Petition for Writ of Certiorari — Bazor v. Boomtown Belle Casino
Supreme Court brief2003
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02 1 6 37 APR 22-2003
Supreme Court of the United States
JERRY KATE BAZOR, Widow of BEN BAZOR,
Petitioner, —
BOOMTOWN BELLE CASINO and LOUISIANA WORKERS’
COMPENSATION CORP.,
Respondents.
On PETITION FoR A Writ OF CERTIORARI TO THE
Unrrep States Court OF APPEALS FOR THE FIFTH CircurIr
PETITION FOR WRIT OF CERTIORARI
Lloyd N. Frischhertz
Counsel of Record
Frischhertz & Associates
1130 St. Charles Avenue
New Orleans, LA 70130
(504) 523-1500
Attorney for Petitioner
Curry & Tavior ¢ (202) 393-4141 ¢ HTTPV//USssCcINro.com
(ga 'v"
QUESTIONS PRESENTED
1. Whether the Fifth Circuit Court of Appeals has
misapplied the 1984 amendments to 33 U.S.C. § 902(3) by
holding that the Statws requirement for coverage, as stated
in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249
(1977), was modified?
IF Whether the Fifth Circuit Court of Appeals has
misinterpreted the recreational operation exception to
coverage under the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. § 902(3)(B), in applying the
exclusion to the construction phase of a casino vessel and
failing to address the statutory threshold requirement for
coverage under a state workers’ compensation act?
Ill. Whether the Fifth Circuit has incorrectly
determined that the phrase “customarily used” in 33 U.S.C.
§ 903(a) modifies the specifically enumerated situs
locations in addition to the phrase “other adjoining areas”
despite this Court’s statements in Northeast Marine
Terminal Co. v. Caputo, 432 U.S. 249 (1977)?
il
IV. Whether the Fifth-Circuit’s temporal dimension
rule, requiring the putative situs to have been used for
loading and unloading at the time of a claimant’s injury,
produces a harsh, incongruous result in cases of
cumulative injury that conflicts with the legislature's
purpose as well as the Supreme Court’s “zone of danger”
doctrine?
iii
PARTIES TO THE PROCEEDING
Including the parties named in the caption of this Petition,
the parties are:
Petitioners:
Jerry Kate Bazor, widow of Ben Bazor, and
individual
Director, Office of Workers’ Compensation
Programs, United States Department of Labor
Great-West Life and Annuity Insurance Company
Respondents:
Boomtown Belle Casino
Louisiana Workers’ Compensation Corporation
iv
TABLE OF CONTENTS |
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STATUTORY PROVISIONS INVOLVED.............sscscsssossssssssocsssceeess 3
I GOUT INE NI vscssnicinticesastcesiacassibnssieasiraeecncubannnaliabanl 3
REASONS POR GRANTING WRIT .....:0..seosccsscocsvesscossssossvssgsienses 8
IE ii biiiciicnstrcismndratecacahieveatentaeatamaaelaaee 21 |
APPENDIX ‘
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ORDER DENYING REHEARING..........ccsccssscssssesseesees lla
BENEFITS REVIEW BOARD DECISION...........0.0000000+ 13a
RELEVANT PROVISIONS INVOLVED ...........scsseeceseseeee 34a |
; ADMINISTRATIVE LAW JUDGE DECISION .............000- 35a
V
TABLE OF AUTHORITIES
Cases
CHESAPEAKE AND O.R. Co. V. SCHWALB,
MO UIE, BD CIS csaiicheviscenssianisaiciarswennecnivitaniavmnnia 14
FLEISCHMANN V. DIRECTOR, OWCP,
SBE Fe TSE Ce COs. TI veveiiiasarcenesscsissasisvvesansopvevsones 16, 18
GREEN V. VERMILION CorP., 144 F.3d 332
(Gia Cle, ID) ecsccsesicisssiicitessirsicsisoninenintitnvivnaiisteinniniers 11,12
HATCHERSON V. DIEBOLD, INC., 00-3263 (La. 5/15/01),
FUG Bi Oe TG csi sta nnschcvinticavineetamicnaiccatnmminnasans 10
HERB’S WELDING V. GRAY,
STS UES, BEA CIB) ciceessiesepisnicrienisyscsvceveesitonsinninsinstinenenishainins 19
HURSTON V. DIRECTOR, OWCP,
COD Fk TOGT COR Car, FI cvscssesevncscteonsrarescvesenrncncns 16, 18
NELSON V. AMERICAN DREDGING CO.,
5G Fe TE Ce Ae, Fe isiieshcennseiaetionesnsicarimens 14,17
NORTHEAST MARINE TERMINAL Co. Vv. CAPUTO,
BD TT, Fe Ce i cienictriceitcietcenriincieinnn passim
O’ LEARY V. BROWN-PACIFIC-MAXON,
ROD UG, GE CREB siicosacicsshnicctnissedtirnristivesieesicteitonenannnnelinninien 19
PFEIFFER V. FORD, 444 U.S. 69 (1979)..........eessesesseesreeeseeees 14
SEA-LAND SERVICE, INC. V. ROCK,
OBS FSG GE COG Ce, Bs ikiccscniincincpcsvvesmvinctineennvnisnetsicconns 14
STATUTES
SBS. IF ii nccniccoimnnsiieneanaee 3
FO UL BA:, BE biicestncitihsncnessitrneemnnccinieniga 3, 10, 14
BB UGC. © AG D niiccetcisvevsniintersrsveisionmenionn 8, 10, 12
3S U.S.C. § GOZLB)B)..ccvresserrosesneservneee 3, 8, 10, 11, 12, 13, 14
50 DEG. 5 PE iiitciencnimiimmiaaane 12, 13, 14
WATE AE oi chntecenie mee 3, 14, 15, 16,
SB CFEC, See witavtsstcctovetantcseton nia cencaena ened 2
Se SIE; SB Peas catidesicnintusbiiieil aca gaciiaande iaaplidpaaidals 2
OR) an SE his siesrnnatieniemsineetaaamenes 3
LA. REV. STAT. ANN. 23:1021(7) (West 2003) ............... 9, 10
RA RITIES
H.R. Rep. 98-570(1), 1984 U.S.C.C.A.N. 2734... 8, 9, 12
l
IN THE
SUPREME COURT OF THE UNITED STATES
JERRY KATE BAZOR,
widow of BEN BAZOR,
Petitioners,
VERSUS
BOOMTOWN BELLE CASINO
and
LOUISIANA WORKERS’ COMPENSATION CORP.,
Respondents
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
JERRY KATE BAZOR, widow of BEN BAZOR,
Petitioner, by undersigned counsel, under appropriate
rules of this Court, requests that this Court issue a writ
of certiorari to the United States Court of Appeals for
the Fifth Circuit.
OPINIONS BELOW
This is a claim for benefits brought pursuant to
the Longshore and Harbor Workers’ Compensation Act
[LHWCA], 33 U.S.C. § 901, et seg. by Jerry Kate Bazor,
widow of Ben Bazor, Petitioner, against Boomtown
Belle Casino and Louisiana Workers’ Compensation
Corp.
, The instant matter was referred-to the Office of
Administrative Law Judges [ALJ] for a hearing that was
held on January 26, 2000 in New Orleans, Louisiana.
The pertinent issues included herein, as presented by
the parties to the ALJ, were the jurisdictional requisites
2
of status and situs for coverage under the LHWCA.
On May 4, 2000, the ALJ issued a Decision and
Order Awarding Benefits, finding Petitioner satisfied the
jurisdictional requirements of status and situs, finding
Petitioner’s employment caused his injury and ultimate
death, finding Petitioner’s stroke of July 13, 1994 left
him permanently and totally disabled until his death on
October 2, 1997, and awarding Petitioner benefits under
the LHWCA.’
On July 12, 2000, Respondents filed a timely
notice of appeal with the Benefits Review Board [BRB].
After hearing the case, the BRB issued a Decision and
Order, dated July 11, 2002, affirming the ALJ Decision.
Respondent appealed this decision to the Fifth Circuit
Court of Appeals.
On December 6, 2002, the Fifth Circuit Court of
Appeals reversed the decision of the BRB holding that
Petitioner did not have the employee status required by
the LHWCA and was not injured at a situs covered by
the LHWCA.
Petitioner filed a timely petition for rehearing and
rehearing en banc that was subsequently denied in an
opinion dated January 22, 2003.
JURISDICTION
The authority of the Administrative Law Judge to hear
Petitioner’s claim for compensation under the LHWCA is
granted pursuant to 33 U.S.C. § 919(d).
The Benefits Review Board is -vested with
authority to hear appeals from decisions of the ALJ
pursuant to 33. U.S.C. § 921(38).
The Fifth Circuit Court of Appeals has
jurisdiction to hear appeais from the BRB pursuant to 33
U.S.C. § 921 (c).
Appellate jurisdiction of this Court to hear
‘ALJ Decision, p.21.
3
appeals from a decision of the Fifth Circuit Court of
Appeals concerning the LHWCA is invoked pursuant to
28 U.S.C. § 1254(1).
RELEVANT PROVISIONS INVOLVED
Longshore and Harbor Workers’ Compensation
Act, 33 U.S.C. §§ 902(3), 902(3)(B), and 903(a)
STATEMENT OF THE CASE
A. General Background and Description
Petitioner was hired as a facilities manager by
Respondent. Both at the time Petitioner was hired and
at the time of his injury, the facilities included a casino
vessel which was under construction at Avondale .
Shipyard in Westwego, Louisiana, a dock under
construction located on the Harvey canal, and a parking
lot and tent area adjacent to the dock. The tent was to
serve as a temporary shelter to house casino patrons as
they boarded the vessel until a permanent building was
constructed.”
Petitioner’s duties included getting the above-
listed facilities, including the vessel and dock, ready for
operation. Subsequent to the vessel’s construction and
delivery, Petitioner would have been responsible for all
maintenance and repair to the vessel, with the exception
of the steering, navigation, and power train systems.
Consequently, during the vessel's construction and at
the time of his injury, Petitioner apportioned his duties
to include an on-site learning and understanding of the
vessel's design at Avondale Shipyard so that his crew
could perform the necessary refrigeration, plumbing,
and electrical work, which was to be completed
subsequent to delivery.
During the construction phase of the vessel at
‘ALJ Decision, p. 4.
4
Avondale’s_ ship-building facility, Petitioner’s duties
included the installation and electrical wiring. of the
vessel's slot machines, computers, and security systems.
