LONGSHORE ACT & DEFENSE BASE ACT TOP CASES, powered by Benefits Review Board Service (updated 10/19/2009)

LONGSHORE ACT & DEFENSE BASE ACT TOP CASES, powered by Benefits Review Board Service (updated 10/19/2009)

These case summaries are brought to you by the Benefits Review Board Service Longshore Reporter staff.

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Longshore and Harbor Worker's Compensation Act--Psychiatric Injuries--Legitimate Personnel Actions--U.S. Court of Appeals, Ninth Circuit, denying petition for review of order of Benefits Review Board, held that psychological injuries arising from legitimate personnel actions are not compensable under Longshore Act, when Circuit Court found that applicant was demoted by employer for poor work performance and failure to fill out proper safety forms after 8/24/99 accident, that parties agreed that substantial evidence supported findings of Administrative Law Judge and Benefits Review Board that applicant's psychological injuries were result of this legitimate personnel action by employer, and that rule that psychological injuries caused not by general working conditions but by legitimate personnel actions are not compensable under Longshore Act is reasonable and reflects policy underlying Act. See Pedroza v. Benefits Review Board

Offshore Drilling Worker's Tort Claim Against Drilling Company Is Barred by Exclusive Remedy Provisions of the Longshore Act; "Borrowed Servant" Rule Applies. Jackson was hired as a mechanic by Producers Assistance Corporation ("PAC"), a company that supplied workers to businesses, including Total E&P USA, Inc. ("Total"), that were engaged in offshore drilling.   Jackson was immediately assigned to Total and spent seven months on rotating 14-day hitches. While on the platform, Total provided Jackson with sleeping and bathing facilities in permanent quarters, three meals a day, and a Total uniform bearing his name. Jackson would bring some of his own tools and be provided some specialized tools by Total.  Jackson was the only mechanic onboard. He would receive his assignments through Total's computer system, which automatically created a list of preventative maintenance tasks that needed to be performed. No Total employee oversaw Jackson 's work. Rather, Jackson was directed to use his judgment and experience to determine if the computer printout was accurate and, if accurate, which tasks should be completed during a given hitch. Jackson reported his hours to PAC and was paid by PAC.   Jackson sustained injuries while working alongside Total's employees.  A cable securing a large pump snapped under stress and struck Jackson in the legs.

Jackson sought and received workers' compensation benefits under the Longshore Act from PAC and then filed suit in federal district court against Total alleging negligence. The district court granted Total's motion for summary judgment, finding that Jackson was a borrowed employee whose tort claim was barred by the exclusive remedy provisions of the Longshore Act.  Jackson appealed. In Jackson v. Total E&P USA, Inc., 2009 U.S. App. LEXIS 18119 (5th Cir., August 13, 2009), the Fifth Circuit Court of Appeals agreed with the district court and affirmed. Citing Brown v. Union Oil Co. of Cal., 984 F.2d 674, 676 (5th Cir. 1993), the Fifth Circuit indicated that there were nine factors to be considered: (1) who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation; (2) whose work was being performed; (3) was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer; (4) did the employee acquiesce in the new work situation; 5) did the original employer terminate his relationship with the employee? (6) who furnished tools and place for performance; (7) was the new employment over a considerable length of time? (8) who had the right to discharge the employee; and (9) who had the obligation to pay the employee.  The court stressed that no one of these factors was decisive, that the central question in borrowed servant cases was whether someone had the power to control and direct another person in the performance of his work, and that under the facts, factors (1), (2), (4), (6), and (7) all supported the district court's finding.  The court indicated that here PAC was operating essentially as a placement agency, that it had no control over the work environment and that all work was directed by and for the benefit of Total.  The court indicated that while PAC did not relinquish all control over Jackson , that was not a deciding factor.  The court stated that while Jackson was on the platform, PAC's control over him was minimal.  Considering all the factors present in the case, Jackson was a borrowed employee and his tort action against his borrowing employer was barred by exclusivity.  See generally Larson's Workers' Compensation Law, § 67.01, 67.05, 100.01, 111.01, 111.04.

