Weber v. S.C. Loveland Co.

Decision Date30 January 2002
Docket Number00-838A,BRB 00-838,00-838B
PartiesJOSEPH D. WEBER, III, Claimant-Respondent v. S.C. LOVELAND COMPANY, Employer-Respondent Cross-Petitioner A and AETNA CASUALTY AND SURETY COMPANY, Carrier-Respondent Cross-Petitioner B and CHUBB INSURANCE COMPANY, Carrier-Petitioner Cross-Respondent B and DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Party-in-Interest
CourtLongshore Complaints Court of Appeals

Appeal of the Decision and Order Upon Remand of Paul H. Teitler Administrative Law Judge, United States Department of Labor.

Jane G. O'Donnell (Deasey, Mahoney & Bender, Ltd.) Philadelphia, Pennsylvania, for claimant.

Michael Huber (Freeman, Barton, Huber & Sacks, P.C.) Haddonfield, New Jersey, for employer.

John M. Sartin, Jr. (Cornelius, Sartin & Murphy), New Orleans, Louisiana, for Aetna Casualty & Surety Company.

David R. Kuntz (David Robertson Kuntz & Associates), Philadelphia, Pennsylvania, for Chubb Insurance Company.

Joshua T. Gillelan II (Eugene Scalia, Solicitor of Labor; Carol A. DeDeo, Associate Solicitor), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.

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

DECISION AND ORDER ON MOTIONS FOR RECONSIDERATION

PER CURIAM:

Claimant employer, Chubb Insurance Company (Chubb), and the Director, Office of Workers' Compensation Programs (the Director), have filed timely motions for reconsideration of the Board's decision in the captioned case, Weber v. S.C. Loveland Co. [Weber II], 35 BRBS 75 (2001). 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407. Aetna Casualty and Surety Company (Aetna) and employer have filed response briefs.

The facts of this case are not in dispute. To reiterate, on May 3, 1986, while working for employer as a field superintendent, claimant injured his back in the port of Kingston, Jamaica, when he was walking on the catwalk on employer's barge, and he slipped and fell. Claimant was hospitalized in Jamaica and later flown back to the United States. Chubb has paid claimant medical benefits in the amount of $550, 335.79 and workers' compensation payments in the amount of $231, 880.67, under Pennsylvania law pursuant to the Foreign Voluntary Workers' Compensation insurance policy purchased by employer. From May 3, 1986, through February 18, 1989, in addition to payments from Chubb, claimant received from employer supplementary payments of salary in contemplation of its potential liability under the Jones Act.

Claimant's usual job at the time of his injury included making repairs, cleaning and painting employer's vessel, loading and unloading cargo, and transferring people to different jobs. Claimant testified that 90 to 95 percent of his work occurred within the United States, and the remaining time was spent in other countries, including Canada, Mexico, Columbia, Costa Rica, Venezuela, Cuba, and Jamaica. On the day of his injury, claimant was sent to Jamaica to discharge a vessel's grain cargo, which had been loaded in New Orleans, Louisiana.

Claimant brought an action in the United States District Court for the Eastern District of Pennsylvania under the Jones Act, 46 U.S.C. §688 et seq. In an Order dated March 18, 1989, the court determined that the Jones Act did not apply and granted summary judgment in favor of employer. The court found that claimant is an "employee" under Section 2(3) of the Longshore Act, 33 U.S.C. §902(3), and not a Jones Act seaman. Cl. Ex. 1. Following the dismissal of the Jones Act case, employer continued to pay claimant his salary, in appreciation of claimant's past services, until June 30, 1994.[1]

In his initial decision, the administrative law judge found, and the parties do not dispute, that claimant meets the status requirement of Section 2(3) of the Act. However, the administrative law judge determined that "navigable waters of the United States, " pursuant to Section 3(a) of the Act, 33 U.S.C. §903(a), did not extend to the territorial waters of another nation. As claimant's injury occurred in the territorial waters of Jamaica, the administrative law judge concluded that claimant did not meet the Section 3(a) situs requirement, and he denied claimant benefits.

Claimant appealed, and the Board reversed the administrative law judge's determination that claimant's injury did not occur on a site covered under the Act. Relying on cases which discuss the Act's coverage over injuries occurring on the high seas, [2] the Board held that Longshore Act coverage extends to claimant who was injured in the port of Kingston, Jamaica. The Board remanded the case for the administrative law judge to address Chubb's contention regarding its right to reimbursement from employer's longshore carrier, Aetna, and employer's entitlement to relief under Section 8(f) of the Act, 33 U.S.C. §908(f). Weber v. S.C. Loveland Co. [Weber I], 28 BRBS 321 (1994).