Respondent, Boomtown Belle Casino, was concerned
with the vessel’s construction because Avondale was
substantially behind schedule and Respondent viewed
Avondale’s workmanship to be poor.’ The casino vessel
was originally scheduled for delivery and operation on
July 4, 1994; however, due to Avondale’s delay, the
casino did not open until August 6, 1994. Based on these
concerns, Respondent directed Petitioner to assign a
portion of his work crew to assist Avondale employees
in vessel clean-up during the construction and to
supervise their work. This was intended to speed the
construction of the vessel.
Petitioner was also responsible for the loading
facility at the Harvey Canal, a navigable waterway
located approximately ten miles from Avondale, which
is where the vessel was to be docked. Specifically,
Petitioner supervised the construction of the dock and
vessel ramp. ,
Respondent, Boomtown Belle Casino, was
concerned because each day that the casino opening
was delayed, Respondent lost considerable revenue. As
a result, Petitioner was working fifteen hour days, while
supervising a maintenance crew that worked twelve
hour days making sure that the casino vessel was
correctly outfitted with properly wired slot machines.
During the afternoon of July 13, 1994, Petitioner,
while sitting in a chair in the tent, collapsed and fell to
the ground unconscious. Petitioner was taken to the
hospital where he was diagnosed with an aneurysmal
subarachnoid hemorrage secondary to a MCA aneurysm.
On the same day, Petitioner underwent a right frontal
temporal craniectomy, clipping of middle cerebral
‘ALJ Decision, p. 5.
5
bifurcation aneurysm, evacuation of intracerebral
hemorrhage, and anterior temporal lobectomy.
Petitioner never regained consciousness and died on
October 2, 1997."
Chester Bruno Scrignar, M.D. determined
through medical records and _ interviews with
Petitioner's family members and co-workers that
Petitioner suffered from chronic, unrelenting stress,
which not only included the increased work hours and
responsibilities associated with the vessel during its
construction phase, but also included problems
encountered by Petitioner and his crew while they
assisted Avondale during the vessel's construction.’
Fellow employees confirmed a heated argument
Petitioner had with Avondale Superintendent, Octave
Rainey that occurred just prior to his stroke and
centered upon the increased number of work hours
expected of Petitioner's crew by Avondale.
B. Decision of the Administrative Law Judge
After hearing testimony from numerous
witnesses, including co-workers, family members, and
doctors, the ALJ determined that Petitioner satisfied the
status and situs requirements for coverage under the
LHWCA. Additionally, the ALJ found that Petitioner's
injuries were caused by his employment activities and
awarded damages accordingly.
‘ALJ Decision, p. 5.
"ALJ Decision, p. 11.
6
Specifically, the ALJ found that Petitioner spent a
substantial portion of his time in the outfitting and
cleaning of the casino vessel at Avondale, and
additionally, supervised the dock area and construction
of the vessel ramp. Relying on this Court’s decision in
Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249
(1977), the ALJ found the status requirement was
established.”
Additionally, the ALJ found the sitws requirement
was met, citing Texports Stevedore Co. v. Winchester,
632 F.2d 504 (5th Cir. 1980). The ALJ stated that
Petitioner’s stroke occurred less than 100 feet from the
dock and ramp of which he was supervising the
construction.
a Decision of the Benefits Review Board
In affirming the decision of the ALJ, the BRB
gave detailed analysis in support of its finding that
Petitioner satisfied both the status and_ situs
requirements for coverage under the LHWCA.
Respondent contended that Petitioner was excluded
from coverage under the LHWCA, 33 U.S.C. § 902(3)(B),
added by congress in 1984, that excludes from the
definition of employee individuals employed by a club,
camp, recreational operation, restaurant, museum, or
retail outlet. Relying on Caputo, 432 U.S. 249, Green v.
Vermilion Corp., 144 F.3d 332 (1998), and Huff v. Mike
Fink Restaurant, 33 BRBS 179 (1999), the BRB held that
the exclusion did not apply to Petitioner because his
duties did not solely further the operation of a
“recreational operation” within the plain meaning of that
term.’ Instead, the BRB determined Petitioner’s duties
furthered maritime commerce.
In addressing the situs requirement, the BRB
found that due to the cumulative nature of the injury
"ALJ Decision, p. 14-15.
Appendix, p. 20a-21a. | ms
eS
7
and the fact that the injury resulted from stress
Petitioner suffered while working at the Avondale
shipyard and the dock facility, Petitioner had satisfied
the situs requirement for recovery. Because a shipyard
and dock are indisputably maritime sites, the BRB
affirmed the ALJ’s determination that Petitioner
satisfied the situs requirement for recovery.”
D. Decision of the Fifth Circuit Court of Appeals
; The Fifth Circuit Court of Appeals reversed the
decision of the BRB and found that Petitioner failed to
satisfy both the status and situs requirements for
coverage under the LHWCA. With regard to the status
requirement, the court found that because a floating
casino is a “recreational operation” for purposes of §
902(3)(B), Petitioner was excluded from coverage.’ In
so holding, the Fifth Circuit did not address the
cumulative nature of Petitioner’s injury and did not
mention the threshold requirement under 33 U.S.C. §
902(3)(B) that for the exception to apply, the injured
party must be subject to coverage under a State
Workers’ Compensation Act.
The Fifth Circuit also held that Petitioner's injury
did not occur on a covered situs. The Court stated that
the Boomtown facility had yet to be used for a maritime
purpose, and therefore, was not a covered situs.” The
court did not address whether the Avondale shipyard or
the dock were covered situs locations under the
LHWCA.
Petitioner filed a timely Petition for Rehearing
and Rehearing en banc, which was denied.
“Appendix, p. 24a.
“Appendix, p. 8a.
“Appendix, p. 9a.
8
REASONS FOR GRANTING WRIT
Petitioner, through undersigned counsel,
respectfully requests that this Honorable Court grant a
Writ of Certiorari to the Fifth Circuit in this matter for
the reasons as set forth in this petition. This case
concerns the effects, if any, of the 1984 amendments to
the Longshore and Harbor Workers’ Compensation Act
[LHWCA], 33 U.S.C. § 902(8)(A)-(F), in determining
whether an employee is covered under the LHWCA.
This Court has not had occasion to address the 1984
amendments to § 902(3), and Petitioner firmly believes
that the Fifth Circuit has misinterpreted LHWCA §
902(3)(B), and additionally that the decision of the Fifth
Circuit in the case at bar will have broad ramifications
on employees across the country.
This case also concerns the effects of the Fifth
Circuit’s determination that situs, under the LHWCA,
requires a temporal dimension to establish coverage. Th
Fifth Circuit’s holding is in conflict with the decisions of
other circuits, decisions of this Court, and the
legislature’s intent. This Court has not yet directly
addressed whether the specifically enumerated situs
locations require a temporal dimension, and the Court’s
determination of this case will settle the conflict that
currently exists amongst the circuits.
I. THE COURT OF APPEALS FOR THE FIFTH
CIRCUIT ERRED IN FINDING THAT
PETITIONER FAILED TO MEET THE STATUS
REQUIREMENT FOR COVERAGE UNDER THE
ACT.
LHWCA § 902(3)(A)-(F) excludes from the
definition of “employee” certain classes of workers if
the individual is subject to coverage under a state
9
workers’ compensation act.” | Section 902(3)(B)
excludes individuals employed by a club, camp,
recreational operation, restaurant, museum, or retail
outlet. The legislative history states that the exclusions
found in Section 902(3)(B) should be “narrowly
construed.”” The legislative history also states:
Some enterprises which are provided with
exclusion under Section 902(3)(B) and (C)
because of the nature of the employing
enterprise may in fact employ workers
who should remain covered by the Act
because of the nature of the work which
they do, or the nature of the hazards to
which they are exposed.”
The Fifth Circuit held that the vessel was a “recreational
operation,” and therefore under Section 902(3)(B),
Petitioner is not covered under the LHWCA.”
A. The Fifth Circuit failed to address the
requirement of coverage under a. state
compensation act.
The plain language of Section 902(3) states that
the listed exclusions from coverage are only applicable
if the employee is covered under a state workers’
compensation remedy. The Fifth Circuit failed to
address this requirement in its decision to deny
coverage to Petitioner. Instead, the Fifth Circuit treated
the exclusion as if it unconditionally modified the
definition of employee under the LHWCA. Thus,
Petitioner is left without a remedy for his injuries under
the LHWCA or Louisiana’s Workers’ Compensation Act.
"HR. Rep. BB STOCK 1984 USE .C.AN. 2734, 2737.
"1984 U.S.C.C.AN. at 2737
“Appendix, p. 8a.
10
The BRB found that Petitioner suffered a stroke
due to stress caused by his employment duties, and the
Fifth Circuit has not disputed this finding. The
Louisiana Workers’ Compensation Act does not cover
perivascular injuries, which includes strokes, caused by
mental or emotional stress." The Louisiana Supreme
Court has specifically stated that strokes are only
compensable when they arise out of physical stress and
not when they are related to mental stress.” Thus,
under Louisiana law, Petitioner is not covered under a
state workers’ compensation act, and the Fifth Circuit
erred in excluding Petitioner from coverage under the
LHWCA. This was not a factual error by the Fifth
Circuit, as the court failed to even address coverage
under a state compensation system as_a requirement
under Section 902(3)(B).
The ramifications of the failure of the Fifth
Circuit to address the requirement contained in Section
902(3) of coverage under a state compensation act are
both broad and troublesome. As a result of the decision,
“LA. REV. STAT. ANN 23:1021(7)(e) (West 2003). The Louisiana
Workers’ Compensation Act states:
A heart related or perivascular injury, illness, or
death shall not be considered a personal injury by
accident arising out of and in the course of
employment and is not compensable pursuant to
this chapter unless it is demonstrated by clear and
convincing evidence: that (i) the physical work
stress was. extraordinary and unusual in
comparison to the stress or exertion experienced
by the average employee in that occupation, and
(ii) the physical work stress or exertion, and not
some other source of stress or preexisting
condition, was the predominant and major cause of -
the heart-related or perivascular injury, illness, or
death.
LA. REV. STAT. ANN. 23:1021(7)(e) (West 2003).
"Hatcherson v. Diebold, Inc., 00-3263 (La. 5/15/01), 784 So. 2d 1284,
1288.
