Fifth Circuit Affirms Criteria for Jones Act Seaman Status

It is well established that to qualify as a Jones Act seaman, a plaintiff must demonstrate that his duties contributed to the function of the vessel or to the accomplishment of its mission, and that he had a connection to a vessel in navigation that is substantial in terms of both its duration and nature.  This issue was recently addressed by the Fifth Circuit.  Plaintiff was a crane operator and installer for Defendant.  On the date of his injury, he was charged with disassembling a portable crane on an offshore platform.  To do this, Plaintiff traveled aboard a vessel to the platform where he disassembled a crane, loaded the crane onto the vessel, and returned to shore aboard the vessel.  While disassembling the crane, Plaintiff fell approximately nineteen feet from his position on a gang box, causing injuries that left him permanently paralyzed.

The issue in this case was whether Plaintiff could establish that he was a Jones Act seaman.  Plaintiff argued that he was a seaman because he was working in service of the vessel that brought him to the platform to dismantle the crane, and then returned him to shore.  The Court deferred to its opinion in Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340 (5th Cir. 1999), where it held that workers aboard vessels that transport them to their work stations on offshore drilling platforms are not seamen.  The court in the instant matter found that Plaintiff could not demonstrate he was a Jones Act seaman.  His duties in no way contributed to the function of the vessel or to the accomplishment of its mission, his connection to the vessel was transitory and fortuitous, and he had no substantial connection to the vessel. 

Teaver v. Seatrax of Louisiana, Inc., No. 11-30084 (5th Cir. June 23, 2011).

BRB: Ninth Circuit Does Not Require New Hourly Rate Determination in Each Case

Following a settlement between the parties, Claimant’s attorney filed fee petitions for work performed before the District Director and the Office of Administrative Law Judges.  In each petition, the attorney requested an hourly rate of $412, an amount which was consistent with the rate received by the same attorney in recent attorney fee cases.  Both the District Director and the Administrative Law Judge (“ALJ”) refused to analyze the requested hourly rates anew, citing instead the Benefits Review Board’s recent analysis in the other cases that addressed the same attorney’s hourly rates.  On appeal, the Employer argued that the Director and the ALJ had to make their own analysis of the market data, and that Supreme Court precedent requires “that a case-specific hourly rate must be calculated at each adjudicatory level of proceedings.”  The BRB disagreed, stating that the “Ninth Circuit does not require that a new determination of the relevant community and market hourly rate be made in every case.”  Although the BRB acknowledged that an attorney’s hourly rate “can very from case to case and, within one case, from level to level,” it did not apply a variance here.  The documentary evidence offered in support of each party’s position regarding the fees was the same offered in the Claimant’s attorney’s recently decided BRB cases.  Finally, the BRB affirmed the Director’s decision to reduce the number of hours claimed by Claimant’s attorney for work the Director deemed excessive.

Goodell v. Marine Terminals Corp., BRB No. 10-0570 (BRB 2011) (unpublished).

Note: The BRB did not identify the documentary evidence offered in Goodell, but that evidence can be discerned by reviewing the prior Christensen decisions.  In Christensen v. Stevedoring Servs. of America, 43 BRBS 145 (2009), which is commonly referred to as Christensen I, the BRB considered Claimant’s 2004 and 2008 “Morones Surveys,” two affidavits submitted by the Claimant, one affidavit offered by the Employer, and the 2007 Oregon Bar Survey.  In Christensen II, 44 BRBS 39 (2010), the BRB considered the 2009 Survey of Small Law Firm Economics in addition to the exhibits offered in Christensen I.  Then, in Christensen III, 44 BRBS 75 (2010), the BRB addressed the Oregon Bar Survey.  Notably, the BRB stated that the documents submitted by the parties were “largely the same” as those offered in Christensen I, which makes it unclear whether the 2009 Survey of Small Law Firm Economics was considered in Goodell.  An implicit assumption from Goodell is that the BRB left open the question whether the case-to-case or level-to-level variance would have applied had different evidence been offered in opposition to the Claimant’s attorney’s fee petition.

BRB Addresses Section 14(f) and the Automatic Approval of Settlements

Claimant sustained a series of injuries to his neck, back and right knee which resulted in his filing ten claims against seven employers.  Ultimately, the parties entered into a settlement agreement, which was submitted to an Administrative Law Judge (“ALJ”) on March 22, 2010.  Nearly one month later, on April 20, 2010, the ALJ received an amendment to the settlement agreement which resolved the issue as to the apportionment of Claimant’s attorney’s fees.  The ALJ’s decision approving the settlement was filed with the District Director on April 29, 2010.  Payment was issued to Claimant on May 3, 2010, which he received on May 5, 2010.  The issue before the Benefits Review Board (“BRB”) was whether or not Claimant was entitled to a Section 14(f) assessment for the late payment of compensation.

