Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 136
May 1998 - June 1998
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
A. Circuit Courts of Appeals
In Avondale Industries v.
Director, OWCP, ___F. 3d ___, Case No. 97-60569 (5th Cir. Mar. 31, 1998), a case
involving the calculation of wage earning capacity, the Fifth Circuit upheld an ALJ who
averaged the hourly wages of five jobs which Employer found to be suitable employment for
Claimant. The circuit court was unpersuaded by Employer's arguments that allowing averaging
would cause employers in the future to rely on only one possible suitable employment prospect.
("We think it unlikely that an employer would risk having to pay permanent total disability
benefits by showing only one job available. Rather, the presumption that the employee is
permanently and totally disabled would seem to encourage the employer to find as many
alternate jobs as possible.") The court added that averaging ensures that the post-injury
wage earning capacity reflects each job that is available.
In McNutt v. Superior Marine,
Inc., ___ F.3d ___, Case No.97-70180 (9th Cir. Apr. 7, 1998), the Ninth Circuit held
that, although a $100 per diem amount paid to Claimant while working in Scotland was an
"advantage" under Section 2(13) of the LHWCA, it is not a "wage"
under that section because it is not subject to withholding under the Internal Revenue Code.
[2.13, wages]
In Todd Shipyards Corporation v.
Director, OWCP, ___ F.3d ___, Case No. 96-70954 (9th Cir. Apr. 1, 1998), where
Claimant was disabled from both asbestosis and hypertension, Employer is not entitled credit for
Claimant's asbestos related third party suit. [This is not a case involving third party settlements.].
In upholding the ALJ, the Ninth Circuit noted that the ALJ had relied on two related legal
theories to reach his holding that Employer was not entitled to a "set-off" for any
prospective third party proceeds received by claimant. These two legal theories were the
aggravation rule and the credit doctrine.
Under the aggravation rule, an employer is required to pay compensation
for the totality of a claimant's disability regardless of the cause of the original disability with
which the work-related disability combined such as where a claimant is disabled due to both his
asbestosis and his hypertension.
Finding the position of the Director to be rational, the Ninth Circuit
adopted the Director's interpretation that Section 33 of the LHWCA mandates that an employer
is entitled to credit from third party proceeds only when the injury for which benefits are paid
under the LHWCA is the sole and same injury that gives rise to the third party recovery.
[ 33.6, employer credit for net recovery by "person entitled to
compensation" ]
In Hall v. Consolidated
Employment Systems, Inc., ___ F.3d ___, Case No. 96-60754 (5th Cir. April 24, 1998),
while there was some evidence that Claimant's job position would have potentially led to
permanent employment, there was countervailing evidence of a greater quantum that his
employment was intermittent and discontinuous. The Fifth Circuit concluded that the ALJ s
factual findings to use Section 10(c) rather than Section 10(b) to determine his average weekly
wage were supported by sufficient evidence. While Claimant's foreman admitted that he
promised to hire claimant on a permanent basis, evidence was presented that the foreman did not
have authority to do so. The evidence additionally demonstrated that Claimant's employment
was inherently unpredictable. [Employer's high turnover rate is borne out by the fact that
Employer was required to issue between 5,000 and 6,000 W-2 tax forms even though its weekly
work force consisted of only 350 to 400 to its workers who were employed on a contract-to-contract basis.]
The court stated that an ALJ, when evaluating a claimant's earning
capacity at the time of injury, may exclude earnings at the time of injury from his calculations if
those earnings are not helpful in gauging Claimant's true earning capacity. However, the Fifth
Circuit held, "[O]ur affirmance of the ALJ on this point is based more [on] our standard of
review, than on our belief that the ALJ acted wisely by excluding those earnings." Stating
that it will be an exceedingly rare case where the claimant's earnings at the time of injury are
wholly disregarded as irrelevant, unhelpful, or unreliable, the Fifth Circuit noted that the ALJ's
decision "comes dangerously close to reversible error."
[ 10.1, average weekly wage in general; 10.4.2, judicial deference
regarding application of Section 10(c); 10.4.4, calculation of annual earning
capacity under Section 10(c); 10.4.4, calculation of annual earning capacity under
Section 10(c) ]
In Nelson v. American Dredging
Company, ___ F.3d ___, Case No. 96-3724 (3d Cir. May 11, 1998), the Third Circuit
held that the ALJ was correct in refusing to enforce a "settlement agreement" where,
at most, there was only an "agreement in principle" to settle. The circuit court found
that the parties never complied with the applicable regulations which describe in detail the
procedures for, and the necessary content of, settlement applications under the LHWCA.
