UNITED STATES COURT OF
FOR THE SECOND CIRCUIT
August Term, 2000
(Argued: March 12, 2001 Decided:
April 26, 2001 )
Docket No. 00-4180
AMERICAN STEVEDORING LIMITED,
- v. -
VICTOR MARINELLI, OFFICE
OF WORKERS' COMPENSATION
PROGRAMS, U.S. DEPT. OF LABOR,
SOTOMAYOR and JACOBS, Circuit
Judges, and BERTELSMAN, District Judge.*
Appeal from a decision of the Benefits
Review Board of the United States Department of Labor affirming
a decision of an administrative law judge awarding respondent
Victor Marinelli permanent total disability compensation under
the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.
901 et seq. Finding that Marinelli's shop steward duties
were integral and essential to petitioner's stevedoring operation
and that petitioner was Marinelli's employer, the Board held
that Marinelli is entitled to permanent total disability compensation
under the Act.
LAWRENCE P. POSTAL, Seyfarth Shaw,
Washington, D.C., for Petitioner.
PHILIP J. ROONEY, Israel, Adler,
Ronca & Gucciardo, New York, N.Y., for Respondent Victor
JOSHUA T. GILLELAN II, Senior Attorney,
Office of the Solicitor of Labor, Division of Employee Benefits,
Washington, D.C., for Respondent Director, OWCP.
SOTOMAYOR, Circuit Judge:
Petitioner American Stevedoring
Limited ("ASL") appeals from an order of the Benefits
Review Board of the United States Department of Labor (the "Board")
affirming the decision of an administrative law judge
("ALJ") awarding respondent Victor Marinelli ("Marinelli")
permanent total disability compensation under the Longshore and
Harbor Workers' Compensation Act ("LHWCA" or the "Act"),
33 U.S.C. § 901 et seq. ASL argues on appeal that
(i) Marinelli is not entitled to benefits because his shop steward
duties did not qualify as "maritime employment"; (ii)
ASL is not required to pay such benefits because it was not Marinelli's
employer; and (iii) Marinelli failed to establish that he was
permanently and totally disabled. Finding each of these arguments
to be without merit, we affirm the Board's affirmance of the
ALJ's award of permanent total disability compensation to Marinelli.
Prior to 1986 or 1987, Marinelli
was employed by ASL's predecessor as a "safety man,"
that is, a worker whose duty it is to ensure that conditions
on the loading terminal are sufficiently safe for stevedoring
work.1 In 1986 or 1987, Marinelli's employment
as a safety man ceased when he was appointed by the International
Longshoremen's Association Local 1814 (the "union"),
the union representing ASL employees, as its shop steward - a
position required by the collective bargaining agreement ("CBA")
between ASL and the union. Subsequently, Marinelli was elected
to the shop steward position by the union members. Marinelli
testified that, as shop steward, he was effectively an arbitrator
between ASL's management and the union members. Marinelli had
authority under the CBA to enforce work rules specified in the
CBA, as well as informal pier rules. Both sides would come to
him with complaints. ASL typically complained that the workers
were not following the work rules or not working diligently,
while the union members generally complained that they were short
of men or received insufficient breaks. Sometimes Marinelli sided
with management, sometimes with the union members. Marinelli
testified that, on occasion, he would order a work stoppage,
without the union's permission, if he believed that ASL was requiring
union members to work under unsafe conditions.
The CBA required the shop steward
to be present on the pier whenever stevedoring work was taking
place. In practice, however, loading and unloading took place
even when Marinelli was not physically present on the pier, but
he had to be available at such times. Marinelli would be paid
for every hour stevedoring work was taking place, regardless
of whether he was physically present on the pier.
Pursuant to the CBA, ASL paid Marinelli's
hourly wages and deducted therefrom amounts for federal and state
income tax, social security benefits, and disability benefits.
ASL officials testified, however, that they had no control
over Marinelli's activities. Marinelli stated that, three or
four times a week, he reported to union officials about what
was taking place on the pier, but that nobody told him what to
do on his job.
