Sunday, December 30, 2012
Saturday, December 29, 2012
ALJ BERGSTROM, NEWPORT NEWS, DENIES BENEFITS FOR INJURY OCCURRING IN PARKING LOT ADJACENT TO SHIPYARD
LITTLE_DONNA_T_v_HUNTINGTON_INGALLS_I_2012LHC01125_(DEC_17_2012)_114020_CADEC_SD.PDF
In this case the Claimant alleges an injury occurring in the grass embankment adjoining the shipyard property at the fence line along the east side of Warwick Boulevard. Since the record failed to demonstrate that this area was a pier, wharf, dry dock, marine terminal, building way or marine railway, the Claimant can only satisfy the maritime “situs” requirement if she establishes by a preponderance of the evidence that the grassy embankment area of land was an “other” adjoining area that is customarily used by the Employer in loading, unloading, repairing, dismantling or building a vessel.
The general test to determine the issue of “situs” in the Fourth Circuit is set forth in Sidwell v. Express Container Services, Inc., 71 F.3d 1134 (4th Cir. 1995). There the Court noted that the U.S. Supreme Court had not articulated a test for determining what was an “other adjoining area” within the meaning of § 903(a) of the Act. The Court examined and specifically rejected the approach of the Courts of Appeal for the Third, Fifth and Ninth Circuits. 2
The Court also noted it had examined the issue of “situs” in earlier cases of Newport News Shipbuilding & Dry Dock Co. v. Graham, 537 F. 2d 167 (4
th Cir, 1978), cert denied, 439 US 979 (1978), where a comprehensive test was not offered, and in Humphries v. Director, OWCP, 834 F. 2d 372 (4th Cir. 1987), cert. denied, 485 US 1028 (1988). The Court stated that it “reject[ed] the idea that Congress intended to substitute for the shoreline another hard line” in the 1972 amendments to the Act and found that §903(a) of the Act was a clearly stated intention of Congress that “the LHWCA requires that covered situses actually ‘adjoin’ navigable waters … that is, if it is ‘contiguous with’ or otherwise ‘touches’ such waters. If there are other areas between the navigable waters and the area in question, the latter area simply is not ‘adjoining’ the waters under any reasonable definition of that term.” Sidwell v. Express Container Services, Inc., supra,
at 1138. The Court went on to state that the additional statutory language of “customarily used by the employer in loading, unloading, repairing, dismantling, or building a vessel” was a further restriction on “other adjoining areas” such that the geographical “situs” must first adjoin navigable waters and then be customarily used by the employer in a certain manner. The Court acknowledged in Jonathan Corp. v. Brickhouse, 142 F.3d 217, 220 (4th Cir. 1998) that “the situs requirements still establish geographical boundary for coverage [and] as with any geographical
boundary, workers can still move across that boundary into and out of the Act’s coverage.” (citing Herb’s Welding, Inc. v. Grey, 470 US 414, 426-427 (1985))
In this case the evidence established that the 7 to 8 foot wide grassy embankment on which the Claimant stepped into a hole and twisted her ankle on November 4, 2011 ran along the east side of Warwick Boulevard between Warwick Boulevard and the shipyard fence line placed on the edge of shipyard property. The pertinent section of grassy embankment extended from 39 th Street along Warwick Boulevard in a northerly direction pass the shipyard gate used to enter the
Employer’s scrapyard area of the shipyard located near the railroad tracks that cross Warwick Boulevard in a westerly direction from the gate entrance area. The pertinent section of grassy embankment and Warwick Boulevard are owned and controlled by the City of Newport News. Pursuant to the local code requirements, the Employer mows the grass to keep the height within city requirements. Mr. Kelly testified that the grassy embankment area is not utilized by the shipyard for any purpose.
The Claimant did not introduce any evidence that would indicate that the shipyard uses the grassy embankment to load or unload vessels, dismantle vessels, repair vessels, or build vessels. Without such use, the grassy embankment that abuts shipyard property, but is not owned by the shipyard and is outside the perimeter of the shipyard, cannot be considered “other adjoining area customarily used by the employer in loading, unloading, repairing, dismantling or building a vessel” and cannot be considered a covered situs under §903(a) of the LHWCA.