11
Petitioner, and all future employees that fit under an
exception to coverage contained in LHWCA § 902(3)(A)-
(F), are left without a remedy for their injuries. This
result is contrary to the express intent of congress in
including state compensation coverage as an express
requirement for exclusion under the LHWCA, as well as
Congress’ intent that the exclusions should be narrowly
construed. '
B. Congress did not intend “recreational
operation” to include the construction phase of a
vessel and dock.
The Fifth Circuit held that because a floating
casino is a “recreational operation,” Petitioner is not
covered by the LHWCA. The court relied on its prior
decision in Green v. Vermilion Corp."' The Decision of
the Fifth Circuit in the case at bar is a substantial
extension of the holding in Green, and results in a sea
change in the law regarding status under the LHWCA,
directly conflicting with this Court’s decision Northeast
Marine Terminal Co. v. Caputo."
In Green, the Fifth Circuit had occasion to
interpret Section 902(3)(B) with reference to a hunting
camp. The Court held that since Green was employed
solely to render services to promote and maintain a
duck hunting camp, he was excluded from coverage
under Section 902(3)(B) of the LHWCA.” It was
Stipulated that Green was covered under the Louisiana
Workers’ Compensation Act.” The court specifically
rejected the claim that in construing Section 902(3)(B),
it was limited to considering only the nature of the
employer's enterprise, and the court quoted the
"144 F.3d 332 (5th Cir. 1998).
"432 U.S. 249 (1977).
“Green, 144 F.3d at 334.
"Td. at 335 n. 1.
12
legislative history to that effect.” The court addressed
itself to the question of whether Green worked
exclusively to further an operation which comports with
the plain meaning of the terms “camp or club.”” It was
implicit in the court’s opinion that Green was not
engaged in the construction of the camp.
The Fifth Circuit’s interpretation of Green in the
case at bar renders an employee engaged in the
construction of a club, camp, _ restaurant, or
“recreational operation” excluded from coverage under
the LHWCA. In this case, the Fifth Circuit has held that
a casino vessel, while under construction, is a
“recreational operation” under Section 902(3)(B).
However, the court has failed to recognize that during
construction there is no recreational operation. Under
the Fifth Circuit's interpretation of Section 902(3)(B) in
this case an employee building a vessel, dock, terminal,
pier, or any other maritime construction operation is
excluded from coverage if the object being built is
destined to be a “recreational operation.” A shipbuilder,
constructing a casino vessel or a cruise ship, is not
covered under the LHWCA if he is employed by the
owner of the vessel. This decision potentially removes
numerous employees from’ coverage under the act,
tnereby substantially altering the status requirement as
defined in Caputo.” Two employees, performing the
same tasks but employed by different employers, one
employed by the owner of the recreational operation,
results in one employee covered under the-act while the
other is not. |
-
“Id. at 335. The court quoted the legislative history stating that
businesses falling under Section 902(3)(B) may have employees
that should remain covered under the Act “because of the nature of
the hazards to which they are exposed.” 1984 U.S.C.C.A.N. at 2737.
“Green, 144 F.3d at 335.
“Caputo, 432 U.S. at 273.
13
1. The Fifth Circuit’s interpretation of Section
902(3)(B) renders Section 902(3)(F)
meaningless. ;
In 1984, Congress added Sections 902(3)(A)-(F)
to the LHWCA. Section 902(3)(F) excludes from the
definition of “employee” under the LHWCA “individuals
employed to build, repair, or dismantle any recreational
vessel under sixty-five feet in length.” Having enacted
Section 902(3)(B) and (F) at the same time, principles of
Statutory construction would counsel against an
interpretation of either Section that renders the other
Section meaningless.
However, by interpreting “recreational operation”
in Section 902(3)(B) to include the construction phase
of a recreational vessel, the Fifth Circuit renders Section
902(3)(F) meaningless. It would be unnecessary to
address the construction of a recreational vessel under
Section 902(3)(F) if it was covered under Section
902(3)(B). The interpretation of Section 902(3)(B) by
the Fifth Circuit, as including the construction of a
casino vessel, is in direct conflict with the plain
language of Section 902(3)(F).“ Therefore, Section
902(3)(B) does not address the construction phase of a
recreational vessel, and the Fifth Circuit has erred in
applying Section 902(3)(B) to the construction of the
Boomtown Belle Casino at Avondale shipyards.
Additionally, the Fifth Circuit states that it is not
seriously argued whether a floating casino is a
“recreational operation” for purposes of Section
902(3)(B). However, a casino vessel is certainly
distinguishable from a recreational vessel described in
Section 902(3)(F). Section 902(3)(F) is addressed to
“33 U.S.C. § 902(3)(F) (West 2001). Section 902(3)(F) excludes
from the definition of employee under the act “individuals
employed to build, repair, or dismantle any recreational vessel
under sixty-five feet in length.
14
vessels under sixty-five feet in length and likely has
reference to vessels not used for commercial purposes.
Conversely, a casino vessel is a commercial operation
designed to pick-up gamblers (customers) and travel the
waterways while the customers gamble. While from the
customer's perspective this may be a recreational
activity, from the perspective of the owner of the vessel
and those constructing it, this is commercial activity on
the navigable waterways.
2. The decision of the Fifth Circuit conflicts
with this Court’s decision in Caputo.
In Caputo, this Court held that the Act focuses
primarily on occupations, including shipbuilders.”
Additionally, the status test focuses on the claimant’s
overall duties; thus, an employee is covered under the
Act if he spends some of his time engaged in a covered
activity.” The language of the 1972 amendments is broad
and suggests an expansive view of the extended
coverage. Court’s have consistently held that land-
based employees specifically mentioned under Section
902(3) are covered under the LHWCA.”
Therefore, the Fifth Circuit has erroneously
interpreted Section 902(3)(B) because the court’s
interpretation is contrary to the plain language of the
LHWCA, conflicts with prior decisions of this Court, and
is untenable in that it creates a gap in coverage contrary
to congressional intent. Additionally, the Fifth Circuit’s
interpretation of Section 902(3)(B) renders Section
— 902(3)(F) meaningless, and therefore, cannot be the
*Caputo, 432 U.S. at 273.
*Id. at 273; Pfeiffer v. Ford, 444 U.S. 69, 75 (1979); See also Nelson
v. American Dredging Co., 143 F.3d 789, 799 (3d Cir. 1998).
“Td. at 268.
“Chesapeake and O.R. Co. v. Schwalb, 493 U.S. 40, 46 (1989); Sea-
Land Service,Inc. v. Rock, 953 F.2d 56, 65 (3d Cir. 1992)
15
interpretation Congress intended. Finally, under the
Fifth Circuit’s decision, Petitioner is left with no remedy
for his injuries because the court did not even address
the threshold requirement of a state workers’
compensation remedy for Section 902(3)(B) to apply.
Il, THE FIFTH CIRCUIT ERRONEOUSLY STATES
AND APPLIES THE LAW OF “SITUS.”
Prior to its 1972 Congressional amendment, 33
U.S.C. § 903(a) specified that the LHWCA would only
compensate injuries or death occurring “upon the
navigable waters of the United States.” Because the
courts subjected the provision to strict statutory
construction, coverage under the Act often ceased at the
water's edge. To statutorily expand the areas triggering
compensation, Congress amended the statute, in
pertinent part, to read:
Compensation shall be payable under this
Act in respect of disability of death...but
only if the disability or death results from
an injury occurring upon the navigable
waters of the United States including any
adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other
adjoining area customarily used by an
employee in loading, unloading,
repairing, or building a vessel...”
Since the amendment, the courts have consistently held,
per this Court’s holding in Northeast Marine Terminal
Co. v. Caputo, 432 U.S. 249, 268 (1977), that the
amendment “must be liberally construed in
conformance with its purpose, and in a way which
”'33 U.S.C. § 903(a) (West 2001) (emphasis added).
16
avoids harsh and incongruous results.” However,
disagreement among the Circuit Courts exists, among
other issues, in construing the statutory language
"customarily used by an employee in_ loading,
unloading, repairing, or building a vessel.” The Ninth
Circuit and the Second Circuit hold that the phrase
modifies only “other adjoining areas." The Fifth
Circuit, however, holds that the situs of the injury must
be one "customarily used" regardless of whether it is
specifically enumerated.” Additionally, the Fifth Circuit i
takes the inquiry one step further.
Although this Court has expressly stated that the
situs test is "geographic" and that it is the status test
that focuses on "occupational" factors such as loading
and unloading, the Court of Appeals for the Fifth Circuit
has erroneously required a “temporal” aspect to exist in
the specifically listed situs at the time of the injury.”
That is, the Fifth Circuit has determined that the situs |
inquiry has both a "geographic dimension" and a |
"temporal dimension," and applies an "actual use" test, |
requiring the situs to be used for loading, unloading, or
building a vessel at the actual time of a claimant’s injury.
However, this court, in Caputo, stated that it is “not at
all clear that the phrase ‘customarily used’ was intended
to modify more than the immediately preceding phrase
‘other areas.’”””
In so holding, the Circuit has misstated the law
for two reasons: (A) requiring a temporal dimension to
specifically enumerated areas erroneously-construes the
words -"customarily used" as modifying the specifically
enumerated areas; and (B) requiring a_ temporal
“Hurston v. Director, Office of Workers Comp. Programs, 9889
F.2d 1547, 1552 (9th Cir. 1993); Fleischmann v. Director, Office of
—_ Workers’ Comp., 137 F.3d 131, 138-39 (2d Cir. 1998).
“ Appendix, p. 9a.
“Appendix, p. 9a.
“Caputo, 432 U.S. at 280.
17
dimension to such areas clearly defeats the legislative
purpose behind the Act in cases of cumulative injury
and ignores the “zone of special danger” doctrine as put
forth by the United States Supreme Court. Additionally,
Petitioner maintains that the "temporal dimension" rule
produces harsh and incongruous results.
A. The Fifth Circuit’s decision to construe the
words" customarily used" as modifying the
specifically enumerated areas of 33 U.S.C.A. §
903(a) is in conflict with other circuit
decisions, the reasoning of the United States
Supreme Court, and the legislative purpose in
expanding situs coverage.
Petitioner clearly meets the situs element as his
injuries occurred at the dock and at the shipyard.
Because this finding was not discussed or disturbed by
the Fifth Circuit, it must be assumed that the court
thought it was supported by substantial evidence.
