Appendix — Hullinghorst Industries, Inc. v. Carroll
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SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1981-1982
No.
HULLINGHORST INDUSTRIES, INC..
Petitioner,
DAVID E. CARROLL
AND
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
APPENDIX
JOHN DALE POWERS
SANDERS, DOWNING, KEAN & CAZEDESSUS
Post Office Box 1588
Baton Rouge, Louisiana 70821
Telephone: (504) 387-0951
Attorney for Petitioner
——————————————
Franklin Press, inc. Baton Rouge, La.
i
TABLE OF CONTENTS
Appendices A through J
A. United States Court of Appeals for the Fifth
Circuit, Opinion from which writ of certorari
is sought, 650 F.2d (5th Cir. 1981) ................ 1
B. Sept. 27, 1976 Opinion of Administrative
Judge Robert S. Amery, Case No. 76-
LHCA-652, OWCP No. 7-34955 o00.......ccccceee 19
C. January 27, 1978 Opinion of the Benefits
Review Board, 7 BRBS 538, BRB No.
c 29
„ EEA 37
E. August 20, 1979 Opinion of Administrative
Law Judge Robert S. Amery on remand,
Case No. 76-LHCA-652, OWCP No. 7-34955.... 39
F. September 6, 1979 decision of the United States
Court of Appeals for the Fifth Circuit,
H. January 25, 1980 supplemental order of the
Deputy Commissioner of the Seventh
Compensation District of the Office of
Workers’ Compensation Programs, Case
No. 76-LHCA-652, OWCP No. 7-34955,
I. March 10, 1980 Opinion of the United States
Court of Appeals for the Fifth Circuit,
ERS bere ee
J. May 20, 1980 decision of the Benefit Review
1
APPENDIX A
HULLINGHORST INDUSTRIES, INC.,
Petitioner,
V.
David E. CARROLL, and Director, Office
of Workers’ Compensation Programs,
U.S. Department of Labor, Respondents.
No. 80-3116.
United States Court of Appeals,
Fifth Circuit.
Unit A
July 16, 1981.
Before CHARLES CLARK, TATE and WILLIAMS, Cir-
cuit Judges.
TATE, Circuit Judge:
Hullinghorst Industries, Inc. appeals from a decision of
the Benefits Review Board awarding benefits under the Long-
shoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.
§ 901 et seq., to David E. Carroll, an injured Hullinghorst
employee. The appeal is based on two contentions: First, that
the Board erred in concluding that Carroll was a covered
employee within the meaning of the Act, and second, that the
Board erred in affirming the administrative law judge’s con-
clusion that there was a connexity between Carroll’s injury
and his subsequent disability.
1 Hullinghorst has withdrawn a third contention, conceding it to have
been “mooted” by the recent decision of the United States Supreme Court
in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d
458 (1980).
2
Our review of the record before us discloses no legal error
in the Board’s decision. It is therefore, in all respects affirmed.
Facts
This appeal is brought on undisputed facts.
David E. Carroll, the compensation claimant, suffered a
back injury while erecting a scaffold beneath a pier extending
out over the Mississippi River.
The pier was part of a port facility owned and operated by
the BASF Wyandotte Corp. (Wyandotte) in Geismar, Louisi-
ana. The sole purpose of the scaffold was to provide a place
for Wyandotte employees to stand in order to repair a turn-
table (a piece of equipment used by Wyandotte in the loading
and unloading of vessels) that had been damaged by a ship.
Carroll was not a Wyandotte employee and was to have
no direct role in the actual repair work on the turntable. He
was employed as a carpenter by Hullinghorst Industries, Inc.
(Hullinghorst), which acted solely as the scaffolding subcon-
tractor at the Wyandotte port facility. Neither Hullinghorst
nor any of its employees (including Carroll) participated
directly in the loading, unloading, building, repair, or breaking
of any vessel. Indeed, Hullinghorst (and Carroll) did nothing
but erect scaffolding for whatever purpose needed at the
Wyandotte facility.
Following his injury, Carroll filed a claim for compensa-
tion under the Longshoremen’s and Harbor Workers’ Compen-
sation Act, 33 U.S.C. § 901 et seq., with the United States
Department of Labor (DOL).?
2 Previously, on August 8, 1975, Carroll filed suit against Hullinghorst
and Wyandotte in the United States District Court for the Eastern Dis-
trict of Louisiana—an action dismissed for lack of subject matter juris-
diction on May 28, 1976. Carroll also filed suit in state court on February
25, 1976, seeking benefits under Louisiana's workmen's compensation stat-
ute. Those actions have no direct bearing on the issues presented to this
court.
3
Initially, the administrative law judge (ALJ) denied bene-
fits to Carroll on the ground that he was not an “employee”
within the meaning of the Act. The Director of DOL’s Office
of Workers’ Compensation Programs appealed that decision
to the Benefits Review Board (Board). The Board reversed
the ALJ’s determination that Carroll was not a covered
employee under the Act and remanded the case for determina-
tion of the amount of compensation due.
The ALJ’s determination on remand was upheld by the
Board, and Hullinghorst petitions for review of the Board's
final order.
I. Scope of Review
The scope of our review of the Board’s determinations is
relatively narrow: We are to review for errors of law, and to
assure that the Board has adhered to its statutory standard
of review of factual determinations. Alford v. American Bridge
Diw., U. 8. Steel Corp., 642 F.2d 807, 809 (5th Cir. 1981) (peti-
tion for rehearing pending, on denial of coverage to worker
who spent some portion of his time in shipbuilding activities,
but who was not engaged in shipbuilding activities at the time
of his injury); Presley v. Tinsley Maintenance Service, 529
F.2d 433, 436 (5th Cir. 1976).
Under the terms of the Act, 33 U.S.C. § 921 (b) (3), the
findings of fact by the ALJ are “conclusive if supported by
substantial evidence.” The Board is thus constrained to accept
the factual findings of the ALJ unless they are irrational or
are unsupported by substantial evidence in the record as a
whole. Alford v. American Bridge Div., U. S. Steel Corp.,
supra, 642 F.2d at 809; Presley v. Tinsley Maintenance Service,
supra, 529 F. ad at 436. In addition, the ALJ's selection of rea-
sonable conflicting factual inferences is conclusive upon the
Board if supported by the evidence and not inconsistent with
the law. Alford v. American Bridge Div., U. S. Steel Corp.,
supra; Presley v. Tinsley Maintenance Service, supra.
4
In accord with these principles, we reject at the outset
Hullinghorst’s contention that the Board exceeded its statu-
tory authority in reversing the determination of the ALJ that
Carroll was not a covered employee within the meaning of the
Act. Under the uncontested facts, the ALJ’s determination in
this regard was neither a finding of fact nor a factual inference
drawn from the evidence. It was a conclusion of law. As such,
it was subject to reversal by the Board as legally erroneous,
and is open to review by this court on appeal. It is clear from
the Board’s opinion that it did not in any wise reject the ALJ’s
findings or inferences of fact. To the contrary, it expressly
accepted them and reached on that predicate a contrary legal
conclusion. Such action is well within its statutory power. See
Presley v. Tinsley Maintenance Service, supra, 529 F.2d at
436-37.
II. Coverage
In construing the coverage provisions of the Act, 33 U.S.C.
§ 903(a)* this circuit has identified three controlling jurisdic-
tional requirements: (1) The injured claimant must have
“employee” status as defined by 33 U.S.C. § 902(3);* (2) his
injury must have occurred on the “navigable waters” situs
described in § 903 (a); and (3) the claimant’s employer must
qualify as an “employer” within the meaning of 33 U.S.C. §
902 (4). Alford v. American Bridge Div., U. S. Steel Corp.,
Compensation shall be payable under this chapter in respect of dis-
ability or death of an employee, but only if the disability or death results
from an injury occurring on the navigable waters of the United States
— r — adjoining pier, wharf, dry dock, terminal, building way,
— calla, or other adjoining area customarily used * an employer
in loading, unloading, repairing, or building a vessel).
33 U.S.C. § 903(a).
4The term “employee” means any person engaged in maritime employ-
ment, including any longshoreman or other person engaged in longshoring
operations, and any harborworker including a ship repairman, ship-
builder, and shipbreaker, but such term does not include a master or
member of a crew of any vessel, or any person engaged by the master to
load or unload or repair any small vessel under eighteen tons net.
33 U.S.C. § 902(3).
5 The term “employer” means an employer any of whose employees
are employed in maritime employment, in whole or in part, upon the
navigable waters of the United States ‘(including any adjoining pier,
supra, 642 F.2d at 810-11. As to (3), however, see Trotti &
Thompson v Crawford, 631 F.2d 1214, 1216 & n.5 (5th Cir.
1980) and discussion in text at note 8 infra.
It is not disputed that the situs requirement of the Act is
satisfied—the injury did occur on the navigable waters of the
United States, as described in § 903(a). The focus of the
parties’ contentions is upon Carroll’s status as an “employee”
within the meaning of § 902(3).
a. “Employee” status.
The essential element of the status requirement is that
the claimant must be “engaged in maritime employment.” 33
U.S.C. § 902(3). The requirement is occupationai rather than
geographic, P. C. Pfeiffer Company, Inc. v. Ford, 444 U.S. 69,
78-81, 100 S.Ct. 328 335-36, 62 L.Ed.2d 225 (1979), and encom-
passes occupations beyond those enumerated in the Act, P. C.
Pfeiffer Company, Inc. v. Ford, supra, 444 U.S. at 77 n.7,
100 S.Ct. at 334 n.7; Northeast Marine Terminal Co., Inc. v.
Caputo, 432 U.S. 249, 265 n.25, 97 S.Ct. 2348, 2358 n.25, 53
L.Ed.2d 320; Trotti d Thompson v. Crawford, supra, 631 F.2d
at 1220; Odom Construction Co. v. United States Dep’t of
Labor, 622 F.2d 110, 112 (5th Cir. 1980), cert, denied,
U.S. — 101 S.Ct. 1482, 6 L.Ed.2d 614 (1981). In addition,
“employee” status under the Act may be based either upon
the maritime nature of the claimant’s activity at the time of
his injury or upon the maritime nature of his employment as
a whole. Thibodaux v. Atlantic Richfield Co., 580 F.2d 841,
844 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820,
61 L.Ed.2d 274 (1979). See also Texports Stevedore Co. v.
Winchester, 632 F.2d 504, 511 (5th Cir. 1980) (en banc);
Odom Construction Co. v. United States Dep’t of Labor, supra,
622 F.2d at 113. Thus, a claimant will meet the status require-
wharf, dry dock, terminal, building way, marine railway, or other adjoin-
ing area customarily used by an employer in loading, unloading, repairing,
or building a vessel).
33 U.S.C. § 902(4).
6
ment of the Act, not only if he is engaged in “maritime
employment” at the time of injury, but also if he spends some
portion of his overall employment engaged in martime activ-
ities. See, e.g., Howard v. Rebel Well Service, 632 F.2d 1348
(5th Cir. 1980); Boudloche v. Howard Trucking Co., Inc., 632
F.2d 1346 (5th Cir. 1980).
The term “maritime employment” is not defined in the
Act. The basic elements of that status were articulated by
this court in Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d
533, 539-40 (5th Cir. 1976), vacated and remanded in part sub
nom. P. C. Pfeiffer Company, Inc. v. Ford, 433 U.S. 904, 97
S.Ct. 2966, 53 L.Ed.2d 1088 (1977), reaff’d on remand, 575
F.2d 79 (5th Cir. 1978) (per curiam), aff d sub nom. PC.
Pfeiffer Company Inc. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62
L.Ed.2d 225 (1979):
“[A]n injured worker is a covered “employee” if. . (a)
he was performing the work of loading, unloading, repair-
ing, building, or breaking a vessel, or (b) although he
was not actually carrying out these specified functions,
he was ‘directly involved’ in such work.”
See also Thibodaux v. Atlantic Richfield Co., supra, 580 F.2d
at 844 (establishing alternative test of either time of injury
or overall occcupation). The Jacksonville Shipyards panel
expressly left open the possibility of future expansion of cov-
erage to include
“other types of . . work which cannot be characterized
as loading, unloading, repairing, building, or breaking,
and which are not ‘directly involved’ with these five types
of work, but which nevertheless are sufficiently similar
to fall within the Congressional scheme.”
Jacksonville Shipyards, Inc. v. Perdue, supra, 539 F. ad at 540
n.18.
Subsequent cases have followed the Jacksonville Ship-
7
yards “direct involvement” test, construing it liberally in
order to further the compensatory purposes of the Act.* Thus,
coverage has been extended on the basis of “employee” status
to a worker (who had never worked aboard a ship) injured
while cleaning a piece of steel to prepare it for fabrication
into a shipbuilding component, Ingalls Shipbuilding Corp. v.