On March 16, 1997, after engaging
in a dispute with some of the workers, Marinelli experienced
chest pain, took several nitroglycerin tablets, and passed out,
striking his head as he fell. Marinelli was taken to a hospital
where he underwent a cardiac catheterization. Marinelli was discharged
on March 18, 1997, and thereafter treated with medication. It
is undisputed that Marinelli suffered from pre-existing coronary
artery disease, had previously undergone a coronary bypass procedure
in 1989, and had been suffering from chest pain for three years
before the incident occurred. After March 16, 1997, Marinelli
also began treatment for psychological symptoms.
Subsequent to the March 16th
incident, Marinelli filed a claim for permanent total disability
compensation under the LHWCA, contending that stressful conditions
at his place of employment aggravated his underlying heart and
psychological conditions. Marinelli's filing of this claim brought
the Director of the Office of Workers' Compensation Programs
(the "Director"), United States Department of Labor
("OWCP") into the case as an interested party. See
Ingalls Shipbuilding, Inc. v. Director, OWCP (Yates), 519
U.S. 248, 262-70 (1997).
An initial hearing on Marinelli's
LHWCA claim was held on April 23, 1998. In an Interim Decision
and Order on Jurisdiction entered June 29, 1998, the ALJ found
that an employer-employee relationship existed between ASL and
Marinelli. The ALJ further found that Marinelli's shop steward
duties were an integral and essential part of ASL's stevedoring
business, and therefore held that Marinelli was a covered maritime
employee under Section 2(3) of the Act, 33 U.S.C. § 902(3).
Further hearings on the merits of
Marinelli's claim were held on January 12, 1999 and March 16,
1999. In a Decision and Order entered July 13, 1999, the ALJ
found that Marinelli's work stress had aggravated his underlying
cardiac condition and caused adverse psychiatric consequences,
and that Marinelli was unable to return to his usual employment.
On the basis of these findings, the ALJ awarded Marinelli permanent
total disability compensation under 33 U.S.C. § 908(a),
and medical benefits under 33 U.S.C. § 907.
In a Decision and Order dated August
1, 2000, the Board affirmed both ALJ orders. Marinelli
v. Am. Stevedoring Ltd., BRB No. 99-1135, 2000 WL 1133566
(B.R.B. Aug. 1, 2000). ASL timely appealed. We have jurisdiction
over this appeal pursuant to 33 U.S.C. § 921(c).
Our review of the underlying administrative
decisions is of limited scope: "We will only consider whether
the [Board] made any errors of law and whether the ALJ's findings
of fact, in light of the entire record, are supported by substantial
evidence." Sealand Terminals, Inc. v. Gasparic, 7
F.3d 321, 323 (2nd Cir. 1993). Furthermore, we grant deference
to the views of the Director with regard to questions of interpretation
of the LHWCA. Fleischmann v. Director, OWCP, 137 F.3d
131, 136 (2d Cir. 1998).2
In order to qualify for permanent
total disability benefits to be paid by ASL under the LHWCA,
Marinelli was required to demonstrate that (i) he was engaged
in "maritime employment," 33 U.S.C. § 902(3);
(ii) an employer- employee relationship existed between him and
ASL, id. §§ 902(2), 902(3), 902(4); (iii) his
injury was causally related to his employment, id. §
902(2); and (iv) his injury rendered him permanently and totally
unable to perform his job, id. §§ 902(10), 908(a).
I. "Maritime Employment"
Section 2(3) of the Act defines
a covered "employee" as "any person engaged in
maritime employment, including any longshoreman or other person
engaged in longshoring operations, and any harbor-worker including
a ship repairman, shipbuilder and ship-breaker." 33 U.S.C.
§ 902(3). An employee is engaged in maritime employment
as long as some portion of his job activities constitutes covered
employment. See Northeast Marine Terminal Co., Inc. v. Caputo,
432 U.S. 249, 275-76 (1977). Maritime employment is not limited
to the occupations specifically enumerated in Section 2(3), but
also encompasses any employment that is "an integral or
essential part of loading or unloading a vessel." Chesapeake
& Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 45 (1989).