Claimant’s argument rested on a technicality.  The Longshore and Harbor Workers’ Compensation Act provides that, if the parties are represented by counsel, that a settlement is deemed approved if it has not been disapproved within 30 days after its submission.  See 33 U.S.C. § 908(i)(1).  The implementing regulation, 20 C.F.R. § 702.243(b), contains the same language…and a bit more.  While it is true that the settlement submitted by represented parties could be deemed approved within 30 days, the settlement must nonetheless contain all of the information required by law.  If it does not, the 30 day period does not start running.  Among other requirements, a settlement must clearly indicate “amounts to be paid for compensation, medical benefits, survivor benefits and representative’s fees…”  See 20 C.F.R. § 702.242(b) (emphasis added in BRB’s opinion, but citation corrected here).  In this case, the settlement submitted on March 22, 2010, was deemed incomplete because the parties, Claimant included, submitted an amendment on April 20, 2010.  The ALJ’s Order was filed within 30 days of having received the supplement.  As such, the Order filed on April 29, 2010, controlled.

Section 14(f) applies to both decisions awarding benefits and approved settlement orders.  See 33 U.S.C. § 914(f).  An employer has 10 days from the date the Order approving the settlement is filed by the district director to pay benefits.  If they do not, they could face a penalty of 20% of the compensation owed.  Claimant’s argument failed because the BRB determined that the first settlement submission was incomplete, and could not be “deemed approved” as a matter of law.  Instead, the controlling date for the Section 14(f) inquiry was April 29, 2010, when the Order approving the amended settlement was filed.  Here, Claimant was paid on May 3, 2010, well within 10 days.  He was not entitled to the Section 14(f) penalty.

Erickson v. Sea-Star Stevedoring, BRB No. 10-0527 (BRB May 24, 2011) (unpublished).

OSHA’s Vertical Tandem Lift Standard Addressed by D.C. Circuit

On December 10, 2008, the Occupational Safety and Health Administration (“OSHA”) published a final rule regulating the use of vertical tandem lifts (“VTLs”).  The rule, or VTL Standard, was challenged by a marine terminal trade association on the grounds that (1) OSHA failed to demonstrate that VTLs pose a significant risk to worker safety; (2) two of the Standard’s requirements were not technologically feasible; (3) the Standard is not reasonably necessary or appropriate with respect to the “safe work zone” requirement; (4) the Standard exceeds OSHA’s lawful authority; (5) and that the Occupational Safety and Health Act (“OSH Act”) made an unconstitutional delegation of legislative power to OSHA.  The United States Court of Appeals for the District of Columbia Circuit granted the trade association’s petition for review in part and denied in part.

As explained by the court: “Most maritime cargo today is shipped in standardized intermodal containers that can be transferred from ship to shore…in the same container.  The container has openings at each corner that allow it to be secured onboard a ship, truck or train.  Containers are frequently vertically stacked on top of one another for transport, in which case interbox connectors can be inserted into the corner openings to fasten the stacked containers to each other.  Standard containers are shaped like rectangular boxes.  Platform containers (also called flat racks) have no top or long sides and the end panels (or short sides) are either fixed upright or can be folded flat onto the floor of the container.  Platform containers may also be attached to other containers using interbox connectors, typically with their end panels folded flat.  A crane can lift the interconnected containers in what is called a vertical tandem lift and thereby move multiple containers at once.  Marine cargo handlers have been performing VTLs for over twenty years.  While the total number of VTLs performed is unknown, OSHA has estimated the number to be one million VTLs since 1986.  No injury has been reported as having occurred during a VTL.”

The D.C. Circuit deferred to OSHA’s determination that VTLs pose a significant risk.  Although OSHA must first make a threshold finding of a significant risk before the implementation of a rule, OSHA may measure “significant risk” against what is “reasonably necessary or appropriate to provide safe or healthful employment.”  OSHA does not have to quantify a risk before determining it is significant, but it does have to “identify the evidence upon which it relies, to explain its logic and the policies underlying its choices, to state candidly any assumptions on which it relies and to provide its reasons for rejecting contrary evidence or argument.”  But OSHA did not carry the day entirely.  The D.C. Circuit agreed that some of the VTL Standard was technologically infeasible, and that rubber stamping the Standard in toto would be “lamely deferential.”  OSHA did not provide evidence to support the feasibility its inspection requirement for ship-to-shore VTLs.  Additionally, the D.C. Circuit noted that OSHA did not provide notice to commentators regarding the Standard’s total ban on platform container VTLs.  Without notice, the commentators could not address the infeasibility of the ban.  Without those comments, the record was lacking and the total ban was not supported by substantial evidence.  Finally, the D.C. Circuit determined that OSHA did not have to accept an employer’s established “safe work zone;” that OSHA does have the power to both regulate how workplace practices are performed and prohibit noncompliant practices; and that Congress validly delegated authority to OSHA, through the OSH Act, to set health or safety standards that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment….”

National Maritime Safety Ass’n v. OSHA, — F.3d —-, 2011 WL 2417109 (D.C. Cir. 2011).