Here the Claimant had arrived at the shipyard when she parked in the shipyard’s 39
th Street parking lot. She left the shipyard when she moved onto the City of Newport News property of Warwick Boulevard and the adjacent grassy embankment. She has failed to establish that the City of Newport News owned property was “customarily used by the employer in loading, unloading, repairing, dismantling, or building a vessel.” She reentered the shipyard when she moved into the shipyard gate entrance at the railroad tracks and scrapyard area of the shipyard.
Such movement across geographical boundaries is that envisioned by the Court under §903(a).
Since, the Claimant has failed to establish that the area owned by the City of Newport News outside the perimeter of the shipyard and was being traversed by the Claimant between the 39th Street parking lot and scrapyard entrance, was customarily used by the Employer for specified maritime activity, this Administrative Law Judge finds that the alleged injuries did not occur in a maritime “situs” as required by 33 USC §903(a) and that the Claimant is not entitled to benefits
under the Act. Since the Claimant has not established the required situs, the remaining issues in this case are moot.
In this case the Claimant alleges an injury occurring in the grass embankment adjoining the shipyard property at the fence line along the east side of Warwick Boulevard. Since the record failed to demonstrate that this area was a pier, wharf, dry dock, marine terminal, building way or marine railway, the Claimant can only satisfy the maritime “situs” requirement if she establishes by a preponderance of the evidence that the grassy embankment area of land was an “other” adjoining area that is customarily used by the Employer in loading, unloading, repairing, dismantling or building a vessel.
The general test to determine the issue of “situs” in the Fourth Circuit is set forth in Sidwell v. Express Container Services, Inc., 71 F.3d 1134 (4th Cir. 1995). There the Court noted that the U.S. Supreme Court had not articulated a test for determining what was an “other adjoining area” within the meaning of § 903(a) of the Act. The Court examined and specifically rejected the approach of the Courts of Appeal for the Third, Fifth and Ninth Circuits. 2
The Court also noted it had examined the issue of “situs” in earlier cases of Newport News Shipbuilding & Dry Dock Co. v. Graham, 537 F. 2d 167 (4
th Cir, 1978), cert denied, 439 US 979 (1978), where a comprehensive test was not offered, and in Humphries v. Director, OWCP, 834 F. 2d 372 (4th Cir. 1987), cert. denied, 485 US 1028 (1988). The Court stated that it “reject[ed] the idea that Congress intended to substitute for the shoreline another hard line” in the 1972 amendments to the Act and found that §903(a) of the Act was a clearly stated intention of Congress that “the LHWCA requires that covered situses actually ‘adjoin’ navigable waters … that is, if it is ‘contiguous with’ or otherwise ‘touches’ such waters. If there are other areas between the navigable waters and the area in question, the latter area simply is not ‘adjoining’ the waters under any reasonable definition of that term.” Sidwell v. Express Container Services, Inc., supra,
at 1138. The Court went on to state that the additional statutory language of “customarily used by the employer in loading, unloading, repairing, dismantling, or building a vessel” was a further restriction on “other adjoining areas” such that the geographical “situs” must first adjoin navigable waters and then be customarily used by the employer in a certain manner. The Court acknowledged in Jonathan Corp. v. Brickhouse, 142 F.3d 217, 220 (4th Cir. 1998) that “the situs requirements still establish geographical boundary for coverage [and] as with any geographical
boundary, workers can still move across that boundary into and out of the Act’s coverage.” (citing Herb’s Welding, Inc. v. Grey, 470 US 414, 426-427 (1985))
In this case the evidence established that the 7 to 8 foot wide grassy embankment on which the Claimant stepped into a hole and twisted her ankle on November 4, 2011 ran along the east side of Warwick Boulevard between Warwick Boulevard and the shipyard fence line placed on the edge of shipyard property. The pertinent section of grassy embankment extended from 39 th Street along Warwick Boulevard in a northerly direction pass the shipyard gate used to enter the
Employer’s scrapyard area of the shipyard located near the railroad tracks that cross Warwick Boulevard in a westerly direction from the gate entrance area. The pertinent section of grassy embankment and Warwick Boulevard are owned and controlled by the City of Newport News. Pursuant to the local code requirements, the Employer mows the grass to keep the height within city requirements. Mr. Kelly testified that the grassy embankment area is not utilized by the shipyard for any purpose.
The Claimant did not introduce any evidence that would indicate that the shipyard uses the grassy embankment to load or unload vessels, dismantle vessels, repair vessels, or build vessels. Without such use, the grassy embankment that abuts shipyard property, but is not owned by the shipyard and is outside the perimeter of the shipyard, cannot be considered “other adjoining area customarily used by the employer in loading, unloading, repairing, dismantling or building a vessel” and cannot be considered a covered situs under §903(a) of the LHWCA.