Implicitly invoking Schwalb's
"integral or essential" test, the ALJ concluded that
Marinelli's performance of his shop steward duties was "an
integral part of and essential to [ASL's] maritime business."
The ALJ based this conclusion on findings that Marinelli (i)
represented the interests of both ASL and the union members,
and (ii) "facilitated the day- to-day operation of [ASL's]
business so as to remove interpersonal obstacles which might
otherwise obstruct such ongoing operations."
The Board affirmed, finding that
the ALJ's conclusion was supported by substantial evidence and
consistent with numerous state court cases holding that shop
stewards and other union officials are entitled to workers' compensation
benefits from employers because "they act in the interest
of employers as well as unions, as the negotiation and implementation
of collective bargaining agreements prevents unrest and promotes
the uninterrupted operation of an enterprise." Marinelli,
2000 WL 1133566, at *4 n.5 (collecting cases).
On appeal, ASL argues that Marinelli's
claim fails under Schwalb's "integral or essential"
test because (i) "non-union longshoring operations do better
without a shop steward," (ii) "ships loaded and unloaded
even when [Marinelli] was not present," and (iii) Marinelli's
"duties were the same as a shop steward in Kansas at a tire
The first of these three claims
is without merit because the relevant question is whether Marinelli's
shop steward duties were integral or essential to ASL's
stevedoring operations - operations that were carried out by
unionized employees - not whether shop steward duties are integral
or essential to stevedoring operations in general.
As for the second and third claims,
the Director correctly points out that virtually identical claims
were explicitly rejected by the Supreme Court in Schwalb.
Schwalb concerned railroad employees at waterfront coal
terminals who performed maintenance and repair work on the equipment
used to dump coal from rail cars and to convey it from the dumping
area to the ships' holds. Schwalb, 49 U.S. at 43. The
Court held that "employees who are injured while maintaining
or repairing equipment essential to the loading or unloading
process are covered by the Act." Id. at 47. The Court
explained that such employees are not
removed from coverage if they also
have duties not integrally connected with the loading or unloading
functions. . . . When machinery breaks down or becomes clogged
or fouled because of the lack of cleaning, the loading process
stops until the difficulty is cured. It is irrelevant that
an employee's contribution to the loading process is not continuous
or that repair or maintenance is not always needed.
added). This reasoning applies equally to defeat ASL's second
contention that because ships sometimes were loaded and unloaded
without Marinelli being physically present, he was not needed.
It is irrelevant to Marinelli's claim that his contribution to
the loading process was not always needed.
The Schwalb court also stated
that "[i]t makes no difference that the particular kind
of repair work [the workers were] doing . . . might be done by
railroad employees wherever railroad cars are unloaded."
Id. at 48. This reasoning applies equally to defeat ASL's
third claim that Marinelli's work as a shop steward was not particular
to the stevedoring industry. It makes no difference that the
particular kind of shop steward work Marinelli performed might
have been performed by a shop steward at a tire plant in Kansas.4
In sum, the ALJ's determination
that Marinelli was engaged in maritime employment was supported
by substantial evidence.5
II. Employer-Employee Relationship
For a claim to be compensable under
the Act, the injury must arise out of and in the course of employment.
33 U.S.C. § 902(2). Therefore, an employer-employee relationship
between the employer and the claimant must exist at the time
of the injury. See Fitzgerald v. Stevedoring Servs. of Am.,
BRB No. 00-0724, 2001 WL 94757, at *4 (B.R.B. Jan. 31, 2001)
(en banc) (citing Clauss v. Washington Post Co., 13 B.R.B.S.
525 (1981), aff'd, 684 F.2d 1032 (D.C. Cir. 1982)). Under
the Act, "employee" is defined as "any person
engaged in maritime employment," and "employer"
is defined as "an employer any of whose employees are employed
in maritime employment." 33 U.S.C. §§ 902(3),
A. The ALJ's Analysis
The ALJ rested his determination
that an employer-employee relationship existed between ASL and
Marinelli on two grounds. First, the ALJ noted that ASL was required
by the CBA to pay Marinelli's wages. Second, the ALJ reasoned
Premise 1:ASL was an employer under
the Act because, as a stevedoring company, it employed individuals
"employed in maritime employment."