Moreover, the Third Circuit found coverage under the LHWCA for a
worker who: (1) drove a bulldozer on a beach moving a sand dredging pipeline up and down the
beach in order to strategically deposit the sand; (2) waded in water to adjust valves and add
sections to the pipeline; and (3) moved the sand from where it was pumped in those waters
adjacent to the beach to the shore and then graded the sand on the beach with his bulldozer.
In determining whether an employee of a beach dredging company has
situs, one must determine whether the beach on which he was injured qualifies as an
adjoining area customarily used by at least one maritime employer to unload its vessel. The
circuit court found that an unimproved beach falls within the plain meaning of the word
"area."
The word "customarily" in Section 3(a) modifies the phrase
"adjoining area . . . used by an employer," not simply the phrase "adjoining
area." Thus one must look to whether an employer customarily uses a beach for loading,
unloading . . . rather than whether the beach "customarily is used" for "loading,
unloading, . . .." In this regard, the circuit court looked to the specific operations of
Employer. It noted that Employer was in the business of dredging channels and reclaiming
beaches. The geographical area in question was an area contiguous to navigable waters. It and
similar beaches were customarily used by this employer to unload its hopper dredge vessel.
The Third Circuit found that Claimant had status under the
LHWCA as he was directly and intimately involved in unloading the hopper vessel of sand and
was "a vital part of the unloading process." Sand was the cargo and "it literally
was unloaded' as much as it would have been had it been bagged and removed from the vessel
by a crane and cargo nets."
In Shivers v. Navy
Exchange, ___ F.3rd ___, Case No. 96-2578)(4th Cir. May 18, 1998), a parking lot
maintained by Employer for its employees was considered part of Employer's premises for
purposes of the LHWCA's course-of-employment requirement. Although the Navy Exchange
did not actually own the parking lot property, it did direct its employees to park there and had an
active hand in controlling the lot. It exercised significant control over where its employees
parked. Therefore, the lot bears a sufficient connection to the Navy Exchange's workplace such
that the parking lot should be considered part of its premises for purposes of recovery under the
LHWCA.
[1.6.2, situs--"over land"; 2.2.9, course of
employment]
B. Benefits Review Board
In Porter v. Kwajalein Services, Inc., ___ B.R.B.S. ___, BRB No.
97-212 (Apr. 9, 1998), Claimant filed a pro se Motion for Reconsideration of the
Board's previous decision in this case, Porter v. Kwajalein Services, Inc., 31 B.R.B.S.
112 (1997). In affirming its earlier decision, the Board stated that Claimant's motion before the
ALJ to rescind a settlement cannot be construed as a notice of appeal to the Board as it was
directed to the ALJ. The motion did not evince an intent to seek Board review, but requested
further review before the ALJ. The Board further stated that it is not in the interest of justice to
consider the motion to the ALJ as notice of appeal to the Board in light of the strong policy
favoring the finality of settlements.
The Board further denied Claimant's request that it review his file before
the OWCP as it is without authority to do so: "Our scope of review is not de novo but is
limited to review of the evidence in the formal record before the [ALJ]." The Board denied
Claimant's remaining requests to provide him with legal assistance and to appoint him a guardian
to state that it was "without authority to do so. See 33 U.S.C. §§ 911,
939(c)(1); 20 C.F.R. § 702.136(b)."
[ 8.10.8, finality of settlement; 8.10.8.2, setting aside
settlements; 21.1, composition and authority of BRB ]
In Zea v. West State, Incorporated, ___ B.R.B.S. ___, BRB No.
97-931 (Apr. 9, 1998), it is Employer's burden to produce substantial evidence to establish that a
disability was due to a subsequent event and not to the natural and unavoidable result of
Claimant's previous work injury. It is not Claimant's burden to affirmatively establish that his
injury arose from the previous injury since Claimant has the benefit of the Section 20(a)
presumption. The Board further held that lay evidence is not sufficient to establish an
aggravation.
