Topic 1.6.2 Coverage--Situs: "Over land"]

   Claimant's work was not outside the scope of Claimant's employment. It did not constitute gratuitous or voluntary employment. The Board noted that the ALJ found that while Employer's official policy was that truck drivers were to stay off the barges, in practice they were asked to go aboard barges either by Claimant's supervisor or Employer's manager, to assist the crane operator in the unloading of barges. The Board, thus concluded, that it is clear from the record that Employer was aware of Claimant's activities and nevertheless took no disciplinary action against him, thereby providing claimant with tacit approval for his actions.

[Topic 2.2.2 Arising Out Of Employment

Gavranovic v. Mobil Mining and Minerals, ___ BRBS ___, (BRB No. 98- 741)(February 23, 1999).

   "Coverage" (both situs and status) is at issue in these consolidated cases (Jones and Gavranovic). Employer is a fertilizer manufacturer whose facilities adjoin the Houston Ship Channel. It receives raw materials (sulphur, anhydrous ammonia, phosphate rock, and sulfuric acid) by truck, railway and barges, and it produces sulfuric acid, phosphoric acid, ammonium thiosulfate (liquid fertilizer), and two grades of solid fertilizer called dioammonium phosphate and monoammonium phosphate.

   The sulphur arrives by trucks, the ammonia and phosphate rock arrive by barge, and the sulfuric acid arrives by both railway and barges. With the exception of the sulfur, all materials are unloaded from their respective modes of transportation by Employer's operators. The finished product is shipped out by railway or trucks 80 to 85 percent of the time and by barges or ships 15 to 20 percent of the time.

   Employer's personnel in "Shipping and Receiving" are divided into various "classes" of operators with "A" operators having the most seniority as well as being qualified for the most jobs.

   As an "A" operator, Jones regularly worked the overhead cranes in Buildings 9 and 10. Those buildings sit adjacent to the Houston Ship Channel and they act as storing houses for the finished product (fertilizer). However, from Building 9, fertilizer is loaded by crane onto a conveyor belt which leads to the dock where a marine loader loads it onto barges or other sea-going vessels for shipment. From Building 10, fertilizer is loaded onto trucks or rail cars, or is transferred to Building 9 to replenish its supply.

   Gavranovic was a "C" operator who also performed some class "B" and "A" jobs. He often worked as a "B" operator driving a front-end loader both in the rock barge and in Building 9, and, was qualified to perform certain "A" jobs such as driving the diesel locomotive, working in Buildings 9 and 10, and relieving "A" operators on the marine loader.

   The injuries to both Claimants occurred on Employer's facility in Building 10 which is adjacent to navigable water. Building 10 is used to store finished product and to load rail cars and trucks. When the supply of fertilizer to be transported by barge or vessel in Building 9 runs low, product is transferred from Building 10 to Building 9. Neither building is used in manufacturing or processing fertilizer.

   Employer contended that neither its facility nor Building 10 is a covered situs. The Board rejected this contention for a number of reasons. First, Employer's assertion that the definition of "marine terminal" found in OSHA regulations should be relied upon, was rejected. OSHA regulations were not developed at the same time or for the same purpose as the LHWCA. Second, the Board noted that Fifth Circuit law, and not the more restrictive Fourth Circuit law governs.

   The Board distinguished this case from Stroup v. Bayou Steel Corp., 32 BRBS 151 (1998) (worker injured in a warehouse shipping bay at a steel manufacturing plant was not injured on a covered situs.) in that part of Employer's business involves sending and receiving goods by barges or vessels--a distinctly maritime activity. Moreover, the geography of the facility herein can be distinguished from the facility in Stroup, as here, the entire facility and the building in question are adjacent to navigable water and to the docks where barges are loaded and unloaded. Thus, the Board found that in light of the location of Employer's facility and because significant maritime activity (loading and unloading barges occurs on the docks at Employer's facility, the injuries occurred on a covered situs.

[Topic 1.6.2 Coverage--Situs: "Over land"]

   The Board rejected Employer's argument that because neither claimant was performing maritime work at the time of his injuries, neither satisfied the status requirement. The Board correctly noted that the Fifth Circuit uses a "moment of injury" test (covered if engaged in maritime employment at the time of injury) not to narrow but to broaden coverage under the LHWCA.

