Benefits Review Board, December 2011, Part 1

In December 2011, the Benefits Review Board published three decisions.  Each involved Electric Boat, although one of them involved it as a work place not as an employer.  The Board held oral argument in each of the cases, so it also publishes the decision.

In Timothy Gelinas v. Electric Boat Corporation, 11-0515, the Board held the Judge did not fully address the evidence of record nor apply that evidence to the case precedent addressing the issue before him.  They went on to vacate and remand the decision, “since it does not satisfy the requirements of the Administrative Procedure Act (APA), 5 U.S.C. §554, and is thus unreviewable. Hearings of claims arising under the Act are subject to the APA, see 33 U.S.C. §919(d), which requires that every adjudicatory decision be accompanied by a statement of “findings and conclusions and the reasons or basis therefor, on all the material issues of fact, law or discretion presented on the record.” 5 U.S.C. §557(c)(3)(A). An administrative law judge thus must adequately detail the rationale behind his decision and specify the evidence upon which he relied. See Ballesteros v. Willamette W. Corp., 20 BRBS 184 (1988); see also Frazier v. Nashville Bridge Co., 13 BRBS 436 (1981).”

This “gate keeper” function would have been sufficient to remand the case in any event.  The Board, however, also discussed the details of the case. 

Mr. Gelinas was a security guard and an emergency medical technician working on the shipyard premises.  He sought cover under the Longshore and Harbor Workers' Compensation Act.  The only question at issue was whether he was a maritime employee.  No question of situs under §3(a) arose.

The Board held that to recover he must show that (a) he is a maritime employee and (b) he is not excluded under §2(3)(A).  We may note, for purists, that actually individuals are not “excluded,” they are “not included”.

To prove maritime employment, the injured worker must show his employment is “integral to the loading, unloading, constructing, or repairing of vessels”.  Thus, not everyone milling around on a covered situs is necessarily covered, even if the employer is a “maritime employer”.

Next, apart from the inclusions of the four classes listed, there are four classes who are not included, clerical, secretarial, security, or data processing work, provided they are exclusively so employed and are office personnel.

The Board noted that Gelinas was both a security person and an EMT, so he was not exclusively a security person; and that he was required to patrol the production facility, so he was not exclusively in an office or administrative area, physically or functionally.

The Board noted the cases relating to “security guards”, noting that it is the duties, not the title, which is dispositive.  The Judge had not adequately addressed Gelinas’s duties.  They further remarked that the Judge, in holding that the worker was not exposed to traditional maritime hazards relied on the discredited “support services” rationale.

This case is a useful summary of the status requirement under the Act, and applicable equally to other non-included workers.  It will be interesting to see how the Judge approaches the case on remand.