J.T. v. Global International Offshore, Ltd.

Decision Date29 July 2009
Docket NumberBRB 08-0119,08-0119A
PartiesJ.T., Respondent Cross-Petitioner, v. GLOBAL INTERNATIONAL OFFSHORE, LIMITED and LIBERTY MUTUAL INSURANCE COMPANY, Employer/Carrier-Respondents Cross-Respondents, KELLER FOUNDATION/CASE FOUNDATION and ACE U.S.A./E.S.I.S., Employer/Carrier-Petitioners Cross-Respondents
CourtLongshore Complaints Court of Appeals

Appeals of the Order Denying in Part and Granting in Part Employer's Motion for Summary Decision (Oct. 13, 2004) the Order Granting in Part and Denying in Part Employer's Motion for Summary Decision, and Granting in Part and Denying in Part Claimant's Cross Motion for Summary Decision (May 2, 2005), the Decision and Order Awarding Temporary Partial Disability Benefits and Hearing Loss Benefits, and the Order Granting Claimant's Motion for Reconsideration of Anne Beytin Torkington, Administrative Law Judge, United States Department of Labor.

Joshua T. Gillelan II (Longshore Claimants' National Law Center), Washington, D.C., and Eric A. Dupree and Paul R Myers (Dupree Law), San Diego, California, for claimant.

James P. Aleccia (Aleccia, Conner & Socha), Long Beach California, for Global International Offshore, Limited, and Liberty Mutual Insurance Company.

Robert E. Babcock (Babcock/Haynes, L.L.P.), Lake Oswego, Oregon, for Keller Foundation/Case Foundation and Ace U.S.A./E.S.I.S.

Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM:

Keller Foundation (Keller) appeals and claimant cross-appeals the Order Denying in Part and Granting in Part Employer's Motion for Summary Decision (Oct. 13, 2004), the Order Granting in Part and Denying in Part Employer's Motion for Summary Decision, and Granting in Part and Denying in Part Claimant's Cross Motion for Summary Decision (May 2 2005), the Decision and Order Awarding Temporary Partial Disability Benefits and Hearing Loss Benefits, and the Order Granting Claimant's Motion for Reconsideration (2004-LHC-0698) of Administrative Law Judge Anne Beytin Torkington rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act).[1] We must affirm the administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant worked for Global Offshore (Global) in Louisiana from October 1995 until approximately February 1996. He was assigned to convert the DB-1/Navajo from a flat-deck barge to a derrick barge. He was then assigned to the Hercules which he accompanied on a job in the Gulf of Mexico. Between July 1996 and November 1997, claimant worked for Keller in San Diego, California. He worked on the South Bay Ocean Outfall sewer project where he worked from barge decks installing a temporary platform approximately three miles offshore, he loaded and unloaded barges at the shore and the platform and outfitted the platform, and, during the last six months of his employment with Keller, he spent 95 percent of his time loading and unloading barges at the R.E. Staite shipyard. In March 1998, claimant contracted with Global to work as a barge foreman on the Iroquois. He worked on this vessel in the shipyard in Louisiana before its voyage, while it was being towed to Mexico, and while it was laying pipe off the coast of Del Carmen, Mexico. Thereafter, and until his heart attack in 2002 caused him to stop working, claimant worked overseas for Global on barges "264" and the Seminole and in ports in Malaysia, Singapore, and Indonesia. Decision and Order at 6-8; Oct. 2004 Order at 2-3.

Following recuperation from his 2002 heart attack, [2] claimant complained to his physician in August 2002 that he was having numbness and tingling in his hands.[3]Decision and Order at 28; Cl. Ex. 3; Global Ex. 10, 26. The parties do not dispute that claimant suffers from bilateral carpal tunnel syndrome, bilateral arthritis of the hands, and bilateral ulnar entrapments. Decision and Order at 44. The parties also do not dispute that claimant suffers from hearing loss in his left ear. Claimant filed a claim for benefits for his hearing loss, upper extremity trauma, and heart condition against Global on February 24, 2003. Global Ex. 1. The administrative law judge issued an order joining Keller to the case in September 2005. Keller Ex. 3.