However, although resolution of a situs issue normally
involves a geographic inquiry, the decision below
enunciated that “whether an adjoining area is a Section
903(a) situs is determined by the nature of the adjoining
area at the time of the injury.” As applied to the instant
case, the Fifth Circuit construes the language
"customarily used" to modify two of the specifically
enumeraied areas in the statute. However, this reading
of the statute is in conflict with the Ninth Circuit, the
Second Circuit, and this Court’s reasoning in Caputo,
that, although the statute is ambiguous, the legislative
history evidences “little concern with respect to how
[the] facilities were used.””
“Appendix, p. 9a (citing Nelson v. Guy F. Atkinson Constr. Co., 29
BRBS 39, 41 (1995)).
“Caputo, 432 U.S. at 280; See Hurston, 989 F.2d at 1552 (holding
that "customarily used" does not modify enumerated structures and
18
As this Court has stated, the statute is ambiguous,
and, therefore, the legislature’s intent is an appropriate
inquiry.” Additionally, this Court has observed that the
legislative history describes the statute as expanding
coverage to areas other than the ship and that the
legislative history evidences “little concern with respect
to how these facilities were used.”” Further, this Court
has held that the language of the 1972 amendments is
broad and suggests an expansive view of the extended
coverage.” This Court has also held that the
amendment must be liberally construed to avoid harsh
and incongruous results.” Because the Fifth Circuit’s
reading of the statute takes a strict, narrow view of the
extended coverage, this Court should authoritatively
adopt the rule as articulated in the Ninth and Second
Circuits that “customarily used” modifies only the words
“other adjoining areas.” Additionally, this Court should
adopt the aforementioned interpretation because the
Fifth Circuit rule results in a harsh result for claimants
that suffer cumulative injuries on a covered situs.
finding that a structure used only for storing and processing oil did
constitute a "pier" under the statute); See also, Fleischmann, 137
F.3d at 138-39 (adopting the Ninth Circuit’s holding and broadly
construing "pier" to constitute a bulkhead in order to preserve the
legislative preference for claimants not walking in and out of
coverage).
Caputo, 432 U.S. at 280.
a
a
“Id
19
B. The Fifth Circuit’s Application of a
Temporal Dimension Test Implies a Causal
Element to the Situs Inquiry in the Cases of
Cumulative Injury and Ignores the Zone of
Special Danger Doctrine as Put Forth by this
Court.
An additional error in the court’s application of a
“temporal dimension” to the instant case is that the
court focused on the fact that petitioner's body fell
under the “tent,” fifty feet from the water's edge, thereby
ignoring the cumulative aspect of petitioner’s injury
recognized by the BRB.“ In focusing on where
petitioner's body fell, the court ignores the "Zone of
special danger" doctrine as put forth by this Court, and
impliedly requires an additional causal element within
the situs inquiry. As noted by this Court, the 1972
Amendments expanded the covered situs, added status
to the test for eligibility, and left the definition of
“injury” intact as “accidental injury or death arising out
of and in the course of employment.” This Court has
also noted Congress’ express desire to make coverage
available to those who regularly move from covered to
noncovered areas.” Finally, this Court has held that
coverage requires only that “the ‘obligations or
conditions’ of employment create the ‘zone of special
danger’ out of which the injury arose.”
The decision below focuses on where petitioner’s
body fell and not on the fact that the obligations and
conditions of petitioner's employment caused him to
move from covered to noncovered areas and caused his
stress-related cumulative injury. Petitioner was not “so
thoroughly disconnected from the service of his
“Appendix, p. 24a.
“'Herb’s Welding v. Gray, 470 U.S. 414 (1985).
“Td. at 426.
“O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504 (1951).
20
Employer that it would be entirely unreasonable to say
that injuries suffered by him arose out of and in the
course of his employment.“ Requiring a temporal
dimension in the instant case, then, implies an
additional causal element to the situs test. It also
produces an _ incongruous, inequitable result, as
petitioner clearly suffered injury at areas constituting a
“situs” under the act. Thus, the temporal dimension
inquiry is an inappropriate one, in that it requires
petitioner to have fallen at a specifically covered situs
that was at the time “customarily used.” Under the Fifth
Circuit rule, claimants will obtain coverage for
cumulative injury only when they fall in such an area,
resulting in claimants slipping in and out of coverage
contrary to the legislature’s purpose in amending the
Act. Because the rule applies an additional causal
element to the situs test, ignores the zone of special
danger doctrine, and results in claimants slipping in and
out of coverage, this Court should hold that the “situs”
element of a claimant’s coverage under the Act does not
require a temporal dimension to the injury.
Thus, Petitioner clearly meets the situs element
of coverage under the Act, as his injuries occurred at
specifically enumerated covered locations. Therefore,
the Fifth Circuit’s decision regarding Petitioner's situs
should be reversed, as the court’s temporal dimension
rule conflicts with other circuits, the reasoning of this
Court, and the legislative purpose in expanding situs
coverage. The decision should also be reversed, as the
court failed to consider the cumulative nature of
Petitioner’s injuries, thereby implying an -additional
causal element to the situs inquiry and ignoring the zone
of special danger doctrine put forth by this Court.
“O'Leary, 340 U.S. at 472.
is | |
21
CONCLUSION
THEREFORE, Petitioner Jerry Kate Bazor
requests of this Honorable Court that it GRANT her
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit.
RESPECTFULLY SUBMITTED,
Lloyd N. Frischhertz
Counsel of Record
Frischhertz & Associates
1130 St. Charles Avenue
New Orleans, LA 70130
(504) 523-1500
Attorney for Petitioner
la
(Footnotes trail end of each document)
No. 01-60705
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BOOMTOWN BELLE CASINO; LOUISIANA WORKERS'
COMPENSATION CORPORATION,
Petitioners,
V.
JERRY KATE BAZOR, Widow of Ben Bazor; DIRECTOR,
OFFICE OF WORKER'S COMPENSATION PROGRAMS,
US DEPARTMENT OF LABOR; GREAT-WEST LIFE
AND ANNUITY INSURANCE COMPANY,
Respondents.
12/6/2002
COUNSEL:
For BOOMTOWN' BELLE’ CASINO, LOUSIANA
WORKERS' COMPENSATION CORP, Petitioners: David
Keith Johnson, Johnson, Stiltner & Rahman, Baton
Rouge, LA.
For JERRY KATE BAZOR, Respondent: Lloyd N
Frischhertz, Marcus James Poulliard, Firschhertz &
Associates, New Orleans, LA.
For DIRECTOR, OFFICE OF WORKER'S
COMPENSATION PROGRAMS, US DEPARTMENT OF
LABOR, Respondent: Thomas O Shepherd, Jr, Clerk,
Washington, DC. Carol A De Deo, Kristin M Dadey, US
Department of Labor, Washington, DC. Micahel O
Brewer, US Department of Labor, New Orleans, LA.
2a
For GREAT-WEST LIFE ANNUITY, INSURANCE CO,
Respondent: Elizabeth S Wheeler, King, LeBlanc &
Bland, New Orleans, LA.
JUDGES:
Before EMILIO M. GARZA and CLEMENT, Circuit
Judges, and HUDSPETH, * District Judge.
OPINIONBY:
Edith Brown Clement
OPINION:
EDITH BROWN CLEMENT:
Petitioner Boomtown Belle Casino ("Boomtown")
asks this Court to set aside the Benefit Review Board's
order affirming the award of compensation benefits
under the Longshore and Harbor Workers'
Compensation Act ("LHWCA"), 33 U.S.C. 901 et seq., to
Jerry Kate Bazor ("Bazor"), widow of Ben Bazor ("the
Decedent"), and reimbursement to the Decedent's health
insurer, Great-West Life and Annuity Insurance
Company ("Great-West"). We _ reverse for two
independent, legally sufficient reasons: Decedent did
not have the employee "status" required by the LHWCA
and Decedent was not injured at a "situs" covered by the
LHWCA.
I. BACKGROUND
Boomtown hired Ben Bazor as chief engineer of the
"Boomtown facility," the land-based operations of the
casino. The Boomtown facility comprises a personnel
office, one or two warehouses, and a "main" building.
The casino itself occupies a boat floating in the Harvey
Canal in Harvey, Louisiana. At all times pertinent to this
suit, the "main" building was yet to be completed, the
a
3a
Boomtown facility included a "temporary tent," and the
casino boat was under construction at the Avondale
shipyard and had not yet been moored at the Boomtown
facility. Apparently, the temporary tent was to provide a
waiting area for casino patrons after the boat was in
place but before the main building was operational.
Mr. Bazor worked 40-hour weeks for his first month
of employment. Beginning in his second month, Mr.
Bazor worked 10-12 hours per day in preparation for the
casino opening. As chief engineer, Mr. Bazor was
ultimately responsible for the work of supervisors and
employees in the housekeeping, maintenance, and
outside grounds departments, some of whom Mr. Bazor
hired during his tenure. Some of the workers under Mr.
Bazor's supervision wired slot machines, data
processing equipment, and security systems on the
vessel while it was at Avondale. Others cleaned the boat.
At some point, Mr. Bazor oversaw work to lower the
point where the gangplank attached to the dock,
ensuring the gangplank would not be too steep when the
boat fell with the tide. Once in operation, Mr. Bazor's
_ responsibilities on board the casino were to include
general maintenance. In preparation for such
responsibilities, Mr. Bazor regularly visited the Avondale
shipyard to note the position of wires and pipes before
Avondale workers enclosed them in walls.
Eight days into his second month of employment,
Mr. Bazor collapsed while under the temporary tent. Mr.
Bazor was diagnosed with an aneurysmal subarachnoid
hemorrhage, or stroke. Mr. Bazor never regained
consciousness. He remained in intensive care for
approximately forty-eight days and died in a nursing
home roughly three years later. Great-West paid over $
600,000 in medical expenses to and on behalf of Mr.
Bazor and his family.
~
=<
4a
Bazor brought a LHWCA claim for permanent total
disability benefits, pursuant to 33 U.S.C. 908(a), and
death benefits, pursuant to 909. Great-West intervened
and requested reimbursement.
The Administrative Law Judge ("ALJ") held Bazor
satisfied the status and situs requirements, predicates to
LHWCA coverage under 902(3) and 903(a), respectively.
The ALJ awarded benefits to Bazor, reimbursement to
Great-West, and attorney's fees to them both.
Boomtown and the Louisiana Workers'
Compensation Corporation ("LWCC") appealed to the
Benefits Review Board ("BRB"). The BRB affirmed.
Boomtown and LWCC appealed to this Court, pursuant
to 921(c).
