B. Benefits Review Board

H.S. v. Dep't of Army/Navy, __ BRBS __, BRB Nos. 08-0533 and 08-0596 (Apr. 10, 2009).

K.L. v. Blue Marine Security, LLC, __ BRBS __, BRB No. 08-0789 (Apr. 16, 2009).

   In K.L. v. Blue Marine Security, the Board affirmed the administrative law judge's decision and order on summary judgment finding Claimant covered by the Act, and it remanded the case to the ALJ for further findings regarding whether there were any remaining disputed issues and for entry of a compensation order awarding or denying benefits.

   Pursuant to regulations issued by the Department of Homeland Security, guards are required at all times on certain vessels anchored in the Mississippi River to ensure compliance with requirements imposed by the U.S. Customs Service, the INS, and the Coast Guard. Claimant was working as such a guard aboard a vessel on the Mississippi River when his exposure to a harmful substance caused a seizure and loss of consciousness. The ALJ found that he was not excluded from coverage under Section 2(3)(A) of the Act because his work was not performed in an office but was instead performed aboard a vessel on navigable waters. Employer appealed, alleging that Claimant was expressly excluded from coverage under Section 2(3)(A) of the Act. It further argued that Claimant acted as a "government employee" and was thus excluded from coverage under Section 3(b) of the statute, inasmuch as his duties were delegated to him by the Coast Guard.

   The Board first rejected Employer's contention that Claimant was a government employee under Section 3(b) of the Act since it had offered no factual or legal basis in support of its argument.

   With respect to Employer's contention that Claimant was excluded from coverage under Section 2(3)(A) of the Act, the Board acknowledged that claimants bear the burden of establishing that: their injuries occurred upon a site covered by Section 3(a) of the Act; they were engaged in maritime employment pursuant to Section 2(3) of the statute; and there is no specific statutory exclusion which applies to their employment. It further acknowledged that Section 2(3)(A) of the statute expressly excludes from coverage "individuals employed exclusively to perform office clerical, secretarial, security, or data processing work" but stated that the term "exclusively" in that section modifies all four classifications. Noting that it had previously found the term "office" modified "clerical" and "data processing" work in Section 2(3)(A), the Board similarly held in this case that Claimant was not excluded from the Act's coverage because he was not exclusively performing "office" security work. The Board determined that there was substantial evidence to support the ALJ's finding that Claimant was not working in an office or administrative space, but was instead working on a vessel subject to various marine hazards. It further determined that the exclusions in Section 2(3)(A) were intended by Congress to be interpreted narrowly, and noted that Claimant "was not confined, physically and by function, to an office or other administrative area on land." It thus found that Claimant "is not the type of security officer intended to be excluded pursuant to Section 2(3)(A) as he was exposed to traditional maritime hazards."

[Topic 1.7.1 Jurisdiction/Coverage – Maritime Worker; Topic 2.3 Definitions – Employee; Topic 3.1 Coverage – Government Employees;

A.S. v. Advanced American Diving, __ BRBS __, BRB No. 08-0574 (Apr. 27, 2009).

   In A.S. v. Advanced American Diving, the Board affirmed in a split decision the administrative law judge's determination that a widowed claimant who was receiving death benefits had not remarried. It thus upheld the ALJ's determination that Employer's petition for modification to discontinue death benefits should be denied.

   Claimant and decedent were married in September 1998, decedent died during the course of his Longshore employment in March 1999, and Employer thereafter began paying death benefits pursuant to Section 9 of the Act. In September 1999, Claimant vacationed in Cabo San Lucas, Mexico where she began dating A.F., and they subsequently began living together in Mexico in 2001. On November 2, 2002, Claimant and A.F. "celebrated their relationship in a ‘commitment ceremony' presided over by a minister and witnessed by 50 friends and family members . . . , [they] said vows, exchanged rings, and had a party, which included catered food, a photographer, and a band." In November 2003, Claimant applied to, and was granted permission by, an Oregon court to change her last name to that of her companion. The couple subsequently had two children, one born in March 2004 and the other in March 2006. At the time Employer filed its petition for modification, the couple owned property together in Mexico and Oregon, and generally referred to themselves as "husband and wife" in public. They had not, however, filed joint tax returns with the U.S. Internal Revenue Service.