   Therefore, the fact that both claimants were injured during the course of performing non-maritime work is insufficient in and of itself to deny them coverage.

   The Board agreed with the ALJ that both Claimants regularly engage in maritime work. In addition to the testimony of Claimants, the Board noted Employer's concession that Jones had loaded and unloaded barges, and that Gavranovic unloaded barges. This evidence was sufficient to support the ALJ's conclusion that Claimants loaded and unloaded vessels "at least some of the time" and, therefore, meet the status requirement of Section 2(3).

[Topic 1.7.1 Coverage--Status: "Maritime Worker"]

Bustillo v. Southwest Marine, Inc., ___ BRBS ___, (BRB No. 98-0824)(March 8, 1999).

   This appeal involves a claim by Claimant, a shipyard worker whose duties included sandblasting and painting, for compensation for the aggravation of his pre-existing asthma by work-related exposure to toxic substances. Claimant worked for Employer until November 1, 1992, when he sustained a sandblasting injury to his face. Claimant did not return to work after recovering from his sandblasting injury because his respiratory condition had worsened. The ALJ found that the claim is not barred by Claimant's failure to give timely notice of his injury under Section 12(a) inasmuch as Employer failed to meet its burden of proof under Section 12(d) that it was prejudiced by Claimant's failure to provide timely notice of his injury. In the initial Decision and Order the ALJ found that Claimant's asthma was causally related to his employment, but that the claim was not timely filed pursuant to Section 13(b)(2).

   In a subsequent Decision and Order Awarding Benefits on Modification, the ALJ found that the claim was not barred under Section 13(b)(2) in as much as the statute of limitations was tolled pursuant to Section 30(f) by Employer's failure to file a timely first report of injury under Section 30(a). Claimant worked for Employer until November 1, 1992, when he sustained a sandblasting injury to his face. Claimant did not return to work after recovering from his sandblasting injury because his respiratory condition had worsened.

   The ALJ found that the claim is not barred by Claimant's failure to give timely notice of his injury under Section 12(a) inasmuch as Employer failed to meet its burden of proof under Section 12(d) that it was prejudiced by Claimant's failure to provide timely notice of his injury.

   The issues on appeal were: (1) whether the claim was time barred under Section 13 and (2) finding that the Employer was not prejudiced by Claimant's failure to provide timely notice of his injury under Section 12.

   As to the Section 12 issue, the Board rejected Employer's assertion on appeal that the delay in receiving notice made it difficult to identify witnesses and precluded Employer from supervising Claimant's medical care. Employer's "conclusory allegation" on appeal that the delayed notice made the identification of witnesses difficult was unsupported by evidence in the record. Moreover, while Employer generally asserted that it was prejudiced by its inability to supervise Claimant's medical care, it did not allege that the medical care received by Claimant was inappropriate.

   As to the time bar issue, the Board noted that Section 20(b) provides a presumption that the claim was timely filed and to overcome the presumption, Employer must preliminarily establish that it complied with the requirements of Section 30(a).

   For Section 30(a) to apply, the employer or its agent must have notice of the injury or knowledge of the injury and its work-relatedness. According to the Board, the employer may overcome the Section 20(b) presumption by proving it never gained knowledge or received notice of the injury for Section 30 purposes. Knowledge of the work-relatedness of an injury may be imputed where the employer knows of the injury and has facts that would lead a reasonable person to conclude that compensation liability is possible so that further investigation is warranted.

   Agreeing with the ALJ, the Board found that one could rationally conclude that the information contained in the doctor's report and Claimant's counsel's letter were sufficient to impute to Employer the knowledge that claimant suffered from a work-related respiratory impairment and that, on the basis of this information, Employer should have concluded that compensation liability was possible and thus, that further investigation was warranted.

[Topic 30.2 Employer must report injury within 10 days]

Everett v. Ingalls Shipbuilding, ___ BRBS ___ (on recon. en banc)(BRB No. 98-0492)(March 26, 1999).

   This en banc Board decision upholds the previous Board decision wherein the Board had held that before the district director can reject a request for an attorney fee for services rendered after the date Employer paid benefits, the fact finder must first consider the necessity and reasonableness of the time requested as it may relate to any services performed to "wind-up" this case.