Morgan, 551 F.2d 61, 62 (5th Cir. 1977) (cleaning was “‘neces-
sary prerequisite to the fabrication of the steel“ and thus was
“an essential step of the shipbuilding process”); to a worker
injured while sandblasting a disassembled crane to prepare it
for use in shipbuilding, Alabama Dry Dock d Shipbuilding
Co. v. Kininess, 554 F.2d 176, 178 (5th Cir.) (repair and main-
tenance of machines used in shipbuilding is an “essential
aspect” of the shipbuilding business), cert. denied, 434 U.S.
903, 98 S.Ct. 299, 54 L.Ed.2d 190 (1977); to a worker who
maintained and repaired tools and equipment used in loading
and unloading ships, Texports Stevedore Co. v. Winchester,
554 F.2d 245, 247 (Sth Cir.) (maintenance and repair of long-
shoring tools and equipment is a “continuous and direct
involvement with maritime activities”), modified in part on
rehearing on other grounds, 561 F.2d 1213 (5th Cir. 1977),
aff’d on rehearing en banc on other grounds, 632 F.2d 504 (5th
Cir. 1980); to a landbased construction worker injured while
removing concrete blocks used as moorings from navigable
waterway, Odom Construction Co. v. United States Dep’t of
Labor, supra, 622 F.2d at 113 (removal of blocks “directly
furthered maritime commerce” and had “realistically signifi-
cant relationship to ‘traditional maritime activity involving
navigation and commerce on navigable waters’... .); and to
a landbased carpenter injured while working on the initial
construction of a pier, Trotti & Thompson v. Crawford, supra,
631 F.2d at 120 (claimant’s work “directly furthered” the
F. g., Texports Stevedore Co. v. Winchester, 554 F.2d 245, 246 (5th
Cir.), modified in part on rehearing on other grounds, 561 F.2d 1213 (5th
Cir. 1977), aff'd on rehearing en banc on other grounds, 632 F.2d 504 (5th
Cir. 1980) (en banc); Alabama Dry Dock 4 Shipbuilding Co. v. Kininess,
554 F.2d 176, 178 (Sth Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d
190 (1977). See Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S.
249, 268-72, 97 S.Ct. 2348, 2359-61, 53 L.Ed.2d 320 (1977).
maritime goals of the port, and initial construction cannot be
distinguished from pier repair under the Act).
These decisions are dispositive of the status issue raised
on this appeal. This court has made it clear that the mainte-
nance and repair of tools, equipment, and facilities used in
indisputably maritime activities lies within the scope of mari-
time employment” as that term is used in the Act. Odom Con-
struction Co. v. United States Dep’t of Labor, supra, 622 F.2d
110 (5th Cir. 1980) (restoration of mooring facilities); Ter-
ports Stevedore Co. v. Winchester, supra, 554 F.2d 245 (5th
Cir. 1977) (maintenance and repair of longshoring tools and
equipment); Alabama Dry Dock & Shipbuilding Co. v. Kini-
ness, supra, 554 F.2d at 176 (5th Cir. 1977) (maintenance and
repair of shipbuilding equipment). See also Trotti & Thomp-
son v. Crawford, supra, 631 F.2d 1214 (5th Cir. 1980) (no
distinction under the Act between pier construction and pier
repair).
The scaffolding work at issue in the present case was part
of an ongoing pier repair project involving the repair of a
turntable (affixed to the pier) used by longshoremen in the
loading and unloading of ships. Under the authority of the
cases cited in the preceding paragraph, that project was indis-
putably maritime in nature.
Hullinghorst contends, however, that the present case is
distinguishable from those “maintenance and repair” cases.
Hullinghorst argues that Carroll was to play no direct role in
the actual repair work on the turntable. Thus, Carroll was
not engaged in the maintenance or repair of longshoring equip-
ment, but was merely utilizing his essentially nonmaritime
carpentry skills to build a scaffold that would be used by
others in the repair of longshoring equipment.
We do not choose to split this particular hair. Carroll's
work in erecting the scaffolding was an integral part of an
9
indisputably maritime pier repair project, an essential and
indispensable step in the repairs to be effected. It was not
merely “incidental” to that project, see Dravo Corp. v. Banks,
567 F.2d 593, 595-96 (3d Cir. 1977) (unskilled laborer spread-
ing salt on ice at shipyard not engaged in maritime employ-
ment), nor was it the type of job “peripherally related to mari-
time matters that Congress said was not to be covered by the
LHWCA, such as trans-shipment of stored cargo or clerical
work,” see Odom Construction Co. v. United States Dep’t of
Labor, supra, 622 F.2d at 113. It was an integral step in a
maritime project of the type that could be performed by a
typical harborworker. See id. at 112. It directly furthered the
maritime goals of the Wyandotte port facility—the loading
and unloading of ships. See Trotti c Thompson v. Crawford,
supra, 631 F.2d at 1200. It clearly bore a “realistically signifi-
cant relationship to ‘traditional maritime activity involving
navigation and commerce on navigable waters’. . . .” Odom
Construction Co. v. United States Dep’t of Labor, supra, 622
F.2d at 113. That the skills utilized by Carroll were “essen-
tially nonmaritime” in character is immaterial. It is the pur-
pose of the work that is the key; nonmaritime“ skills applied
to a maritime project are maritime for purposes of the “mari-
time employment” test of the Act. Mississippi Coast Marine v.
Bosarge, 637 F.2d 994, 997-98 & n.7 (5th Cir. 1981); Trotti
& Thompson v. Crawford, supra, 631 F.2d at 121 nn.15, 16.
See Odom Construction Co. v. United States Dep’t of Labor,
supra, 622 F.2d at 112-13.
Nevertheless, Hullinghorst contends that the present case
differs from the previous “maintenance and repair“ cases of
this circuit in yet another important respect: Hullinghorst,
unlike the employers in those earlier decisions, is not shown
to have had any maritime involvement other than that arising
from the disputed activity of the claimant in this action. In
sum, Hullinghorst argues that the cases granting coverage
fall into three general categories (1) Those granting coverage
to longshoremen injured while performing some segmented
10
portion of the longshoring operation to the landward side of
the cargo’s first point of rest; (2) those granting coverage to
workers whose overall employment was indisputably mari-
time, but who were injured while performing allegedly non-
maritime tasks; and (3) those granting coverage to workers
injured while performing borderline“ activities that directly
furthered the indisputably maritime goals of their own em-
ployers. Thus, Hullinghorst argues, the maintenance and
repair of longshoring equipment and port facilities falls within
the scope of maritime employment” only when the equipment
or facilities are used by the claimant’s own employer in some
indisputably maritime operation.
Without disputing the accuracy of Hullinghorst’s descrip-
tion of the factual situations that have previously arisen in
this circuit, we nevertheless conclude that the Act imposes no
such restriction. A very similar argument was raised in the
Odom Construction Co. case in the context of the Act’s situs
requirement. There, the employer contended that the phrase
“other adjoining area customarily used by an employer in load-
ing, unloading, repairing, or building a vessel“ meant that the
situs requirement was satisfied only if the site of the injury
were used by the claimant’s own employer for one of the
indisputably maritime activities mentioned in the Act. This
court rejected that argument:
“Odom’s suggestion that coverage would be available
only if it, the employer used the mooring blocks is both
an inappropriately strained reading of the statute and con-
trary to the overall Congressional intent. The stated limi-
tation is cast in terms of an employer, not the employer
or the claimant’s employer. A more reasoned interpreta-
tion is that the site must be used by a statutory employer.
‘It is clear from the record and the findings below that
Domtar Salt, which uses the blocks as an integral part of
its facilities for loading salt onto barges, is a statutory
employer.
“In addition, it seems clear to us that the phrase
11
‘customarily used by an employer was inserted to
ensure that an employer could be liable only when it had
real or constructive notice that an area was used for mari-
time purposes and was therefore likely to be a covered
situs. This notice function would not be aided substan-
tially by requiring the claimant’s employer to be the cus-
tomary user, as illustrated by the fact that Odom makes
no claim here that it did not know about Domtar’s use
of the site.
“Moreover, the appellant’s interpretation would open
up a significant loophole in the LHWCA since there would
be no coverage if the customary user of an area simply
hired various independent contractors on a short-term
basis to perform the necessary work. (The individual
independent contractors presumably would not qualify
as customary users.) This gap in coverage would be espe-
cially large if the limiting language applies to all shore-side
sites. Such a result would be inconsistent with the pro-
fessed Congressional intention for exclusive uniform cov-
erage. Thus we accept the findings below that Maze was
injured in a situs covered under 33 U.S.C. § 903(a).”
Odom Construction Co. v. United States Dep’t of Labor, supra,
622 F.2d at 114-15 (footnote omitted).
For similar reasons we reject the selfsame argument here
raised in the context of the Act’s status requirement. To be
sure, the degree to which an employer is involved in maritime
operations independently of the disputed activities of the in-
jured claimant is a factor—and often a substantial factor— to
be considered in determining whether the claimant is himself
engaged in “maritime employment” within the meaning of the
Act. See, e.g., Trotti & Thompson v. Crawford, supra, 631 F.2d
at 1221-22. It is not, however, a necessary prerequisite to a
finding of such employment. See, e. g., Boudloche v. Howard
Trucking Co., supra, 632 F.2d 1346 (5th Cir. 1980). Nothing
in the language of the Act, however, would suggest a require-
ment that an employee injured in what would otherwise be con-
sidered maritime employment would nevertheless be barred
from recovery because his employer was performing functions
12
that were an integral part of indisputably maritime activity
that was conducted by another, and not by the employer itself.
Indeed, so to hold would read into the status requirement the
very restriction rejected from the situs requirement in Odom
Construction Co., supra.
As this court noted in Odom, Congress intended that lia-
bility should be imposed only where the employer had real or
constructive notice of the likelihood of coverage. Where, as
here, an employer assigns his workers to a project that is
maritime in nature (pier repair) and that is conducted on a
maritime situs (a pier), he has sufficient notice of the likeli-
hood of coverage. This notice function would not be enhanced
by requiring the injured claimant’s employer to be the cus-
tomary user of the maritime worksite or the ultimate benefi-
ciary of the repairs. Furthermore, acceptance of Hulling-
horst’s position in this regard would open up the very loop-
hole the Odom panel sought to close, by encouraging the use
of “nonmaritime” independent contractors to perform sez-
mented portions of maritime repair projects such as the one in
question here. Such a result is no less inconsistent with the
professed congressional intent to provide uniform coverage
when it arises in the context of the status requirement than
when it arises in the context of the situs requirement. Indeed,
the policy of liberal construction of the Act counsels strongly
against allowing the segmentation of maritime operations and
the use of independent contractors to defeat coverage where
otherwise it would clearly lie.
We conclude that Carroll was engaged in maritime em-
ployment at the time of his injury, and that he is therefore a
covered employee within the meaning of the Act.
b. “Employer” status.
Hullinghorst also argues that a second independent pre-
requisite to coverage under the Act is lacking in the present
13
case: Hullinghorst does not qualify as a statutory “employer”
within the meaning of § 902(4).
As defined in § 902(4), a statutory “employer” is “an
employer any of whose employee , are employed in maritime
employment, in whole or in part, upon the navigable waters of
the United States [as described in 33 U.S.C. § 903(a)].” (See
note 5.) That definition has remained essentially unchanged
since the original passage of the Act in 1927.7
Prior to the 1972 amendments to the Act, the notion of
a separate and independent “employer” status requirement
had some significance in the coverage scheme. Under the pre-
decessor 1927 Act, coverage was extended on the basis of
situs only—thus, a claimant injured upon the navigable waters
of the United States (as then defined) would be eligible for
the Act’s compensation, even though he was not himself
engaged in maritime employment, so long as his employer had
at least one worker who was so employed. See Northeast
Marine Terminal Co., Inc. v. Caputo, supra, 432 U.S. at 264-65,
97 S.Ct. at 2357.
With the addition of the “employee” status requirement
in the 1972 amendments, however, the “employer” status
requirement of the old Act has been rendered largely tauto-
logical. Now the injured claimant must himself be engaged in
maritime employment. Thus, as this court noted in Jackson-
ville Shipyards, Inc. v. Perdue, supra, 539 F.2d at 538, n.9, if
the injured claimant meets the status and situs requirements
embodied in § 903(a) and § 902(3), his employer would auto-
matically qualify as a statutory “employer” within the mean-
ing of § 902(4); if the claimant fails to meet either of those
—
7 The definition of “employer” contained in § 902(4) was changed in
the 1972 amendments to the Act so as to reflect the expanded definition
of “navigable waters of the United States” incorporated by those amend-
ments into § 903(a). Northeast Marine Terminal Co. Inc. v. Caputo, 432
U.S. 249, 264 n.23, 97 S.Ct. 2348, 2357 n.23, 53 L.Ed.2d 320 n.23 (1977).
14
requirements then it is immaterial whether the employer
would qualify as a statutory “employer” or not.“
Accordingly, having determined that Carroll was engaged
in maritime employment upon the navigable waters of the
United States at the time of his injury, we conclude that it
necessarily follows that Hullinghorst, his employer, is a statu-
tory “employer” within the meaning of the Act.