Here the Claimant had arrived at the shipyard when she parked in the shipyard’s 39
th Street parking lot. She left the shipyard when she moved onto the City of Newport News property of Warwick Boulevard and the adjacent grassy embankment. She has failed to establish that the City of Newport News owned property was “customarily used by the employer in loading, unloading, repairing, dismantling, or building a vessel.” She reentered the shipyard when she moved into the shipyard gate entrance at the railroad tracks and scrapyard area of the shipyard.
Such movement across geographical boundaries is that envisioned by the Court under §903(a).
Since, the Claimant has failed to establish that the area owned by the City of Newport News outside the perimeter of the shipyard and was being traversed by the Claimant between the 39th Street parking lot and scrapyard entrance, was customarily used by the Employer for specified maritime activity, this Administrative Law Judge finds that the alleged injuries did not occur in a maritime “situs” as required by 33 USC §903(a) and that the Claimant is not entitled to benefits
under the Act. Since the Claimant has not established the required situs, the remaining issues in this case are moot.
Thursday, December 13, 2012
ALJ KRANTZ (NEWPORT NEWS) DENIES CLAIMANT'S REQUEST FOR MODIFICATION SEEKING INCREASE IN LOSS OF EARNING CAPACITY BASED UPON NEED FOR SURGERY
A partial disability rate of $105.00 had been previously established. Claimant sought modification on basis on anticipated additional loss of earnings due to recommended surgery. ALJ Krantz denied modification, finding that Claimant had failed to prove that the new surgery was necessary.
Tuesday, December 11, 2012
Sunday, December 9, 2012
NEW LAW REQUIRES ALJs TO RULE ON MOST OUTRAGEOUS CHRISTMAS DECORATIONS
A prima facie case for 'outrageous decorations' is established when one must wear sunglasses to look directly at the house in question.
There is a requirement that packages for outrageous decorations must be delivered within 10 days or there is a 20% lighting penalty
Home displays that can be viewed from the Space Station are also presumed to be outrageous as a matter of law.
Some of the decisions will be lengthy and complex
Some displays will invoke the Way-Too-Sweet Defense
The owner of this display will face charges of False Im-penquin-ment
Two issues are presented: 1) Where is Santa?; 2) What are Peter Pan and Tinkerbell doing there?
The Stockings Were Hung Over The Carport With Care in Hopes that SpongeBob Soon Would be There
Ten Trillion Lights, and they Can Only Manage "X-Mas"?
Extra consideration is also given to True-To-Life
and Historically Accurate Nativity Scenes
Difficult: LHWCA Santa? or Jones Act Santa?
Vehicular Holiday Embellishment Affords Some Second Decoration Fun Protection
And finally, res judicata..
Friday, December 7, 2012
Thursday, December 6, 2012
ALJ McGRATH (BOSTON) DENIES BENEFITS FOR BILATERAL HIP REPLACEMENT FINDING THAT THE HIP CONDITIONS WHERE NOT CAUSED BY WORK ACTIVITIES
Applying the standard that for a claim to be compensable the work event must exceed in some manner the activities of daily living, ALJ McGrath found that the Claimant's complaints of pain for arthritis in his knees were at least as great away from work as they were at work.
Claimant had pain in many life activities unrelated to his employment at EBC. I find, given Claimant’s testimony and the testimony and reports of his treating physicians, that Claimant experienced the most intolerable pain not while at work, but rather while at rest and attempting to sleep.
Full Decision - Crocker vs. Electric Boat Corporation
Claimant had pain in many life activities unrelated to his employment at EBC. I find, given Claimant’s testimony and the testimony and reports of his treating physicians, that Claimant experienced the most intolerable pain not while at work, but rather while at rest and attempting to sleep.
Full Decision - Crocker vs. Electric Boat Corporation
Wednesday, December 5, 2012
ALJ McGRATH (BOSTON) DISMISSES CLAIM, FINDING THAT CLAIMANT'S MEDICAL EVIDENCE FAILS TO SHOW CAUSAL RELATIONSHIP BETWEEN INJURY AND WORK
FULL DECISION - GUADIANO vs. ELECTRIC BOAT
In this claim the injured worker alleged that aggravation of severe arthritis in his knee was causally related to his work at Electric Boat. On weighing the evidence, ALJ McGrath credited the opinion employer's expert witness over that of the claimant's treating physician. Several studies submitted by the Claimant addressing aggravation of arthritis were given no weight because they were not supported by expert testimony.