[ 2.2.1, § 2(2) vis-a-vis § 20(a) presumption; 2.2.2,
arising out of employment; 2.2.6, aggravation/combination; 2.2.7,
natural progression; 2.2.8, intervening event/cause vis-a-vis natural
progression; 20.2.1, prima facie case ]
In Mowl v. Ingalls Shipbuilding, Inc., ___ B.R.B.S. ___, BRB No.
97-960 (Apr. 14, 1998), Claimant's continued employment prolonged her exposure to noise
which resulted in a work-related aggravation of hearing loss. Therefore, Claimant sustained a
new injury and was entitled to file a claim for this injury. As Claimant is entitled to be
compensated for the entire disability resulting from the combination of her current loss and her
pre-existing hearing loss, the Board found that the ALJ properly resolved this claim consistent
with the aggravation rule and affirmed the ALJ's conclusion that Employer is liable for the entire
stipulated hearing loss.
The Board concluded that an employer does not have
"knowledge" of an injury for purposes of Section 14(e) until it knows of the full
extent of the injury on which the claim is based; in other words, an employer must have
knowledge of the same injury or aggravation for which compensation is to be paid. Thus, where
a claimant's claim is based upon aggravation of a prior condition, the employer must receive
notice or have knowledge of the aggravation before Section 14(e) applies. In Mowl, the
full extent of Claimant's compensable injury was not known to Employer until Claimant put it on
notice of her intent to seek compensation for the cumulative hearing loss injury. On these facts,
"knowledge of the injury" in Section 14(b) means knowledge of the cumulative
compensable hearing loss.
[ 14.3.1, employer knowledge ]
In Daul v. Petroleum Communications, Inc., ___ B.R.B.S. ___,
BRB No. 97-1055 (Apr. 28, 1998), the Board upheld an ALJ's finding that Claimant, who was
employed as a communication consultant/salesman for Petroleum Communications (a seller of
cellular communications--air time and equipment--in the Gulf of Mexico), was excluded from
coverage by operation of the "vendor exclusion" set out in Section 2(3)(D) of the
LHWCA. All three criteria for vendor exclusion were met: (1) Employer, as a seller of cellular
goods and air time, is a vendor; (2) by assisting in the installation of new equipment aboard the
vessel where the injury took place, Claimant was temporarily doing business on the premises of a
maritime employer who owned the barge; and (3) the work performed by Claimant aboard the
barge was not work normally performed by the maritime employers' employees.
Thus, while Claimant met the requirements of situs and status, the ALJ
correctly found that Claimant lacked coverage because of the vendor exclusion. Specifically the
ALJ found that: (1) Employer was a "vendor," not a "provider of
services" as Claimant had argued (ninety-five per cent of Employer's revenue was derived
from selling air time, an intangible product.); (2) while Claimant spent little time selling tangible
goods, his specific duties entailed the representation of his company in a "public
relations" capacity, which resulted in the sale of air time and thus was "selling"
Employer's product. "Selling goods" is distinguishable from "providing
services," such as manual labor.
[ 1.11.10, exclusions to coverage--employees of suppliers, transporters, or
vendors ]
In Wilson v. Norfolk & Western RR Company, ___ B.R.B.S. ___,
BRB No. 97-1102 (Apr. 29, 1998), the ALJ properly denied Employer's Motion to Dismiss claim
on grounds of res judicata, collateral estoppel and election of remedies where Claimant
previously filed a FELA claim which the parties settled prior to the filing of the LHWCA claim.
The Board found that issue and claim preclusion can only be given effect when the legal
standards are the same in both the previous and current jurisdictions. The Board stated that it is
well-established that re-litigation of an issue or claim will only be precluded in a second case
where the parties had a full and fair opportunity to litigate the claim or issue.
The Board found that the Full Faith and Credit Act does not bar the
LHCWA claim here since it applies only to judicial proceedings and "the Virginia
dismissal order in the instant case does not appear to constitute a final judgment for purposes of
the full faith and credit doctrine" since the court never specifically adopted the terms of the
settlement as its findings. Since the Fourth Circuit has also stated that one must look to the
intent of the parties when a party invokes a previous consent judgment as preclusion, the Board
also addressed the issue of intent. The Board stated that "[w]hile the terms of the
settlement indicate that claimant released employer from all claims which he may for personal
injuries, know or unknown (sic), as a result of the November 13, 1985 (sic). . . there is no
evidence in the record of intent to preclude a claim under the Act." The Board further
stated that "assuming such an intent existed, the settlement could not preclude Claimant's
claim under the Act, as Section 15(b) of the Act, 33 U.S.C. § 915(b), invalidates any
agreement which waives a claimant's right to compensation under the Act."
