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BRB Nos. 99-1183 and 99-1183A JAMES L. WHITFORD ) ) Claimant

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BRB Nos. 99-1183 and 99-1183A JAMES L. WHITFORD ) ) Claimant BRB Nos. 99-1183 and 99-1183A JAMES L. WHITFORD ) ) Claimant-Respondent ) Cross-Petitioner ) ) v. ) ) BUSCH OCEANOGRAPHIC ) EQUIPMENT COMPANY ) DATE ISSUED: 08/18/2000 ) Self-Insured ) Employer-Petitioner ) Cross-Respondent ) DECISION and ORDER Appeals of the Decision and Order, Order Denying Claimant’s Motion for Reconsideration and Supplemental Decision and Order Granting Attorney Fees of Daniel J. Roketenetz, Administrative Law Judge, United States Department of Labor. Judith A. Schornack-Smith (The Jaques Admiralty Law Firm), Detroit, Michigan, for claimant. John D.L. Humphreys (Lippert, Humphreys, Campbell, Dust & Humphreys, P.C.), Saginaw, Michigan, for self-insured employer. Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative Appeals Judge, and NELSON, Acting Administrative Appeals Judge. PER CURIAM: Employer appeals the Decision and Order and Supplemental Decision and Order Granting Attorney Fees, and claimant cross-appeals the Decision and Order and Order Denying Claimant’s Motion for Reconsideration (92-LHC-3641) of Administrative Law Judge Daniel J. Roketenetz rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). We must affirm the findings of fact and conclusions of law of the administrative law judge which are rational, supported by substantial evidence, and in accordance with law. O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3). The amount of an attorney’s fee award is discretionary and may be set aside only if the challenging party shows it to be arbitrary, capricious, an abuse of discretion, or not in accordance with law. See, e.g., Muscella v. Sun Shuipbuilding & Dry Dock Co., 12 BRBS 272 (1980). Employer, which owns a tugboat and barge, is in the business of transporting materials across Lake Michigan from April to December each year. From approximately January to March, the tugboat is docked on the Saginaw River for winter maintenance, but is available to assist vessels in distress and engage in ice-breaking. Claimant began working for employer in August 1987 as an engineer on the tugboat, caring for the engine room, and serving occasionally as deckhand or cook. During the shipping season, claimant worked, ate and slept aboard the tugboat, and received a weekly salary. Claimant worked aboard the tugboat during the shipping season of 1988 until December 1988, when he was laid off along with the rest of the crew. In January 1989, claimant was re-hired to perform winter maintenance on the tugboat and barge; during this period, claimant was paid an hourly wage and slept and ate on shore. Claimant alleges that he suffered two work-related injuries during the winter lay-up. In early February 1989, claimant alleges that while performing repairs on the barge, he injured his arm when the drill he was using twisted in his hand. Claimant continued to work despite complaints of pain. On March 9, 1989, claimant was diagnosed with myositis secondary to excessive and repetitive use of his right forearm, and was treated with medication and advised to rest. Claimant contends that a second work-related injury occurred on March 6, 1989, when he slipped on the gangplank and fell on his lower back. He did not return to work for employer, and in April 1989, claimant was notified by employer that his employment had been terminated. Claimant, who suffered from pre- existing back problems, underwent a spinal fusion at the L3-S1 level on April 3, 1990.1 In May 1989, claimant filed a claim under the Michigan workers’ compensation scheme. This claim was withdrawn in October 1989, and in March 1991, claimant filed a civil action against employer under the Jones Act, 46 U.S.C. §688. Pursuant to an order granting summary judgment, claimant’s civil action was dismissed on February 14, 1992. Claimant filed a claim for total disability benefits under the Act on May 29, 1992. In his Decision and Order, the administrative law judge initially determined that claimant was not a “member of a crew” under Section 2(3)(G) of the Act, 33 U.S.C. §902(3)(G), and thus claimant was not excluded from coverage under the Act. The 1In 1983, claimant underwent a laminectomy and fusion at the L4-S1 level. 