In this claim the injured worker alleged that aggravation of severe arthritis in his knee was causally related to his work at Electric Boat. On weighing the evidence, ALJ McGrath credited the opinion employer's expert witness over that of the claimant's treating physician. Several studies submitted by the Claimant addressing aggravation of arthritis were given no weight because they were not supported by expert testimony.
Tuesday, December 4, 2012
Monday, December 3, 2012
ALJ BERGSTROM (NEWPORT NEWS) HOLDS THAT CLAIMANT'S MULTIPLE HEARING LOSS CLAIMS WITH RESPONDENT MERGE INTO ONE TIMELY CLAIM
There are two interesting parts to this decision. First, the ALJ determined that Claimant's filed but unadjudicated claims for hearing loss could proceed as a single and timely merged claim. Secondly, he determined that a previous claim that had proceeded to a hearing before ALJ Sarno but had not been adjudicated due to the Claimant's withdrawal, should not be dismissed as untimely or previously adjudicated since ALJ Sarno had never considered the case on its merits.
I.
The Claimant’s multiple claims alleging hearing loss during his employment with Respondent Employer merge into one claim for hearing loss.
The Claimant has filed three separate claims for hearing loss involving the same Respondent Employer. They involve claims for hearing loss on or about January 20, 1996, August 26, 1999 and March 31, 2001. Multiple unadjudicated claims for hearing loss with the same maritime employer usually merge into one claim for adjudication. Krotsis v. General Dynamics Corp., 22 BRBS 128 (1989), aff’d sub nom. Director, OWCP v. General Dynamics Corp., 900 F.2d 506 (2nd Cir. 1990); Spear v. General Dynamics Corp., 25 BRBS 254 (1991); Downey v. General Dynamics Corp., 22 BRBS 203 (1983) Where more than one employer is involved separate hearing loss claims are usually not merged. Giacalone v. Matson Terminals, Inc., 37 BRBS 87 (2003); Stevedoring Services of America v. Director, OWCP [Benjamin], 297 F.3d 797 (9th Cir. 2002)...
The claim for hearing loss on or about January 20, 1996 (OWCP Case No. 05-98112) was subject to a formal hearing held on December 9, 1999, before Administrative Law Judge D.A. Sarno. After the submission of evidence at the hearing and during the period scheduled for the submission of post-hearing written briefs, the Claimant withdrew his claim. Judge Sarno dismissed the claim with prejudice without any findings that the Claimant had sustained any degree of hearing loss. (EX 3) Respondent’s counsel argues that the Claimant barred from raising the January 20, 1996 work-related hearing loss injury by Judge Sarno’s final Decision and Order issued on February 14, 2000 and seeks to have that claim dismissed.
It is specifically noted that no audiological examination has been submitted in evidence related to hearing loss on or about January 20, 1996. All evidence related to hearing loss testing involved tests administered subsequent to April 22, 1996. Accordingly, the evidence of record fails to establish any degree of occupational hearing loss related to OWCP No. 05-98112 before this Administrative Law Judge. Such a finding is not contradicted by Judge Sarno’s actions. When this is combined with the Benefits Review Board direction to merge pending occupational hearing loss claims, the issue of the Claimant now being barred from raising the alleged January 20, 1996 occupational hearing loss by Judge Sarno’s February 14, 2000 is moot.
In view of all the foregoing this Administrative Law Judge finds that the Respondent Employer is not prejudiced by having the three alleged period of occupational hearing loss merged into one claim and that the interests of justice under the LHWCA are best served by combining the three claims for occupational hearing loss into one claim. Accordingly, the Claimant’s claims for occupational hearing loss are hereby combined into one claim.
Sunday, December 2, 2012
Saturday, December 1, 2012
HARBOR HOLIDAY LIGHTS!
PORT O'CONNOR, TEXAS
BALBOA ISLAND, NEWPORT
NEWPORT BEACH HARBOR CHRISTMAS BOAT PARADE
GIG HARBOR (WA) LIGHTED BOAT PARADE
HOLIDAY BOAT PARADE, MT. PLEASANT & CHARLESTON, SC
NEWPORT BEACH BOAT PARADE
PORTSMOUTH HARBOR LIGHT (NH)
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