   The Board drew support for this decision from its previously published decision in Nelson v. Stevedoring Services of America, 29 BRBS 90 (1995). Furthermore, the Board distinguished the instant case from that of the Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904, 31 BRBS 150 (CRT)(5th Cir. 1997), which the Employer had argued was controlling. In Wilkerson, Employer began paying Claimant compensation prior to the time the case was transferred to OALJ. Despite this payment, Claimant continued to pursue his claim before an alj seeking additional benefits, prejudgment interest, Section 14(e) penalties and an attorney's fee. The Fifth Circuit held that Claimant was not entitled to any additional compensation, or to interest and a Section 14(e) assessment, and thus concluded that Claimant's counsel is not entitled to recover an attorney's fee for the work performed in pursuing Claimant's unsuccessful claim.

   According to the Board, the distinguishing feature in the instant case is that, unlike Wilkerson, here Claimant never sought any additional compensation without success. Rather, Claimant obtained a voluntary payment form Employer. The Board opined that counsel's work subsequent to the payment was an effort to "wind-up" Claimant's claim and ensure that Claimant received everything to which she was entitled pursuant to Employer's voluntary payment of benefits.

   The Board stated, "Where an employer is held liable for an attorney's fee pursuant to Section 28(a) or (b)..., it is not unreasonable for it to be held liable for a fee for services such as counsel's explaining the implication of a decision or an employer's payment to the claimant, or for counsel to ascertain that the correct sum has been paid. The Board noted that the time involved in most cases is minimal, and for illustration, noted that involved in the instant case: time associated with obtaining reimbursement for a covered payment to a medical provider (.875 hours) which was incurred prior to Employer's paying benefits but not paid by Employer until several months after the Employer paid benefits (the cut off date originally used by the district director); time associated with informing Claimant of Employer's voluntary payment of compensation (.25 hours); and time associated with counsel's efforts to obtain requisite documents from Employer, which had been requested from Employer much earlier than the cut- off date, and therefore, in order to calculate Claimant's award of benefits, as well as the subsequent calculation of those benefits (.75 hours).

   The Board concluded that questions regarding the necessity and reasonableness of the requested time are to be left to the discretion of the fact-finder.

[Topic 28.6.2 Compensable Services]

Ezell v. Direct Labor, Inc., ___ BRBS ___, (BRB Nos. 98-0826, 98-0826A and 98- 0826B) (March 8, 1999).

   This is the Board's first published "coverage" decision in the Fifth Circuit since the circuit court issued Bienvenu v. Texaco, Inc., 164 F.3d 901 (5th Cir. 1999)(en banc). [Bienvenu was issued subsequent to the ALJ's decision. in this matter.]

   Employer is a company that supplied labor for a contractor company. Claimant was assigned to work as a rigger on an inshore oil production facility which was surrounded by water and marsh and accessible only by boat via various canals. Claimant was injured while riding on a boat returning from a job site. The ALJ found "coverage" under the LHWCA.

   Employer, on appeal to the Board has argued that Claimant was "transiently and fortuitously" on navigable waters at the time of his injury, and, therefore, pursuant to Bienvenu, Claimant should not be covered under the LHWCA. Claimant argues that he was not fortuitously on board a vessel at the time of his injury, since Employer owned and maintained a fleet of vessels which were used to regularly transport its employees to job sites.

   The Board notes that the court in Bienvenu was not specifically asked to decide the question of whether an employee who regularly travels by boat during the course of his work day to a work site or sites, and is injured during transport on navigable waters, is covered under the LHWCA. The Board noted that while Bienvenu rules out coverage for employees who are transiently and fortuitously on navigable water during the time of the injury, it does not hold that a worker injured on navigable water during the course of his employment should be denied coverage under the LHWCA if he is regularly required by his employment to travel by boat over navigable water, as well as where he performs some work on a vessel.

   [Because Bienvenu's work on equipment aboard the vessel was sufficient to confer coverage, the Fifth Circuit specifically did not consider whether that claimant's time on the vessel while being shuttled from platform to platform should be included in determining whether he spent more than a modicum of his work time on navigable waters.]

   The Board correctly noted that while Bienvenu focuses on the Supreme Court's statement in Perini regarding those "transiently and fortuitously" on navigable waters, Bienvenu must be applied consistently with the Supreme Court's holding in that case that those employees who would have been covered prior to 1972 by virtue of their injuries on navigable water remain covered post-1972. Older case law thus provides guidance in applying Perini and Bienvenue..