Il. STANDARD OF REVIEW
This Court upholds BRB decisions that are
supported by substantial evidence and in accordance
with law. Empire United Stevedores v. Gatlin, 936
F.2d 819, 822 (Sth Cir. 1991). We review the
determination of LHWCA coverage by either an ALJ or
the BRB as a question of law. Hullinghorst Indus., Inc.
v. Carroll, 650 F.2d 750, 753 (5th Cir. Unit A July
1981).
III. DISCUSSION
A claimant must satisfy both a status and a situs
requirement in order to qualify for LHWCA coverage.
~ Director v. Perini N. River Assocs., 459 U.S. 297, 314,
74 L. Ed. 2d 465, 103 S. Ct. 634 (1983).
A. STATUS REQUIREMENT
5a
The LHWCA covers longshoremen and_ harbor
workers, but excludes some individuals for various
reasons:
(3) The term "employee" means any person engaged in
maritime employment, including any longshoreman or
other person engaged in longshoring operations, and
any harbor-worker including a ship repairman,
shipbuilder, and ship-breaker, but such term does not
_ include—
(A) individuals employed exclusively to perform office
clerical, secretarial, security, or data processing work;
(B) individuals employed by a club, camp, recreational
operation, restaurant, museum, or retail outlet;
(C)-individuals employed by a marina and who are not
engaged in construction, replacement, or expansion of
such marina (except for routine maintenance);
if individuals described in clauses (A) through (F) are
subject to coverage under a_ State workers'
compensation law.
902(3). Congress added 902(3)(A)-(F) to the LHWCA in
1984. -
Boomtown argues that whether an employee is
excluded from coverage under 902(3)(B) is determined
entirely by the nature of his or her employer. See
Arnest v. Miss. River Boat, Ltd., 29 BRBS 423(ALJ),
425(ALJ) (1995) (noting the "absurdity" that a Biloxi
Belle Casino's pit manager/floor supervisor, but not the
casino's bartenders and gift shop sales clerks, would be
6a
covered by the LHWCA); Peters v. Roy Anderson Bldg.
Corp., 29 BRBS 437(ALJ), 442(ALJ) (1995) (granting a
ship cleaner LHWCA coverage because her employer, a
general contractor, was not expressly excluded by
statute). Boomtown asserts that because a casino is a
"recreational operation," its employees are categorically
denied LHWCA coverage under 902(3)(B). The law is
more nuanced than Boomtown acknowledges.
In Green v. Vermillion Corp., this Court looked at the
club and camp exceptions in 902(3)(B). 144 F.3d 332,
335 (5th Cir. 1998). Green worked as cook, watchman,
and general repairman at a hunting camp but was
employed by a corporate entity with operations from
trapping alligators to rice farming. Green sought
LHWCA coverage, arguing 902(3)(B)'s club or camp
exclusion did not apply because he was not an
individual employed by a club or camp. Id. The district
court rejected this argument, stating such a
"construction of 902(3)(B) renders the exception
meaningless in today's world of business organizations."
Id. We affirmed and provided a test in situations of
conglomerate employers. "Green worked exclusively to
further an operation which comports with the plain
meaning of the terms 'camp' and 'club.'. . . Since Green
was employed solely to render services to promote and
maintain a duck camp, we hold that he is excluded
from LHWCA coverage under 902(3)(B)." Id. (emphasis
added). In passing, Green noted the legislative history of
the Act's 1984 amendments did not alter its conclusion.
Id.”
Bazor resists the plain language of 902(3)(B) with
the legislative history mentioned in Green, and with
Huff v. Mike Fink Restaurant, Benson's Inc., 33 BRBS
179 (1999). Huff, the BRB's first opportunity to address
the 902(3)(B) exclusion, id. at 181, rejected a
categorical exemption from coverage for individuals
7a
employed by entities listed in 902(3)(B). Jd. at 185.
Instead, Huff adopted for status inquiries under
902(3)(B) the status test developed prior to the 1984
amendments: "in determining whether a claimant is a
covered maritime employee under the Act, the inquiry
centers on the claimant's assignable duties at the time of
injury, not the corporate purpose or structure of the
employer." Jd. at 185; see generally Northeast Marine
Terminal Co. v. Caputo, 432 U.S. 249, 269-74, 53 L.
Ed. 2d 320, 97 S. Ct. 2348 (1977) (analyzing
902(3)(B)). The BRB found its reasoning in Shano v.
Rene Cross Construction, 32 BRBS 221 (1998)
(adopting Caputo test for 902(3)(C) inquiries)
persuasive, and cited Green as support for its
conclusion. Huff, 33 BRBS at 185.
We agree with Boomtown that the 902(3)(B) coverage
exclusion turns, as an initial matter, on the nature of the
employing entity, and not on the nature of the duties an
employee performs. The plain language of 902(3)(B)
excludes from coverage "individuals employed by a
club, camp, recreational operation, restaurant, museum,
or retail outlet" without reference to the nature of the
work they do. Accord 1984 U.S.C.C.A.N. at 2737
(Paragraphs 902(3)(B) and (C) "exclude employees
because of the nature of the employing enterprise, as
opposed to the exclusions in paragraph 2(3)(A), which
are based on the nature of the work which the employee
is performing."). It is true the legislative history states
"that some enterprises which are provided with
exclusions under sections [902(3)(B) and (C)] because
of the nature of the employing enterprise may in fact
employ workers who should remain covered by the Act
because of the nature of the work which they do, or the
nature of the hazards to which they are exposed." Id.
But the statute itself carves away the coverage
exception based upon the nature of an employee's work
8a
only in 902(3)(C), with respect to individuals employed
by a marina. Hence, we are not persuaded by Huff's
adoption of Shano's reasoning for 902(3)(B), where
Congress declined to carve away the coverage
exception.
The parties did not seriously argue whether a
floating casino is a “recreational operation" for purposes
of 902(3)(B). We hold that it is. Consequently, Decedent
is not covered by the LHWCA. Even if we entertained
the idea that Boomtown was a conglomerate with
multiple business endeavors, one of which was
longshoring, Decedent does not satisfy the status
requirement under the Green test. Decedent was hired
as the chief engineer of the Boomtown facility. All of his
duties of (1) maintaining the Boomtown facility, (2)
sending employees to wire slot machines, data
processing equipment, and security systems, and (3)
sending employees to clean the boat, exclusively
furthered the operation of the casino. Under the
language of the sta.ute, Decedent, as an employee of a
recreational operation, is not covered by the LHWCA —
even if some of his duties expose him to the hazards
associated with maritime commerce.
B. SITUS REQUIREMENT
Boomtown contends Decedent does not satisfy the
situs requirement of the LHWCA. We agree. The LHWCA
provides a recovery
if the disability or death results from an injury occurring
upon the navigable waters of the United States
(including any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area
9a
customarily used by an employer in loading, unioading,
repairing, dismantling, or building a vessel).
33 U.S.C. 903(a) .
Whether an adjoining area is a 903(a) situs is
determined by the nature of the adjoining area at the
time of injury.See Nelson v. Guy F. Atkinson Constr.
Co., 29 BRBS 39, 41 (1995) (holding that powderman
injured while digging a l»ck on the Columbia River did
not satisfy the "situs" element because the site had yet to
be used for maritime commerce). At the time of
Decedent's stroke, the Boomtown facility had yet to be
used for a maritime purpose. Nobody had loaded or
unloaded cargo, and nobody had repaired, dismantled,
or built a vessel.
Bazor seeks to avoid this result with an early Fifth
Circuit case proposing that the situs requirement is
governed by whether the situs "clearly played an integral
role in employer's overall maritime enterprise thereby
qualifying as an adjoining area under the Act." Texports
Stevedore Co. v. Wiichester, 632 F.2d 504, 507-508
(5th Cir. 1980). Bazor notes the tent's integral role in
Boomtown's operation: the tent was within 50-300 feet
of the Harvey Canal, the tent was to be used for
passengers waiting to embark, and the tent and vessel
were to be connected by a covered walkway. Bazor's
appeal to the broad language in Texports is unavailing,
as that case considered the geographic dimension to
"adjoining areas" and not the temporal dimension.
~
IV. CONCLUSION
For the reasons stated, we reverse the order of the
Benefits Review Board. |
REVERSED.
10a
Footnotes
* District Judge of the Western District of Texas, sitting
by designation.
n2 The legislative history states: "some enterprises
which are provided with exclusions under sections
[902(3)(B) and (C)] because of the nature of the
employing enterprise may in fact employ workers who
should remain covered by the Act because of the nature
of the work which they do, or the nature of the hazards
to which they are exposed." H.R. REP. NO. 98-570, pt. 1,
at 4 (1984), reprinted in 1984 U.S.C.C.A.N. 2734, 2737.
lla
No. 01-60705
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BOOMTOWN BELLE CASINO; LOUISIANA WORKERS'
COMPENSATION CORPORATION,
Petitioners
V.
JERRY KATE BAZOR, Widow of Ben Bazor;
DIRECTOR, OFFICE OF WORKER'S COMPENSATION
PROGRAMS, US DEPARTMENT OF LABOR; GREAT-
WEST LIFE AND ANNUITY INSURANCE COMPANY,
Respondents
January 22, 2003, Filed
JUDGES:
Before EMILIO M. GARZA and CLEMENT, Circuit
Judges, and HUDSPETH, District Judge. *.
OPINIONBY:
Edith B. Clement
OPINION:
ON PETITION FOR REHEARING EN BANC
Before EMILIO M. GARZA and CLEMENT, Circuit
Judges, and HUDSPETH, District Judge. *
PER CURIAM:
(Treating the Petition for Rehearing En Banc as a
Petition for Panel Rehearing, the Petition for Panel
12a
Rehearing is DENIED. No member of the panel nor
judge in regular active service of the court having
requested that the court be polled on Rehearing En
Banc (FED.R.APP. P. and 5TH CIR. R. 35), the Petition
for Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:
E.B. Clement
United States Circuit Judge
Footnotes
* District Judge of the Western District of Texas, sitting
by designation.
13a.
BRB No. 00-0928B —
U.S. Department of Labor Benefits Review Board
JERRY KATE BAZOR (Widow of BEN BAZOR)
Claimant-Respondent
V.
BOOMTOWN BELLE CASINO and LOUISIANA
WORKERS' COMPENSATION CORPORATION
Employer/Carrier- Petitioners and
GREAT-WEST LIFE AND ANNUITY INSURANCE
COMPANY Intervenor
July 11, 2001
COUNSEL: : -
Marcus J. Poulliard (Seelig, Cosse, Frischhertz &
Poulliard), New Orleans, Louisiana, for claimant.