Premise 2:Marinelli was "employed
in maritime employment."
Conclusion:Therefore, ASL was Marinelli's
employer under the Act.
This reasoning clearly begs the
question of who was Marinelli's employer. The ALJ's conclusion
follows from the premises only if one assumes that Marinelli's
only possible statutory employer was ASL. As ASL points out,
however, the union may have been Marinelli's statutory employer.
ASL contended that the union was Marinelli's statutory employer
because the union - rather than ASL - controlled his activities.
The ALJ rejected this contention:
[T]hat [Marinelli's] job duties
may be under the control of the union has no bearing upon whether
he is an `employee' of [ASL] under the Act. Such traditional
control consideration [sic] indeed begs the question whether
[Marinelli] is an `employee' under the Act, and [ASL's] reliance
upon decisions reached in ["borrowed employee" cases]
is therefore misplaced. In these cases, the issue was which of
several entities was the employer responsible for benefits, and
not, as here, whether [Marinelli] was an `employee' under the
This reasoning also does not address
the issue. Once it was determined that Marinelli was an employee
under the Act, the question remained whether ASL or the union
was his employer.
B. The Board's Analysis
As the Board noted in its decision
has applied three tests to determine
whether an employer-employee relationship exists within the meaning
of the Act: (1) the relative nature of the work, (2) the right
to control details of the work, and (3) . . . Restatement (Second)
of Agency, Section 220, subsection 2, which encompasses factors
set forth in each of the other two tests. The administrative
law judge should apply whichever test is best suited to the facts
of the particular case. Where the administrative law judge's
application of one test is affirmable, the Board need not address
the administrative law judge's application of the other tests.
2000 WL 1133566, at *3.7 Moreover, because the Board reviews
an ALJ's findings of fact to ensure that they are "consistent
with the law," Port Cooper/T. Smith Stevedoring Co.,
Inc. v. Hunter, 227 F.3d 285, 287 (5th Cir. 2000),
the Board may apply one or more of the tests even if the ALJ
has not applied them, see Reilly v. Washington Metro. Area
Transit Auth., BRB No. 84-391, 1987 WL 107386, at *2 (B.R.B.
May 22, 1987) (applying all three tests where ALJ applied no
test to reverse ALJ's determination that no employer-employee
The Board surmised (i) that the
ALJ considered two factors listed in the Restatement (Second)
of Agency: the method of payment of wages and the extent of control
over the details of work, and (ii) that the ALJ determined that
ASL's payment of Marinelli's wages outweighed any consideration
of whether ASL controlled the details of Marinelli's work. Marinelli,
2000 WL 1135566, at *3. Noting that it was undisputed that, pursuant
to the CBA, ASL paid Marinelli's wages, the Board affirmed
the ALJ's determination that ASL was Marinelli's employer. Id.
The Board's surmise that the ALJ
relied on the "method of payment of wages" factor listed
in the Restatement (Second) of Agency § 220(2) is dubious.
Section 220(2)(g) concerns "the method of payment, whether
by the time or by the job." The ALJ, however, did not focus
on whether ASL paid Marinelli by the hour or by the job. Rather,
the ALJ based his conclusion that ASL was Marinelli's employer
on the fact that ASL paid his wages. Furthermore, Section
220(1) defines an employee as "a person employed to perform
services in the affairs of another and who with respect to the
physical conduct in the performance of the services is subject
to the other's control or right to control." §
220(1) (emphasis added). The various factors listed in Section
220(2) - including the "method of payment" factor -
thus are factors that are considered in determining whether the
worker is subject to the other's control or right to control.
§ 220(2). It is thus difficult to square the Board's finding
that the ALJ was relying on the "method of payment"
factor with the ALJ's claim that the issue of whether ASL controlled
Marinelli's job duties was irrelevant.8
C. The "Relative Nature
of the Work" Test
Despite the aforementioned flaws
in the respective analyses of the ALJ and the Board, these analyses
correctly downplayed the issue of "which entity, employer
or the union, controlled the details of [Marinelli's] work."