Tort Claim Fails Under Defense Base Act's Borrowed Servant Rule. Research Triangle Institute ("RTI") contracted to rebuild municipal water and sewage facilities in following the 2003 invasion. RTI obtained Ladd's services as a civilian engineer by contract with his direct employer, Chemonics International, Inc. ("Chemonics"). Ladd was seriously injured in when his vehicle's left front tire blew, causing the vehicle to plunge into a canal.  He and his wife ("the Ladds") subsequently sued RTI, contending in relevant part that that RTI had failed to supply vehicles for operations in consistent with those promised during orientation; that Ladd's driver, allegedly an RTI employee, had been negligent; and that the vehicle in which Ladd had been driven was defective or in poor condition.  RTI raised the affirmative defense that Ladd was receiving workers compensation benefits under the provisions of the Defense Base Act, 42 U.S.C. § 1651 ("the DBA"), which constituted his sole remedy. The district court awarded RTI summary judgment, finding that Ladd was a statutory employee of RTI under the borrowed servant doctrine and that the suit was barred under the DBA.  The Ladds appealed.

In Ladd v. Research Triangle Institute, 2009 U.S. App. LEXIS 14848 (4th Cir. July 2, 2009), affirmed the district court's decision.  The Fourth Circuit first observed that the DBA provides that "the provisions of the Longshore and Harbor Workers' Compensation Act [33 U.S.C. 901 et seq. ("the LHWCA")] shall apply in respect to the injury or death of any employee engaged in any employment . . . under a contract entered into with the United States . . . where such contract is to be performed outside the continental United States . . . ." 42 U.S.C.A. § 1651(a)(4) and that in White v. Bethlehem Steel Corp., 222 F.3d 146 (4th Cir. 2000), it had determined that the borrowed servant doctrine applied under the LHWCA to provide immunity from suit both to an employee's general or contract employer and to other "employers who 'borrow' a servant from" that employer.  Turning to the instant case, the Fourth Circuit said that it was clear that RTI exercised the requisite "authoritative direction and control" over Ladd. Ladd's contract with Chemonics expressly stated that, "[w]hile in , [Ladd] will report directly to RTI's Chief of Party …." The contract also provided that Ladd's salary was subject to approval by RTI. The relationship between Ladd and RTI was also explored in Ladd's deposition, where Ladd stated that RTI had control over him in Iraq, that RTI had the power to have him fired, and that RTI could reassign him to different parts of Iraq.

Because the facts clearly showed that RTI exercised "authoritative direction and control" over Ladd in Iraq, the Fourth Circuit held that the district court did not err in concluding that Ladd was the borrowed servant of RTI for the purposes of fulfilling its USAID contract there. As a borrowed servant, Ladd was a statutory employee of RTI under the LHWCA and the DBA. Accordingly, the Ladds' suit was barred by the DBA as a matter of law. See generally Larson's Workers' Compensation Law, §§ 149.01 et seq. 

The following list covers noteworthy cases from Releases 705 through 711 of the longshore reporter:


K. S. v. Service Employees Int’l, Inc., 08-0583, 3/13/2009, 43 BRBS 18.  Release 706. Compute claimant’s average weekly wages under Defense Base Act using only actual wages in and 33 U.S.C.S. § 910(c).  Release 706.


K. L. v. Blue Marine Security, L.L.C., 08-0789, 4/16/2009, 43 BRBS 45.  Release 707.  Claimant security guard on board vessels was not excluded from LHWCA coverage under 33 U.S.C.S. § 902(3)(A) because his duties were not exclusively office security guard duties.


A. S. (Widow of F. S.) v. Advanced American Diving, 08-0574, 4/27/2009, 43 BRBS 49.  Release 707.  Widow was not remarried under 33 U.S.C.S. § 909(b) and case law in Oregon and .


J. R. v. NGSS/Ingalls Operations, 09-0656, 6/29/2009, 43 BRBS ***.  Release 709.  BRB does not have authority to convene informal conference on issue of 33 U.S.C.S. § 928(b) attorney’s fees.


