Duncanson-harrelson Co. v. Director, Office of Workers' Compensation Programs, United States Department of Labor

Claimant Freer challenges the amount of compensation awarded her under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (1976) (Act or LHWCA), by the Benefits Review Board (BRB). Freer’s husband (the decedent) was employed as a pile driver and was killed over navigable waters while cutting pilings for the construction of a pier. Freer asserts that the Administrative Law Judge (ALJ) and the BRB erred in determining the amount of compensation by applying the wrong subsection of 33 U.S.C. § 910 and by failing to include employer contributions to the union pension and health funds as part of decedent’s wages.

Defendants Duncanson-Harrelson Company and its liability insurer (collectively D-H) also appeal urging that the decedent was not covered by the Act. D-H argues alternatively that decedent did not meet the Act’s test of coverage or that he belonged to a class of employees specifically excluded.

I. FACTS

David W. Freer, the decedent, was killed while working as a pile butt or pile driver on the expansion of the oil tanker docking facilities operated by Pacific Gas & Electric Company in Pittsburg, California. The dock extends into Suisun Bay, a body…