David K. Johnson (Egan, Johnson & Stiltner), Baton
Rouge, Louisiana, for employer/carrier.
Elizabeth S. Wheeler (King, Leblanc & Bland, L.L.P.),
New Orleans, Louisiana, for intervenor.
APPEAL: Appeal of the Decision and Order Awarding
Benefits and the Supplemental Decisions and Orders
Awarding Attorney Fees of Clement J. Kennington,
Administrative Law Judge, United States Department of
Labor.
OPINION:
Employer appeals the Decision and Order Awarding
Benefits and the Supplemental Decisions and Orders
Awarding Attorney Fees (99-LHC-1198) of
Administrative Law Judge Clement J. Kennington
ia
l4a
rendered on a claim filed pursuant to the provisions of
the Longshore and Harbor Workers' Compensation Act,
as amended, 33 U.S.C. § 901 et seq. (the Act). We must
affirm the findings of fact and conclusions of law of the
administrative law judge which are rational, supported
by substantial evidence, and in accordance with law.
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc.,
380 U.S. 359 (1965); 33 U.S.C. § 921 (b)(8).
Decedent was a facilities manager for the Boomtown
Belle Casino boat. At the time decedent was employed,
the vessel was under construction at the Avondale
Shipyard. It was overdue for completion, and decedent
divided his time between employer's facility preparing
the dock and loading areas, and the shipyard, where
decedent oversaw the cleaning of the vessel and
installation of wiring for the gambling machines,
computers and security system. On July 13, 1994,
decedent collapsed and fell to the ground unconscious,
in the tent area near the dock. He was taken by
ambulance to the hospital where he was treated and
diagnosed with an aneursymal — subarachnoid
hemorrhage secondary to a MCA aneurysm (a stroke).
On the same date, decedent underwent a right frontal
temporal craniectomy, clipping of the middle cerebral
bifurcation aneurys, evacuation of _ intracerebral
hemorrhage, and anterior temporal lobectomy.
Decedent never regained consciousness and continued
to receive care in hospitals, at home with 24 hour
nursing care, and in a nursing home until his death on
October 2, 1997. Decedent's medical bills were paid by
a health insurance policy he obtained upon being hired,
underwritten by Great-West Life & Annuity Insurance
Company (the intervenor). Claimant, decedent's widow,
sought decedent's permanent total disability benefits
under the Act for the period from July 13, 1994 to
October 1, 1997, 33 U.S.C. § 908(a), and death benefits
15a
pursuant to Section 9, 33 U.S.C. § 909, thereafter.
In his Decision and Order, the administrative law
judge found that decedent spent a substantial portion of
his time outfitting and cleaning the casino vessel. In
addition, he found that decedent was responsible for
maintenance and repair of the tent and dock area and in
fact had supervised the reconstruction of the vessel
ramp. Therefore, he found that decedent met the status
requirement of the Act, and was not excluded from
coverage under the Act by virtue of Section 2(3)(B), 33
U.S.C. § 902(3)(B). The administrative law judge also
found that the tent and dock area where decedent had
his stroke was within 100 feet of the Harvey Canal, a
navigable waterway, and constituted the only area from
which passengers could embark or disembark the
casino vessel. Therefore, he concluded that the Act's —
situs requirement was met. 33 U.S.C. § 903(a).
In considering whether decedent's injury and death
were work-related, the administrative law judge found
that the evidence is sufficient to establish invocation of
the Section 20(a), 33 U.S.C. § 920(a), presumption that
the stroke was causally related to the long hours and
stress of decedent's employment responsibilities. Thus,
as he found that there is no credible evidence to rebut
these facts, the administrative law judge concluded that
decedent's work had a direct link to, and was at least an
aggravating factor in, the stroke. Consequently, the
administrative law judge awarded claimant permanent
total disability benefits and death benefits. The
administrative law judge also considered the
intervenor's claim for reimbursement of the medical
bills paid during decedent's period of disability
($606,306.64). He noted that employer had knowledge
of the medical treatment decedent needed and informed
claimant to seek coverage from the intervenor. Thus,
16a
the administrative law judge found that the intervenor
has a right of reimbursement from employer for
treatment which it provided, but does not have a lien on
claimant's compensation.
In an Order on Reconsideration, the administrative law
judge found that the intervenor is entitled to an
attorney's fee and interest payable by employer.
Subsequently, claimant's attorney filed for an attorney's
' fee requesting a fee from both employer and the
intervenor. The administrative law judge discussed
employer's objections to the petition filed by claimant's
counsel, but found that the charges contained in the fee
application were for necessary services which are
reasonable in amount and thus awarded claimant's
counsel a fee of $27,096.07, representing $24,492.50 in
attorney's fees and expenses in the amount of $2,603.48,
payable by employer. In a Supplemental Decision and
Order Denying Attorney Fees, the administrative law
judge found that there is no authority to allow claimant
to recover an attorney's fee from the intervenor and thus
denied further fees. Counsel for the intervenor also
filed a fee petition for work performed before the
administrative law judge. The administrative law judge
noted that employer did not file objections to this
petition. Therefore, as he found the services rendered
to be reasonable and necessary, the administrative law
judge awarded intervenor's counsel a fee in the amount
of $24,492.50 for legal services and $2,603.48 for
expenses, to be paid by employer.
On appeal, employer contends that the administrative
law judge erred in finding coverage under the Act. nl
Employer maintains that decedent's employment is
excluded from coverage as he was an employee of a
casino, a recreational operation, see 33 U.S.C. §
902(3)(B), and that the tent where the stroke occurred is
17a
not a covered situs. In addition, employer contends that
the administrative law judge erred in finding the
evidence sufficient to invoke the Section 20(a)
presumption. Employer also avers that it should not be
responsible for medical benefits because it did not
receive ongoing medical reports from the intervenor and
claimant did not request a change in physicians. Lastly,
employer contends that the administrative law judge's
attorney's fee award to claimant's counsel should be
substantially reduced, and that the administrative law
judge erred in awarding a fee to the intervenor's
counsel. Claimant responds, urging affirmance of the
administrative law judge's decisions. The intervenor
also responds, urging affirmance of the administrative
law judge's award of an attorney's fee to be paid by
employer. |
Status
Initially, employer contends that the administrative
law judge erred in finding that decedent was not
excluded from coverage aS an employee of a
recreational operation. Section 2(3) states in pertinent
part:
The term "employee" means any person engaged in
maritime employment, including any longshoreman or
other person engaged in longshoring operations, and
any harbor-worker including a _ ship repairman,
shipbuilder, and ship-breaker, but such term does not
include-
* #* *
(B) individuals employed by a club, camp, recreational
operation, restaurant, museum, or retail outlet;
* * *
18a
if individuals described in clauses (A) through (F) are
subject to coverage under a State workers’
compensation law.
33 U.S.C. § 902(3); see also 20 C.F.R. §
701.301(a)(12)(iii)(B). The United States Court of
Appeals for the Fifth Circuit has considered a case
under Section 2(3)(B), Green v. Vermilion Corp., 144
F.3d 332, 32 BRBS 180(CRT) (5<th> Cir. 1998), cert.
denied, 119 S.Ct. 1251 (1999). In Green, claimant was
employed at a duck camp located on marsh land near a
private canal off a bayou. During the three-month duck
season, the claimant worked as both a cook and
watchman. During the rest of the year, he was a
watchman and general maintenance worker. He lived at
the camp Monday through Friday, and his mode of
- transportation to and from the camp was by boat. He
occasionally assisted in mooring and unloading supply
boats that docked at the camp. Claimant was injured on
the deck of a vessel while assisting in its mooring. The
district court granted employer's motion for summary
judgment on the Longshore Act claim on the ground that
the claimant was excluded under the Section 2(3)(B)
"club/camp" exception and claimant appealed to the
Fifth Circuit. The Fifth Circuit held that as the claimant
was employed exclusively and solely to render services
to promote and maintain a duck camp, he was excluded
from coverage. Green, 144 F.3d at 335, 32 BRBS at 182
(CRT). :
In Huff v. Mike Fink Restaurant, Benson's Inc., 33
BRBS 179 (1999), the Board considered a case in which
tue Claimant was employed as a harbor master for a
company which owned several river cruising passenger
vessels, barges, tugboats, water taxis, and docks. At the
time of the injury, the claimant was the harbor master
for the Mike Fink, a 160-foot paddle-wheel, permanently
19a
moored vessel used a restaurant. The claimant's duties
consisted of maintaining the exterior of the property
owned by Mike Fink, Incorporated: the parking lot, the
vessel, and the dock. Initially, the Board held that all
employees of a restaurant are not excluded from
coverage regardless of the duties they perform, but
rather the nature of the duties to which claimant is or
may be assigned remains relevant under Section
2(3)(B). See Huff, 33 BRBS at 184, citing Northeast
Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150
(1977). Specifically, the Board held that "the focus is
properly on claimant's overall job duties and whether
they further the operation of a restaurant within the
plain meaning of that term, or whether they are duties
that further maritime commerce and expose the
claimant to maritime hazards." Huff, 33 BRBS at 185.
The Board noted claimant's duties of repairing and
enlarging the dock, and the fact that he was responsible
for the safety of the dock and the pleasure crafts
moored there. Thus, the Board held that as claimant's
duties furthered maritime commerce on the Ohio River,
and were not solely and exclusively in furtherance of a
restaurant within the plain meaning of that term, the
claimant was not excluded from coverage under the Act.
Id.
Employer initially contends that the nature of the
employer's business determines whether decedent is
excluded from coverage under Section 2(3)(B). This
contention, however, has been rejected by the Board,
see Huff, 33 BRBS at 184, and is bore out by the
legislative history of the 1984 Amendments as discussed
in Huff, id., citing 1984 U.S.C.C.A.N. at 2737. Moreover,
in Green, the Fifth Circuit cited this legislative ne
Stating:
businesses falling under this paragraph (B) may have
20a
employees that should remain covered under the Act
‘because of the nature of the work which they do, or the
nature of the hazards to which they are exposed.' By the
same token, we believe the opposite is true—clubs and
camps may employ individuals who should not be
covered under the LHWCA because their job
responsibilities do not, or only minutely, involve
maritime activities and they are not exposed to hazards
associated with traditional maritime activities.