III. Connexity Between Injury and Disability
Hullinghorst's final contention is that the Board erred in
upholding the ALJ’s finding that a causal relationship existed
between the injury and Carroll’s subsequent disability.
As we have noted, the findings and inferences of the ALJ
are conclusive upon the Board unless they are irrational,
unsupported by substantial evidence in the record as a whole,
or inconsistent with the law; and our review of the Board’s
determination is limited to reviewing for legal error and to
ascertaining that the Board adhered to its statutory standard
in its own review of the facts. Presley v. Tinsley Maintenance
Service, supra, 529 F.2d at 436. See 33 U.S.C. § 921 (b) (3).
Our examination of the record reveals substantial evi-
8 We find no decision of this circuit which holds that employer“
status may not be predicated upon the status of the injured claimant as
a maritime employee under the Act. Pre-amendment cases are to the
contrary. See e. g., Nalco Chemical Corp. v. Shea, 419 F.2d 572, 574 (5th
Indeed, there is some question as to the existence of a separate and
t “employer” status requirement, as a jurisdictional confine,
at all. See Trotti 4 Thompson v. Crawford, 631 F.2d 1214, n5 (5th
Cir. 1980). The only case expressly recognizing such a requirement (since
the enactment of the 1972 amendments) is Alford v. American Bridge
Div., U. 8. Steel Corp., 642 F.2d 807, 810-11 (Sth Cir. 1981) (petition for
rehearing pending), wh did nct discuss the requirement in any depth.
We do not doubt that an injured claimant’s employer must be an
“employer” as that term is defined in the statute. We simply note that,
of the 1972 amendments, it does not represent the sort of
“jurisdictional confine” that is embodied in the situs and “employee”
15
dence to suport the ALJ’s conclusion that Carroll’s disability
resulted from his injury at the Wyandotte port facility on
December 12, 1972.
Carroll testified that he felt something “pop” in his lower
back while lifting material at his jobsite on December 12, and
that he has suffered severe pain and restricted mobility from
that moment on. Prior to that date, he experienced no symp-
toms whatsoever. Since that date, he has been totally unable
to work.
Carroll was examined on December 22, 1971, by Dr.
Stephen M. Wilson, an orthopedic surgeon, and on January 11,
1973, by Dr. William L. Fisher, Jr., a neurosurgeon. Both
doctors testified that Carroll reported subjective symptoms,
but that physical examinations and a myelogram revealed no
objective evidence of the herniated disc from which his disabil-
ity arises. Both doctors testified, however, that falsely normal
results were possible in such cases, and Dr. Fisher indicated
that up to fifteen percent of myelograms might show falsely
normal results. Neither physician could rule out the possibil-
ity that a herniated disc existed at that time.
Carroll testified that he continued to suffer pain and
restricted mobility, and that he consulted Dr. Jack F. Loupe,
an orthopedic surgeon, on September 14, 1973. Dr. Loupe’s
initial examination revealed the herniated disc. Carroll subse-
quently underwent surgery for the problem on three occasions.
Dr. Loupe testified that, assuming the accuracy of the history
related by Carroll, it was his opinion that the entire sequence
of back problems suffered by Carroll was caused initially by
the injury that occurred on December 12.
Dr. Ira L. Hewitt, a specialist in internal medicine con-
sulted by Dr. Loupe in connection with Carroll’s surgery,
began treating Carroll for a heart condition in September of
1973. Dr. Hewitt testified that the heart condition could have
16
been precipitated by the stress, anxiety, and pain attendant to
the kind of injury described by Carroll.
Hullinghorst does not contend that this evidence is insuf-
ficient to support the ALJ’s conclusion. Instead, it argues that
the ALJ erred in placing greater weight on the testimony of
Carroll and Drs. Loupe and Hewitt than on the testimony of
Drs. Wilson and Fisher. In essence, Hullinghorst’s position is
that the medical testimony relied upon by the ALJ is less cred-
ible than the medical testimony tending to counter it. Such an
argument fails by reason of the applicable limitations upon
judicial review, if for no other reason. The ALJ is not bound
to accept the opinion of any particular medical expert; he is
entitled to weigh the medical evidence-—including the relative
credibility of the competing experts—and to draw from that
evidence the inferences he deems most reasonable in light of
the evidence as a whole and the common sense of the situa-
tion. Todd Shipyards Corp. v. Donovan, 300 F.2d 741, 741-42
(5th Cir. 1962). As this court noted in Presley, supra:
“That the facts may permit diverse inferences is imma-
terial. The administrative law judge alone is charged with
the duty of selecting the inference which seems most rea-
sonable and his choice, if supported by the evidence, may
not be disturbed.”
Presley v. Tinsley Maintenance Service, swpra, 529 F.2d at
436.
We find in the record no basis for disturbing the factual
findings and inferences drawn by the ALJ that Carroll’s dis-
ability—arising from a herniated disc and a heart condition—
resulted from the injury he suffered on the Wyandotte pier on
December 12, 1972.
Conclusion
We find no legal error in the determination of the Bene-
17
fits Review Board that claimant David E. Carroll suffered a
disabling injury while engaged in maritime employment. Ac-
cordingly, the Board’s award of federal compensation under
the Longshoremen's and Harbor Workers’ Compensation Act,
33 U.S.C. § 901 et seq., is AFFIRMED.
AFFIRMED.
19
APPENDIX B
In the Matter of
DAVID E. CARROLL
Claimant
v.
HULLINGHORST INDUSTRIES, INC.
and/or
BASF WYANDOTTE CORP.
Employer
Case No. 76-LHCA-652
OWCP No. 7-34955
William Henry Sanders, Esq.
P. O. Drawer P
Jena, LA 71342
For the Claimant
John Dale Powers, Esq.
and Michael H. Rubin, Esq.
Sanders, Miller, Downing and Kean
P. O. Box 1583
Baton Rouge, LA 70821
For the Employer, Hullinghorst Industries, Inc.
Before: ROBERT S. AMERY
Administrative Law Judge
DECISION AND ORDER
This is a claim for compensation and other benefits under
provisions of the Longshoremen’s and Harbor Workers’ Com-
accident of December 12, 1972. The firm of BASF Wyandotte
Corporation (hereinafter called Wyandotte) was not repre-
sented by counsel at the hearing, although a copy of the
Notice of Hearing had been sent to that firm.“
The parties stipulated to the following matters, which
I find to be established: there was an employer-employee
relationship between the claimant and Hullinghorst Indus-
tries, Inc. on December 12, 1972, on that date the claimant’s
average weekly wage was $182.81, compensation has been
paid to the claimant under provisions of the Louisiana state
compensation act in the amount of $6,223., all notice and
filing requirements were timely made, and Hullinghorst
Industries, Inc. does not have workmen’s compensation insur-
ance under requirements of the Act.
The claimant is 34 years of age, married, and he has
three children. He has a tenth grade education. He was a
carpenter and, on December 12, 1972, he was in the employ
of the respondent, Hullinghorst Industries, Inc., building a
scaffold on a pier over the waters of the Mississippi River
at Geismar, La. The scaffold was to be used as a place on
which workmen could stand in order to repair a turntable
which had been damaged by a ship which had accidently
bent and torn it when the ship left. The turntable was owned
by Wyandotte and was used to load ships in the river. It was
1In view of the parties’ stipulation that Hullinghorst Industries, Inc.
was the claimant's employer, and the evidence to that effect, no counsel
for Wyandotte was really required.
21
located on the edge of the dock over the water and, when
operable, its loading pipe could be swung or swivelled from
one hold of a ship to another or from one barge to another.
It was located about 200 yards from the levee and there was
a metal catwalk from the top of the levee to the turntable.
The claimant’s job and that of his crew was not to re-
pair the turntable or the pier; it was solely to build a scaf-
fold upon which other workers, such as pipefitters or iron-
workers, and perhaps insulators, could stand and do the re-
pair work, then at a later time the claimant and his crew
would have the job of tearing this scaffold down. Neither
the claimant nor any other employees of Hullinghorst In-
dustries, Inc. were engaged in any way with building, repair-
had contracted with Wyandotte to do certain insulation main-
tenance work for Wyandotte, and this work included the
scaffold job the claimant was performing at the time of his
injury.
The crew, which included a foreman, the claimant, his
brother and another worker, picked up some tubing scaffold-
ing, bulk scaffolding, tubing handrails and scaffold boards,
transported these by truck to the top of the levee and car-
ried the materials by hand from the levee down the catwalk
to the end of the pier, near the turntable. They built the
scaffolding about 14 feet high, then took some tubing and
boards and clamped or tied these with wire to the floor or
deck of the pier. The claimant was handing up the last board
for the decking of the scaffolding to his brother when “some-
thing popped” in his back, he said it felt like a knife had
gone into his backbone, and he fell to his knees. He told
his brother that something had happened to his back. His
brother said they only needed the handrails to finish the job,
so the claimant, while on his knees, handed up the three
small pieces of tubing, then his brother came down off the
scaffold and helped the claimant to a shack, there on the
dock. His brother and the foreman later helped the claimant
back up the catwalk to the truck. The claimant did not eat
lunch. After his fellow crew members ate they drove him
to the nurse’s station. The nurse gave him some muscle
relaxants, then she called the supervisor, who had the claim-
ant driven to the Lady of the Lake Hospital, nearby. There,
he was seen by a Dr. Rathbone who prescribed more muscle
relaxants and heat and sent him home.
The claimant’s back continued to hurt and he was ad-
mitted to the hospital for three days. He was put in traction
there by Dr. Stephen M. Wilson, and later given a myelo-
gram by Dr. William L. Fisher, Jr. i Howing the myelo-
gram he was sent home, despite a painful headache and
aching back. Several days later, when the headache had let
up a little, the claimant reported back to work. He did not
actually perform any work because of his back, but was al-
lowed to stay at the job site and draw his pay, while the
other members of his crew did the work that was to be done.
He laid flat on his back in the truck going to and from work
and in a shack at the job site. Finally, after 11 days of this,
from about December 12, 1972 to December 28, he was termi-
nated, since he was unable to do the work and the crew had
a lot of work to be done. Following this, he applied for and
received social security payments and some workmen’s com-
pensation under the state act.
The claimant was seen by a neurosurgeon, Dr. Levert,
and a Dr. Rivet, who reexamined the results of the myelo-
gram and x-rays Dr. Fisher had taken and a ruptured disc
was discovered. One of these doctors was scheduling the
claimant for an operation, but dropped the matter when he
found the claimant had begun to consult an attorney. The
claimant then went to Dr. Jack F. Loupe who performed
another myelogram, x-rayed the claimant and found a rup-
tured disc. Meanwhile, the claimant had been spending most
Dr. Loupe performed two disc operations on the claim-
ant in September 1973 and April 1974. The latter’s back still
bothers him and, although Dr. Loupe says he needs another
operation, the claimant is too nervous and afraid to have it
because he does not think he would live through it. Dr.
Loupe could not promise anything and he said he did not
expect to be able to do a successful fusion, but only hoped to
be able to relieve the pain. This time the claimant would
rather bear the pain than take the chance, he testified.
He has to take glycerine for his heart condition. He
ing. Both his legs hurt frequently, his left leg more than
his right. When his chest hurts he gets a burning sensation
in the middie, then little sharp needle pains start shooting
into his left arm. When it hurts badly he calls the doctor
who gives him a shot or puts him in the hospital for awhile.
Prior to December 12, 1972 he did not have this difficulty
A report of Dr. William L. Fisher, Jr., of Baton Rouge,
dated January 24, 1973, stated that his examination of the
claimant did not reveal any objective findings. A myelogram
was found to be completely normal in all respects.
A report of Dr. Stephen W. Wilson of Baton Rouge,
dated January 19, 1973, hereby incorporated in the record
24
and admitted in evidence as Respondent’s Exhibit 8, stated
that the doctor’s impression of the claimant's condition was
law back syndrome, but after hospitalization for traction
and a myelogram by Dr. Fisher, Dr. Wilson's subsequent
examination of the claimant’s back and lower extremities did
not reveal any positive findings.
A report of Dr. Ira L. Hewitt of Baton Rouge, dated
October 4, 1974, hereby incorporated in the record and ad-
mitted as ALJ Exhibit 3, stated that the claimant was in a
minor automobile accident on September 12, 1974 and sus-
tained an acute coronary failure with severe chest pain, but
this apparently resulted in no further damage to his heart
and there was no evidence of a myocardial infarction. While
Dr. Hewitt thought the claimant’s injury of December 12,
1972 was not the basic pathological cause of his coronary
heart disease, he thought that this did help to precipitate the
earlier manifestation and caused aggravation of his cardiac
condition. Another report of Dr. Hewitt dated July 26, 1976,
hereby admitted as Claimant’s Exhibit 1, stated that, in the
doctor’s opinion, the claimant’s on-the-job injury of Decem-
ber 12, 1972, along with his loss of employment and result-
ing economic distress, did precipitate the early onset of his
heart condition.
