Nelson v. American Dredging Co.
| Decision Date | 11 May 1998 |
| Docket Number | No. 96-3724,96-3724 |
| Citation | 143 F.3d 789 |
| Parties | Josh NELSON, Petitioner, v. AMERICAN DREDGING COMPANY and Signal Mutual Insurance Co., Respondents. |
| Court | U.S. Court of Appeals — Third Circuit |
David M. Linker (ARGUED) Freedman and Lorry, P.C., Philadelphia, PA, for Petitioner.
Francis M. Womack, III (ARGUED) Weber, Goldstein, Greenburg & Gallagher, Jersey City, NJ, for Respondents.
Before: BECKER, Chief Judge, ROTH, Circuit Judge and DIAMOND, 1 Senior District Judge.
Claimant/petitioner, Josh Nelson, was injured in the course of his employment with respondent/appellee, American Dredging Company ("ADC"), and filed a claim for compensation under the Longshore and Harborworkers Compensation Act ("Act"), 33 U.S.C § 901 et seq. (1986). ADC contested the claim on the ground that Nelson's injury was not covered by the Act. After a hearing, the Administrative Law Judge ("ALJ") held that the Act did not cover Nelson's injury and denied compensation. The Benefits Review Board ("Board") affirmed the ALJ's decision, and Nelson appealed to this court pursuant to 33 U.S.C. § 921(c).
The decision of the ALJ affirmed by the Board included the denial of Nelson's motion to enforce a settlement agreement, the rejection of his contention that ADC had waived its right to challenge coverage under the Act, and a ruling that Nelson's injuries were not covered by the Act. We will affirm the Board's affirmance of the ALJ's refusal to enforce the alleged settlement agreement and his rejection of Nelson's contention that ADC had waived its right to challenge coverage under the Act; however, we will reverse and remand the Board's affirmance of the ruling that Nelson's injuries were not covered under the Act.
The operative facts in this matter are not in dispute. The American Dredging Company was a marine contractor whose business operations included the renourishment/ reclamation of beaches to repair erosion and storm damage and to prevent such damage in the future. Josh Nelson was employed by ADC as an assistant foreman/bulldozer operator.
On September 1, 1992, Nelson was injured as the result of a work-related accident. At the time of the accident, he was working on a beach reclamation project ("project") which ADC had been performing for about two months on Fenwick Island, Delaware, under a contract with the state of Delaware. The project consisted essentially of widening the beach by adding sand to it. The sand was obtained from the ocean floor approximately ten miles from the beach by a hopper dredge, a self-propelled vessel named Atlantic American. The sand was deposited in the hold of the vessel which then transported it to a mooring buoy located several hundred yards from the beach where ADC had constructed an underwater pipeline to the beach. The sand in a slurry form was unloaded from the vessel and deposited on the beach by pumping it through this pipeline. 2 The flow of the sand through the pipeline and its distribution on the beach were controlled by moving the pipeline along the beach, by adding sections thereto, and by a system of valves on the pipeline. The final distribution and grading of the sand were done with a bulldozer. ADC was paid for this project on the basis of the number of cubic yards of sand added to the beach.
Nelson operated the bulldozer, which he used not only to distribute and grade the sand on the beach but also to maneuver and otherwise work the pipeline as it unloaded the sand from the hopper dredge. It was his job to move the pipeline from place to place along the beach, add sections to it, and manipulate the valves to facilitate the unloading process. This required him to operate the bulldozer in the ocean waters and frequently to work knee deep in those waters on the pipeline. Nelson was supervised by a foreman on the beach who in turn was supervised by a foreman located on the dredge with whom communications were maintained by radio. The accident which gave rise to this suit occurred when Nelson, who was operating his bulldozer on the beach about fifty feet from the water's edge, slipped and fell as he was dismounting the machine in order to change a pipeline valve.
At all times relevant to this case, the hopper dredge was in the navigable waters of the Atlantic Ocean off of Fenwick Island beach. The beach was used solely for recreational purposes; there were no docks, wharves, piers or other such structures on which vessels could berth on or near it.
Following Nelson's injury, ADC filed a report of injury under the Act, acknowledging (1) that the injury occurred during the course of Nelson's employment and (2) that the nature of ADC's business was "marine contractor." ADC voluntarily paid benefits under the Act from October 1992 until June 1993 when a dispute arose as to the nature and extent of Nelson's disability, and, with the exception of a period between November 8 and December 14, 1993, compensation was terminated pending an impartial medical examination.
After his benefits were terminated, Nelson filed a claim under the Act, and when the parties were unable to resolve their differences during an informal reconciliation process, a formal hearing before an ALJ was requested.