The Board also concluded that the doctrine of election of remedies does
not bar the claim since there is no risk of double recovery in that the LHWCA does not preempt
state acts; rather, it is structured so that amounts received under another system are credited
against the amount obtained under the LHWCA.
Finally, the Board held that since payments received by Claimant from the
Railroad Retirement Act do not require that a disability be work-related, these payments are
indeed retirement benefits paid to employees who have retired from their railroad employment
either voluntary or involuntarily and are not subject to a Section 3(e) credit.
[ 85, res judicata, collateral estoppel, full faith and credit, election of
remedies ]
In Green v. I.T.O. Corporation of Baltimore, ___ B.R.B.S. ___
BRB No. 97-1072 (May 5, 1998), the Board expanded on the holding in Frye v. Potomac
Electric Power Co., 21 B.R.B.S. 194 (1988) (where Claimant suffers two distinct injuries
arising from a single accident, one compensable under the schedule and one compensable under
§ 8(c)(21), he may be entitled to receive compensation under both the schedule and
§ 8(c)(21) provided any loss in wage-earning capacity due to the scheduled injury is
eliminated from the § 8(c)(21) award). In Green, the Board found that
"[t]here is no danger of double recovery, however, if claimant's shoulder injury
[§ 8(c)(21) injury] alone could cause the entire loss in wage-earning capacity; claimant
is entitled to benefits for the full loss in wage-earning capacity due to his shoulder impairment
irrespective of the effect of his ankle injury [scheduled injury] on his loss in wage-earning
capacity." Slip op. at 6.
The Board reasoned that "[i]t was not the combined effects of the
disabling shoulder injury and the "equally" partially disabling ankle injury which
caused the loss in wage-earning capacity; rather each injury on its own resulted in disability
unaffected by the other. Consequently, as the loss in wage-earning capacity due to claimant's
ankle injury does not affect the degree of disability due to the shoulder injury alone, claimant
would not be receiving a double recovery for the same disability if he were fully compensated
under both Section 8(c)(21) and the schedule at Section 8(c)(4)." Id.
[ 8.4, conflicts between applicable sections ]
In Jackson v. Strachan Shipping Company, ___ B.R.B.S. ___,
BRB No. 97-1157 (May 12, 1998), the ALJ incorrectly held that the Section 20(d) presumption
("that the injury was not occasioned by the wilful intention of the injured employee to
injure or kill himself or another") was rebutted where Claimant willfully engaged in
driving, contrary to the restrictions imposed by his doctor, and his driving led to the injury. The
Board pointed out that the Section 20(a) presumption applies to the Section 2(2) requirement that
the injury arose out of Claimant's employment and the Section 20(d) presumption complements
the Section 3(c) inquiry into whether the injury was occasioned by Claimant's willful intention to
injure himself. Section 20(a) cannot be rebutted by attributing disability to an intervening event
caused by the claimant's own affirmative conduct, unless there is a second accident or event
occurring subsequent to the work injury. In the instant case there was no second injury and the
Board has explicitly rejected the suggestion that the duty of care required of Claimant to guard
against a subsequent injury applies to the initial work injury.
As to the Section 20(d) presumption, while the ALJ found that Claimant's
injuries were caused by his deliberate disregard of the doctor's instructions, at no time did the
ALJ make a finding that the injuries were caused by his willful intent, the clear language
specified in Section 3(c). "Willful intent" to injure oneself requires a strict standard
of proof. The statute provides compensation regardless of how negligent or inadvisable one's
conduct may be, provided that there is no intention on the part of the employee to harm or injure
himself or another. The duty of using due care is applicable only in intervening cause cases and
applies only to guarding against re-injury following an initial work-related injury and has no
relevance to the inquiry into whether an employer presented substantial evidence that a claimant
willfully intended to injure himself.
[ 3.2.2, wilful intention ]
In Bailey v. Pepperidge Farm, Inc., ___ B.R.B.S. ___, BRB No.
