UNITED STATES COURT OF
APPEALS
For the Fifth Circuit
No. 98-60349
Summary Calendar
MICHAEL P. DAUL,
Petitioner,
VERSUS
PETROLEUM COMMUNICATIONS,
INC.; TRAVELERS
INSURANCE COMPANY; DIRECTOR,
OFFICE OF WORKER'S
COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an
Order of the
Benefits Review Board
December 8, 1999
Before HIGGINBOTHAM, DeMOSS, and
STEWART, Circuit Judges.
PER CURIAM:
Michael P. Daul (hereinafter "petitioner")
filed a claim for benefits pursuant to the United States Longshore
and Harbor Workers' Compensation Act (hereinafter the "Act")
against his employer, Petroleum Communications, Inc. (hereinafter
"Petro Comm"), and its compensation insurer, Travelers
Insurance Company. The claim proceeded to trial before an administrative
law judge (hereinafter the "ALJ") who issued a decision
and order denying benefits. The ALJ found that petitioner was
a "salesman of cellular air time for his employer, Petroleum
Communications, Inc." and that he was barred from coverage
by the "vendor exclusion" set forth at 33 U.S.C. §
902(3)(D). The Benefits Review Board affirmed the decision and
order of the ALJ. Petitioner filed a petition for review with
this Court. For the reasons stated hereinafter, we DENY the petition.
BACKGROUND
Petro Comm is one of two companies
licensed to provide cellular telephone communications to users
in the Gulf of Mexico. Petro Comm sells air time and either sells
or leases equipment that facilitates the use of that air time.
When new equipment is being installed or existing equipment is
undergoing major relocations, Petro Comm subcontracts such work
to SOLA Communications, Inc. and its technicians who accomplish
the actual installation and relocation work required. The petitioner
had worked for Petro Comm since 1989 and his title was "communications
consultant." A Petro Comm communications consultant's duties
are to maintain customer relations, to call on customers, to
transport new equipment offered by Petro Comm to customers, and
to attempt to sell such equipment and air time to them, and to
pick up broken or defective equipment and/or return repaired
equipment.
On Monday, May 15, 1995, petitioner
accompanied a technician from SOLA Communications, Inc. to the
Houma office of Global Pipelines Plus, Inc. (hereinafter "Global")
for the purpose of installing equipment on the barge CHICKASAW,
which was owned by Global and was docked on the Houma navigational
canal. While descending steps on the barge carrying a desk phone,
the petitioner slipped and fell allegedly because of "slippery
food material" on the stairs. Following his injury, petitioner
received worker's compensation benefits under the Louisiana Worker's
Compensation law from June 12, 1995, to the date of hearing before
the ALJ in this claim.
The critical issue in this case
is whether petitioner was barred from coverage by the "vendor
exclusion" in 33 U.S.C. § 902(3)(d).(1)
The ALJ found:
a. that Petro Comm derives 95% of
its revenues from the sale of air time and that petitioner spends
a majority of his work time in "public relations" capacity
which contributed to the sale of air time to customers of Petro
Comm such that claimant is engaged in "selling employer's
product."
b. that petitioner, at the time
of his injuries, was temporarily doing business on the premises
of Global, a maritime employer within the meaning of 33 U.S.C.
§ 902(4); and
c. that the work which petitioner
performed aboard the CHICKASAW involved assisting in the installation
of new cellular equipment and in maintaining good relations with
Global in the hope of furthering sales of cellular air time;
and that employees of Global did not normally perform either
of these tasks.
The Benefits Review Board affirmed
these factual findings; and based thereon affirmed the ALJ's
conclusion that petitioner is excluded from coverage under the
Act and that petitioner is not entitled to coverage simply by
virtue of an injury on actual navigable waters.
CONCLUSION
Petitioner timely filed a petition
for review with this Court and neither party has asked for oral
argument. We have carefully reviewed the briefs, the record excerpts,
and relevant portions of the record itself. We find that the
factual findings of the ALJ, which were affirmed by the Benefits
Review Board, are amply supported by substantial evidence. We
further find that the conclusion of law that petitioner is excluded
from coverage under the Act by the provisions of 33 U.S.C. §
902(3)(D), which was the conclusion of the ALJ affirmed by the
Benefits Review Board, is fully consistent with applicable law.
Accordingly, the petition for review is
DENIED.
1. The relevant
portions of § 902(3)(d) are as follows:
(3) The term "employee"
means any person engaged in maritime employment, . . . but such
term does not include --
* * *
(D) individuals who (i) are employed
by suppliers, transporters, or vendors, (ii) are temporarily
doing business on the premises of an employer described in paragraph
(4), and (iii) are not engaged in work normally performed by
employees of that employer under this Chapter;
* * *
If individuals described in clauses
(A) through (F) are subject to coverage under a state worker's
compensation law.
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