   In the instant case, prior to his injury, Claimant's job consisted of cleaning up Employer's yard, stacking pallets, and relocating oxygen bottles, pipes and saws that were about the yard. In addition, he worked in the mechanic shop, where he ground welled, stored a drag line and disposed of welding rods. Claimant also on occasion mopped and swept the trailer, cut the grass and cleaned Employer's barges. On the day of his accident, he was assigned to assist in the threading of pipe on an inshore platform which was located approximately 35 to 40 minutes away by boat from Employer's shore side facility, and accessible only by boat through a series of bayous, canals and the Intercoastal Waterway.

   The Board found that "applying Bienvenu, it is clear that Claimant suffered his injury on navigable waters during the course and scope of his employment." However, it was unclear to the Board from the record how often Claimant was required to travel by boat over navigable waters in the course and scope of his employment and how much work he performed on water, and thus, under Bienvenu, whether Claimant's presence on water at the time of his injury was transient and fortuitous. Thus the Board remanded for consideration of whether Claimant was "transiently and fortuitously" over navigable water at the time of his injury, taking into consideration how often he was required to go aboard a vessel to work or travel by boat in order to perform his employment duties.

   Interestingly, the Board noted that, if the ALJ finds that Claimant was "transiently and fortuitously" on navigable water, and thereby not covered pursuant to Perini, the ALJ must then consider whether Claimant's overall employment duties independently satisfy the status requirement.

   The Board's most important observation in the instant case came in dicta. The Board compared the facts of Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991), to a "hypothetical" situation closely related to the facts of the instant case. In Brockington, the land-based electrician employed by a non-maritime employer, an electrical contractor, whose only connection to maritime activity was riding in a boat to an island where he was to work. This worker, in Brockington, "thus was only transiently on water." The Board contrast that situation with that of a employee who works for an employer who maintains a fleet of vessels and assigns employees to travel and work on those vessels. In this hypothetical situation, a connection with the hazards of the maritime environment is not "fortuitous" but is part of the regular work environment of the employer.

[Topic 1.6.1 Coverage--Situs: "Over water"]

Meekins v. Newport News Shipbuilding & Dry Dock Co., ___ BRBS ___ (BRB No. 99- 0531)(Feb. 18, 2000)[Ed. Note: this case was originally designated as "Not- Published".]

   In this Section 22 Modification case, Claimant's attorney made a written request for "additional (temporary total, permanent total, permanent partial, temporary partial) benefits in addition to those previously paid...." He asked, "Please consider this a request for additional compensation in modification of the previous award and not a request for the scheduling of an informal conference." This correspondence was received by the district director well within one year of the last payment of benefits. And was dated February 7, 1996. (The 1995 decision had awarded temporary total disability benefits for the period between April 11 and September 14, 1994. It was undisputed that Employer paid the amount owed on October 10, 1995)

   Nothing further happened in the case until March 1998 when Claimant's counsel wrote to the district director and specified periods starting in October 1997 for which Claimant sought additional temporary total disability benefits. At that time Claimant asked that an informal conference be scheduled on the matter. Employer contended that although Claimant filed a letter requesting modification within one year of the last payment of benefits, he did not specify the benefits to which he believed he was entitled at that time and in fact had no cognizable claim until October 1997.

   The ALJ granted Employer's motion for summary judgment, finding that the February 7, 1996 letter did not constitute a valid claim for Section 22 modification, inasmuch as Claimant did not have such a claim until October 1997. He found that the letter was merely an attempt to preserve indefinitely the right to seek modification, and that such protective filings are not permissible. The Board affirmed the ALJ's determination. The Board found that "On its face, ..., the letter might seem to suffice as a request for additional compensation. Nonetheless, the [ALJ] properly found that the letter was an anticipatory filing inasmuch it does not identify a particular disability....Moreover, as the {ALJ] found, Claimant had no disability to claim at the time the letter was filed, as it was not until March 1998 that Claimant identified a period of disability that allegedly occurred in November 1997.

