Update From the Benefits Review Board

Update From the Benefits Review Board

By Karen Koenig, Associate General Counsel, Longshore Benefits Review Board, U.S. Department of Labor, Washington, D.C.

BRB Update

The Benefits Review Board began this fiscal year in October 2010 with 130 pending Longshore appeals. Historically, appeals are filed in about 10 percent of the Longshore cases decided by the OALJ. During the last fiscal year, which ended September 30, 2010, the Board received 200 appeals in cases under the Longshore Act (Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 et seq.), 29 fewer than the year before. A total of 195 Longshore Act decisions were issued; 28 decisions on reconsideration also were issued. [Fn1] We received decisions from the courts of appeals in 44 appeals of the Board's Longshore decisions, and the Board's decisions were affirmed in 88 percent of them. Last year, an average of 8 months elapsed between the date an appeal was filed with the Board and the date a decision was issued. Although the appropriations bill funding the U.S. Department of Labor no longer requires the Board to issue decisions within one year, the Board has continued to issue its Longshore decisions within this time frame.

As of the end of April 2011, the Board has 154 pending Longshore appeals, including approximately 34 appeals under the Defense Base Act (Defense Base Act, 42 U.S.C.S. § 1651). The Board has received 110 new appeals under the Act and issued 103 dispositions thus far, with an average processing time of 8.4 months. The Board received 31 appeals in January 2011, which is anomalous compared with the usual monthly totals over the last few years. If the current average number of appeals continues, the Board will receive about 210 appeals this year, a slight increase from last year. Thus far, the Board has received 21 decisions from the appellate courts and the Board's decision was affirmed in 19 of these cases.

In the fall of 2010, the Board's staff completed a two-year revision of the Longshore Desk Book. This undertaking integrated the narrative of the 1986 Desk Book and the digests of Board and Circuit Court decisions issued after 1986. Within each section of the Act, new headings and subsections were added in an effort to make it easier to find relevant cases. The Desk Book is available on the Board's website at http://www.dol.gov/brb/welcome.html under "Library," and then "Longshore Deskbook." The Desk Book also is published by LexisNexis in the BRBS/Longshore Reporter (Volume B). Both the LexisNexis publication and the case digests are updated by Board staff every six months.

Board decisions continue to be available on the Board's website, http://www.dol.gov/brb/welcome.html, indexed by the date of issuance. The website is updated with new decisions at the beginning of each month. For the period during which the Board was using initials in the captions of cases, the website now includes an index which provides the claimant's name in addition to the listing by initials. The decisions also are searchable by key words. At the bottom of the Board's main "Board Decisions" page is a link to the search page. Just check the box for "Longshore" and enter the search term. This will bring up both BRB and OALJ decisions containing the search term.

DBA - Applicable Law

The Board is expecting an increase in appeals in DBA claims, as there has been an increase in claims filed with the Office of Workers' Compensation Programs and in referrals to the Office of Administrative Judges. Thus, a brief discussion of DBA procedure is warranted. The DBA authorizes the Secretary of Labor to assign areas of the world to compensation districts, see 20 C.F.R. § 704.101, and, relevant to appeals, states that judicial proceedings shall be instituted in the U.S. District Court where the office of the deputy commissioner (district director) whose compensation order is involved is located. 42 U.S.C.S. § 1653. Under Section 1653, the court for the area in which the office of the district director which filed and served the administrative law judge's decision is located has appellate jurisdiction over the case. Service Employees Int'l, Inc. v. Director, OWCP (Barrios), 595 F.3d 447, 454, 44 BRBS 1(CRT) (2d Cir. 2010); Hice v. Director, OWCP, 156 F.3d 214, 217, 32 BRBS 164(CRT) (D.C. Cir. 1998). The Board, therefore, applies the law of the circuit court in which the office of this district director is located, irrespective of the compensation district in which the claim was filed or where the claimant resides. See Raymond v. Blackwater Security Consulting, L.L.C., 45 BRBS __, BRB Nos. 10-0454/A (Apr. 28, 2011) (in release 731 of BRBS/Longshore Reporter); Sparks v. Service Employees Int'l, Inc., 44 BRBS 11, aff'd on recon., 44 BRBS 77 (2010).