2 administrative law judge next found that claimant filed a timely claim for benefits under Section 13(a) of the Act, 33 U.S.C. §913(a), as claimant’s filing of a state workers’ compensation claim and a civil action tolled the statute of limitations pursuant to Section 13(d) of the Act, 33 U.S.C. §913(d). The administrative law judge determined that although claimant did not file a notice of injury pursuant to Section 12(a) of the Act, 33 U.S.C. §912(a), the failure to file such notice was excused because employer received actual knowledge of claimant’s arm injury on March 8, 1989, and was not prejudiced by the inaction. The administrative law judge further found that claimant was entitled to invocation of the presumption at Section 20(a) of the Act, 33 U.S.C. §920(a), with regard to claimant’s arm injury, and that employer did not establish rebuttal of that presumption. However, the administrative law judge determined that claimant failed to establish that the alleged traumatic accident to his back occurred, and thus failed to establish a prima facie case sufficient to invoke the Section 20(a) presumption with regard to the back condition. Having found that claimant established a prima facie case of total disability due to his work-related arm injury and that employer failed to establish the availability of suitable alternate employment, the administrative law judge awarded claimant temporary total disability compensation, 33 U.S.C. §908(b), at an average weekly wage of $26.92. The administrative law judge, in a subsequent order, denied claimant’s request for reconsideration regarding his denial of benefits for the alleged back injury and the calculation of claimant’s average weekly wage. In a Supplemental Decision and Order Granting Attorney Fees, the administrative law judge, finding that employer did not file any objections to counsel’s fee petition, awarded claimant’s counsel an attorney’s fee of $31,265.55, payable by employer. On appeal, employer challenges the administrative law judge’s determination that claimant was not excluded from coverage under the Act. Specifically, employer contends that the administrative law judge erred in finding that employer’s tugboat was not in navigation at the time of claimant’s injury, and therefore erred in finding that claimant was not a “member of a crew” pursuant to Section 2(3)(G) of the Act. Employer further challenges the administrative law judge’s determination that claimant’s claim is not barred pursuant to Sections 12 and 13. Employer also contests the administrative law judge’s award of temporary total disability compensation, asserting that the administrative law judge erred in finding that claimant is unable to perform his usual employment and in finding that it failed to establish the availability of suitable alternate employment. Lastly, employer avers that the amount of the administrative law judge’s attorney’s fee award was excessive, and that if it prevails on appeal, claimant’s counsel should not be entitled to an attorney’s fee payable by employer. Claimant responds, urging affirmace of the challenged findings by the administrative law judge. Claimant has filed a cross-appeal of the administrative law judge’s Decision and Order, contending that the administrative law judge erred in calculating claimant’s average weekly wage and in finding that he did not sustain a work-related back injury. Employer responds, urging affirmance of these determinations. 3 The threshold issue presented by the instant appeal is whether the administrative law judge erred in finding that claimant was not a “member of a crew” of a vessel, and thus was not excluded from coverage under the Act. Section 2(3)(G) of the Act excludes from coverage “a master or member of a crew of any vessel.” 33 U.S.C. §902(3)(G). The United States Supreme Court has held that the Longshore Act and the Jones Act are mutually exclusive, such that a “seaman” under the Jones Act is the same as a “master or member of a crew of any vessel” under the Longshore Act. McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 26 BRBS 75 (CRT)(1991); see also Chandris v. Latsis, 515 U.S. 347 (1995). An employee is a member of a crew if: (1) he was permanently assigned or performed a substantial part of his work on a vessel or fleet of vessels; and (2) his duties contributed to the vessel’s function or operation. See Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 31 BRBS 34 (CRT)(1997); Hansen v. Caldwell Diving Co., 33 BRBS 129 (1999). “The key to seaman status is an employment-related connection to a vessel in navigation . It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship’s work.” Wilander, 498 U.S. at 354, 26 BRBS at 83 (CRT). The employee must have a connection to a vessel that is substantial in terms of both its nature and duration in order to separate sea-based workers entitled to coverage under the Jones Act from land-based workers with only a transitory or sporadic connection to a vessel in navigation. Chandris, 515 U.S. at 368; see also Smith v.
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