A report of Dr. Jack F. Loupe of Baton Rouge, dated
December 18, 1973, hereby admitted as ALJ Exhibit 4, noted
that the claimant’s low back and left leg pain had been im-
proving until about 3 weeks before that time when he had
stumbled and fell, resulting in a burning sensation in his low
back and left leg with increased low back pain and left sci-
atic pain. The LA-5 intervertebral disc had narrowed to a
moderate degree. In a second report, hereby admitted as
Claimant’s Exhibit 2, Dr. Loupe stated that he had per-
formed surgery on the claimant for herniated discs twice,
once in 1973 and the second time in April 1974. The claim-
ant has continued to experience disabling pain in his lower
25
back and off and on to some degree in his lower extremities.
The claimant had to wear a back brace. In a final report,
hereby admitted as Claimant’s Exhibit 3, Dr. Loupe stated
the claimant was still disabled from his back problems as
well as from a cardiac standpoint. He was last seen by Dr.
Loupe on May 10, 1976, at which time he had severe inca-
pacitating pain in the lumbar area radiating down to both
legs. He was listing to the right and leaning on his arms
to keep his weight off. There were severe spasms and re-
strictions of motion with some weakness of the left foot ex-
tensors, which were minimal. Dr. Loupe advised the claim-
ant that should he have an L3 disc protrusion, he might get
by without a fusion, with just a removal of the L3 disc. The
claimant was to call the doctor’s office for possible sched-
uling of myelogram, disc excision and possible fusion.
Medical bills the claimant alleges amount to $10,540.07,
consisting of doctor’s bills for $3,619., hospital bills for
$6600.55 and drugs or medicines for $320.52, are hereby ad-
mitted in evidence, over the respondent’s objection, as Claim-
ant’s Exhibit 4.*
Section 3(a) of the Act provides that:
—
2 According to the claimant, some, but not all, of these have been paid
for by the General Accident Insurance Co., which apparently paid the
amounts the claimant received under the Louisiana state compensation
act. In view of the disposition of this case, further evidence as to how
much of these bills are still outstanding, and other details of the medica!
expenses will not be required and the request of claimant's counsel for
an extension of time to obtain such further evidence is denied.
constitutes navigable waters of the United States, it appears
that the situs requirements of the Act are satisfied.
However, the paramount question is whether the claim-
ant meets the definitional requirements of an “employee”
under the provisions of the Act. Section 2(3) provides:
“The term ‘employee’ means any person engaged in
maritime employment, including any longshoreman or
otl er person engaged in longshoring operations, and any
harborworker including a ship repairman, shipbuilder,
and ship breaker .. .”
Obviously the key phrase in that definition is “maritime em-
ployment,” and in my opinion the claimant’s job at the time
of his injury was no more maritime in character than that
of any carpenter who builds a scaffold anywhere in the coun-
try far from navigable waters.
In Weyerhauser Co. v. Gilmore, 528 F.2d 957, at 960 (9th
Cir. 1975), the Court of Appeals quoted from the legislative
history of the 1972 amendments to the Act, as follows:
“T]he Committee does not intend to cover employees
who are not engaged in loading, unloading, repairing or
building a vessel, just because they are injured in an area
adjoining navigable waters used for such activity. Thus,
employees whose responsibility is only to pick up stored
cargo for further transshipment would not be covered,
nor would purely clerical employees whose jobs do not
require them to participate in the loading or unloading
of cargo . . Committee on Labor and Public Welfare
S. Rep. 92-1125 at 13, 92 Cong., 2d Sess. (1972).”
The Court of Appeals in Weyerhauser then went on to say
this about the term, “maritime employment”:
“The 1972 amended prerequisite of ‘maritime employ-
ment’ is a clearly expressed congressional perpetuation
of the essential element of admiralty jurisdiction over
27
the employee. In other words, the fixed federal compen-
sation is provided in lieu of the uncertainty of a recovery
by an injured ship worker for a maritime tort. The occu-
pationai hazards intended to be guarded against are the
traditional hazards to the ship’s service employee arising
in the course of his employment; i.e., the perils of the sea
and an unseaworthy vessel recognized under maritime
laws. Accordingly we believe that to be entitled to the
benefits of [the Act], an employee’s employment must
have a realistic relationship to the traditional work and
duties of a ship’s service employment. Otherwise the clear
and unambiguous congressional language of ‘maritime
employment’ is nullified and rendered to read ‘any employ-
ment.“ Weyerhauser Co. v. Gilmore, supra, at 961.
Although I am aware that Section 20(a) of the Act con-
tains a presumption that a claim comes within the provisions
of the Act, in my opinion, that presumption has been success-
fully rebutted by substantial evidence to the contrary here.
Here, the claimant was not engaged in loading, unloading,
repairing or building a vessel, nor was there anything pecu-
liar about his work which would expose him to the same risks
as longshoremen who move cargo aboard ship or on the dock.
The claimant’s work as a carpenter had no realistically sig-
nificant relationship to traditional maritime activity. It had
nothing to do with any vessel or cargo, navigation or com-
merce.
I find that under the circumstances of this case, the claim-
ant was not a “person engaged in maritime employment” and,
thus, not an “employee” within the meaning of Section 2(3)
of the Act. Weyerhauser Co. v. Gilmore, supra; Thompson
v. Oceanic Container Service, Inc., 4 BRBS 140 (ALJ), 76-
LHCA-89 (1976); Hebert v. Barnard & Burk, Inc., 74-LHCA-
142 (1974); Thomas v. J. Ray McDermott Co., Inc., 4 BRBS
3 The evidence also indicates that the claimant's employer, Hulling-
horst Industries, Inc., does not meet the requirements of an “employer”
within the meaning of the Act, which defines the term as “an employer
any of whose employees are employed in maritime employment, in whole
or in part... etc. Section 2(4).
28
85 (ALJ), 75-LHCA-543 (1976); Central Engineering Co. v.
Bassett, 42 F.Supp. 750 (S.D. III. 1941). Accordingly, the
claimant is not entitled to compensation and benefits under
provisions of the Act.
ORDER
This claim for compensation and other benefits under the
Act is hereby dismissed for lack of jurisdiction.
ROBERT S. AMERY
Administrative Law Judge
Dated: September 27, 1976
Washington, D.C.
29
APPENDIX C
DAVID E. CARROLL
V.
HULLINGHORST INDUSTRIES, INC.
Employer-Respondent
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR
Petitioner
BRB No. 76-500
DECISION
Appeal from the Decision and Order of Robert S. Amery,
Administrative Law Judge, United States Department of
Labor.
Joshua T. Gillelan (Alfred G. Albert, Acting Solicitor
of Labor, Laurie M. Streeter, Associate Solicitor) Wash-
ington D.C., for the Director, Office of Workers’ Com-
pensation Programs, United States Department of Labor.
John Dale Powers and Michael H. Rubin (Sanders,
Downing, Kean & Cazedessus), Baton Rouge, Louisiana,
for the employer.
Before: SMITH, Chairman, and MILLER, Member.
SMITH, Chairman:
This is an appeal by the Director, Office of Workers’
30
Compensation Programs, from a Decision and Order (76-
LHCA-652) of Administrative Law Judge Robert S. Amery
pursuant to the provisions of the Longshoremen’s and Har-
bor Workers’ Compensation Act, as amended, 33 U.S.C. §901
et seq. (hereafter referred to as the Act).
Claimant is a carpenter who was 30 years old at the
time of his injury. He has a tenth grade education and has
done manual labor all his life. He has had jobs loading and
unloading barges, as a mechanic, and on oil drilling rigs in
addition to working as a carpenter. His claim for compen-
sation was based on a back injury suffered by claimant on
December 12, 1972, while he was working for his employer,
Hullinghorst Industries. After the injury claimant was hos-
pitalized for three days. He then returned to the job site, but
back pain prevented him from performing any work. Em-
ployer carried him on the payroll at his regular wages until
December 28, 1972, when it terminated claimant from its
employ. Claimant testified that he was refused welfare as-
sistance, but he has received some social security benefits.
He also received payments totalling $6,223.00 under the Lou-
isiana workmen’s compensation act. Employer Hullinghorst
made no voluntary payments of compensation under the
Longshoremen’s Act. Claimant has had two operations on his
back — one in 1973 and one in 1974 — and also has a heart
condition. Further back surgery has been recommended, but
claimant is afraid to undergo another operation. He has not
worked since his injury in 1972 and continues to suffer pain
and exhaustion.
Claimant’s job on the date of his back injury was to
build a scaffold underneath the end of a pier over the Missis-
sippi River. The purpose of the scaffold was to provide a
place to stand for other workers who were to repair a “turn-
table” that had been torn and bent by a ship leaving the
pier. The “turntable” was a cargo-handling device owned by
BASF Wyandotte Corp. (Wyandotte) for use in loading and
31
unloading ships. The scaffold was constructed by clamping
boards to the pier and building a structure of metal tubing
on the boards.
Claimant was working on Wyandotte’s premises in Geis-
mar, Louisiana, at the time of his injury. Wyandotte is a
chemical company. Employer Hullinghorst was under con-
tract with Wyandotte to do maintenance, repair and renova-
tion work at Wyandotte’s facilities, including insulation main-
tenance.
On July 1, 1976, a formal hearing was conducted in
Baton Rouge, Louisiana, before Administrative Law Judge
Robert S. Amery. Wyandotte received notice of the hearing
but did not appear. Claimant and Hullinghorst (which is not
insured under Section 32 of the Act, 33 U.S.C, §932) stipu-
lated (1) that all notice and filing requirements under the
Act were timely made (2) that there was an employer/em-
ployee relationship between them at the date of claimant's
injury; (3) that claimant’s average weekly wage was $182.81;
(4) that no other compensation was paid to claimant other
than the $6,223.00 paid under the Louisiana Act; and (5)
that a stipulation regarding incurred medical expenses would
be worked out later between the parties. It was also agreed
at the hearing that medical testimony would be taken by
deposition.
On September 27, 1976, Judge Amery issued a Decision
and Order denying compensation to claimant. The Director,
Office of Workers’ Compensation Programs has appealed the
administrative law judge’s finding that claimant is “not an
‘employee’ within the meaning of Section 2(3) of the Act.” 33
U.S.C. § 902(3).
Section 2(3) of the Act defines the term “employee” as
follows:
“any person engaged in maritime employment, including
32
any longshoreman or other person engaged in longshor-
ing operations, and any harborworker * a ship
repairman, shipbuilder, and shipbreaker
The administrative law judge found the key phrase in the
definition to be “maritime employment,” and stated, “in my
opinion the claimant’s job at the time of his injury was no
more maritime in character than that of any carpenter who
builds a scaffold anywhere in the country far from navigable
waters.” He also concluded that I neither the claimant nor
any other employees of Hullinghorst Industries, Inc., were
engaged in any way with building, repairing, loading or unload-
ing any vessel,” and that, “claimant’s work as a carpenter had
no realistically significant relationship to traditional maritime
activity.”
The judge’s decision was based primarily on Weyerhauser
Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1976), cert. denied, —
US. —, 97 S.Ct. 179 (1976). In that case, the Court of
Appeals for the Ninth Circuit found a “log pond” worker not
an employee under the Act on the ground that his work was
not “maritime employment” in the traditional sense. How-
ever, in cases presenting factual patterns more closely resem-
bling the instant case, the Court of Appeals for the Fifth Cir-
cuit (whose case law would control this case) and the Board
have construed Section 2(3) to cover injured employees.
First in the recent series of Section 2(3) cases from the
Fifth Circuit was Jacksonville Shipyards v. Perdue, 539 F.2d
533 (5th Cir. 1976). This case, which was a consolidation of
five appeals, established a test for determining employee
status under Section 2(3).
“fAjn injured worker is a covered ‘employee’ if at the
time of his injury (a) he was performing the work of load-
ing, unloading, repairing, building, or breaking a vessel,
or (b) although he was not actually carrying out these
specified functions, he was ‘directly involved’ in such
work.”
33
Id. at 539-40. The court also left open the possibility of future
expansion of the concept of covered employees.
“By this holding, we do not mean to suggest that future
cases may not bring to light other types of covered work
which cannot be characterized as loading, unloading, re-
pairing, building, or breaking, and which are not ‘directly
involved’ with these five types of work, but which never-
theless are sufficiently similar to fall within the Con-
gressional scheme. No such additional category of cov-
ered work appears in the cases before us, but we will not
foreclose the possibility of such categories arising in
future litigation.”
Id. at 540, n. 18.
Using its “direct involvement” test, the Fifth Circuit found
a worker whose job was to maintain and repair tools and
machinery used in loading and unloading ships to be a statu-
tory employee.
“Although no ships were being loaded or unloaded on the
day of the injury, Winchester’s job of repairing and main-
taining the gear used by the longshoremen was a continu-
ous, direct involvement with maritime activities.”
Texports Stevedore Co. v. Winchester, 554 F.2d 245, 247 (5th
Cir. 1977).
