Vicknair v. Avondale Industries, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 02-60156
Summary Calendar
_______________
NORMAN VICKNAIR,
Petitioner,
VERSUS
AVONDALE INDUSTRIES, INC.;
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
________________________
Appeal from an Order of
the Benefits Review Board
(00-0942)
_________________________
October 9, 2002
Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
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2
Norman Vicknair filed a claim under the
Longshore and Harbor Workers’ Compensa-
tion Act, as amended, 33 U.S.C. § 901 (“the
Act”), against his former employer, Avondale
Industries, Inc. (“Avondale”), alleging that
while employed at Avondale from 1969 to
1991, he suffered hearing impairment as a re-
sult of exposure to loud noises. Because we
agree with the Benefits Review Board
(“BRB”) that the decision of the administrative
law judge (“ALJ”) was supported by substan-
tial evidence, we affirm.
I.
Vicknair began working at Avondale in
1969 as a helper and pipefitter. He was ex-
posed to loud noises generated from sledge
hammers banging against metal in confined
areas and chipping and grinding from other
craft. Although he was given ear plugs, he did
not always use them.
In 1991, Vicknair left Avondale for Inspec-
tion Services Incorporated (“ISI”), his current
employer. ISI is a quality assurance company
that hires out its employees to oversee work
being performed by its clients, who are pri-
marily builders of drilling rigs.
Vicknair performs inspections of offshore
drilling platforms during the building process
and after completion of the project. Most of
his inspections take place in fabrication shops,
where the offshore production equipment is
made, but he also is responsible for ensuring
that the products are properly loaded and un-
loaded onto barges for shipment offshore.
Vicknair testified that he spent approximately
three weeks inspecting load-outs during an
eight-year period of employment with ISI.
In 1997, an audiogram revealed that Vick-
nair was suffering from hearing loss. He testi-
fied that he was exposed to loud noises while
working in fabrication shops at ISI; he denied
being exposed to loud noises during load-outs.
Although ISI’s Vice-President of Operations
stated that inspectors could be exposed to loud
noises during load-outs, there was no evidence
that Vicknair was ever so exposed.
II.
Vicknair initiated a claim against Avondale
under the Act. The ALJ determined that ISI,
not Avondale, was the last causative employer,
and consequently dismissed the claim. The
BRB affirmed the ALJ’s decision. Vicknair
appeals, contending that the BRB erroneously
determined that he was a covered employee
under the Act at ISI; even if he is, Vicknair
claims that his time spent engaging in maritime
duties was de minimis. He also argues that ISI
cannot be the last causative employer, because
he was never exposed to loud noises while
performing maritime work there.
III.
Our review is limited to determining wheth-
er the BRB correctly concluded that the ALJ’s
order was “supported by substantial evidence
on the record as a whole and is in accordance
with the law.” Avondale Indus., Inc. v. Direc-
tor, OWCP, 977 F.2d 186, 189 (5th Cir. 1992)
(citations omitted). 1 The substan
*(...continued)
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Substantial evidence is defined as “more than
a mere scintilla of evidence, which a reasonable
mind might accept as adequate to support a conclu-
sion.” Universal Camera Corp. v. NLRB, 340
U.S. 474, 477 (1951); see also Avignone Freres,
Inc. v. Cardillo, 117 F.2d 385, 386 (D.C. Cir.
1940) (stating that substantial evidence is “such
relevant evidence that a reasonable mind might
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3
tial evidence standard is less demanding than is
the preponderance of the evidence standard,
and the ALJ’s decision need not constitute the
sole inference that can be drawn from the
facts. Diamond M. Drilling Co. v. Marshall,
577 F.2d 1003, 1005 (5th Cir. 1978) (citations
omitted). As fact-finder, the ALJ determines
questions of credibility of witnesses and of
conflicting evidence. Atl. Marine, Inc. v.
Bruce, 661 F.2d 898, 900 (Former 5th Cir.
Nov. 1981).
IV.
A two-pronged test determines whether an
injured worker falls under the provisions of the
Act and thus is entitled to benefits. A claimant
must satisfy the Act’s status requirement, 33
U.S.C. § 902(3), and its situs requirement, 33
U.S.C. § 903(a). The status requirement
defines those employees considered to be
engaged in maritime employment.2 The situs
requirement requires that an employee’s injury
take place upon the navigable waters of the
United States, which includes in part any
adjoining wharf, dry dock, or terminal. For
purposes of the Act, a maritime employer is an
“employer any of whose employees are em-
ployed in maritime employment, in whole or in
part.” 33 U.S.C. § 902(4).
The employer responsible for paying full
benefits in an occupational disease case, in-
cluding a hearing loss case, is the last maritime
employer to expose the employee to injurious
stimuli before the date when he becomes
aware that he is suffering from an occupational
disease arising out of his employment. Avon-
dale, 977 F.2d at 189; Travelers Ins. Co. v.
Cardillo, 225 F.2d 137, 145 (2d Cir. 1955).
