Schwabenland v. Sanger Boats

683 F.2d 309 Lawrence SCHWABENLAND and Director, Office of Workers' Compensation Programs, United States Department of Labor, Petitioners, v. SANGER BOATS and Travelers Insurance Company, Respondents. Nos. 81-7064, 81-7075. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 12, 1982. Decided July 26, 1982. William J. Seiler, Miles, Sears & Fanni, Fresno, Cal., Albert H. Sennett, Hanna, Brophy, MacLean, McLeer & Jensen, San Francisco, Cal., for Schwabenland. Joshua T. Gillelan, II, Washington, D. C., for U. S. Government. Petition for Review of a Decision of the Benefits Review Board. Before CHOY, PREGERSON, and POOLE, Circuit Judges. CHOY, Circuit Judge: 1 Lawrence Schwabenland petitions for review of the Benefits Review Board's (the Board) denial of his claim for benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-50 (the Act). Because the Board applied the wrong test for determining Schwabenland's employee "status" and because we are convinced that he meets the test we announced in Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir. 1975), cert. denied, 429 U.S. 868 , 97 S.Ct. 179 , 50 L.Ed.2d 148…