At the hearing before an ALJ on January 13, 1995, Nelson's counsel appeared and informed the ALJ that the parties had reached "an agreement in principle," and that a stipulation pursuant to § 8(i) of the Act, 33 U.S.C. § 908(i)(1), would be forthcoming once certain matters were resolved. He indicated that these matters included the specific amounts of outstanding welfare liens, medical bills which were paid and had to be reimbursed, and the allocation of attorney's fees. Nelson's counsel also explained to the ALJ that Nelson and counsel for ADC were not present at the hearing because the agreement in principle had been reached, but that the parties still were in the process of working out the details of the agreement and they needed 45 days to complete the stipulation and submit it for the ALJ's consideration. A non-lawyer representative of the respondent insurance carrier was present and concurred in the statements made by the Nelson's attorney. After a brief colloquy with Nelson's counsel wherein the general provisions of the contemplated settlement were summarized, the ALJ postponed further proceedings for 45 days to provide the parties with time to submit a § 8(i) application for settlement.
Nelson's counsel subsequently forwarded a proposed § 8(i) stipulation to counsel for ADC who then notified the ALJ that a settlement had not been reached, because, inter alia, there had been no agreement concerning ADC's responsibility for past and future medical expenses. Nelson filed a motion to enforce settlement and attached a copy of the unexecuted § 8(i) stipulation, but the ALJ entered an order denying the motion and scheduling a formal hearing for April 27, 1995.
Following the April 27 hearing, ADC moved for judgment on the ground that Nelson had failed to satisfy the requirements for coverage under the Act. Nelson responded that he had met the coverage requirements and further that ADC had waived the issue of coverage by paying benefits under the Act and failing to raise this issue at the informal level before the District Director.
On November 9, 1995, the ALJ rendered a decision denying Nelson's claim for benefits on the sole ground that he had failed to satisfy the requirements for coverage under the Act.
Nelson appealed to the Board, which affirmed the ALJ as indicated supra.
This court has appellate jurisdiction pursuant to 33 U.S.C. § 921(c). The standard of review is "limited to a determination of whether the Board acted in conformance with applicable law and within its proper scope of review." Sea-Land Service, Inc. v Rock, 953 F.2d 56, 59 (3d Cir.1992) (quoting Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d 805, 807 (3d Cir.1988)). "When factual findings are at issue, we ... make an independent factual review to determine whether the Administrative Law Judge's findings were supported by substantial evidence...." Id. (citing Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d 286, 290 (3d Cir.1982)).
Nelson's contention that the Board erred in affirming the ALJ's refusal to enforce the alleged settlement agreement and his rejection of Nelson's contention that ADC waived its right to challenge coverage are without merit.
In ruling on the ALJ's refusal to enforce settlement, in addition to finding several fatal procedural defects in Nelson's petition for review before the Board, the Board found that the ALJ committed no error since the record was devoid of evidence of a completed settlement agreement between the parties and further because no settlement application had been submitted to the ALJ in accordance with the regulations found in 20 C.F.R. §§ 702.241-702.243. Nelson v. American Dredging Company and Signal Mutual Insurance Company, 30 BRBS 205, 208 (1996).
20 C.F.R. § 702.243(a) provides in its pertinent part:
(a) When the parties to a claim for compensation ... agree to a settlement they shall submit a complete application to the adjudicator ["district director or administrative law judge (ALJ)" § 702.241]. The application shall include all of the information outlined in § 702.242....
Section 702.242(a) and (b) of the regulations provide in their pertinent parts:
(a) The settlement application shall be a self-sufficient document which can be evaluated without further reference to the administrative file. The application shall be in the form of a stipulation signed by all parties....
(b) The settlement application shall contain the following:
(1) A full description of the terms of the settlement which clearly indicates, where appropriate, the...
To continue reading
Request your trial
-
Financial Software System v. First Union Nat. Bank
...of the text. See Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997); Nelson v. American Dredging Co., 143 F.3d 789, 797 & n. 3 (3d Cir.1998). The word "located" is not a term of art in the law. See John B. Oakley, Prospectus for the American Law Institute's ......
-
Financial Software Systems, Inc. v. First Union National Bank, CIVIL ACTION NO. 99-CV-623 (E.D. Pa. 11/23/1999), CIVIL ACTION NO. 99-CV-623.
...I look first to the plain meaning of the text. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997); Nelson v. American Dredging Co., 143 F.3d 789, 797 & n. 3 (3d Cir. 1998). The word "located" is not a term of art in the law. See John B. Oakley, Prospectus for the American Law Institute......
-
Hough v. Vimas Painting Co. Inc.
...in the type of duties longshoremen usually perform in moving cargo from ship to storage); see also Nelson v. American Dredging Co., 143 F.3d 789, 32 BRBS 115(CRT) (3 d Cir. 1998) (injury while unloading dredged sand onto a beach was covered); Loyd v. Ram Industries, Inc., 35 BRBS 143 (2001)......
-
Malta v. Wood Group Production Services
...(1st Cir. 2004); Bianco v. Georgia Pacific Corp., 304 F.3d 1053, 36 BRBS 57(CRT) (11th Cir. 2002); Nelson v. American Dredging Co., 143 F.3d 789, 32 BRBS 115(CRT) (3d Cir. 1998); Sidwell v. Express Container Services, Inc., 71 F.3d 1134, 29 BRBS 138(CRT) (4th Cir. 1995), cert. denied, 518 U......