On remand, the administrative law judge determined that claimant's injury is covered by the Act, pursuant to the Board's decision in this matter. Decision and Order Upon Remand at 6. The administrative law judge next found that the longshore endorsement contained in the insurance policy issued by Aetna does not provide coverage for claimant's injury, as it limits coverage only to work performed in the states designated therein and does not cover injuries extending beyond the borders of the United States. Id. at 12. By contrast, the administrative law judge found that the insurance policy issued by Chubb did cover claimant's injury, as no exclusion for longshore benefits is contained in Coverage A of that policy. Accordingly, the administrative law judge concluded that Chubb is not entitled to reimbursement from Aetna, but found that pursuant to Section 14(j) of the Act, 33 U.S.C. §914(j), employer is entitled to reimbursement from Chubb for the payments employer made from May 3, 1986, through February 18, 1989, under the assumption that it would be reimbursed by its Jones Act carrier. Id. at 13-15. Employer, Chubb and Aetna each appealed this decision.

In its decision, the Board held it will adhere to its holding that claimant's injury occurred on a covered situs, as being the law of the case. Weber II, 35 BRBS at 78-79. The Board also addressed the issue of responsible carrier and reversed the administrative law judge's conclusion that Chubb is liable for claimant's longshore benefits. After a review of the two insurance policies, the Board concluded that neither policy covers the injury herein and that employer is liable for claimant's longshore benefits. Id. at 81. Finally, as the parties, including the Director, had stipulated to liability of the Special Fund, the Board modified the administrative law judge's decision to reflect employer's entitlement to Section 8(f) relief. Id. at 82. In footnotes pertinent to the motions herein, the Board held harmless the administrative law judge's failure to consider Aetna's lack of a response to a request for admissions, Id. at 81 n.7, and it noted that Chubb did not appeal the administrative law judge's ruling that it is not entitled to a credit from Aetna, but maintained only that it is entitled to reimbursement from the Special Fund, Id. at 82 n.9.

Four parties have moved for reconsideration of this decision, raising numerous issues.[3] Effect of the Administrative Law Judge's August 4, 1998 Interlocutory Order

Claimant and employer move the Board to reverse its decision, contending that no party appealed the administrative law judge's order of August 4, 1998, denying employer's motion to be dismissed from the case and finding that one of the insurance companies, and not employer, would be held liable for claimant's benefits, and that order is final and controlling.[4] Thus, they argue that the Board's decision holding employer liable for claimant's benefits is contrary to that final order. We reject this argument. The order on which claimant and employer rely in asserting that a carrier must be held liable in this case was interlocutory and did not conclusively resolve any issue of the case. Rather, the administrative law judge identified the disputed issue of responsible carrier and stated that a resolution of this issue would be forthcoming in a Decision and Order. Such an order is non-final and could not have been appealed at the time it was rendered because it did not meet the criteria for the Board to accept an interlocutory appeal. See Butler v. Ingalls Shipbuilding, Inc., 28 BRBS 114 (1994); Arjona v. Interport Maintenance, 24 BRBS 222 (1991). However, failure to appeal an interlocutory order does not bar consideration of any issues raised therein when a final decision is issued, as appeal of those findings may be made after the final decision is issued. See Burns v. Director, OWCP, 41 F.3d 1555, 29 BRBS 28(CRT) (D.C. Cir. 1994); Butler, 28 BRBS 114; 20 C.F.R. §702.350. Moreover, an employer is primarily liable for a claimant's benefits, and it remains so in the absence of an insurance carrier. 33 U.S.C. §§904, 905, 932, 935, 936; see B.S. Costello, Inc. v. Meagher, 867 F.2d 722, 22 BRBS 24(CRT) (1st Cir. 1989). Consequently, we deny the motion to reverse the Board's decision on these grounds.

Effect of Foreign Voluntary Workers' Compensation Insurance

Claimant and employer next argue that the Board erred in holding employer, and not Chubb, liable for longshore benefits. They first assert that the Board remanded the case to the administrative law judge with the authority to determine the responsible carrier and, without a change in the underlying facts, the Board cannot disturb the administrative law judge's decision. We reject this assertion. The Board is vested with the power to review the administrative law judge's decision, and, if his findings of fact and conclusions of law are not supported by substantial evidence are not rational, or are not in accordance with law, 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965), then they cannot be...

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