The circuit courts are split with regard to the issue of whether appeals from the BRB should be initiated with the district court, pursuant to the plain language of Section 1653 of the DBA ( 42 U.S.C.S. § 1653), or to the circuit court, pursuant to Section 21(c) of the Longshore Act (33 U.S.C.S. § 921(c)). The Second, Seventh and Ninth Circuits have concluded that Congress meant to incorporate the Longshore Act as amended in 1972 into the DBA. Accordingly, appellate review in these circuits lies with the Board and then the United States Court of Appeals for the circuit where the office of the deputy commissioner whose compensation order is involved is located, pursuant to Section 21(b), (c) of the Longshore Act (33 U.S.C.S. § 921(b), (c)). Service Employees Int'l, Inc. v. Director, OWCP (Barrios), 595 F.3d 447, 452-454, 44 BRBS 1(CRT) (2d Cir. 2010); Pearce v. Director, OWCP, 647 F.2d 716, 13 BRBS 241(CRT) (7th Cir. 1981); Pearce v. Director, OWCP, 603 F.2d 763, 771, 10 BRBS 867(CRT) (9th Cir. 1979); see also Parsons Corp. of California v. Director, OWCP, 619 F.2d 38, 12 BRBS 234(CRT) (9th Cir. 1980). The Second Circuit stated, "That this change in the review process was intended to apply to DBA claims is manifest in the DBA provision that the LHWCA 'as amended shall apply in respect to the injury or death of any employee [covered under the Defense Base Act]' except as modified by the DBA. 42 U.S.C. § 1651(a)." Id., 595 F.3d at 454, 44 BRBS at 5(CRT).

The Sixth Circuit, however, concluded that the 1972 Amendments to Section 21, which eliminated review by a district court, was not incorporated into the DBA under 42 U.S.C.S. § 1653(b). The court stated that the DBA is "unambiguous and it clearly requires judicial proceedings to review a compensation order made pursuant to the Defense Base Act to be conducted in the United States district court...." Therefore, this court held that review therefore remained in the appropriate district court as it did prior to the 1972 Longshore Act Amendments. Home Indemnity Co. v. Stillwell, 597 F.2d 87, 89 (6th Cir.), cert. denied, 444 U.S. 869, 62 L. Ed. 2d 94, 100 S. Ct. 145 (1979). The Fourth, Fifth and Eleventh Circuits have joined in this view. Thus, in those circuits, a Board decision must first be challenged in the appropriate district court, and then may be appealed to the circuit court. ITT Base Services v. Hickson, 155 F.3d 1272, 1275, 32 BRBS 160(CRT) (11th Cir. 1998); Lee v. Boeing Co., 123 F.3d 801, 805, 31 BRBS 101(CRT) (4th Cir. 1997); AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1114, 24 BRBS 154(CRT) (5th Cir. 1991), cert. denied, 502 U.S. 906, 116 L. Ed. 2d 241, 112 S. Ct. 297 (1991); see Hice v. Director, OWCP., 48 F. Supp. 2d 501, 502 (D. Md. 1999). If an appeal is filed in the wrong court, the case generally will be transferred to the proper court. See Hice v. Director, OWCP, 156 F.3d 214, 217-218, 32 BRBS 164(CRT) (D.C. Cir. 1998).

The Clerk of the Board attaches to each BRB decision a "Notice of Appeal Rights." This notice provides a list of United States Circuit Courts of Appeals and states that a party has 60 days in which to appeal a Board decision to a circuit court in accordance with Section 21(c) of the Longshore Act (33 U.S.C.S. 921(c)). See also 20 C.F.R. §§ 802.406, 802.410. The notice also states, "In Defense Base Act cases, the United States Courts of Appeals for the Fourth, Fifth, Sixth and Eleventh Circuits have held that Board decisions must initially be appealed to the United States District Court where the office of the appropriate district director is located."

Supreme Court Update

In February 2011, the Supreme Court of the United States granted a petition for a writ of certiorari in a case filed under the Outer Continental Shelf Lands Act (OCSLA, 43 U.S.C.S. § 1331 et seq.) extension of the Longshore Act, as well as under the Longshore Act itself. Pacific Operators Offshore, LLP v. Valladolid, No. 10-507, ___ U.S. ___, 179 L. Ed. 2d 298, 131 S. Ct. 1472 (2011). In this case, the employee died in an accident at employer's crude oil flocculation facility in California. His primary duties as a roustabout occurred on employer's offshore oil platforms on the outer continental shelf. The administrative law judge found that the death was not compensable under either the Longshore Act or the OCSLA. The Board affirmed the administrative law judge's decision, as employer's California facility is not a situs covered under Section 3(a) of the Longshore Act, 33 U.S.C.S. § 903(a). The site had no functional relationship with the Pacific Ocean, which it adjoined, as it was not used for "loading, unloading, repairing, dismantling, or building a vessel." L.V. [Valladolid] v. Pacific Operations Offshore, LLP, 42 BRBS 67, 69 (2008).