   Both parties presented expert evidence to the ALJ on the subjects of Mexican and family law. Claimant testified at the hearing that she did not consider the "commitment ceremony" to be a marriage ceremony and did not consider herself married to A.F. A.F. provided similar corroborating testimony, and based on the evidence submitted, the ALJ concluded that Employer had failed to meet its burden to show Claimant had remarried. the ALJ thus denied Employer's petition for modification.

   Recognizing that a widow is entitled to death benefits under Section 9(b) of the Act only while she is a widow, and that the statute does not define "marriage," the Board concluded that state law controls when deciding whether a marriage has been created. The Board noted that Oregon did not recognize common-law marriage, but recognized common-law marriages legally established in other jurisdictions, and it thus found that the issue here was whether Claimant and A.F. formed a marriage under the Civil Code of the State of Baja California Sur that Oregon would recognize as a valid marriage.

   According to Employer's expert, Mexican law does not recognize common-law marriage but provides an alternative type of legal union between a man and a woman known as "concubinage." According to the expert, this union exists when the man and woman cohabit continuously with the tacit purpose of forming a family. This relationship, the expert further testified, may be terminated by "mutual agreement, abandonment, death, or by seeking a statement in ex parte proceedings." Claimant's expert testified that he believed there was also a "lesser" union under Mexican law into which a man and woman could enter called a "free union." According to the expert, "free union" was not regulated by Mexican law.

   With respect to Oregon law, Employer's expert stated that Oregon will recognize a marriage, including common-law marriage, deemed valid in the jurisdiction in which it was formed. He opined that "if concubinage were the equivalent of marriage, Oregon would recognize it, as it is the public policy of Oregon to protect the marriage state and there is a presumption that people holding themselves out as married are married." While he did not form an opinion on whether "concubinage" was the equivalent of a marriage, he concluded that Claimant's "domestic situation would probably satisfy the elements of a common-law marriage in a state that recognizes such marriage." Claimant's expert, in contrast, concluded that Claimant's domestic situation did not establish a relationship for Oregon to recognize inasmuch as a relationship had to "be a marriage" rather than simply "equivalent to marriage."

   The Board determined that, inasmuch as it was "uncontested that claimant and A.F. did not marry formally in either Oregon or [Baja California Sur], and cannot create a common-law marriage in Oregon or [Baja California Sur], the administrative law judge properly concluded that they are married under Oregon law only if they formed a concubinage relationship under [Baja California Sur] law that would be recognized as a marriage in Oregon." Since Mexican law did not treat concubinage and marriage the same, and either party could terminate the concubinage relationship without the consent of the other, the Board affirmed the ALJ's determination that Claimant had not "remarried" under the provisions of Section 9(b) of the statute. The Board found support for its determination in decisions by California and Texas courts which held that concubinage was not marriage. It also noted that the testimony of the parties' experts on Oregon law established that ceremonial and common-law marriages require that the parties intend to be married, whereas the ALJ here found credible the testimony of Claimant and her partner that they did not intend to marry. Since the Board is bound to respect the ALJ's determination regarding the credibility of testimony, it affirmed as rational and supported by substantial evidence the ALJ's decision denying modification.

   In a dissenting opinion, one Board member concluded that the ALJ's analysis of the term "remarriage" in Section 9(b) was "devoid of its context in the statute" and thus fatally flawed. According to the dissenting member, the Supreme Court has held that "practical considerations trump a claimant's technical legal status in determining her right to death benefits" and "[a]nalysis of the record [here] in light of the relevant law leads to the inescapable conclusion that claimant's relationship with A.F. is a ‘remarriage' within the meaning of [Section 9 of the Act]." Some of the facts established by the record cited by the dissenting judge in support of her conclusion were, inter alia: Claimant had been advised by her attorney that if she remarried she would lose entitlement to ongoing payment of death benefits under the Act; she conducted an investigation of relevant marriage laws and determined that neither Oregon nor Mexico recognizes common law marriage; the specific purpose of her research was to avoid having a legal marriage to A.F. which would cause her to lose her death benefits; she and A.F. represented themselves to the world as husband and wife; they jointly owned their bank accounts and real estate, including a home worth approximately $800,000; and they both obtained life insurance policies in which they described themselves as married and identified the policy beneficiaries as husband and wife.

[Topic 8.5 Disability – Death Benefits for Survivors; Topic 9.3.3 Compensation for Death – Death or Remarriage of Surviving Spouse; Topic 2.16 Definitions – Widow or Widower]