[Topic 22.3.2 Modification--Filing a Timely Request]

McCaskie v. Aalborg Ciserv Norfolk, Inc., ___ BRBS ___ (BRB No. 99-0547)(February 25, 2000)

   The critical issue in this case is whether Claimant was covered under the LHWCA or was a Jones Act seaman. Claimant worked as a boilermaker/welder with Employer, which was in the business of repairing ships and powerplants. The ALJ found that Claimant spent 80 to 90 percent of his employment working on ships in dock or at powerplants. Claimant was injured while working on repairing the boiler aboard a ship as it was sailing from Boston to England.

   The ALJ found that Claimant's duties as a boilermaker/welder contributed to the function of the vessel in navigation. However, he went on to find that Claimant did not have a substantial connection to this vessel or to an identifiable group of vessels. On appeal Employer contended that the ALJ erred in finding that Claimant is not excluded from coverage as a member of the crew.

   A ship repairman is one of the covered occupations enumerated in Section 2(3) of the LHWCA. Section 2(3)(G) excludes from coverage "a master or member of a crew of any vessel." However, as the Board noted, the Supreme Court has held that a claimant employed in a position enumerated in Section 2(3) is not precluded from a Jones Act recovery "[b]ecause a ship repairman may spend all of his working hours aboard a vessel in furtherance of its mission even one used exclusively in ship repair work that worker may qualify as a Jones Act seaman." Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 26 BRBS 44 (CRT) (1991). Nonetheless, such an employee must "owe [his] allegiance to a vessel and not soley to a land-based employer." Chandris, Inc. v. Latsis, 515 U.S. 347 at 359 (1995), quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337 at 347, 26 BRBS 75 at 83 (CRT)(1991).

   Claimant was sent by Employer to repair the boilers on the vessel (crude oil tanker) while it was in poet in Aruba. The boilers supply heat and electricity to the ship and it is necessary that the crude oil remained heated during journeys to Europe. Claimant worked on the ship for a week in Aruba, and then sailed with it to Boston, a voyage which took three days. The ship was in port in Boston for four days taking on cargo, and then sailed for England over the next two weeks. Claimant maintained the boilers during the journey. Claimant was injured while the vessel was in the English Channel.. The vessel was in port for two days in England. Claimant remained with the vessel as it traveled to Italy, Libya and the Baltic, until he flew back to the United States after the ship docked in France. Claimant estimated he was with the vessel for a total of two and one-half months, and that his association with the vessel would have lasted for about three months in all had he not been injured. In this regard, Claimant testified that it was anticipated that his work on the boilers would be completed prior to the end of the voyage.

   The Board affirmed the ALJ's determination that Claimant did not have a connection to the vessel that was substantial in duration and nature, and that Claimant is a land- based worker entitled to coverage under the LHWCA. The Board found that the ALJ correctly stated that the supreme Court has rejected the notion that an employee becomes a seaman merely because he is assigned to a vessel for the duration of its voyage. Chandris. The Board agreed that Claimant is not a member of the crew merely because he was scheduled to be on the vessel for the entire three months of its journey from Aruba to Europe, via Boston and back. Moreover, the Board agreed with the ALJ that Claimant was not usually an employee of the vessel, but was a land-based worker placed on the vessel for only the duration of a specific repair job.

   The Board noted that the appropriate inquiry regarding the Claimant's duties is the employee's basic job assignment at the time of injury. Shade v. Great Lakes Dredge & Dock Co., 154 F.3d 143, 33 BRBS 31(CRT) (3d Cir. 1998), cert. denied, 119 U.S. 1142 (1999). In this regard the Board found that the ALJ rationally credited Claimant's hearing testimony, that he performed 80 percent of his duties for Employer on ships at dock or in powerplants, rather than on ships at sea, over Claimant's converse deposition testimony. Thus, Claimant's overall employment established that he was a land-based worker who owed his allegiance to his land-based employer, and not to the vessel.

[Topic 1.4.2 Coverage Master/member of the Crew (seaman)]

Arjona v. Interport Maintenance Company, Inc., ___ BRBS ___ (BRB No. 99- 0573)(March 1, 2000)

   Claimant in this matter was a container repairman who cut his foot with an electric saw while repairing a container at Employer's facility located within the Oak Island Conrail yard. The main issue in this case is whether or not the injury site qualifies as a situs under the LHWCA. The facility was about one quarter mile from Newark Bay, a navigable waterway, and about one-half to one mile north of the Port Newark-Port Elizabeth Terminal. Employer's property occupies approximately 70 acres of land within the Conrail yard, and is bounded on the north, south, and east sides by Conrail railroad tracks. To the west, the facility is bounded by an interstate highway; there is no exit from this highway leading to or from Employer's yard. There is no water access to the property; the only access is by three roads over the railroad tracks, one of which is undeveloped.