An employee whose job was to sandblast a disassembled
crane which was used in shipbuilding also was found to be
covered under Section 2(3). Alabama Dry Dock and Ship-
building Co. v. Kininess, 554 F.2d 176 (5th Cir. 1977). Claim-
ant’s work passed the direct involvement“ test because repair
and maintenance work on machines used in shipbuilding was
found to be “an essential aspect of the business.“ Id. at 178.
The court concluded that the disassembled state of the crane,
the fact that it was not in operation, and the “discontinuity of
time” between claimant’s injury and actual shipbuilding, did
34
not make the work less essential to employer’s shipbuilding
operation. Id. at 178.
For several years the Board has construed Section 2(3)
in favor of claimants whose work did not fit precisely within
the categories of loading, unloading, repairing or building
ships.
The duties of a “lockerman” who stored, maintained, and
serviced longshoring equipment were found to be “an integral
and essential part of the overall longshoring operations.“ Her-
ron v. Brady-Hamilton Stevedore Co. 1 BRBS 23, 276,
BRB No. 74-171 (Jan. 23, 1975). A later Board decision in
the same vein involved a claimant who was a general mainte-
nance and repair mechanic who worked on forklifts used by
the employer to unload ships. In the Board’s words,
“[mlJerely because a waterfront mechanic is not directly
involved in the actual loading or unloading of cargo does
not remove him from the coverage of the amended Act.
The maintenance and repair of longshoring machinery and
equipment is essential to the movement of maritime cargo
and thus, such an employee’s duties are included in the
broad concept of maritime employment.”
Bradshaw v. J. A. McCarthy, Inc., 3 BRBS 195, 198, BRB No.
75-209 (Jan. 26, 1976), aff'd, No. 76-1146 (3rd Cir. Sept. 19,
1977).
An engineer working on a scuba diving training program
designed to train engineers to evaluate structural aspects of
underwater facilities owned by employer was also found to be
a covered employee. The Board held,
“Ta]lthough ‘maritime employment’ includes . any
longshoreman or other person engaged in longshoring
operations, and any harborworker including a ship repair-
man, shipbuilder, and shipbreaker . . it is not limited
— oy engaged in those activities. 33 U.S.C. §
a
35
Sharp v. Pacific Gas d Electric Co., 2 BRBS 381, 384, BRB
No. 75-170 (Oct. 30, 1975).
Comparing claimant Carroll’s work building a scaffold to
facilitate repair of cargo handling equipment to the jobs per-
formed by claimants in the preceding cases, it is clear that
claimant was “directly involved” in shiploading operations.
The scaffold was an “essential aspect” of the business of load-
ing and unloading ships at Wyandotte’s pier. Accordingly, he
is an employee under Section 2(3) of the Act.
The administrative law judge also found that claimant’s
employer Hullinghorst was not an “employer” under Section
2(4) of the Act. 33 U.S.C. § 902(4). However, it is clear that
claimant was injured at a situs covered by the Act. 33 U.S.C.
§ 903(a). The Fifth Circuit in Jacksonville Shipyards, Inc. v.
Perdue, supra, held that “if a claimant can satisfy Sections
902(3) and 903(a), his employer is automatically brought
within Section 902(4).” Id. at 538 n. 9.
Accordingly, the Board reverses the Decision and Order
of the administrative law judge and remands the case for fur-
ther consideration of the nature and extent of claimant's dis-
ability and for determination of compensation and other bene-
fits due to him under the Act.
SAMUEL J. SMITH, Chairman
MILLER, Member, concurring:
I concur in the holding that the claimant is an employee
within the meaning of Section 2(3) of the Act, but do not find
it necessary to determine whether he was engaged in unload-
ing a vessel since he was injured over pre-amendment navi-
gable waters.”
The administrative law judge, following the lead of the
36
United States Court of Appeals for the Ninth Circuit in Weyer-
Rauser Company v. Gilmore, supra, has consigned all cases
dealing with jurisdiction of the Act, decided prior to the 1972
amendments to limbo. The board has recently determined
that it would not follow the Ninth Circuit’s decision in Weyer-
hauser, since it is neither in accord with the legislative history
of the 1972 amendments nor with the expansive interpretation
given Section 2(3) in Northeast Marine Terminal Co., Inc. v.
Caputo, U.S. , 97 S. Ct. 2348 (1977). Nelson v. Warren
Brothers, BRBS __, BRB No. 77-414 (Jan. 24, 1978).
The work of the claimant at the time of injury placed him
over pre-amendment “navigable waters.” Accordingly, claim-
ant would be covered as an employee within the meaning of
the Act even if it could be said that he was not engaged in
shiploading operations.
I therefore concur in the reversal of the Decision and
Order of the administrative law judge who found claimant not
to be an employee within the meaning of Section 2(3) of the
Act.
I Concur:
JULIUS MILLER, Member
Dated this 27th day
of January, 1978
37
APPENDIX D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 78-1532
HULLINGHORST INDUSTRIES,
DAVID E. CARROLL, and DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of An Order of the
Benefits Revicw Board
Before BROWN, Chief Judge, COLEMAN and VANCE, Cir-
cuit Judges.
BY THE COURT:
It is ORDERED that the motion of respondent, Di-
rector, Office of Workers’ Compensation Programs, United
States Department of Labor, to dismiss the petition for re-
view in the above cause is GRANTED, without prejudice to
the right of appeal if and when a final order shall have been
entered.
39
APPENDIX E
In the Matter of
DAVID E. CARROLL
V.
HULLINGHORST INDUSTRIES, INC.
Employer
Case No. 76-LHCA-652
OWCP No. 7-34955
Janine Syll Dingleman, Esq.
Martzell, Montero & Lamothe
338 Lafayette Street
New Orleans, Louisiana 70130
For the Claimant
John Dale Powers, Esq. and
Michael H. Rubin, Esq.
Sanders, Downing, Kean & Cazedessus
P. O. Box 1588
Baton Rouge, Louisiana 70821
For the Employer (Respondent)
Before: ROBERT S. AMERY
Administrative Law Judge
DECISION AND ORDER ON REMAND
In a two member decision (7 BRBS 538, BRB No. 76-
500) dated January 27, 1978 written by Chairman Smith and
concurred in by Member Miller for a different reason, the
40
Benefits Review Board reversed my Decision and Order in
the above captioned case, dated September 27, 1976, which
had held that the claim should be dismissed for lack of juris-
dictional coverage. In reversing, the Board remanded the
case to me for further consideration of the nature and ex-
tent of the claimant’s disability and for determination of
compensation and other benefits due to him under the Act.'
In my original Decision and Order I set forth the facts
of the case in some detail, but some additional evidence has
been produced since that time and significant parts of this
will be summarized herein.“
The deposition of Dr. Jack F. Loupe, an orthopedic sur-
geon, is admitted in evidence as claimant’s Exhibit 5. Dr.
Loupe testified he first examined the claimant on September
14, 1973. The claimant appeared to have pain with move-
ment of his back and he complained of low back pain and
pain in the legs, especially the left. Upon examination of the
1 Following this, the respondent appealed the Board’s decision to the
Fifth Circuit Court of Appeals, but on April 24, 1978 the appeal (No. 78-
1532) was dismissed “without prejudice to the right of appeal if and when
a final order shall have been entered.”
2 The following are hereby admitted in evidence:
(1) A letter from me to the counsel dated February 23, 1978 will be
ALJ Exhibit 5.
(2) A letter from John Dale Powers, Esq. to me dated February 27,
1978 will be ALJ Exhibit 6.
(3) A letter from Janine Syll Dingleman, Esq. to me dated March 10,
1978 will be ALJ Exhibit 7.
(4) A letter from William Henry Sanders, Esq. to me dated March
13, 1978 will be ALJ Exhibit 8.
(5) A letter from John Dale Powers, Esq. to me dated March 14,
1978 will be ALJ Exhibit 9.
(6) A letter from John Dale Powers, Esq. to me dated March 20,
1978 will be ALJ Exhibit 10.
(7) A letter from William Henry Sanders, Esq. to me dated March
— 1978 constituting his application for attorney's fees will be ALJ Ex-
hibit 11.
(8) A letter from Michael H. Rubin, Esq. to me dated April 19, 1978
with memorandum enclosed in opposition to the application for attorney's
fees will be ALJ Exhibit 12.
(9) A letter from William Henry Sanders, Esq. to me dated April 25,
1978 in surrebuttal will be ALJ Exhibit 13.
(10) A letter from Janine Syll Dingleman, Esq. to me dated May 1.
1978 will be ALJ Exhibit 14.
>
41
lumbar and lumbosacral spine Dr. Loupe noted paravertebral
spasm bilaterally was sustained with moderate restrictions
of motion and mechanical disturbance of function of the
lumbosacral spine, particularly with extension. There was
no list, but the lumbar curve was flattened and did not re-
verse normally upon forward flexion. There was tenderness
to palpation in the L-4 to L-5 interspace. The straight leg
raising test was positive on the left at about 60 degrees and
this was accentuated by passive dorsiflexion of the foot.
The same test was mildly positive on the right. There was
some weakness of his left foot and toe extensor muscles,
as well as of his peroneals and posterior tibials, which
cause movement from side to side in the foot. There
was no sensory deficit. The left ankle jerk was reduced as
compared to the right one. The knee jerks responded equally
with an inconsistent diminution of the left knee jerk reflex.
X-rays were essentially negative, but there was questionable
narrowing of the L-5 8-1 intervertebral disc. Dr. Loupe’s
impression was that the claimant had substantial objective
and subjective findings consistent with a lower back prob-
lem and probably with intervertebral disc herniation. The
doctor thought that the claimant had gone as far as he could
with conservative treatment with no improvement and that
a repeat lumbar myelogram and surgery should be considered.
On September 27, 1973 the claimant returned complain-
ing of severe low back pain and severe increased pain in both
legs, especially the left. The claimant was stooped forward,
couldn’t straighten up, and listing to the right. Dr. Loupe
found a 4+ muscle spasm, which was the maximum. There
was severe complete restriction of motion in the lumbosacral
spine, straight leg raising was exquisitely positive on the
left and the left ankle jerk was diminished as previously.
The claimant was admitted to the hospital that day, put in
traction again and given physical therapy, but this only in-
creased his pain. On October 1, 1973 the lumbar myelogram
was done and it showed a herniated disc between L-4 and
42
L-5. Dr. Hewitt a cardiologist, was brought in for consulta-
tion because of the claimant’s family history of a high preva-
lence of heart disease. The claimant was treated by Dr.
Hewitt and temporarily released.
On October 23, 1975 the claimant was readmitted and
on October 24, 1973 Dr. Loupe performed a standard type
of laminectomy with removal of a herniated disc at L-4/5
on the left. Fusion was not performed because of the in-
creased risk due to the claimant’s coronary artery disease.
Except for some mild right leg pain the claimant did well
postoperatively and Dr. Loupe saw him periodically there-
after.
By December 1973 the claimant reported recurrence of
his low back and left leg pain following a fall he had when
he stumbled and fell at home. Upon examination he was
noted to be limping, paravertebral muscle tightness was pres-
ent and a possible spasm. There were moderate restrictions
of motion, also. His condition continued to worsen and on
January 14, 1974 he was admitted to the hospital for 3 days
for conservative treatment consisting of traction and muscle
relaxants. He responded well. X-rays showed a narrowing at
the L-4/-5 level of a moderate degree which may have been
accelerated by the claimant’s fall and his traveling in a car
to see his sick brother.
On March 18, 1974 the claimant had increasing pain
in his left lower back with some radiation into the upper
left thigh. He had severe muscle spasm, severe restrictions
of motion and painful left straight leg raising. X-rays taken
then showed further narrowing of the L-4/-5 intervertebral
disc space and the L-4/-5 vertebral body had displaced pos-
teriorly somewhat because of the narrowing. He was ad-
mitted to the hospital for 6 days for rest, physical therapy
and traction. His condition did not improve much and he
continued to have unrelenting spasm and listing of the trunk.
43
On April 17, 1974 he had a repeat lumbar myelogram which
showed a large defect on the left at L-4/-5 and a normal
L-3/-4 discogram. Dr. Loupe operated on the claimant again
on April 19, 1974 and found a recurrent herniated disc at
L-4/-5 on the left with moderate fibrosis or scar tissue. The
L-5/S-1 disc was seen to be narrow but not otherwise ab-
normal. The claimant did well and was discharged on April
27, 1974.
In the following months the claimant had some pain in
his left leg and left lower back with some muscle spasm, list-
ing and restricted movement. He was hospitalized again in
July 1974 with chest pain and treated by Dr. Hewitt. In
September 1974 he was again hospitalized after being run
off the road by another car several times which caused
aggravation of his back pain. Dr. Loupe recommended the
claimant’s continued use of his chair back brace and limited
activity. He was worse again with continued low back pain
in January 1975 and Dr. Loupe advised him to continue the
exercises he had prescribed previously, except for those that
were painful. By January 1976 Dr. Loupe thought the claim-
ant was doing satisfactorily, but that he was disablei from
significant physical activity, such as holding down a job for
8 hours whether it was sitting or standing, and he could not
do any lifting or bending of significance.