Marinelli, 2000 WL 1133566, at *3. This control factor
is not "suited to the facts of th[is] particular case,"
id., because it was inherent in Marinelli's position as
a shop steward - a position created by agreement between ASL
and the union - that neither party exercised control over the
details of his work. As the ALJ found, based on substantial evidence,
it was Marinelli's job to mediate disputes between ASL and the
union, and he sometimes sided with ASL, other times with the
union. Marinelli could not have performed this role if he had
been under the detailed control of either entity.9
Hence, in deciding which of the
three employer-employee tests generally applied by the Board
is "best suited" to the facts of this case, the ALJ
quite properly avoided the tests that make the right to control
the details of the employee's work an important factor, namely,
the "right to control the details of the work" test10
and the test embodied in Section 220(2) of the Restatement (Second)
of Ageny.11 The remaining test the Board
has used, namely, the "relative nature of the work"
test, accords no weight to this control factor and therefor is
the appropriate test to use in this case. In applying the "relative
nature of the work" test, a court should
focus on two distinct areas: the
nature of the claimant's work and the relation of that work to
the alleged employer's regular business. In evaluating the character
of a claimant's work, a court should focus on various factors,
including the skill required to do the work, the degree to which
the work constitutes a separate calling or enterprise, and the
extent to which the work might be expected to carry its own accident
burden. In analyzing the relationship of the claimant's work
to the employer's business the factors to be examined include,
among others, whether the claimant's work is a regular part of
the employer's regular work, whether the claimant's work is continuous
or intermittent, and whether the duration of claimant's work
is sufficient to amount to the hiring of continuing services
as distinguished from the contracting for the completion of a
Oilfield Safety and Mach. Specialities,
Inc. v. Harman Unlimited, Inc.,
625 F.2d 1248, 1253 (5th Cir. 1980).
Applying this test to the present
case, it is evident that Marinelli's shop steward position did
not constitute a calling or enterprise separate from ASL's stevedoring
operation. On the contrary, the position existed solely by agreement
of ASL and the union. As ASL's owner testified, other non- union
stevedoring operations are conducted without the benefit of this
position. Nor was Marinelli's position one that could be expected
to carry its own accident insurance. Indeed, ASL's owner testified
that ASL deducted sums from Marinelli's paychecks for disability
benefits. See also Carle v. Georgetown Builders, Inc.,
BRB No. 83-1618, 1986 WL 66425, at *3 (B.R.B. Nov. 28, 1986)
(finding employer-employee relationship because, inter alia,
claimant did not carry his own accident burden). Turning to the
relationship between Marinelli's work and ASL's regular business,
we have noted in the preceding section that Marinelli's shop
steward duties were a regular part of ASL's regular stevedoring
work. Marinelli held the position continuously from 1986 or 1987
until March 16, 1997, a period of time that is sufficient to
amount to hiring of continuing services. Furthermore, the fact
emphasized by the ALJ, ASL's payment of Marinelli's wages, also
supports a finding that ASL was Marinelli's employer. See
Oilfield, 625 F.2d at 1255 (under "relative nature of
the work" test, finding employer- employee relationship
because, inter alia, entity paid claimant's salary); Carle,
1986 WL 66425, at *3 (same). In sum, viewed through the lens
of the "relative nature of the work" test, the ALJ's
determination that an employer-employee relationship existed
between ASL and Marinelli was supported by substantial evidence.
This conclusion is not disturbed
by the fact that ASL exercised no control over the details of
Marinelli's work. As indicated above, this fact does not count
against a finding that ASL was his employer because it was inherent
in the very nature of Marinelli's shop steward position - a position
created by the CBA - that Marinelli operated independently of
both ASL and the union. See Oilfield, 625 F.2d at 1256
(stating that entity's lack of control over claimant did not
count against finding that entity was claimant's employer because
"[t]he nature of [claimant's] job virtually prohibits a
supervisor from controlling the details of the work").
ASL contends that application of
the "relative nature of the work" test to this case
yields the conclusion that the union, not ASL, was Marinelli's
employer because Marinelli "was a labor representation [sic],
and [ASL] was not in the business of providing labor representation.