   Employer is in the business of repairing inter-modal containers which are owned by its customers. The owners lease the containers to "shipping" companies for use on ships, railroads and trucks, and upon expiration of these leases, the containers are brought to Employer for repair and/or storage. Employer does not transport the containers. When repairs are complete the owner is notified; the owner then sends a tuck to pick up the container, or the container is stored with Employer.

   In 1990, the first ALJ assigned this matter initially found that considering the nature of Employer's work which is related to maritime purposes, the proximity of its yard to the port, and the fact that Employer is located in a railroad yard with tracks leading to and from the port for loading and unloading containers, Employer is located in an area that is used to facilitate the loading and unloading of maritime cargo and therefore meets the LHWCA's situs test, citing Textports Stevedore Co. v. Winchester, 623 F.2d 504, 12 BRBS 719 (5th Cir. 1980)(en banc), cert. denied, 452 U.S. 905 (1981).

   On appeal the Board affirmed the ALJ's original determinations that Claimant satisfied the status requirement and that 'the proximity of Employer's site to the port is a factor supportive of finding that Claimant's injury occurred on a covered "situs." The Board, however, vacated the ALJ's conclusion that the "situs" requirement was satisfied, as in determining whether Employer's site is an "adjoining area" under Section 3(a) of the LHWCA., he did not specifically consider all of the relevant factors set forth in Textports, 632 F.2d at 504, 12 BRBS at 719, and Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 7 BRBS 409 (9th Cir. 1978). Thus the case was remanded.

   On remand, another ALJ was assigned to this matter [the original judge was no longer with the office] and determined that Claimant did not meet his burden of establishing that his injury occurred upon a maritime situs under Section 3(a) of the LHWCA, and therefore concluded that Claimant failed to establish the requisite coverage for his claim. Accordingly, benefits were denied.

   Claimant appealed arguing that the ALJ violated the AP by not engaging in a discussion and evaluation of the evidence and by not complying with the Board's directive to weigh the various factors. In particular, Claimant asserted that, as the "situs" inquiry in this case involved a legal issue, it was inappropriate for the ALJ to resort to the holding in Director, OWCP v. Greenwich Colliers, 512 U.S. 267, 28 BRBS 43 (CRT) (1994), to find that Claimant did not satisfy his burden of proof, and thus, avoid applying the relevant law to the undisputed facts on this issue. The Board found Claimant correct on this issue.

   On the more substantive issue of "situs," Claimant argued that the issue of an "adjoining area" should involve consideration of the entire area of Port Newark, and thus should not, as the Board directed, be limited only to the confines of Employer's facility. Claimant argued that where, as in the instant case, Employer's facility is located within an area comprehensively devoted to maritime commerce, it should be regarded as a maritime situs irrespective of the Employer's motivation in selecting the site.

   Before addressing the instant issue, the Board reviewed the jurisprudence on this issue. Under Section 3(a), coverage is determined by the nature of the place of work at the moment of injury. Melerine v. Harbor Constr. Co., 26 BRBS 97 (1992). To be considered a covered situs, an "adjoining area" must have a maritime nexus, but it need not be used exclusively or primarily for maritime purposes. Textports. An area can be considered an "adjoining area" within the meaning of the LHWCA if it is in the vicinity of navigable waters, or in a neighboring area, and it is customarily used for maritime activity. Textports; Herron.

   In determining whether Claimant's injury occurred on an "adjoining area" under Section 3(a), the ALJ applied, as directed by the Board, the functional relationship test enunciated in Herron. Factors to be considered in determining whether a site is an "adjoining area" under that test include: 1) the particular suitability of the site for the maritime uses referred to in the LHWCA; 2) whether adjoining properties are devoted primarily to uses in maritime commerce; 3) the proximity of the site to the waterway; and 4) whether the site is as close to the waterway as feasible given all the circumstances of the case. The Board noted that it has applied this test in several cases instructive to the case at bar and then briefly reviewed these.