G. S. v. Marine Terminals Corp., 08-0611, 7/31/2009, 43 BRBS ***.  Release 710.  Burdens of proof and persuasion for presumption under 33 U.S.C.S. § 920(c) that injury was not caused by claimant’s intoxication and that intoxication was not sole cause of injury under 33 U.S.C.S. § 903(c).


F. S. v. Wellington Power Co., 09-0125, 8/7/2009, 43 BRBS ***.  Release 711.  Claimant injured on maintenance level of bridge permanently affixed to land was not injured at location which satisfied maritime situs requirements of 33 U.S.C.S. § 903(a).


S. W. v. Atlantic Container Service, 09-0145, 8/28/2009, 43 BRBS ***.  Release 711.  Claimant injured at chassis repair garage in area found to be "adjoining area" was injured at location which satisfied maritime situs requirements of 33 U.S.C.S. § 903(a).


A. P. (Widow of R. P.) v. Navy Exchange Service Command, 09-0207, 8/26/2009, 43 BRBS ***.  Release 711.  Deceased workers injured while working at Navy Exchange in Phillippines were not covered under Defense Base Act, Non-Appropriated Fund Instrumentalities Act, or Phillippines Presidential Decree # 626.



Carillo v. Louisiana Ins. Guaranty Assoc., 08-30359, 2/17/2009, 559 F.3d 377, 43 BRBS 1(CRT) (5th Cir. 2009).  Release 706.  Filing compensation order under 33 U.S.C.S. § 914(f) means date District Director OWCP dates and files order within OWCP office.

Christensen v. Stevedoring Services of America; Price v. Stevedoring Services of America, 07-70247, 07-70297, 3/2/2009, 557 F.3d 1049, 43 BRBS 6(CRT) (9th Cir. 2009).  Release 706.  Remand to determine claimant’s attorney’s fees in relevant community.

Van Skike v. Director, OWCP, 07-73886, 3/2/2009, 557 F.3d 1041, 43 BRBS 11(CRT) (9th Cir. 2009).  Release 706.  Remand to determine claimant’s attorneys fees in relevant community.

Wheaton v. Golden Gate Bridge, Highway & Transportation Dist, 07-72141, 3/16/2009, 559 F.3d 979, 43 BRBS 17(CRT) (9th Cir. 2009).  Release 706.  Claimant ferry repairman/mechanic was excluded from LHWCA coverage under 33 U.S.C.S. § 903(b) because he was employed by subdivision of a state, using multi-factor test from case law.

Andrepont v. Murphy Exploration & Production Co., 08-60251, 3/17/2009, certified for publication 4/28/2009, 566 F.3d 415, 43 BRBS 27(CRT) (5th Cir. 2009).  Release 707.  Attorney fees under 33 U.S.C.S. § 928(a) denied because employer did not contest liability for claimant’s LHWCA claim and under 33 U.S.C.S. § 928(b) because employer accepted recommendation of OWCP claims examiner at informal OWCP conference.

Dyer v. Cenex Harvest States Coop., 07-73549, 5/1/2009, 563 F.3d 1044, 43 BRBS 32(CRT) (9th Cir. 2009).  Release 707.  Claimant entitled to pre- and post-controversion attorney’s fees under 33 U.S.C.S. § 928(a).  Remand on issue of fees in relevant community.


M. K. v. Holmes and Narver, 2005-LHC-01353, 7/14/2009, 43 BRBS ***(ALJ).  Release 711.  Death from leukemia compensable under Defense Base Act, when ALJ found opinions on causation from panel of three physicians under DOE statute superceded prior adverse medical opinions obtained in DBA/LHWCA proceedings (DOE statute panel physicians indicated decedent was exposed to nuclear radiation which in part contributed to his leukemia).  Decedent worked as waiter and cook in , at Dept. of Energy facility for Dept. of Energy contractor (employer).  DOE statute is Energy Employees Occupational Illness Compensation Program Act of 2000, 42 U.S.C.S. § 7384 et seq.


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