On May 5, 2004, Global filed a motion for summary decision alleging that claimant was excluded from coverage because he was a member of a crew and because his injuries did not occur on "navigable waters of the United States." In her October 2004 Order, the administrative law judge found that claimant was not a member of a crew while renovating the DB-1/Navajo for Global in 1995-1996 and that there was a triable issue of fact as to whether he was covered by the Act during this period when he potentially suffered cumulative arm trauma. Additionally, the administrative law judge found that claimant was excluded from coverage when he suffered his 2002 heart attack because he was a member of the crew of the Seminole, a vessel in navigation. Oct. 2004 Order at 6-7.

On January 5, 2005, claimant and Global filed motions for summary decision, both alleging they are entitled to summary decision on issues of either status or situs. The administrative law judge found there is a triable issue of fact regarding whether claimant's hand/arm injuries are due to cumulative trauma. She reiterated that claimant was not a member of a crew during his assignment on the DB-1/Navajo in 1995-1996 and that there was a triable issue as to whether he was covered by the Act during that period.[4]The administrative law judge also found that claimant was a member of a crew and was thus not covered by the Act during his assignment to the Hercules in February 1996. May 2005 Order at 6-8. Additionally, the administrative law judge found that the Board's decision in Weber v. S.C. Loveland Co. [Weber I], 28 BRBS 321 (1994), decision after remand [Weber II], 35 BRBS 75 (2001), on recon., 35 BRBS 190 (2002), is distinguishable and that any injuries claimant sustained in the Asian ports are not covered because the ports are not "navigable waters of the United States." Thus, she found that claimant was not a covered employee during his land-based assignments in Asia. May 2005 Order at 3, 9-10.[5]

In her Decision and Order on the merits, the administrative law judge found that claimant was not a covered employee during his last employment with Global between 1998 and 2002. She found that he was, however, a covered employee with Keller in 1997 because of his duties loading and unloading barges at the platform and on shore, as well as outfitting and dismantling a concrete mixing barge.[6] Thus, the administrative law judge determined that Keller is the responsible employer. Decision and Order at 11-19. In addressing claimant's injury and compensation, the administrative law judge found that claimant's upper extremity condition "developed over time due to cumulative trauma from his work[, ]" id. at 45, and that he was exposed to injurious noise during the course of his employment, id. at 47. She concluded that Keller is liable to claimant for temporary partial disability benefits for three different periods and for temporary total disability benefits for two different periods for the upper extremity injury.[7] 33 U.S.C. §908(a), (e). The administrative law judge also awarded claimant hearing loss benefits on a binaural basis for 13.126 weeks, medical benefits for both upper extremities' conditions and hearing loss, and interest. She awarded Keller a credit for benefits already paid. Decision and Order at 99. In response to claimant's motion for reconsideration, the administrative law judge clarified that, due to her earlier rulings, claimant was not a covered employee during his second period of employment with Global between 1998 and 2002. Order Granting Cl. M/ Recon.

Keller appeals the administrative law judge's decision, arguing that it is not the responsible employer. Global responds, urging affirmance. BRB No. 08-0119. Claimant cross-appeals, arguing that Global should be held liable as the responsible employer and that, regardless of which employer is liable, the administrative law judge's findings on hearing loss, suitable alternate employment, average weekly wage, and maximum compensation rate are erroneous. Global responds, urging the Board to reject claimant's contentions. Keller responds, agreeing in part with claimant and agreeing in part with Global. BRB No. 08-0119A.

Estoppel

Claimant first contends Global is the responsible employer as it is estopped from denying coverage under the Act by virtue of claimant's employment contract with Global which, he argues, provides that he is covered by the Act in the event of occupational injury or illness.[8] Specifically, claimant asserts that the administrative law judge erred in addressing this argument as if it were an equitable estoppel issue contending she should have addressed it as a promissory estoppel issue. That is, claimant asserts he is entitled to a remedy based on Global's promise, as the contract between them "constituted an assurance that he would be entitled to recovery of compensation under the Longshore Act"[9] making "Global's crew-member and 'extraterritoriality' defenses" moot. Cl. Brief at 11-12; Cl. Reply Br. at 5. Global responds, arguing that even if estoppel were to apply as to any Jones Act remedy claimant might have, if workers' compensation is implicated, claimant's injuries could fall under a state workers' compensation law as opposed to the Longshore Act, as the contract does not specify that the applicable workers' compensation law would be the Longshore Act. Global, therefore, argues that the administrative law...

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