Section 20(a) of the Act provides a presump-
tion that claims fall within the provisions of the
Act “in the absence of substantial evidence to
the contrary.” 33 U.S.C. § 920(a). An em-
ployer may rebut the § 20(a) presumption by
showing that the “employee was exposed to
injurious stimuli while performing work cov-
ered under the [Act] for a subsequent em-
ployer.” Avondale, 977 F.2d at 190 (citation
omitted).
Initially, the ALJ found that Vicknair had
presented sufficient evidence to create a pre-
sumption that his hearing loss was causally re-
lated to his employment at Avondale. The
ALJ determined, however, that Avondale had
rebutted the presumption by establishing that
Vicknair was exposed to injurious noise while
working at ISI, a subsequent maritime em-
ployer.
A.
Vicknair first argues that at ISI, he has not
engaged in work covered under the Act. A
claimant engages in maritime employment if he
is engaged in work that is integral to the load-
ing, unloading, constructing, or repairing of
vessels. See 33 U.S.C. § 902(3); Chesapeake
& Ohio Ry. v. Schwalb, 493 U.S. 40, 45
(1989). An employee need only spend “at
least some of his time in indisputably covered
activities” before he is considered to have en-
gaged in maritime employment. Northwest
Marine Terminal Co. v. Caputo, 432 U.S. 249
(1977).
In Boudloche v. Howard Trucking Co., 632
1(...continued)
accept as adequate to support a conclusion”).
2 Section 902(3) defines “employee” as “any
person engaged in maritime employment, including
any longshoreman or other person engaged in
longshoring operations, and any harbor-worker in-
cluding a ship repairman, shipbuilder, and ship-
breaker . . . .” 33 U.S.C. § 902(3).

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4
F.2d 1346 (5th Cir. Unit A 1980), we decided
that a truck driver who unloaded his cargo on-
to ships was engaged in maritime employment.
Id. at 1348. “The fact that his employer also
assigned him broader duties as a truck driver
cannot override its choice to make [the
claimant] a maritime employee under the Act.”
Id.
Vicknair does not dispute that the inspec-
tion of load-outs qualifies as the type of work
contemplated by § 902(3).3 He instead argues
that because he spent only three weeks in-
specting load-outs during an eight-year peri-
od,4 his maritime activities are insufficient to
qualify him under the Act. We reject his argu-
ment. In Boudloche, we emphasized that an
employee need only spend “some” of his time,
but not a “substantial portion,” engaging in
maritime work. Id. Because Vicknair testified
that he “sometimes” inspected the load-out
process, his activities undoubtedly fall within
the scope of § 902(3).
Vicknair still contends that coverage is un-
warranted, because his participation in load-
outs was de minimis. In Boudloche, in finding
that the truck driver claimant engaged in mari-
time employment, we left open the question of
when an employee’s longshoring activities
might become “so momentary or episodic
[that] it will not suffice to confer status.” Id.
Importantly, the truck driver in Boudloche
spent only 2½% to 5% of his working time
performing longshoring activities. Id.
Nevertheless, we declined to address whether
he met a de minimis threshold, because he was
“directed to regularly perform” longshoring
activities. Id. Vicknair argues that his
longshoring activities were de minimis because
his load-out inspections constituted less than
one percent of his overall working time.
This court has never attempted to quantify
a precise mathematical point at which an em-
ployee’s maritime activities become de mini-
mis. Instead, Boudloche indicates that as long
as an employee is directed regularly to perform
some portion of what is indisputably maritime
work, his activity will not be considered
momentary or episodic.5
3 In arguing that the load-out inspections were
de minimis, Vicknair notes that the monitoring was
done at a distance and that his purpose was “not to
get involved with the actual procedure.” Even if
we were to construe this observation as an
argument that load-out inspections do not qualify
as maritime work under the Act, it would fail under
our “expansive view” of § 902(3). Caputo, 432
U.S. at 268.
An employee satisfies the status requirement of
§ 902(3) where he engages in work that is
“integral” to the loading, unloading, constructing,
or repairing of vessels. Id. at 271. Those
personnel not directly involved in the loading or
unloading of cargo, such as inspectors, have
consistently been determined to be covered under §
902(3). E.g., id. (permitting coverage for employ-
ee whose job was to check and mark items of
cargo); Levins v. BRB, 724 F.2d 4, 9 (1st Cir.
1984) (permitting coverage of a book clerk who
identified and recorded cargo).
4 Based on a forty-hour work week, Vicknair
spent less than one percent of his work time
inspecting load-outs.