[ASL] was in the business of loading and unloading ships. The
only employer in this case who was in the business of providing
labor representation was [Marinelli's] union." This argument
is without merit. Simply applying the conclusory label "labor
representation" to Marinelli's work does not alter the actual
nature of that work - work that the ALJ and the Board correctly
determined to constitute "maritime employment."
D. The "Borrowed Employee"
ASL argues that the ALJ erred because
he failed to employ the "borrowed employee" test, and
that application of this test yields the conclusion that the
union, not ASL, was Marinelli's employer. As the Board
noted, the "borrowed employee" test has been used to
determine which of two entities is responsible for a worker's
disability benefits under the Act. Marinelli, 2000 WL
1133566, at *3 n.4. In applying the test, courts have considered
a variety of factors with a view to determining whether the "lending"
employer or the "borrowing" employer is the entity
responsible for benefits. See Gaudet v. Exxon Corp., 562
F.2d 351, 355 (5th Cir. 1977). However, "the
question of who has control over the employee and the work he
is performing, has been considered the central [factor]."
Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1244-45 (5th
Cir. 1988); cf. White v. Bethlehem Steel Corp., 222 F.3d
146, 149 (4th Cir. 2000) ("Ultimately, any particular
factor only informs the primary inquiry - whether the borrowing
employer has authoritative direction and control over a worker.").
The "borrowed employee"
test has been adopted by several of our sister circuits as well
as by the Board. See White, 222 F.3d at 149; Peter
v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 940-43 (3rd
Cir. 1990); Gaudet, 562 F.2d at 356-57; Fitzgerald
v. Stevedoring Servs. of Am., BRB No. 00-0724, 2001 WL 94757,
at *4 (B.R.B. Jan. 31, 2001) (en banc). But see West
v. Kerr-McGee Corp., 765 F.2d 526, 533 (5th Cir.
1985) (Tate, J., concurring in the judgment) (arguing
that under plain language of §§ 904 and 905, the doctrine
cannot apply where the "lending" employer has secured
payment of the Act's benefits to its workers); Doucet v. Gulf
Oil Corp., 783 F.2d 518, 522 (5th Cir. 1986) ("If
the question were open, we might agree with Judge Tate's concurring
opinion in West."). We have heretofore neither adopted
nor rejected this test and find it unnecessary to do so today.
Although this test may apply in an appropriate case, it is inapplicable
to the circumstances of this case for the same reason that the
"right to control the details of the work" test and
the Restatement (Second) of Agency test are inapplicable to this
case: It emphasizes the control factor.12
III. Causation and Permanent
Section 920 of the LHWCA provides
in relevant part that "it shall be presumed, in the absence
of substantial evidence to the contrary- (a) That a claim comes
within the provisions" of the Act. 33 U.S.C. § 920(a).
Inherent in this provision is the presumption that an injury
is causally related to a worker's employment. Port Cooper,
227 F.3d at 287. To invoke this presumption, a claimant must
make out a prima facie case of causation by establishing both
that he suffered harm, and that workplace conditions or a workplace
accident could have caused, aggravated, or accelerated the harm.
Id. If the claimant thus qualifies for the presumption,
the burden shifts to the employer to rebut the presumption with
substantial evidence that the alleged harmful workplace condition
did not cause, contribute to or aggravate the claimant's condition.
Id. at 288. Finally, if the employer offers evidence sufficient
to rebut the presumption, then all relevant evidence must be
weighed to determine if a causal relationship has been established,
with claimant bearing the ultimate burden of persuasion. Id.
After finding that Marinelli had
established a prima facie case of causation and that ASL had
rebutted this case, the ALJ proceeded to step three and concluded
that Marinelli was "unable and disabled from performance
of [his] job." The ALJ based this conclusion on findings
that (i) Marinelli "suffered angina due to . . . job stress
on March 16, 197," (ii) "a return to [his] job would
subject him to continued aggravation of his underlying heart
impairment by exposure to conditions likely to cause insufficient
blood flow to his heart," and (iii) Marinelli had a well-founded
fear that "further performance of his job would result in
psychological (depression/anxiety) and physical (coronary damage)
consequences of intolerable dimension." The Board concluded
that these findings were supported by substantial evidence and
affirmed the ALJ's award of permanent total disability benefits.