On May 10, 1976 the claimant again had severe inca-
pacitating pain in the lumbar area with pain going into both
legs. There were severe spasm and restrictions of motion.
He also had problems in October 1976. Another myelogram
was performed on January 12, 1977 which showed a large
defect again at L-4/-5 on the left. He underwent surgery
that day with removal of a recurrent disc and some fibrous
tissue at L-4/-5 and a negative exploration of the L-3/-4
disc. He was discharged January 19, 1977 having been re-
lieved of his pain and doing well. In March 1977 he still had
some lower back pain and restrictions of motion, but seemed
44
to be doing well until May 30, 1977 when he had low back
pain radiating across into the flank and he had difficulty
stooping and bending. Dr. Loupe found recurrent objective
findings. The claimant was again hospitalized in October
1977 for conservative treatment. He had more pain in the
upper lumbar region going into the medial aspect of both
thighs in February 1978. In May 1978 he had increased con-
stant pain in the lower back and left leg which was aggra-
vated by bending or stooping. Dr. Loupe did a lumbar punc-
ture and injected some steroid suspension into the spinal canal
hoping this would relieve some of the pain.
Dr. Loupe felt that, assuming the claimant’s history was
accurate, this entire sequence of back problems was caused
initially by his accident of December 1972. The doctor thought
the claimant was disabled, that he could not tolerate either
sitting or standing for more than an hour without pain and
certainly not stooping or bending. The doctor thought the
claimant had extensive disc disease and probably weak discs.
He might possibly improve over 2 or 3 more years, but he
also might have problems with his third lumbar disc. Dr.
Loupe thought the claimant’s functional impairment was 20%
to the body because he had to modify his activities due to
persistent pain and he had one disc removed completely on
3 occasions. However, the doctor could not think of any
kind of employment that the claimant was capable of doing,
since he was still suffering considerably from low back pain
on prolonged sitting or standing. Dr. Loupe said he never
found the claimant to be misleading him in anything and he
felt the claimant really had the pain.
Upon cross-examination, Dr. Loupe admitted that from
his initial examination of the claimant in September 1973,
except for what the claimant told him, he couldn’t tell when
the initial injury occurred or even whether any injury had
occurred at all. Dr. Loupe also agreed that the claimant’s
falls, his auto accident and his occasional failure to follow
45
Dr. Loupe’s instructions could have aggravated his condition.
The doctor thought that if the claimant’s description of the
incident in which he was lifting something and felt a pulling
sensation in his back was true and the symptoms persisted
over the following 9 months, that that would be the cause
of his condition, rather than it happening spontaneously or
due to his genetic condition.
The deposition of Dr. Ira L. Hewitt, a specialist in in-
ternal medicine, is admitted in evidence as Claimant’s Ex-
hibit 6. Dr. Hewitt first saw the claimant on September 22,
1973 when Dr. Loupe consulted him about the claimant’s
cardiac status at the Lady of the Lake Hospital. Dr. Hewitt
found the claimant had a mesomorph (short, stocky, mus-
cular) body build, he was having substernal (chest) pain
which was provoked by exertion and excitement and re-
lieved by rest. He gave a positive family history of coronary
heart disease. His electrocardiogram was slightly distorted,
so it was not clearcut unequivocal proof of early diaphrag-
matic wall ischemia. Dr. Hewitt decided at that time that
the claimant was probably having early angina pectoris in
the first evolutionary stage. Dr. Hewitt treated the claimant
with Peritrate, an arterial dilator, nitroglycerin for substernal
pain, and a sedative. On October 25, 1973 Dr. Hewitt again
saw the claimant in the hospital in consultation with Dr.
Loupe, prior to his disc surgery. The claimant withstood the
operation well and had no postoperative complications from
a cardiovascular standpoint.
After that Dr. Hewitt saw the claimant about every 6-8
weeks for his heart disorder. His diagnosis of the claimant’s
problem remained unchanged. He last saw the claimant on
April 11, 1978 when the claimant still gave a history of peri-
odic substernal pain relieved by nitroglycerin, in spite of a
fairly normal appearing EKG. The doctor still felt that the
claimant had early evolutionary phase of coronary heart dis-
ease. He had had no episodes of chest pain prior to the time
46
he first saw Dr. Hewitt, but since then he continued to suffer
periodic instances of chest pains which were kept under con-
trol with medication the doctor prescribed.
According to what the claimant told him of his accident,
that he never had chest pain before that, but he did begin hav-
ing substernal pain after it, Dr. Hewitt felt that there was
some cause and effect relationship of the trauma to precipitat-
ing his heart disorder. Dr. Hewitt thought, assuming the
claimant injured his back in December 1972 and this continued
to bother him, that this injury and the resulting concern over
its failure to resolve itself could have been a factor precipitat-
ing or accelerating his chest pain and this early stage coronary
disease. Dr. Hewitt thought that the claimant’s heart condi-
tion had improved recently, liowever, that he would continue
to be disabled for moderate or strenuous activity permanently,
but not for mild sedentary activity. He thought the claimant’s
condition would probably not improve, but it might worsen.
He agreed on cross-examination that the claimant’s heart con-
dition could have occurred without any underlying trauma and
that it could have occurred spontaneously.
The deposition of Dr. William L. Fisher, Jr. a neurological
surgeon, is admitted in evidence as Respondent’s Exhibit 9.
Dr. Fisher saw the claimant on January 9, 1973 in consulta-
tion with Dr. Stephen Wilson at the Lady of the Lake Hospital.
He had a normal examination from a neurological or neuro-
muscular standpoint. A myelogram was done on January 11,
1973, since the claimant had been complaining of back pain
and pain in his right leg. The myelogram was normal in all
respects, so Dr. Fisher did not feel the claimant had any fur-
ther need for neurosurgical treatment. He never saw the
claimant again. On cross-examination Dr. Fisher admitted
that about 15% of the time a myelogram will be falsely nor-
mal. He said it would be possible, but not probable, that an
initial myelogram would appear normal, but months later an
insignificant disc herniation that did not appear on the first
47
myelogram might worsen and develop into a significant herni-
ation appearing on a subsequent myelogram. He agreed that
certain positions of herniations are not seen on a myelogram.
He said that it was possible to injure an L-4/-5 intervertebral
disc through a fall or an auto accident.
The deposition of Dr. Stephen M. Wilson, an orthopedic
surgeon, is admitted in evidence as Respondent’s Exhibit 10.
Dr. Wilson first saw the claimant on December 22, 1972.
Examination revealed some tenderness to palpation in the
lower back area. The claimant said he was unable to bend
forward or to heel and toe walk without severe pain. Straight
leg raises were positive in the sitting position with pain at
30 degrees on the right side. The doctor’s impression was low
back syndrome, so the claimant was admitted to the hospital
for traction and a myelogram. A neurosurgeon (Dr. Fisher)
did the myelogram, saw no defect and recommended no sur-
gery, so the claimant was discharged from the hospital.
On January 15, 1973 Dr. Wilson again saw the cleimant
who said he was still having severe backache and some head-
ache. Examination of his lower back revealed no positive or
objective findings and Dr. Wilson did not see him again after
that. Dr. Wilson agreed there was a percentage of error when
a myelogram might read normal, yet would not in fact be nor-
mal. He also agreed that it was possible to herniate or rup-
ture a disc in an auto accident, through a fall or even a cough.
A letter from Janine Syll Dingleman, Esq. to me dated
March 8, 1979 enclosing a stipulation of the parties as to the
claimant’s medical expenses is admitted in evidence as ALJ
Exhibit 17.* This shows that the claimant had incurred some
8A letter from Michael H. Rubin, Esq. to me dated August 30, 1978
enclosing the second set of interrogatories to the claimant will be ad-
mitted as ALJ Exhibit 15. I never received a copy of the first set of inter-
rogatories and it may be that those were never answered.
A letter from Janine Syll Dingleman, Esq. to me dated October 30,
1978 containing answers to the second set of interrogatories is admitted
as ALJ Exhibit 16.
48
$13,245.40 in medical expenses of which about $8,324.94 had
been paid through medicare.
In resolving the issue of causal relationship between the
claimant’s condition and his employment I am mindful of the
principles that the Act should be construed liberally in favor
of the employees and that it is in their favor that doubts,
including the factual, are to be resolved. Swinton v. J. Frank
Kelly, Inc., 554 F.2d 1075 (D.C. Cir. 1976) cert. den. 429 U.S.
820 (1976); Friend v. Britton, 220 F.2d 820 (D.C. Cir. 1955)
cert. den. 350 U.S. 836 (1955); Strachan Shipping Co. v. Shea,
406 F.2d 521 (5th Cir. 1969) cert. den. 395 U.S. 921 (1969).
Upon considering all the evidence in the case I find that
the claimant suffered an injury to his back on December 12,
1972 while building a scaffold on a pier over the waters of the
Mississippi River near Geismar,“ Louisiana. I find, also, that
the injury arose out of and occurred in the course of his em-
ployment for the respondent. I found the claimant’s testi nony
as to how the injury occurred to be honest, sincere and credible
and this was corroborated to some extent by the testimony of
Drs. Loupe and Hewitt, the treating physicians, to the effect
that in their opinions the claimant’s back and heart problems
probably were caused, aggravated or accelerated by his injury
of December 12, 1972.
In considering the degree of the claimant’s disability I
have considered the claimant’s age, education, industria] his-
tory and the availability of that type of work which he can do.
American Mutual Insurance Co. of Boston v. Jones, 426 F.2d
1263 (D.C. Cir. 1970); Watson v. Gulf Stevedoring Corp., 400
F.2d 649 (5th Cir. 1963). I note that the claimant is now 37
years old, he has a tenth grade education and his prior employ-
ment has involved hard physical labor as a carpenter, working
on oil rigs and on a grain elevator. Drs. Loupe and Hewitt
4 Apparently Geismar is the correct spelling, not Gozma, as it appeared
in the transcript and my original Decision and Order.
49
have testified to the effect that he is permanently disabled
from doing any strenuous or moderate physical activity. In
fact, Dr. Loupe even stated that he thought the claimant could
not do any kind of a job that involved prolonged sitting or
standing, the claimant could not do any work involving bend-
ing, stooping or lifting, and the doctor could think of nothing
the claimant was capable of doing. The claimant, himself,
said he gets exhausted easily and he could not even mow his
lawn. He said sometimes his chest gets tight, he can hardly
breathe and he gets chest pains like a burning sens tion in the
middle, then little sharp needle like pains start shooting into
his left arm. He cannot lift more than 20 or 30 Ibs. and he
cannot stand for prolonged periods without his left leg going
to sleep and his back aching. Furthermore, the respondent has
not presented any evidence showing that actual and suitable
work opportunities were available to the claimant. American
Stevedores v. Salzano, 538 F.2d 933 (2d Cir. 1976).
Under these circumstances I find that the claimant has
been permanently totally disabled since December 28, 1972,
when he stopped working. To be considered permanent, a dis-
ability need not be “eternal or everlasting,” it is sufficient that
the “condition has continued for a lengthy period, and it ap-
pears to be of lasting or indefinite duration, as distinguished
from one in which recovery merely awaits a normal healing
period.” Watson v. Gulf Stevedoring Corp., supra at 654.
Should the claimant’s condition hereafter improve the respon-
dent can apply under Section 22 of the Act for an appropriate
modification of the award.
The claimant is entitled to reimbursement or payment by
the respondent of the reasonable costs of such necessary medi-
cal care and treatment as his injury of December 12, 1972 has
required or may require. Section 7(a) of the Act. This in-
cludes all outstanding medical expenses for both his back
injury and heart condition as set forth in ALJ Exhibit 17 and
50
all future medical expenses reasonably related to the December
12, 1972 injury.
Interest at the rate of 6% per annum shall be added to
the amount of compensation found due herein, calculated from
the date each payment was due until it is paid to the claimant.
Strachan Shipping Co. v. Wedemeyer, 452 F.2d 1225 (5th Cir.
1971) cert. den. 406 U.S. 958 (1972).
William Henry Sanders, Esq., the claimant’s counsel at
the hearing and prior thereto, has submitted an application
for attorney’s fees for 119.5 hours work at $100. an hour.
This has been vigorously opposed by counsel for the respon-
dent, both as to the number of hours spent on the case and
the rate per hour. In 1976 and prior thereto the regulation
concerning attorney’s fees, 20 CFR 702.132, provided in part:
“The application shall be supported by a complete state-
ment of the extent and character of the necessary work
done. . . . Any fee approved shall be reasonably commen-
surate with the actual necessary work performed.
I am, therefore, required by regulation and Section 28(a)
of the Act, to approve only a reasonable attorney’s fee, a fee
reasonably commensurate with the actual necessary work
done. Thus, I believe that if the claimant’s counsel spent more
time on an item than should be reasonable and necessary
under the circumstances I should not approve a fee for the
excess time for any unnecessary work.
