Wilson v. Director, Office of Workers Compensation Programs, United States Dep’t of Labor, ___ F.3d ___ (3d Cir. 2020). The final published opinion of the Third Circuit in 2020 was a case in which plaintiff, a maritime construction worker on a project to replace a Route 3 bridge spanning the Passaic River between Clifton and Rutherford, NJ, suffered hearing impairment due to the noise of the construction work. He sought benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901 et seq. (“LHWCA”). But the LHWCA affords benefits only if a maritime worker was injured while on “navigable waters of the United States” (or, in a provision not applicable here, on an “adjoining [land] area”). An Administrative Law Judge and the Benefits Review Board each concluded that plaintiff was not on navigable waters of the United States. On plaintiff’s appeal, the Third Circuit reversed in an opinion by Judge Restrepo.
Judge Restrepo laid out the standard of review. The court would only “determine whether the Board acted in conformance with applicable law and within its proper scope of review,” “exercise plenary review of the Board’s legal conclusions,” and “independently review the record and decide whether the ALJ’s [factual] findings are rational, consistent with applicable law and supported by substantial evidence if those findings are challenged by a petitioner.”
Plaintiff’s first argument was the the LHWCA created a “situs presumption,” that is, a presumption that shifts away from a benefits claimant the burden of proving the situs of the work. The basis for that was language in section 920(a) of the LHWCA that “it shall be presumed, in the absence of substantial evidence to the contrary[,] . . . [t]hat [a] claim [for compensation under this chapter] comes within the provisions of this chapter.” Judge Restrepo disagreed. “First, situs is a threshold issue that must be resolved before § 920(a) can be applied.” Second, the Administrative Procedure Act, which governs benefits proceedings, puts the burden of proof on the proponent of an order (in this case, the claimant).
But plaintiff still won his appeal, because he showed that the Passaic River was navigable at the point where the bridge crossed it. The ALJ and Benefits Review Board applied an erroneous test for “navigable waters,” Judge Restrepo said. “The ALJ and Board seemed to misunderstand that a waterway can be found navigable in fact only if there is evidence that the waterway is capable of sustaining ‘commonly-used large commercial ships’ or if there is evidence of ‘present commercial use.’ A waterway, however, is navigable in fact simply if it is capable of sustaining any type of interstate or foreign commerce.” Under that test, the record showed that the Passaic River was navigable. The court reversed and remanded the matter to the Board for a benefits determination.