Green, 144 F.3d at 334, 32 BRBS at 182 (CRT)(citation
omitted). Thus, in Green, the court also held that it is
the nature of claimant's duties, and whether they involve
maritime activities and hazards, which is dispositive.
Similarly, the Board held in Shano v. Rene Cross
Construction, 32 BRBS 221 (1998), a case involving the
marina exclusion at Section 2(3)(C), that the inquiry
centers on the claimant's assignable duties at the time of
the injury, not the corporate purpose or structure of the
employer. Id. at 223. Thus, we reject employer's
contention that decedent is excluded from the Act's
coverage merely because he was employed by a casino.
Employer also contends that all of decedent's duties
were related to the gambling enterprise, and thus that he
is excluded from coverage on this basis. The
administrative law judge rejected this contention and
found that "[decedent's] work was essentially linked to
vessel construction or outfitting which included
installation and wiring of gambling equipment and
vessel cleaning prior to delivery with subsequent
maintenance and repair following delivery -and hence
_ had a substantial connection to maritime commerce."
Decision and Order at 15. The record indicates that
decedent was hired to be the facilities manager before
the launch of the Boomtown Belle as a casino. The
project was experiencing delays at the Avondale
2la
Shipyard, and decedent was under pressure by his
employers to see the boat expeditiously completed.
Thus, decedent frequently supervised work at the
shipyard, bringing his own employees to work on the
vessel under construction. The crew was responsible
for installing wiring for slot machines, as well as
installing a battery back-up should power be lost to the
boat. Cl. Ex. 16 at 14. In addition, decedent supervised
the engineer responsible for the vessel's air conditioning
system and for running the data lines from the slot
machines to the vessel's computers. Decedent also
oversaw vessel plumbing, electrical, refrigeration and
lighting activities, Cl. Ex. 20 at 59, and was involved with
cleaning the vessel at the Avondale yard. Mr. Banks,
decedent's co-worker and successor, testified they were
responsibl for all vessei maintenance excepted
Steering, tiavigation and power train components. Cl.
Ex. 20 at 59. The administrative law judge also found
that decedent was responsible for maintenance and
repair oi the tent and dock area, and had supervised the
reconstruction of the vessel ramp at the dock. See Cl.
Ex. 20 at 58-59.
In order to determine whether decedent is excluded
from coverage by Section 2(3)(B) of the Act, the focus is
properly on decedent's overall job duties and whether
they furthered the operation of a "recreational
operation" within the plain meaning of that term, or
whether they are duties that further maritime commerce
and exposed decedent to maritime hazards. Huff, 33
BRBS at 185. In the present case, decedent's duties
were performed prior to the completion of the vessel,
and thus are properly characterized as "shipbuilding"
activities. Decedent was involved solely in the vessel
construction phase, and there is no exclusion for
employees involved in the construction of a recreational
vessel unless it is under 18 tons net. n2 See 33 U.S.C. §
22a
902(3)(H). Mr. Creighton, one of decedent's co-workers,
testified that he worked with decedent in removing
trash from the vessel while it was under construction
and cleaning the vessel prior to delivery, which are
duties covered under the Act. See Ruffin v. Newport
News Shipbuilding & Dry Dock Co., 34 BRBS 153 (2000);
see also Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S.
40, 23 BRBS 96(CRT) (1989); Tr. at 136. As discussed,
decedent oversaw many aspects of the vessel's
construction as it neared completion at the Avondale
yard. We reject, in addition, employer's contention that
decedent's duties wiring the vessel for slot machines,
data processing and _ security systems _ preclude
decedent's coverage under the Act. Electrical wiring is
part of the vessel's construction, see generally Barton v.
Litton Systems, Inc., Ingalls Shipbuilding, Inc., 6 BRBS
92 (1977), and there are no restrictions against coverage
for a shipbuilder based on the area of the vessel in
which he is working or its intended purpose. Finally,
decedent also was responsible for maintaining the dock
and loading area for the passengers, duties which
expose a claimant to traditional maritime hazards.
To briefly summarize, decedent's duties in the present
case were performed prior to the vessel's being
completed and placed into operation as a casino. At the
time of decedent's injury and at all times prior, the
vessel was under construction. Decedent was thus not
involved in a recreational operation, but a shipbuilding
operation at all times when he worked on the vessel.
See generally Mackey v. Bay City Marine, Inc., 23 BRBS
332 (1990). The fact that he also worked ‘on land in
maintaining employer's other facilities is not controlling,
as he spent "at least some of his time" in maritime
employment. See Caputo, 432 U.S. 249, 6 BRBS 150; see
also McGoey v. Chiquita Brand Int'l, 30 BRBS 237
(1997). The fact employer is a casino operation also is
23a
not controlling, as it is the nature of the employee's
work which controls and Green and Huff recognize that
employers in the categories of exclusion under Section
2(3)(B) would have some covered workers. Therefore,
we affirm the administrative law judge's finding that
decedent was a covered employee as it is supported by
substantial evidence and in accordance with law.
Situs
Employer also contends that the administrative law
judge erred in finding that decedent was injured on a
covered situs. Section 3(a) provides that
compensation shall be payable . . . if the disability or
death results from an injury occurring upon the
navigable waters of the United States (including any
adjoining pier, wharf, dry dock, terminal, building way,
marine railway, or other adjoining area customarily used
by an employer in loading, unloading, repairing,
dismantling, or building a vessel).
33 U.S.C. § 903(a). Coverage under Section 3(a) is
determined by the nature of the place of work at the
time of injury. See Eckhoff v. Dog River Marina & Boat
Works, Inc., 28 BRBS 51 (1994). In the present case,
decedent suffered a stroke while in the tent located
between the parking lot and the dock, which would be
used to house the passengers prior to their embarking
the vessel. It is not disputed that this dock was on the
navigable waters of the Harvey Canal and that the tent
joined the dock. See Cl. Ex. 20 at 49. The
administrative law judge found the situs requirement
met as the area was used for loading and unloading
passengers. Employer's contention on appeal is that the
area was not used for maritime commerce because the
"loading" of passengers on a gambling vessel is not
24a
maritime commerce.
We need not determine whether the "loading" of
passengers onto a vessel constitutes "loading" within the
meaning of Section 3(a). The conclusion that the situs
element is-met is affirmed, based on the cumulative
nature of decedent's injury. The administrative law
judge found that decedent's stroke was due, in part, to
the stresses he suffered while working at the Avondale
shipyard and the dock facility. A shipyard is a covered
situs, see generally Universal Fabricators, Inc. v. Smith,
878 F.2d 843, 22 BRBS 104(CRT) (5th Cir. 1989), aff'g 21
BRBS 83 (1988), cert. denied, 493 U.S. 1070 (1990);
Martin v. Kaiser Co. Inc., 24 BRBS 112 (1990), as isa
dock. See 33 U.S.C. § 903(a); Eckhoff, 28 BRBS 51. As
decedent was subjected to work stresses in area that are
indisputably maritime sites, we affirm the administrative
law judge's conclusion that the situs element of Section
3(a) is satisfied.
Causation
Employer next contends that the administrative law
judge erred in finding that the evidence is sufficient to
establish invocation of the Section 20(a) presumption
that decedent's injury and death were work-related and
that employer failed to rebut the presumption. Section
20(a) provides a presumption that decedent's injury was
causally related to his employment, -if claimant
establishes that decedent had a physical harm, and that
an accident occurred or working conditions existed that
could have caused the harm. Once the presumption is
invoked, the burden shifts to employer to rebut it with
substantial evidence that decedent's disabling condition
and death were not caused or aggravated by his
employment. Conoco, Inc. v. Director, OWCP [Prewitt],
194 F.3d 684, 33 BRBS 187(CRT) (5<th> Cir. 1999);
25a
Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS
466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976).
In the instant case, the record contains the opinion of
Dr. Scrignar, a forensic psychiatrist, who testified in a
deposition that stress causes elevated heart rates, blood
pressure, headaches and weight loss and forms the
genesis of a cerebral vascular accident. Dr. Scrignar
opined that decedent was subjected to excessive
responsibilities at work without the necessary help
which combined with a natural conscientiousness which
eventually led to or contributed to his stroke. The
evidence also includes the opinion of Dr. Tong, a
neurologist, who reviewed decedent's medical records.
Dr. Tong opined that decedent suffered a subarachnoid
hemorrhage or rupture of two brain aneurysms which
eventually Jed to his death and that working conditions
as verified by family and co-workers produced
considerable stress contributing to the hemorrhage. Cl.
Ex. 22 at 11-13. The administrative law judge found that
decedent had work-induced stress associated with
unreasonable expectations for the vessel's completion
and delivery based on the testimony of decedent's
fellow employees and his family members. In addition,
the administrative law judge found that decedent was
required to work long hours and endure further stress
associated with interference from Avondale
superintendent, Octave Rainey. We affirm § the
administrative law judge's finding that the evidence is
sufficient to invoke the Section 20(a) presumption as his
finding that decedent's stressful working conditions
contributed to the stroke is supported by substantial
evidence. n3 See Marinelli v. American Stevedoring,
Ltd., 34 BRBS 112 (2000), aff'd, 248 F.3d 54 (2d Cir.
2001).
In considering whether the employer presented
26a
substantial evidence that decedent's disabling condition
and death were not work-related, the administrative law
judge rejected the testimony of employer's witnesses,
Mr. Creighton, employer's current facilities manager,
and Mr. Gaspard, employer's current maintenance
manager, who denied decedent's being under
considerable pressure as he found that they were not
credible given the testimony of the other employees,
including employer's director of purchasing, and
decedent's family. In adjudicating a claim, it is well-
established that an administrative law judge is entitled
to evaluate the credibility of witnesses, and may draw
his own inferences and conclusions from the evidence.
Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5<th>
Cir. 1962), cert. denied, 372 U.S. 954 (1963);Todd
Shipyards Corp. v. Donovan, 300 F.2d 741 (5<th> Cir.
1962); John W. McGrath Corp. v. Hughes, 289 F.2d 403
(2<nd> Cir. 1961). As employer identifies no error in
this finding on appeal, we affirm the administrative law
judge's finding that decedent's work was a "direct link
and was at least an aggravating factor in the stroke he
suffered" as it is rational and supported by substantial
evidence. Decision and Order at 17.
Section 7
Employer also contends on appeal that the
administrative law judge erred in finding it responsible
for the reimbursement of decedent's medical bills to
decedent's health insurer. Section 7(d) of the Act sets
the prerequisites for an employer's liability for payment
or reimbursement of medical expenses incurred by
claimant. In order to be entitled to medical expenses,
claimant must first request employer's authorization
pursuant to Section 7(d) of the Act, 33 U.S.C. § 907(d).