I agree with the respondent’s counsel that excessive time
was taken on many of the items listed in Mr. Sanders’ appli-
cation. Concerning items 1 and 2 in interviewing the claimant,
12 hours seems excessive, 6 hours should have been adequate.
As for items 3, 4, 8, 9, 11, and 12, constituting 45 hours for
correspondence, I fee] that both the length of time per letter
and the number of letters written seemed more than necessary
51
and that 15 hours should have sufficed in this case. Concern-
ing items 5 and 13 on research, I believe that no more than 5
hours should have been required, not 20.5. In item 6, the
counsel should have been able to read, review and evaluate
the few medical reports in 2 hours, not 10. In item 15, as I
recall, the formal hearing only lasted about 3 hours and the
preparation for it should have required no more than 3 more,
rather than the 12 hours requested. As far as interviewing
witnesses in their homes is concerned, the only necessary wit-
ness presented on behalf of the claimant at the hearing was
the claimant himself, and that has already been covered under
items 1 and 2. I also agree with the respondent’s counsel that
the rate per hour requested is excessive and that $60. per hour
is a more reasonable rate in that area for the quality of the
legal services performed for the claimant. Accordingly, I ap-
prove an attorney’s fee for 44 hours at $60. per hour amount-
ing to $2640. for all legal services performed by Mr. Sanders
to the time of the formal hearing and the post hearing briefs
except for his time before the Deputy Commissioner.
There remains item 7 in the application, involving 8
hours spent in a conference with the Deputy Commissioner.
Since there may be a factual question as to whether the con-
ference actually lasted that long this item should be dealt with
by an evidentiary hearing or a fee request could be sub-
mitted directly to the Deputy Commissioner for work per-
formed at that level. In order to save the time and expense
of an evidentiary hearing on so insignificant a matter, I di-
rect that an application be submitted directly to the Deputy
Commissioner covering only the time spent at the informal
conference as mentioned in item 7 of the application. All other
items will be dealt with herein as not being bona fide factual
questions. Watkins v. Newport News Shipbuilding d Dry Dock
Co., 8 BRBS 556, BRB No. 78-237 (1978) rev’d on other
grounds sub nom Newport News Shipbuilding d Dry Dock
Co. v. Director, OWCP and Watkins, __F.2d __, No. 78-1525
(4th Cir. March 26, 1979), 9 BRBS 1089. The respondent’s
52
counsel’s request for an evidentiary hearing on attorney’s fees
is denied.
In addition, since the case has been remanded to me
from the Benefits Review Board, Janine Syll Dingleman, Esq.
has been representing the claimant. She has not submitted
an application for her legal fees in the case, so no award is
made to her at this time. Cf. Matthews v. Walter, 512 F.2d
941 (D.C. Cir. 1955). Leave is hereby granted to Ms. Dingle-
man to file an application in accordance with 20 CFR 702.132
(with service of a copy upon the respondent’s counsel) within
10 days after her receipt of this Decision and Order on Re-
mand. An application received after that time will be rejected
as not having been timely filed. The respondent’s counsel
shall have 10 days after receipt of their copy of the applica-
tion to file a reply thereto if they wish to do so.
1. The respondent shall pay to the claimant compensa-
tion for permanent total disability under provisions of Section
8 (a) of the Act, 33 USC 908(a) commencing December 29,
1972 until further ordered, at the rate of $121.87 per week,
plus all statutory adjustments.
2. The respondent shall pay interest on accrued unpaid
benefits at the rate of 6% per annum computed from the date
each payment was originally due until paid.
3. The respondent is to be credited with all amounts of
compensation it has already paid the claimant for his injury
of December 12, 1972.
4. In accordance with Section 7(a) of the Act, 33 USC
907(a), the respondent shall pay for the reasonable costs of
necessary medical care and treatment resulting from the claim-
ant’s injury of December 12, 1972.
53
5. The respondent shall also pay directly to William
Henry Sanders, Esq. the sum of $2640. which is for all his
legal services and his costs incurred on behalf of the claimant
in connection with this case, except for his services at an in-
formal conference at the Deputy Commissioner level.
ROBERT S. AMERY
Administrative Law Judge
Dated: August 20, 1979
Washington, D.C.
CERTIFICATE OF FILING AND SERVICE
I certify that on August 27, 1979 the foregoing Compensa-
tion Order was filed in the Office of the Deputy Commissioner,
Seventh District Office and a copy thereof was mailed on said
date by certified mail to the parties and their representatives
at the last known address of each as follows:
David E. Carroll, 2326 N. Magnolia St., Baker, LA 70714
Claimant
Hullinghorst Industries, Inc., Rte. 5, 12360 Leisure Rd., Baton
Rouge, LA 70807
Employer
General Accident Group, 3301 N. Causeway Blvd., Metairie,
LA 70002
Insurance Carrier
Janine S. Dingleman, Esq., Martzell, Montero & Lamothe, 338
Lafayette St., New Orleans, LA 70130
John D. Powers, Esq., Sanders, Downing, Kean & Cazedessus,
P. O. Box 1588, Baton Rouge, LA 70821
54
A copy was also mailed by regular mail to the following:
Judge Robert S. Amery, Office of the Administrative Law
Judges, U. S. Department of Labor, Room 909, F. Edward
Hebert Federal Building, 600 South Street, New Orleans, Lou-
isiana 70130
Associate Solicitor of Labor for Employee Benefits, U. S. De-
partment of Labor, Suite N-2716, NDOL, Washington, D.C.
20210
Director, Office of Workers’ Compensation Programs,
(LHWCA), U. S. Department of Labor, Room 83524, 200
Constitution Avenue, N.W., Washington, D.C. 20211
GLENN H. WOODLEY
Deputy Commissioner
Seventh Compensation District
U. S. Department of Labor
EMPLOYMENT STANDARDS ADMINISTRATION
Office of Workers’ Compensation Programs
55
APPENDIX F
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 79-3142
HULLINGHORST INDUSTRIES, INC.,
Petitioner,
versus
DAVID E. CARROLL,
Claimant-Respondent,
and
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR.
Respondent.
On Petition for Stay Pending Review
Before AINSWORTH, GODBOLD and VANCE, Circuit
Judges.
BY THE COURT:
IT IS ORDERED that petitioner’s motion for stay of the
Administrative Law Judge’s order of August 27, 1979 is DE-
NIED.
57
APPENDIX G
BENEFITS REVIEW BOARD
U. S. DEPARTMENT OF LABOR
WASHINGTON, D.C. 20036
DAVID E. CARROLL
Claimant-Respondent
v.
HULLINGHORST INDUSTRIES, INC.
and/or
Petitioners have requested that the Board issue an Order
staying payment of claimant’s attorney’s fee.
Section 21 (b) (3) of the Act provides that “the payment
of the amounts required by an award shall not be stayed pend-
ing final decision in any such proceeding unless ordered by the
Board.” 33 U.S.C. 8921 (b) (3). However, this provision does
not relate to an award of an attorney’s fee.
The Act provides two methods for enforcement of a com-
pensation order. Under Section 18 of the Act, 33 U.S.C. §918,
a claimant can obtain enforcement upon a “default by the
employer in the payment of compensation due under any
award of compensation . . provided certain criteria are met.
Accordingly, absent a stay of payments, compensation would
be due. However, compensation would not include a fee
awarded to claimant’s attorney. 33 U.S.C. §§902(2), 928.
Section 21(d) of the Act, 33 U.S.C. §921(d), provides for en-
forcement where employer “fails to comply with a compensa-
tion order making an award, that has become final. An
attorney’s fee would therefore be enforceable as part of the
compensation order. However, no enforcement proceedings
would be effective if the order was not final. See also 33
U.S.C. §928(a). In that the administrative law judge’s Decision
and Order has been appealed, it is not yet final. 33 U.S.C. §921
(a). Therefore, the award of an attorney’s fee is not enforce-
able and no stay is necessary. Accordingly, the motion of the
employer and carrier is denied. 33 U.S.C. §921 (b> (3).
SAMUEL J. SMITH, Chief
Administrative Appeals Judge
JULIUS MILLER
Administrative Appeals Judge
ISMENE M. KALARIS
Administrative Appeals Judge
Dated this 6th day
of December 1979.
SERVICE SHEET
BRB No. 79-558: DAVID E. CARROLL v. HULLINGHORST
INDUSTRIES, INC. and/or BASF WYAN-
DOTTE CORPORATION (Case No. 76-
LHCA-652) (OWCP No. 7-34955)
Copies were sent to the following:
John Dale Powers, Esq. —Certified—
Michael H. Rubin, Esq.
59
Janine Syll Dingleman, Esq. —Certified—
61
APPENDIX H
UNITED STATES DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS’ COMPENSATION PROGRAMS
SEVENTH COMPENSATION DISTRICT
In the matter of a claim for
compensation under the Longshoremen’s
and Harbor Workers’ Compensation Act —
DAVID E. CARROLL
HULLINGHORST INDUSTRIES
THE GNERAL ACCIDENT GROUP
Insurance Company
SUPPLEMENTAL ORDER
DECLARING AMOUNT OF DEFAULT
CASE No. 76-LHCA-652
OWCP No. 7-34955
BRB No. 79-558, 76-500
FINDINGS OF FACT
1. That on October 19, 1976, a Decision and Order of
Administrative Law Judge Robert S. Avery, was filed in the
62
Office of the Deputy Commissioner of the Seventh Compen-
sation District;
2. Tet said Decision and Order denied benefits to David
E. Carre the claimant herein;
3. That said Decision and Order is incorporated herein,
in its entirety, by reference;
4. That said Decision and Order was appealed to the
Benefits Review Board and made part of their record on De-
cember 16, 1976; that said appeal bears BRB No. 76-500; that
on January 27, 1978 the Decision and Order of Judge Robert
S. Amery was reversed and remanded by the Benefits Review
Board; that on March 13, 1978 a Petition For Review was
filed with the Fifth Circuit Court of Appeals; that said appeal
was dismissed by the court on April 24, 1978, without preju-
dice; that by Order of the Board dated May 24, 1978 the case
was remanded to Judge Robert S. Amery for action in ac-
cordance with the Decision and Order of the Board dated
January 27, 1978; that on August 27, 1978 the Decision and
Order on Remand of Judge Robert S. Amery was filed in the
Office of the Deputy Commissioner; that the aforementioned
are incorporated herein, in their entirety, by reference;
5. That on October 11, 1979 the Benefits Review Board
noted the employer’s/petitioners Notice of Appeal and denied
their Motion To Stay Payments; that Judge Robert S. Amery’s
Supplemental Order was filed in the Office of the Deputy Com-
missioner on October 22, 1979 awarding attorney fees to Jan-
ine S. Dingleman, Esq., in the amount of $2,304.60; that the
Benefits Review Board filed an Order dated December 6, 1979
denying the employer’s/petitioners Motion To Stay Payment
of Attorney’s fees; that the aforementioned documents are
incorporated by reference in their entirety;
6. That payment of compensation under the terms of the
Decision and Order has not been made as required by 33 U.S.C.
914(f);
7. That timely application has been made by the claim-
ant under 33 U.S.C. 918(a) for a supplementary compensation
order declaring the amount of default;
8. That there exists no factual dispute beween the par-
ties regarding the payment of compensation.
That based on the foregoing findings of fact the Deputy Com-
missioner makes the following:
The total amount of compensation due and payable pursuant
to the Decision and Order of the Administrative Law Judge
is hereby declared to be in default.
The provisions of 33 U.S.C. 914(f) shall attach to all unpaid
installments of compensation until paid.
Six percent interest shall be attached to all unpaid install-
ments or compensation until paid.
Given under my hand this 25th day of
January 1980, at New Orleans, Louisiana.
GLENN H. WOODLEY
Deputy Commissioner
Seventh Compensation District
PROOF OF SERVICE
I hereby certify that a copy of the foregoing Supplementary
Compensation Order has been sent by certified mail to the
64
following parties, at the last known address of each, as fol-
lows:
Mr. David E. Carroll, 2326 N. Magnolia St., Baker, LA 70714
Claimant
Hullinghorst Industries, Rt. 5, 12360 Leisure Rd., Baton
Rouge, LA 70807
Employer
General Accident Group, 3301 N. Causeway Blvd., Metairie,
LA 70002
In. urance Company
Ms. Janine S. Dingleman, 338 Lafayette St., New Orleans, LA
70130
Attorney for Claimant
Mr. John D. Powers, P. O. Box 1588, Baton Rouge, LA 70821
Attorney for Employer
A copy was also mailed by regular mail to the following:
Judge Robert S. Avery, Office of Administrative Law Judges,
U. S. Department of Labor, Room 909, F. Edward Hebert Fed-
eral Building, 600 South Street, New Orleans, Louisiana 70130
Associate Solicitor of Labor for Employee Benefits, U. S. De-
partment of Labor, Suite N-2716, NDOL, Washington, D.C.
