Thursday, September 6, 2012

Security Guards Round 2

Following the expansion of Longshore into the security world in K.L. v. Blue Marine Security BRB No. 08-0789 (Apr. 16, 2009) (see this blog June 2009 for details) the BRB has further expanded the definition in Gelinas v. Electric Boat Corp., 45 BRBS 69 (2011) –

Security guard may be covered if his work is “integral to shipbuilding”

In 1984 Congress expressly excluded from Longshore coverage “individuals employed exclusively to perform office clerical, secretarial, security, or data processing work…. [provided such persons are covered by State workers’ compensation laws]. The Benefits Review Board has taken every opportunity, however, to limit this exclusion as applied to security guards.

Tim Gelinas was employed as a security guard at his employer’s facility that builds submarines, in Rhode Island. The employer requires security guards obtain an emergency medical technician (EMT) certificate. During the regular work week, Gelinas is primarily assigned to the entry gates of employer’s facility; during weekends, claimant performs security rounds through employer’s submarine production areas. In addition to his usual security-related duties, as an EMT he is required to respond to medical incidents that occur at employer’s facility. He filed a hearing loss claim on April 21, 2010.

Generally, a claimant satisfies the “status” requirement if he is an employee at least some of whose work is integral to the loading, unloading, constructing, or repairing of vessels.

The Board has held that the term “exclusively” modifies all four classifications of work listed in this exclusion. Dobey, 33 BRBS at 65 n.7. It has also concluded that the term “office” also modifies those classifications of work

The Board then parsed the evidence and nitpicked the ALJs factfindings. It seems the Board too often ignores the Act’s limitations on its power and prohibition from substituting its view of the facts from that of the ALJ. In its closing paragraph the Board wrote, “We remand the case for the ALJ to determine if claimant’s work is integral to the shipbuilding process. He should discuss the evidence relevant to the status issue, make appropriate findings based on the relevant law and evidence, and give a written explanation of the reasons and basis for his findings of fact and conclusions of law. If, on remand, the ALJ finds that claimant’s work is integral to the shipbuilding process, he should resolve any other issues raised by the parties.”

This decision is even more difficult to square with the Board’s earlier decision in Gelinas v. Electric Boat Corp., 44 BRBS 85 (2010), in which the Board held that an occupational health nurse (no relation to Tim Gelinas) failed to establish her work was integral to shipbuilding and thus not entitled to benefits. We wonder what the Board will do if, on remand, the ALJ reaches the same conclusion and denies benefits again. Stay tuned, this one may not be over.

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