Hoke v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Citation: 52 F.3d 333
• Decision Date: 10 April 1995
• Docket Number: No. 93-70465,93-70465
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Doris Jean HOKE, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; Todd Shipyards Corporation, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 333

52 F.3d 333

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Doris Jean HOKE, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR; Todd Shipyards

Corporation, Respondents.

No. 93-70465.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 1994.

Decided April 10, 1995.

Before: BROWNING, GOODWIN, and QUACKENBUSH ^*, Circuit Judges.

MEMORANDUM ^**

Doris Jean Hoke appeals from the Benefits Review Board's ("the Board") denial of worker compensation benefits under the Longshore and Harbor Worker's Compensation Act ("LHWCA"), 33 U.S.C. Sec. 901 et seq. Because the Board's decision that employer Todd Shipyards Co. rebutted the statutory presumption in favor of compensation is not supported by substantial evidence, we reverse and remand.

I.

In the late afternoon of June 2, 1982, Truby Lee Hoke punched out of work at Todd Shipyards, where he was employed as a welder. An hour later, as he was fixing a flat tire on his van parked in the employer's lot a few hundred yards away, unknown persons, for unknown reasons, shot and killed him.

II.

The widowed Mrs. Hoke claimed compensation under the LHWCA, which provides compensation for work-related injuries or death to any person engaged in maritime employment. Compensable injuries are restricted to: "the accidental injury or death arising out of and in the course of employment ... includ[ing] an injury caused by the willful act of a third person directed against an employee because of his employment." 33 U.S.C. Sec. 902(2) (emphasis added). The Supreme Court said in U.S. Ind./Fed. Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 615 (1982), that "arising out of" and "in the course of" are separate elements that refer, respectively, to the cause of the injury and to the time, place and circumstances of the injury.

Claimants under LHWCA receive the benefit of the statutory presumption that LHWCA covers claims brought under it. 33 U.S.C. Sec. 920(a). An employer may rebut the presumption with substantial evidence that the injury or death was not related to employment. At the hearing to determine whether Mrs. Hoke was entitled to compensation, the Administrative Law Judge ("ALJ") found that Todd Shipyards had rebutted the presumption that Mr. Hoke's shooting death arose out of and occurred in the course of his employment with Todd Shipyards. The ALJ decided that the shooting did not occur within the space or time boundaries of Mr. Hoke's employment. The ALJ also decided, but without making a definitive finding, that the motive for the shooting had been personal, not employment-related:

[T]he exact motive of the assailant or assailants in the case at hand remains unknown, at least, on the instant record. It may be safely assumed, however, that the motive was robbery....

Accordingly, the ALJ denied Mrs. Hoke's claim for...