With regard to the OCSLA claim, the Board discussed the differing opinions of the Third and Fifth Circuits with regard to injuries that do not occur on the outer continental shelf. The Third Circuit adopted a "but-for" test of coverage: would the employee's injury have occurred "but-for" operations on the shelf. Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d 805, 811, 21 BRBS 61(CRT) (3d Cir. 1988). The Board held that the approach of the Fifth Circuit in Mills v. Director, OWCP, 877 F.2d 356, 357, 22 BRBS 97(CRT) (5th Cir. 1989) (en banc), which confers coverage only if the injury occurs on the outer continental shelf, best comports with the language and legislative history of the OCSLA. As the employee's death did not occur on the outer continental shelf, the Board affirmed the administrative law judge's decision denying benefits. Valladolid, 42 BRBS at 71-72.

On appeal to the circuit court, the Ninth Circuit discussed both the Curtis and Mills approaches to OCSLA coverage and forged a third path to coverage. The court rejected the Mills approach and held that Section 1333(b) of the OCSLA (43 U.S.C.S. § 1333(b)) unambiguously does not include a situs-of-injury requirement, that the legislative history of this section is inconclusive on this matter, and that a situs requirement is not imposed by Section 1333(a). The Ninth Circuit held that the OCSLA may apply to injuries not occurring on the shelf so long as they occur "'as the result of operations conducted on the outer continental shelf.'" Valladolid v. Pacific Operations Offshore, LLP, 604 F.3d 1126, 1132, 44 BRBS 35(CRT) (9th Cir. 2010), cert. granted sub nom. Pacific Operators Offshore L.L.P. v. Valladolid, ___ U.S. ___, 179 L. Ed. 2d 298, 131 S. Ct. 1472 (2011). The court rejected the Curtis "but-for" test, and held that a claimant "must establish a substantial nexus between the injury and the extractive operations on the shelf. To meet this standard, the claimant must show that the work performed directly further outer continental shelf operations and is in the regular course of such operations." 604 F.3d at 1139, 44 BRBS at 43(CRT). The case was remanded for findings regarding the employee's employment under this test. The court affirmed the finding that the employee's injury did not occur on a covered situs under Section 3(a) of the Longshore Act (33 U.S.C.S. § 903(a)). 604 F.3d at 1141, 44 BRBS at 44(CRT).

The Supreme Court granted the petition for certiorari on the following OCLSA question:

The Outer Continental Shelf Lands Act, 43 [U.S.C.S.] §§ 1331-1356 (OCSLA), governs those who work on oil drilling platforms and other fixed structures beyond state maritime boundaries. Workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf." 43 [U.S.C.S.] § 1333(b) (2006). When an outer continental shelf worker is injured on land, is he (or his heir): (1) always eligible for compensation, because his employer's operations on the shelf are the but for cause of his injury (as the Third Circuit holds); or (2) never eligible for compensation, because the Act applies only to injuries occurring on the shelf (as the Fifth Circuit holds); (3) sometimes eligible for compensation, because eligibility for benefits depends on the nature and extent of the factual relationship between the injury and the operations on the shelf (as the Ninth Circuit holds)?


As of the time this article was written, the petitioner's brief had not yet been filed and the case had not been placed on the oral argument schedule for the Court's October 2011 term. Docket information about this case can be found at http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-507.htm.


1. In addition, the Board received 447 appeals under the Black Lung Act during the last fiscal year and issued 529 final dispositions (Black Lung Benefits Act, 30 U.S.C.S. § 901 et seq.).

Copyright © 2011 U.S. Dept. of Labor. All rights reserved. Reprinted by permission.

[Publisher's Note: This article will appear in the upcoming June 2011 issue of the Benefits Review Board Service, Longshore Reporter (LexisNexis).]

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