RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 121
arch - April 1995

Benefits Review Board

Linton v. Container Stevedoring Co. , ___ B.R.B.S. ___, BRB No. 93-427 (Oct. 27, 1994) presented the Board with a case of first impression, to wit, the proper interpretation of the phrase "[the amount of] compensation to which the person would be entitled," contained in § 33(g)(1) of the Act, where the award is for a continuing disability.

Under § 33(g)(1), a claim for benefits may be barred if the claimant enters into third-party settlements for amounts less than the amount of compensation to which the person would have been entitled under the Act, without the prior written approval of the employer. In calculating the amount of compensation to which claimant would have been entitled under the Act, the Board held that the § 33(g)(1) comparison must be made based on Claimant's lifetime entitlement to compensation and not the amount which has accrued as of the date of the settlement.

While the administrative law judge may use "any reasonable method," the Board stated that the calculation would necessitate findings as to the extent of impairment, the applicable compensation rate, and the claimant's lifetime expectancy. To that end, the administrative law judge may consider medical testimony, reports regarding the claimant's physical condition, actuarial tables, and any other probative evidence to project the claimant's lifetime compensation entitlement.

In addition, the Board stated that § 3(e) credits for state workers' compensation payments should be included in the calculation of total lifetime entitlement to compensation when considering the applicability of § 33(g)(1). Also, the net amounts of multiple third-party settlements, in the aggregate, must be considered. Finally, the administrative law judge must set forth the calculation used in the "less than" comparison of
§ 33(g)(1). It is noted that, while the Board's holdings in this case are elementary, the guidelines for calculating compensation which a claimant will receive under the Act may be instructive and worth your perusal.

In a similar vein, Harris v. Todd Pacific Shipyards and Hendrickson v. Lake Union Dry Dock Co. , ___ B.R.B.S. ___, BRB Nos. 93-2227 and 93-2454 (Oct. 25, 1994) stated that, in order for § 33(g)(1) of the Act to apply, a person entitled to compensation under the Act must have entered into a settlement for compensation which is less than that which he would be entitled under the Act. To aid in determining whether § 33(g)(1) applies, the administrative law judge must compare the net amount of the third party settlements to the amount the claimant would be entitled to under the Act.

[ 3.4.1, § 3(c), credit for prior awards; 33.10, § 33(g) and prior employer approval ; 33.7.2, post- Cowart ]

In Sketoe v. Dolphin Titan International, Exxon Co. , ___ B.R.B.S. ___, BRB Nos. 93-817 and 93-817A (Sept. 15, 1994), the Board reversed the administrative law judge's finding and determined that Exxon, the general contractor in an oil well drilling project with Dolphin Titan, could not be held secondarily liable under the Act.

The Board found Chavers v. Exxon Corp. , 716 F.2d 315 (5th Cir. 1983), instructive in determining that a statutory employment relationship will be found only where the injured employee's employer contracted to perform work which is so clearly allied to that of the principal employer that it is in fact either an extension or component of the principal's commonly relied upon resources. The Board noted that, like other major oil companies' operations, Exxon had not drilled on its own in many years and had no drills or rigs. Further, while Exxon engineers designed specifications on the manner of drilling, Exxon did not operate the machinery.

The dissent asserted that Chavers applies Louisiana State law and is, therefore, not controlling. The dissent noted that the appropriate law to apply was Director, OWCP v. National Van Lines, 613 F.2d 972 (D.C. Cir. 1979), in which control, and not performance of specialized work, is the pertinent inquiry. In that regard, the dissent agreed with the administrative law judge that Exxon and Dolphin Titan were in the business of petrochemicals in general as part of the chain which produces petrochemical products for end users and, as such, they were both part of a larger project as defined in National Van Lines .

[ 4.1.1, § 4(a) contractor/subcontractor liability ]