See Pozos v. Army & Air Force Exchange Service, 31
BRBS 173 (1997). Under Section 7(d)(1), an employee is
27a s
entitled to recover medical benefits if he requests
employer's authorization for treatment, the employer
refuses the request, and the treatment thereafter
procured on the employee's own initiative is reasonable
and necessary. See Schoen v. U.S. Chamber of
Commerce, 30 BRBS 112 (1996); Anderson v. Todd
Shipyards Corp., 22 BRBS 20 (1989); see also Roger's
Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d
687, 18 BRBS 79(CRT) (5<th> Cir.), cert. denied, 479
U.S. 826 (1986); 33 U.S.C. § 907(c)(2); 20 C.F.R. §
~ 702.406.
Initially, we note that in the present case, employer did
not raise before the administrative law judge the issue of
whether claimant sought authorization for a change in
physician. See H.Tr. at 9; Emp's Post Trial
' Memorandum. Moreover, employer was aware of
decedent's stroke and instructed claimant to seek
medical coverage from another provider. See 33 U.S.C.
§ 907(d)(1). The case cited by employer on appeal,
Parklands, Inc. v. Director, OWCP, 877 F.2d 1030, 22
BRBS 57(CRT) (D.C. Cir. 1989), is inapposite as, in that
case, the United States Court of Appeals for the District
of Columbia Circuit rejected the notion of implied
consent where employer was aware of the medical
treatment the claimant received. However, in this case,
the administrative law judge found that employer
"declined to cover the medical expenses, but rather,
informed Claimant to seek coverage from Intervenor."
Decision and Order at 19. As employer does not raise
any error in this finding, we affirm the administrative
law judge's finding that it refused to authorize
treatment, and thus that employer is liable for
decedent's medical treatment.
In addition, contrary to employer's contention, there is
no provision under the Act requiring that a private
28a
health insurer provide ongoing medical reports to the
employer. The administrative law judge found that
employer had knowledge of decedent's injury, and could
have investigated the reasonableness of the services
provided and charges therefor. As the administrative
law judge rationally found that employer refused to
authorize decedent's treatment and made no inquiry into
the care provided, we affirm the administrative law
judge's finding that the intervenor has a right of
reimbursement for the medical care and expenses which
it provided decedent due to decedent's work-related
injury, as it is supported by substantial evidence.
Section 28
Employer contends that the administrative law judge's
attorney's fee award to claimant's counsel should be
substantially reduced, and that the administrative law
judge erred in awarding a fee to intervenor's counsel.
Subsequent to the issuance of the administrative law
judge's decision, claimant's counsel filed a fee petition
requesting a fee in the amount of $26,320, representing
131 hours of legal services at the hourly rate of $200,
and expenses in the amount of $9,929.45. Employer
filed objections to claimant's counsel's fee petition. In
addition, intervenor's counsel filed a fee petition in the
amount of $24,492.50 for legal services, and expenses in
the amount of $2,603.48. ——. did not file
objections to this fee petition.
The administrative law judge has broad discretion in
his award of an attorney's fee and the party challenging
the reasonableness of an attorney's fee award bears the
burden of showing that the award was contrary to law
or was arbitrary and capricious, or an abuse of
discretion. See generally Forlong v. American Security &
Trust Co., 21 BRBS 155 (1988). It is the administrative
- 29a
law judge's responsibility to review the fee petition and
determine whether the fee requested is reasonably
commensurate with the necessary work done. In
awarding a fee, he must take into account the quality of
the representation, the complexity of the legal issues
involved, and the amount of benefits awarded. 20 C.F.R.
§ 702.132; Muscella v. Sun Shipbuilding & Dry Dock Co.,
12 BRBS 272 (1980).
In the present case, the administrative law judge
thoroughly reviewed employer's objections to claimant's
counsel's fee petition and, after reducing one item by
one hour and disallowing 1.85 hours, concluded that the
hours requested were reasonable. Initially, we reject
employer's contention that the administrative law judge
erred in awarding claimant's counsel an hourly rate of
$200, as the administrative law judge specifically
considered the applicable rate in the geographic locality
involved, the experience of the attorney, and the
complexity of the case. See Brown v. Marine Terminals
Corp., 30 BRBS 29 (1996)(en banc)(Brown and
McGranery, JJ., concurring and dissenting). Employer
also contends that a number of entries are excessive and
should be reduced, and that the time spent driving a
witness is clerical work for which counsel cannot
receive a fee. The administrative law judge considered
employer's contentions and found that the arguments
were without merit. As employer has not raised any
error with these findings, we affirm the administrative
law judge's finding that these services were reasonable
and necessary. In addition, we reject employer's
contention that the administrative law judge erred in
awarding counsel time spent preparing the fee petition,
as it is well-settled that this time is compensable. See
Hill v. Avondale Industries, Inc., 32 BRBS 186 (1998),
aff'd sub nom. Hill v. Director, OWCP, 195 F.3d 790, 33
BRBS 184(CRT) (5<th> Cir. 1999), cert. denied, 120 U.S.
30a
2215 (2000). We also reject employer's contention that
the post-hearing meeting with claimant on January 26,
2000, should be disallowed as there was no "additional
work, which need to be performed at that time to
establish entitlement to compensation." Br. at 4. The
administrative law judge rationally allowed this time as
"wind-up" services. See Everett v. Ingalls Shipbuilding,
‘Inc., 32 BRBS 279 (1998), aff'd on recon. en banc, 33
BRBS 38 (1999). Employer also contends that the
administrative law judge erred in awarding claimant's
counsel 1.75 hours over a number of days to review
intervenor's pre-hearing statement and correspond with
intervenor's counsel. As this time spent pertained to the
award of medical benefits which indirectly involved
claimant, we affirm the administrative law judge's
finding that this time was necessary and reasonable.
Thus, as the administrative law judge specifically
considered employer's objections, and employer has
raised no reversible error on appeal, we affirm the
administrative law judge's award of an attorney's fee to
claimant's counsel.
Employer also contends that the amounts awarded as
expenses for Drs. Tong and Scrignar should be reduced.
Section 28(d) of the Act, 33 U.S.C. § 928(d), provides
that the costs, fees, and mileage for necessary witnesses
can also be assessed against employer when an
attorney's fee is awarded against employer, but only if
they are reasonable and necessary. See generally Ezell
v. Direct Labor, Inc., 33 BRBS 19 (1999). The
administrative law judge considered employer's
contention and found that the amounts requested for
Drs. Tong ($6,600) and Scrignar's ($1825) expenses were
supported under the facts of this case. In addition, the
administrative law judge rejected employer's contention
that a number of the expenses should be disallowed as
they were not used at the hearing. The test for
3la
compensability concerns whether the attorney, at the
time the work was performed, could reasonably regard
it as necessary, rather than whether the evidence was
actually used. See O'Kelley v. Dep't of the Army/NAF, 34
BRBS 39 (2000). Moreover, contrary to employer's
contention the expenses requested pursuant to Section
28(d) do not have to be documented, but must be
adequately explained. As the administrative law judge
found that the costs were adequately itemized, and
employer does not raise any error with this finding, we
affirm the award. See Forlong, 21 BRBS 155.
With regard to the appeal of the intervenor's attorney's
fee award, employer initially contends that the
administrative law judge erred in awarding a fee for
work performed prior to the date the intervenor
appeared before the administrative law judge. As
employer did not raise objections to intervenor's
counsel's fee petition before the administrative law
judge, we decline to address them now. See Pozos v.
Army & Air Force Exchange Service, 31 BRBS 173
(1997); Bullock v. Ingalls Shipbuilding, Inc., 27 BRBS 90
(1993)(en banc)(Brown and McGranery, JJ., concurring
and dissenting), modified on other grounds on recon. en
banc, 28 BRBS 102 (1994), aff'd mem. sub nom. Ingalls
Shipbuilding, Inc. v. Director, OWCP [Biggs], 46 F.2d 66
(5<th> Cir. 1995).
Accordingly, the Decision and Order of the
administrative law judge awarding benefits and the
Supplemental Decisions and Orders Awarding Attorney
Fees are affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
32a
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
LOAD-DATE: August 8, 2001
Footnotes
nl The appeals of claimant, BRB No. 00-0928, and the
intervenor, BRB No. 00-0928A, were dismissed by Board
Order dated August 17, 2000.
n2 Employer does not contend that the Boomtown
Belle did not meet this size restriction. |
n3 Employer argues that claimant failed to prove
working conditions were extraordinarily stressful.
However, the Fifth Circuit established long ago that
work events need not be unusually strenuous to
establish a compensable injury, stating,
There is no standard or normal man who alone is
entitled to workmen's compensation . . . If the workmen
overstrains his powers, slight though they be, or if
something goes wrong within the human frame, such as
the straining of a muscle or the rupture of a blood
vessel, an accident arises out of the employment when
the required exertion producing the injury is too great
for the man undertaking the work; and the source of the
force producing the injury need not be external. This
was held in an English case, where on post mortem it
was found that the employee had a very large aneurism
of the aorta which might have burst while the man was"
asleep but which in fact ruptured while, with slight
effort, he was tightening a nut with a spanner wrench.
33a
Southern Stevedoring Co. v. Henderson, 175 F.2d 863,
866 (5<th> Cir. 1949)(citations omitted).
34a
United States Code TITLE 33 - NAVIGATION AND
NAVIGABLE WATERS CHAPTER 18 - LONGSHORE
AND HARBOR WORKERS' COMPENSATIONSection
903. Coverage
(a) Disability or death; injuries occurring upon
navigable waters of United States
Except as otherwise provided in this section,
compensation shall be payable under this chapter in
respect of disability or death of an employee, but only if
the disability or death results from an injury occurring
upon the navigable waters of the United States
(including any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other
adjoining area customarily used by an employer in
loading, unloading, repairing, dismantling, or building
a vessel).
(b) Governmental officers and employees
No compensation shall be payable in respect of the
disability or death of an officer or employee of the
United States, or any agency thereof, or of any State or
foreign government, or any subdivision thereof.
(c) Intoxication; willful intention to kill
Nc compensation shall be payable if the injury was
occasioned solely by the intoxication of the employee or
by the willful intention of the employee to injure or kill
himself or another.
U.S. Code as of: 01/02/01
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