97-1156 (May 19, 1998), the Board found that the district director erred in awarding Section
14(f) assessments based on Employer's failure to pay Claimant annual adjustments pursuant to
Section 10(f) in accordance with Holliday v. Todd Shipyards Corp., 654 F.2d 415, 13
B.R.B.S. 741 (5th Cir. 1981) (the rate paid for permanent total disability should include all
intervening Section 10(f) adjustments occurring during periods of prior, temporary total
disability), overruled en banc in Phillips v. Marine Concrete Structures, Inc.,
895 F.2d 1033, 23 B.R.B.S. 36 (CRT)(5th Cir. 1990). The Board noted that in Brandt v.
Stidham Tire Co., 785 F.2d 329, at 332, 18 B.R.B.S. 73 (CRT), at 78( CRT), the District of
Columbia Circuit stated, "In sum, we accept the Holliday ruling as the proper
reading of the statute in this circuit at least until the precedent is overruled in the Fifth Circuit . .
.." The Board then reasoned that Holliday no longer applied to cases arising under
the District of Columbia Workers' Compensation Act and Claimant is entitled to annual
adjustments pursuant to Section 10(f) at a rate including only those adjustments occurring after
she became permanently totally disabled.
The Board also noted that ordinarily an employer may not collaterally
attack an underlying compensation awarded through an appeal of a Section 14 penalty but that, in
this case, it was apparent that Employer had no earlier opportunity to challenge the basis
underlying the district director's Section 14(f) assessment, i.e. the computation of the
Section 10(f) adjustment pursuant to Holliday. The ALJ did not specifically order the
calculation of Section 10(f) adjustments pursuant to Brandt/Holliday, and the district
director did not issue any compensation orders concerning Section 10(f) prior to the assessment
of the Section 14(f) penalty.
[ 10.7.1, annual increase; 60.1, District of Columbia Workers'
Compensation Act ]
In Diggles v. Bethlehem Steel Corp., ___ B.R.B.S. ___, BRB No.
97-1168 (May 22, 1998), the Board held that there is no requirement under the LHWCA that a
specific statement be made within a settlement agreement that it is made pursuant to Section 8(i).
In the instant case, Claimant alleged that a stipulated, and ALJ approved, agreement could be
modified because it was not a Section 8(i) settlement. However, the language of the agreement
provided for a complete discharge of Employer's obligations and contained additional language
indigenous to a Section 8(i) agreement. The agreement referred to the fact that the agreement
was not made under duress, financial or otherwise, that Claimant believed that it was in her best
interest, and that Employer would be completely discharged from all future liability for disability
compensation.
Claimant, on appeal for the first time, argued that the application was
deficient because it did not contain a recent medical report, an itemized statement of medical
expenses, nor a sufficient explanation of the adequacy of the amount. However, the Board noted
that such deficiencies do not provide a basis for modifying a final order approving settlement. It
held that the "validity of the agreement underlying a Section 8(i) settlement order is not
subject to an attack in modification proceedings under Section 22, but rather raises legal issues
which must be timely appealed under Section 21 of the Act, 33 U.S.C. § 921." The
Board's position is perplexing since it would allow a party to a Section 8(i) settlement to
generally appeal that signed, judicially approved settlement agreement within 30 days. Thus, in
the Board's view, a Section 8(i) settlement is not final once filed unless the 30 day period runs.
[ 8.10.3, structure of settlement; 8.10.8, finality of settlement;
8.10.8.2, setting aside settlements]
In Lombardi v. Universal Maritime Service Corp., ___ B.R.B.S.
___ BRB Nos. 97-1169 and 98-0193 (May 22, 1998), the Board noted that it previously held that
an employer may attempt to modify a total disability award pursuant to Section 22 by offering
evidence establishing the availability of suitable alternate employment. In the instant case, the
Board concluded that such evidence must demonstrate that there was, in fact, a change in
Claimant's economic condition from the time of the award to the time modification was sought.
The Board noted that, at the initial hearing in this matter, Employer's counsel made a tactical
decision not to argue that Claimant was capable of performing suitable alternate employment and
unequivocally declined the opportunity to hold the record open for submission of evidence
regarding such employment. Employer cannot seek for the first time, on modification, to present
evidence of suitable alternate employment in support of its allegation of a change in Claimant's
condition.