   Applying Herron and Bennett, the ALJ determined that Claimant did not establish that Employer's premises constitute a maritime situs. The site was chosen by economic factors considered by businesses generally, and specifically, by the low per- acre cost of the rent as indicated by unrefuted testimony. The ALJ found that the adjoining properties, which included a warehouse, trucking terminal, a limousine facility, a sewage treatment plant, a railway switching yard, and a metal processing plant, were not shown to be primarily devoted to maritime business pursuits. Additionally, the ALJ stated that while the location of the site is of some economic benefit to Employer due to its proximity to the port, the site is not otherwise particularly suited for maritime purposes. The ALJ conclude that upon consideration of all of the factors, that the evidence is , at best in equipoise on the issue of whether Employer's Oak Island facility constitutes a maritime situs within the meaning of Section 3(a) of the LHWCA.

   The Board found that, despite the basis for her conclusion regarding whether the site of injury was covered under Section 3(a), the ALJ fully addressed the evidence relevant to the Herron factors and her findings of fact regarding the site of injury are supported by substantial evidence. The Board agreed that Employer's property does not have a sufficient functional nexus to maritime activity to warrant a finding of coverage under the LHWCA, as only the proximity of the site of the port and the economic benefit it allows Employer in lowering its customers' costs of transporting containers between the port and the yard support a finding of coverage.

[Topic 1.62 Coverage Situs "Over land"]

Terrell v. Washington Metro. Area Transit Authority, ___ BRBS ___ (BRB No. 99- 0509) (Feb. 16, 2000)

   Here the Board was faced with two questions: (1) whether an employer has standing in a Section 22 modification motion when the claimant is currently receiving from the Special Fund; and (2) whether an ALJ can find the Director liable for claimant's counsel's attorney fees. The ALJ had found the Employer lacked standing and found the Director liable for attorney's fees. The Board reversed both of the ALJ's determinations.

   Claimant was awarded PPD for two injuries he sustained during the course of his employment with Employer as a bus driver on June 4, 1977 and March 9, 1978, which eventually required neck surgery in 1979. Pursuant to a compensation order by the district director in 1989, Employer was awarded relief under Section 8(f). After Claimant underwent a second neck surgery in 1995, he filed a petition for modification under Section 22, alleging a change in condition and seeking PTD. Both Employer and the Director opposed Claimant's motion.

   On June 24, 1998, the ALJ found that since Employer failed to establish that it would be adversely affected or aggrieved by any increased payments by the Special Fund to Claimant, Employer was dismissed from the proceedings. The ALJ then concluded that Claimant is entitled to PTD, commencing on January 18, 1996, and continuing. Finally, the ALJ found the Director liable for Claimant's counsel's fee. On February 1, 1999, the ALJ rejected the Director's motion for reconsideration and found the attorney fee may be assessed against the Director pursuant to Section 26 of the Act. The Director appealed to the BRB.

   The Board initially noted that Section 702 of the APA entitles "[a] person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute" to judicial review. The ALJ had cited Grange Lumber Co. v. Rowley, 326 U.S. 295 (1945), to support its holding that Employer's financial interest in Claimant's modification request was too remote in order to establish standing. The Board distinguished Grange Lumber where there was no standing issue and the employer had the right to participate fully in the evidentiary hearings. In the instant case, Employer's right to participate in the hearings and Employer's standing were directly at issue.

   Then, the Board reasoned that a successful result of Claimant's request for modification will have a direct financial consequence on Employer because the Special Fund is still financed by covered employers, regardless of the fact that the amount covered employers have had to pay into the Fund has decreased through attrition. Accordingly, Employer did have a financial interest in Claimant's request for modification; thus, the Board remanded and deemed Employer entitled to participate in the formal hearing.

The Board next determined that the ALJ acted outside his authority in finding the Director liable for attorney's fees pursuant to Section 26 of the Act. The ALJ had found the Director liable for attorney's fees pursuant to Section 26 because the Director's conduct in the case was "vexatious and oppressive." The BRB noted that the Special Fund cannot be liable for attorney's fees under Section 28. The BRB concluded that neither the BRB nor an ALJ has authority to award fees and costs pursuant to Section 26. The Board vacated the ALJ's attorney fee determination and held that the Director cannot be held liable for attorney's fees, but Employer may be potentially liable for such a fee.