5 See Lennon v. Waterfront Transp., 20 F.3d
658, 661 (5th Cir. 1994) (applying Boudloche for
the proposition that claimant’s handling of cargo
was “sufficiently regular so as not to be considered
episodic”); see also Levins, 724 F.2d at 9 (noting
that a “de minimis situation” does not exist,
because claimant’s maritime activities “were part
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5
There is substantial evidence that Vicknair
was so directed. Michael Foret, ISI’s office
manager, deposed that Vicknair’s duties were
essentially to oversee projects from beginning
to completion. Foret stated that an inspector
goes “wherever he would be required to
perform his duties.” He stated that an
inspector’s duties include making sure that
products manufactured in fabrication yards are
properly loaded and tied down on barges for
shipment offshore. The fact that Vicknair’s
inspection of load-outs was a regular part of
his duty of seeing projects completed from
beginning to end directs the conclusion that his
maritime activities were not de minimis.6
B.
Vicknair also contends that he does not sat-
isfy the Act’s status requirement because there
is no evidence that he was exposed to injurious
noises while engaging in maritime activities at
ISI.7 In effect, Vicknair argues that he was a
covered employee while performing load-out
inspections, but not non-maritime activities.
Vicknair is correct that the record is void of
evidence that he was exposed to loud noises
while inspecting load-outs at ISI. No
witnesses disputed his testimony that the
crane’s used during these load-outs produced
only moderate amounts of noise. Although
William Downey stated that inspectors might
be exposed to loud noises during load-outs if
welders or gougers are present, there was no
evidence that Vicknair participated in these
load-outs. Instead, the evidence shows that
his exposure to loud noises occurred only
while he performed non-maritime work in
fabrication shops.
Nevertheless, the fact that Vicknair’s expo-
sure t o injurious stimuli came only while he
performed non-maritime work does not defeat
his status as a maritime employee under
§ 902(3). In Hullinghorst Indus., Inc. v. Car-
roll, 650 F.2d 750 (5th Cir. Unit A July 1981),
we held that maritime employee status can be
based “either upon the maritime nature of the
claimant’s activity at the time of his injury or
upon the maritime nature of his employment as
a whole.” Id. at 754 (emphasis added).
Permitting coverage based on the overall
5(...continued)
of his regularly assigned duties as a whole”);
Graziano v. Gen. Dynamics Corp., 663 F.2d 340,
343 (1st Cir. 1981) (“Although only 2.5 to 5
percent of Boudloche’s overall employment was
maritime in character, the Fifth Circuit extended
coverage because ‘he was directed to regularly
perform some portion of what was indisputably
longshoring work.’”).
6 See Levins, 724 F.2d at 9 (“These do not
appear to have been discretionary or extraordinary
occurrences, but rather a regular portion of the
overall tasks to which petitioner could have been
assigned as a matter of course.”) (citations
omitted).
7 Vicknair also argues that his hearing did not
get worse after he left Avondale, implying perhaps
that he was not exposed to injurious stimuli at ISI.
(continued...)
7(...continued)
As the BRB points out, however, this argument is
irrelevant, because the last-employer rule does not
require a causal relationship between the
subsequent employment and hearing loss. Rather,
the exposure to injurious stimuli need only have the
potential to cause hearing impairment. See
Avondale, 977 F.2d at 190 (stating that “regardless
of the brevity of exposure, if it has the potential to
cause disease, it is considered injurious”) (citation
omitted).

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maritime nature of employment is consistent
with Congress’s intent to prevent
longshoremen from walking in and out of
coverage.8 Because we already have
established the overall maritime nature of
Vicknair’s employment, we reject his
argument that a lack of exposure to noise
while performing maritime work defeats
coverage under § 902(3).9
Because we agree that there was substantial
evidence supporting the ALJ’s decision, the
order of the BRB is AFFIRMED.
8 Caputo, 432 U.S. at 273 (“[T]o exclude [an
employee] from the Act’s coverage in the morning
but include him in the afternoon would be to re-
vitalize the shifting and fortuitous coverage that
Congress intended to eliminate.”). In Caputo, the
Court specifically rejected the “point of rest” the-
ory that would have assigned coverage based on
whether the employee was engaged in a maritime
activity at the time of injury. Caputo, 432 U.S.
at 275-76.
9 Notably, Vicknair does not invoke the Act’s
situs requirement, § 903(a), in his attempt to argue
that ISI is not the last causative employer. Section
903(a) requires that a compensable injury occur
“upon the navigable waterways of the United
States,” including a dry dock or wharf.
Even if Vicknair had made this argument, we
are doubtful that the situs requirement applies to
subsequent employers in cases applying the last-
employer rule. As a “rule of liability assessment,
not of jurisdiction,” Fulks v. Avondale Shipyards,
Inc., 637 F.2d 1008, 1012 (5th Cir. 1981), the last-
employer rule requires only that the claimant be ex-
posed “to injurious stimuli while performing work
covered under the [Act] for a subsequent em-
ployer.” Avondale, 977 F.2d at 190 (citation
omitted).
Whether work is covered under the Act is an
issue independent of the situs requirement, which
deals only with the location of injury. Moreover,
the nature of occupational diseases, unlike injury,
(continued...)
9(...continued)
“makes it exceedingly difficult, if not practically
impossible, to correlate the progression of the
disease with specific points in time or specific
industrial experiences.” Cardillo, 225 F.2d at 144.

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