[ 22.1, modification generally ]
In Parks v. Newport News Shipbuilding, ___ BRBS ___, BRB
Nos. 97-1192 and 97-1192A (May 27, 1998), the Board found that the ALJ did not err in
allowing Claimant to enter additional evidence after her case was completed. Employer's due
process rights were not violated since the ALJ agreed to allow Employer the opportunity to
depose the three doctors who submitted identical affidavits composed by Claimant's counsel and
signed under oath by the three physicians. Employer, however, made no effort to supplement the
record. The Board further noted that the evidence submitted by the claimant was material and
relevant to the issue in dispute, namely whether the decedent had asbestosis.
The Board held that the ALJ's interpretation of the CAP/NIOSH
(Committee of the College of American Pathologists and the National Institute for Occupational
Safety and Health) criteria was supported by evidence. Specifically, the ALJ found that
interpretation of the phrase "associated with" contained in the CAP/NIOSH report
can reasonably mean that asbestos bodies need only be present on the same tissue slide, or in the
same histologic section as the fibrosis in order to be considered "associated with" the
fibrosis and thus arrive at a diagnosis of asbestosis. (Employer's expert required that the
asbestosis bodies be imbedded in the fibrous tissue, or immediately adjacent to the fibrous tissue
in order for the asbestos bodies to be "associated with" the fibrosis).
The ALJ found that sufficient doubt had been cast upon Employer's
expert's interpretation of the CAP/NIOSH criteria by other physicians and that no physician other
than Employer's expert directly disputed the diagnostic criteria under CAP/NIOSH employed by
Claimant's physicians and adopted by the ALJ. Thus, the ALJ concluded that the decedent had
asbestosis and that there was a causal nexus between the decedent's asbestos exposure and his
death.
[ 23.2, admission of evidence; 23.5, ALJ can accept or reject
medical testimony ]
In Griffin v. Newport News Shipbuilding & Dry Dock Company,
___ B.R.B.S. ___, BRB No. 97-1266 (May 27, 1998), the Board affirmed the ALJ's finding that
(in the Fourth Circuit) a parking lot owned by Employer, but located across a public road from
the shipyard, is not a covered situs under the Fourth Circuit's decision in Sidwell v. Express
Container Services, Inc., 71 F.3d 1134, 29 B.R.B.S. 138 (CRT) (4th Cir. 1995), cert.
denied, 116 S. Ct. 2570 (1996). The Board analogized to the decision in Kerby v.
Southeastern Public Service Authority, 31 B.R.B.S. 6 (1997), aff'd mem., 135 F.3d
770 (4th Cir. 1998) (table) (the claimants were injured at a power plant owned by an employer,
which provided electricity in part for employer's shipyard, did not satisfy the situs requirement.).
In Kerby, the location of the power plant wherein Claimants were injured was separated
from Employer's shipyard by fences which surrounded each property, by privately owned
railroad tracks which ran between the two properties, and by the personnel practices of
Employer's shipyard that did not provide for unrestricted access between the two properties. In
the instant case, the Board noted that the parking lot is physically separated from the shipyard by
a public street as well as a security fence and concluded that it must be deemed to be a separate
and distinct piece of property rather than part of the overall shipyard facility.
[ 1.6.2, situs--"over land" ]
In Rice v. Newport News Shipbuilding & Dry Dock Company, ___
BRBS ___, BRB Nos. 97-1239 (June 4, 1998) the issue presented was the time frame in which
an employer must request Section 8(f) relief after the "permanency of claimant's condition
is known or is an issue in dispute." The Board upheld the ALJ's determination that the
petition was timely filed where it was filed prior to the time that the permanency of Claimant's
condition became an issue before the district director. While the Section 8(f) petition was filed
five years after the claim was filed, at no point during the five year period was the permanency of
Claimant's condition at issue. Employer is not required to monitor Claimant's condition to
determine the point at which his disability has become permanent. The fact that the parties
ultimately stipulated that Claimant is entitled to permanent disability benefits for a period which
begins prior to the date of the filing of the Section 8(f) petition does not indicate that the
permanency of Claimant's condition actually was at issue prior to the filing of the Section 8(f)
petition.
[8.7.9.2 timeliness of employer's claim for § 8(f) relief; 8.9.7.3
filing for § 8(f) relief]