20210
Director, Office of Workers’ Compensation Programs,
LHWCA, U. S. Department of Labor, Washington, D.C. 20211
Clerk of the Benefits Review Board, U. S. Department of
Labor, Room 727, Vanguard Building, 1111 20th Street, N.W.,
Washington, D.C. 20210
GLENN H. WOODLEY
DEPUTY COMMISSIONER
SEVENTH COMPENSATION DISTRICT
A copy was also mailed by certified mail to the following:
William H. Sanders, Esq., P. O. Drawer P, Jena, LA 71342
Attorney for Claimant
67
APPENDIX I
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 80-8116
DAVID E. CARROLL and DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
U. S. DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of An Order of the
Benefits Review Board
Before GEE, POLITZ and RANDALL, Circuit Judges.
BY THE COURT:
IT IS ORDERED that the petitioner’s motion for stay
pending disposition of petition for review is DENIED.
APPENDIX J
BENEFTTS REVIEW BOARD
U. S. DEPARTMENT OF LABOR
V.
HULLINGHORST INDUSTRIES, INC.
Employer-Petitioner
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR
Party-in-Interest
DECISION and ORDER
Appeal from the Decision and Order of Robert S. Amery,
Administrative Law Judge, United States Department of
Labor.
Janine Syll Dingleman (Martzell, Montero and Lamothe),
New Orleans, Louisiana, for the claimant.
John Dale Powers and Michael H. Rubin (Sanders, Down-
ing, Kean and Cazedessus), Baton Rouge, Louisiana, for
the employer.
70
Joshua T. Gillelan, I (Carin Ann Clauss, Solicitor of La-
bor; Laurie M. Streeter, Associate Solicitor), Washington,
D.C., for the Director, Office of Workers’ Compensation
Programs, United States Department of Labor.
Before: SMITH, Chief Administrative Appeals Judge,
MILLER and KALARIS, Administrative Appeals Judges.
PER CURIAM:
This is an appeal by Hullinghorst Industries, Inc., (herein-
after, employer) from a Decision and Order on Remand (76-
LHCA-652) of Administrative Law Judge Robert S. Amery
pursuant to the provisions of the Longshoremen’s and Harbor
Workers’ Compensation Act, as amended, 33 U.S.C. § 901 et
seq. (hereinafter referred to as the Act).
The facts of this case were discussed in the first decision
of the Board in this case, Carroll v. Hullinghorst Industries,
Inc., 7 BRBS 538, BRB No. 76-500 (1978), and thus need not
be repeated. In that decision the Board reversed the admin-
istrative law judge’s holding that claimant was not a mari-
time employee under Section 2(3) of the Act. 33 U.S.C. §
902(3). The Board held that claimant, a carpenter involved
in building a scaffolding upon which workmen would stand in
repairing a “turntable” used in handling cargo, was directly
involved in shiploading operations.
On remand, the administrative law judge found that
claimant sustained an injury to his back on December 12, 1972,
which arose out of and in the course of his employment. The
judge concluded that claimant’s subsequent back and heart
problems were the result of this injury. He awarded claimant
permanent total disability benefits beginning December 28,
1972, and continuing, as well as payment of medical expenses
related to his back and heart condition and interest at six per-
cent on all unpaid installments of compensation. The admin-
71
istrative law judge also awarded an attorney’s fee to claimant’s
first attorney, reducing the requested fee for 119.5 hours at
$100.00 per hour to 44 hours at $60.00 per hour.
In this appeal, employer contends that claimant is not cov-
ered by the Act and that the administrative law judge erred
in finding a causal relationship between claimant’s injury and
his resulting disability.
Upon its review of this case, the Board may set aside the
decision of the administrative law judge only if his findings
are not supported by substantial evidence in the record con-
sidered as a whole, are irrational or are not in accordance with
the law. 33 U.S.C. §921(b) (3); O’Keeffe v. Smith Associates,
380 U.S. 359 (1965). Moreover, the administrative law judge
is entitled to weigh the medical evidence and draw his own
inferences from it and is not bound to accept the opinion or
theory of any particular medical examiner. Todd Shipyards
Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962).
Employer’s argument that claimant was not covered by
the Act was rejected by the Board in its first decision, Carroll
v. Hullinghorst Industries, Inc., supra, which we conclude con-
stitutes the law of the case and thus governs our determina-
tion herein. See McNeil v. Proierized New England Co., 11
BRBS 576, BRB No. 78-578 (1979); United States v. United
States Smelting, Refining and Mining Co., 339 U.S. 186 (1950),
reh. denied, 339 U.S. 972 (1950). Accordingly, we adhere to
the Board’s prior determination that claimant is covered by
the Act.
We turn then to employer’s contention that claimant’s
disability was not caused by his employment injury. Claimant
testified that he injured his back on December 12, 1972, when
he felt something “pop” in his back when handing up the last
board in the scaffolding he was building. Hearing Transcrivt
at 23. Claimant was subsequently examined and treated by
Dr. Stephen M. Wilson, an orthopedic surgeon, and Dr. Wil-
72
liam L. Fisher, Jr., a neurosurgeon. Dr. Fisher performed a
myelogram on claimant on January 11, 1973, which he read
as normal in all respects. In depositions admitted into evi-
dence, both doctors stated that their examinations of claimant
had revealed no positive objective findings. Wilson Deposition
at 5; Fisher Deposition at 7. in September 1973, claimant
went to Dr. Loupe who also performed a myelogram and diag-
nosed claimant as having suffered a herniated disc. Dr. Loupe
performed surgery on claimant in October 1973. Claimant has
had two subsequent operations for the same problem. Dr.
Loupe stated by deposition that, assuming claimant’s history
was accurate, in his opinion the entire sequence of back prob-
lems suffered by claimant was caused by the December 12
accident at work. Loupe Deposition at 59. Dr. Ira L. Hewitt,
a specialist in internal medicine who began treating claimant
for a heart disorder on September 22, 1973, when he was con-
sulted by Dr. Loupe,’ was also deposed. He stated that
although claimant had a family history of heart trouble, in
his opinion, the incident at work precipitated claimant’s cur-
rent heart problems, based on the fact that claimant gave no
history of chest pain prior to his accident. Hewitt Deposition
at 23, 25.
After a thorough review of the medical reports and depo-
sition testimony of the above witnesses, the administrative law
judge stated that he found claimant’s testimony honest, sin-
cere and credible. He also credited the testimony of Drs. Loupe
and Hewitt that claimant’s medical problems were the result
of his accident at work. We cannot say that the administrative
law judge erred in accepting the testimony of Drs. Loupe and
Hewitt over that of Drs. Wilson and Fisher. The mere fact
that claimarit waited until September to see Dr. Loupe is not
Employer challenges Dr. Hewitt’s testimony on the basis that the
administrative law judge accepted him as an expert in cardiology and
asserts that he lacks the qualifications of an expert in that area of medi-
cine. Dr. Hewitt was the physician treating claimant for his heart prob-
lems. In view of his detailed knowledge of claimant's heart disorder as
well as his testimony concerning his general qualifications, it was not
error for the administrative law judge to rely on his testimony.
73
sufficient reason in and of itself for finding that the adminis-
trative law judge erred in placing greater weight on his testi-
mony than on that of Drs. Fisher and Wilson. Therefore, the
administrative law judge’s finding that claimant’s disability
resulted from his accident at work on December 12, 1972, is
affirmed.
In addition, employer contends that claimant is barred
from seeking his remedy under the Act based on the theory
that claimant has made a binding election of remedies by seek-
ing and receiving relief under the Louisiana Workmens’ Com-
pensation Act. There is no evidence that claimant actually
sought benefits. The record contains only a stipulation that he
received benefits under the Louisiana Act. Hearing Transcript
at 8. It is well settled that mere acceptance of payments under
a state act does not constitute an election of remedies barring
subsequent suit under the Act. Calbeck v. Travelers Insurance
Co., 370 U.S. 114, 82 S.Ct. 1196 (1962); Holland v. Harrison
Brothers Dry Dock and Repair Yard, Inc., 306 F.2d. 369 (5th
Cir. 1962). Employer must, of course, be given credit for the
sums paid under the state act in order to avoid a double recov-
ery. Calbeck, supra. This credit was awarded by the adminis-
trative law judge.
Employer further contends that the administrative law
judge’s failure to hold an evidentiary hearing on the fee
awarded to claimant’s first attorney constitutes a violation of
——
2 Employer alleges that claimant was involved in “two serious acci-
dents” during the time period between his visits to the first set of doctors
in January and his subsequent visits to Drs. Loupe and Hewitt in Septem-
ber 1973. There is no evidence that claimant suffered any injury during
this time period. As the administrative law judge noted, Carroll was
apparently in a car accident on September 11, 1974, which aggravated his
back pain, and he “stumbled and fell” about three weeks before Decem-
ber 18, 1973. Loupe Deposition at 29, 44. Beth of these events thus occurred
well after the surgery to correct the herniated disc from which claimant's
disability arose.
Furthermore, claimant testified that during this period he saw a Dr.
Levert, who read Dr. Fisher's myelogram as positive and scheduled sur-
gery. However, claimant stated that Dr. Levert refused to treat him when
he — that claimant had contacted an attorney. Hearing Transcript
at .
74
due process as well as a violation of Section 5 of the Adrinis-
trative Procedure Act, 5 U.S.C. § 554 (hereinafter referred to
as de APA).* Failure to hold a formal hearing on attorney
fees is not a violation of due process when the fee request is to
the judicial or administrative body before whom the work
was performed. Jacksonwille Shipyards v. Perdue, 539 F.2d.
533, 4 BRBS 482 (5th Cir. 1976); Luker v. Ingalls Shipbuild-
ing, 3 BRBS 221, BRB Nos. 75-243/A (1976).* Due process
requires only that the fee request be served on employer and
that employer have a reasonable time to respond. Todd Ship-
yards v. Director, Office of Workers’ Compensation Programs,
545 F.2d 1177, 5 BRBS 23 (9th Cir. 1977). In the instant case,
employer did, in fact, respond to the attorney fee request.
Employer’s objections were carefully considered by the admin-
istrative law judge and claimant’s requested fee was reduced
in response to these objections. Therefore, due process was
satisfied.
We also reject employer’s argument that the APA re-
quires a hearing on attorney’s fees. Section 19(d) of the Act,
33 U.S.C. § 919(d), provides that hearings held by adminis-
trative law judges shall be conducted in accordance with Sec-
tion 554 of the United States Code, the APA. However, Sec-
tion 554 applies only where adjudication based on the record
after an agency hearing is required by statute. 5 U.S.C. §
3 This fee represented work done by attorney William H. Sanders at
the first hearing before the administrative law judge. Claimant was repre-
sented by a different attorney, Janine S. Dingleman, at the hearing on
remand. The record does not reflect what fee, if any, was awarded Ms.
Dingleman. Employer's allegation of error concerns only the fee awarded
to Mr. Sanders for the work done in the first hearing before the admin-
istrative law judge.
4 The Board has held in cases involving fees for work before the dep-
uty commissioner that an evidentiary hearing is necessary only where
employer raises a bona fide factual issue in challenging the fee. A bald
challenge to an item in a fee application is insufficient. See Monahan v.
Portland Stevedoring Co., 8 BRBS 653, BRB No. 78-232 (1978); McCloud v.
George Hyman Construction Co., 11 BRBS 194, BRB No. 78-606 (1979). In
the instant case, employer challenges the administrative law judge's award
of a fee for work done before the administrative law judge. However,
employer does not allege a factual issue is involved nor does he challenge
the reasonableness of the fee awarded. Rather, employer challenges only
the procedure followed.
75
554(a). Subsections 554(c) and (d), relied upon by employer
herein, do not state when a formal hearing is required. Rather,
these subsections establish only the procedures to be followed
when formal hearings are held. Section 554 thus does not
mandate a hearing on attorney fees. We therefore conclude
that the administrative law judge fully complied with the
required procedures in awarding the attorney’s fee.
Accordingly, the Decision and Order of the administrative
law judge is affirmed.
SO ORDERED.
JULIUS MILLER
Administrative Appeals Judge
ISMENE M. KALARIS
Administrative Appeals Judge
SAMUEL J. SMITH, Chief
Administrative Appeals Judge
Dated this 20th day
of May 1980
76
SERVICE SHEET
BRB No. 79-558: DAVID E. CARROLL v. HULLINGHORST
INDUSTRIES, INC. and/or BASF WYAN-
DOTTE CORPORATION (Case No. 76-
LHCA-652) (OWCP No. 7-34955)
Copies were sent to the following:
Mr. Ralph M. Hartman
Director, Office of Workers’
Compensation Programs
U.S. Department of Labor
Suite S-3524, NDOL
Washington, D.C. 20210
Judge Robert S. Amery
U.S. Department of Labor
Suite 700, Vanguard Building
1111 - 20th Street, N.W.
Washington, D.C. 20036
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