Marinelli, 2000 WL 1133566, at *6-*7.
On appeal, ASL raises four challenges
to this conclusion. First, ASL contends that the ALJ "failed
to make findings of fact as to exactly what the March 16, 1997
injury was." The record belies this contention. As noted,
the ALJ explicitly found that Marinelli "suffered angina
due to the job stress on March 16, 197." The ALJ based
this finding on a statement to this effect in the medical report
of Marinelli's treating physician, Dr. Konka.
Second, ASL, citing Director
v. Newport News Shipbuilding & Dry Dock Co., (Carmines),
138 F.3d 134, 140 (4th Cir. 1998), argues that Dr.
Konka's medical report "is not substantial evidence"
because it is "an unexplained conclusory opinion, not stated
with a reasonable degree of medical certainty." This argument
is without substance. Carmines states that "[t]he
ALJ may not merely credulously accept the assertions of the parties
or their representatives, but must examine the logic of their
conclusions and evaluate the evidence upon which their conclusions
are based." Id. Here, the ALJ did more than merely
credulously accept Dr. Konka's report. The ALJ noted that Dr.
Konka was Marinelli's treating cardiac surgeon, that he had performed
several coronary procedures on Marinelli, and that he was intimately
familiar with Marinelli's cardiac state.
Third, ASL contends that the ALJ's
stated reason for disregarding the testimony of ASL's expert,
Dr. Israel, that Marinelli did not suffer an angina attack on
March 16, 1997, was based on an erroneous reading of the record.
The ALJ found that "Dr. Israel's basis for concluding that
the March 16, 1997 pain was non-anginal (i.e., the catheterization
results of March 16, 197 indicating `not enough coronary blockage
to cause chest pain') lacks full creditability [sic] since he
fails to indicate exactly what degree of blockage may result
in angina." ASL claims that Dr. Israel provided this information
because, in his written report submitted to the ALJ, he stated
that the catheterization "showed no areas of myocardium
at risk (no stenosis greater than or equal to 50%)." This
objection is unpersuasive. The ALJ cannot fairly be faulted for
failing to interpret Dr. Israel's statement that 50% or greater
narrowing of cardiac passages is needed for there to be "myocardium
risk" to mean that 50% or greater blockage is the minimum
needed for angina. Moreover, assuming arguendo that the
ALJ had erroneously disregarded Dr. Israel's statement about
the 50% blockage standard, the error was harmless because the
ALJ discounted Dr. Israel's opinion that Marinelli did not suffer
an angina attack on March 16, 1997 for several other reasons
- not the least of which was that this opinion was inconsistent
with the opinion of Dr. Konka, who, according to the ALJ, "performed
the catheterization and was thus in a much better position than
Dr. Israel to interpret the results thereof in terms of degree
of blockage." Indeed, as Marinelli points out, the page
of Carmines cited by ASL actually undermines ASL's argument,
because it states that "the testimony of a non-examining,
non-treating physician should be discounted and is not substantial
evidence if it is totally contradicted by other evidence in the
record." Carmines, 139 F.3d at 140 n.5 (internal
quotation marks omitted).13
Finally, ASL objects that the ALJ
never addressed Dr. Israel's contention that, even assuming that
Marinelli had an angina attack on March 16, 1997, there was no
permanent disability resulting from it because "it is a
temporary condition which resolves." The ALJ implicitly
rejected this contention by relying on Dr. Konka's contrary finding
that Marinelli was "permanently disabled."
We have carefully considered ASL's
remaining arguments and find them to be without merit. For the
reasons discussed, the Board's affirmance of the ALJ's decisions
The Honorable William O. Bertelsman,
of the United States District Court for the Eastern District
of Kentucky, sitting by designation.
A stevedore is a "person employed
in loading and unloading vessels." Black's Law Dictionary
(6th ed. 1990).
ASL contends that, "[w]hile
the deference entitlement is generally true, the courts have
recognized that a litigation position, which is not contained
in regulations, is not entitled to deference." Because,
as explained below, we have no occasion to consider whether the
Director's positions in this litigation should be given deference,
see infra note 3, we do not address ASL's contention.
Citing legislative history indicating
that the Act covers only employees who are "directly involved
in the loading and unloading" of cargo, ASL also argues
that because Marinelli performed no loading or unloading, he
is not covered by the Act. As previously noted, however, the
Supreme Court in Schwalb has already interpreted the Act
as covering any employee whose tasks are "integral or essential"
to the loading and unloading of ships. Hence, we are obliged
to employ this "integral or essential" test, rather
than ASL's proposed alternative test.
also emphasized that "[t]he determinative consideration
is that the ship loading process could not continue unless [the
equipment on which the employees worked] was operating properly."
Id. Because the hearing testimony revealed that Marinelli
resolved disputes that had the potential to interrupt loading
and unloading operations and that Marinelli had the authority
to order a work stoppage, the ALJ could have found that "the
ship loading process could not continue unless" Marinelli
properly performed his duties.
Although this is also the conclusion
urged by the Director, the question of whether we should defer
to the Director's position on this issue does not arise because
we owe such deference only to positions based on the Director's
interpretation of the Act. Fleischmann, 137 F.3d at 136.
As indicated above, however, the Director's position on this
issue is based on his interpretation of Schwalb, rather
than on his interpretation of the Act.
On the other hand, the deference
question does arise with respect to the Director's alternative
argument that Marinelli engaged in maritime employment because
he often worked directly on the ships, because this position
is based on the Director's interpretation of the Act.
Having determined, however, that Marinelli was engaged in maritime
employment based on our interpretation of Schwalb, we
do not reach this alternative argument.
For the same reason, we do not reach
ASL's objection to the Director's reliance on Sanders v. Alabama
Dry Dock and Shipbuilding Co., BRB Nos. 85- 329, 85-329A,
1989 WL 245268 (B.R.B. July 31, 1989).
As explained more fully below, see
infra section II.D, the "borrowed employee" test
has been used to determine which of two entities is a worker's
employer for purposes of the Act. Among the numerous factors
considered in making this determination, the most important is
which entity has the right to control the worker's activities.
As explained below, see infra
section II.D, the Board has also employed a fourth test, the
"borrowed employee" test, in situations in which there
is a dispute concerning which of several entities was the employee's
We also note the following inconsistency
in the Board's analysis of the employer-employee issue: On the
one hand, the Board claims that the instant case "does not
concern . . . whether [Marinelli] is an independent contractor,"
yet, on the other hand (as noted), the Board contends that the
ALJ relied on two factors listed in Restatement (Second) of Ageny
§ 220(2) - factors which courts are to consider when determining
whether a worker is an independent contractor. Marinelli,
2000 WL 1133566, at *3.
Marinelli's testimony that he "reported"
to union leaders is not to the contrary, because he also testified
that no one told him what to do in his job.
The "right to control the details
of the work" test has four recognized elements: 1) the right
to control the details of the work; 2) the method of payment;
3) the furnishing of equipment; and 4) the right to fire. Herold
v. Stevedoring Servs. of Am., BRB No. 96-1080, 1997 WL 692211,
at * 2 (B.R.B. Oct. 3, 1997).
As noted, Section 220 is designed
to determine whether the worker is "subject to [an entity's]
control or right to control." Restatement (Second) of Agency
§ 220(1). Section 220(2)(a) concerns "the extent of
control which . . . the master may exercise over the details
of the work." Id. § 220(2)(a).
Therefore, we need not address the
Director's proposed rule that "the payroll employer should
be foreclosed from asserting that it is not liable because it
had `lent' the worker to someone else unless it has joined the
asserted borrowing employer in the proceeding on the claim"
because this rule presupposes application of the "borrowed
ASL's related objection that the
ALJ ignored the opinion of another non-treating physician, Dr.
Seldon, in which he agreed with Dr. Israel's opinion, thus fails
for these same reasons.