Abacus Temporary Ser v. Hicks

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ABACUS TEMPORARY SERVICES,
INCORPORATED; TRAVELERS INSURANCE
COMPANY,
Petitioners,

v.
No. 96-2414
PAUL A. HICKS; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(BRB Nos. 94-2542, 95-851)

Argued: June 2, 1997

Decided: June 24, 1997

Before WILKINSON, Chief Judge, and WILKINS and
MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jimese Lynne Pendergraft, KNIGHT, DUDLEY,
CLARKE & DOLPH, P.L.C., Norfolk, Virginia, for Petitioners.
James J. Vergara, Jr., VERGARA & ASSOCIATES, Hopewell, Vir-
ginia, for Respondents. ON BRIEF: Robert A. Rapaport, KNIGHT,
DUDLEY, CLARKE & DOLPH, P.L.C., Norfolk, Virginia, for Peti-
tioners.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Timtha King filed a claim under the Longshore and Harbor Work-
ers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq., seeking
benefits for the children of Paul Hicks on account of his death while
working as a crane operator. An administrative law judge awarded the
children compensation to be paid by Hicks' employer, Abacus Tem-
porary Services. The Benefits Review Board affirmed. Abacus
appeals, arguing that it was not Hicks' employer for purposes of the
LHWCA and that the children were ineligible for benefits because
they were not Hicks' dependents. We disagree. Abacus is bound by
its stipulation that Hicks was an Abacus employee, and the evidence
in the record is sufficient to support the ALJ's finding of dependency.
Accordingly, we affirm the decision of the BRB.

I.

In 1985, Hicks and King began living together in Petersburg, Vir-
ginia. Between 1985 and 1989, the unmarried couple had two chil-
dren, Vonkelia and Victoria, whom Hicks openly acknowledged as
his own. Hicks paid for the family's utilities, groceries, clothing, and
medical bills until he left the home in 1989. In 1987, Hicks signed an
agreement with the Petersburg Department of Social Services promis-
ing to pay child support.

After leaving in 1989, Hicks continued to visit the children regu-
larly at Christmas and on their birthdays, bringing them clothing and

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other items. However, he stopped paying child support under the
agreement, leading King to file a Petition for Support in November
1989. At all relevant times, King was unemployed and had no income
other than payments from the Aid to Dependent Children program.
The petition was dismissed on April 27, 1990 without prejudice due
to an inability to locate and serve Hicks. Until the time of Hicks'
death, King never learned of his new address or place of employment.
Hicks was employed by Abacus, a temporary services agency, from
1990 until he died in a March 1991 accident while working as a crane
operator for Atkinson Dredging Company.

King filed a claim under the LHWCA seeking benefits for her two
children on account of Hicks' death. At an October 6, 1993 hearing
before an ALJ, the parties stipulated that Hicks had been an employee
of Abacus at the time of his injury. The ALJ issued a decision on
March 31, 1994, finding that the two children had been dependent
upon Hicks when he died and were therefore entitled to benefits under
the Act.

In 1994 Abacus sought to avoid liability by filing motions to mod-
ify the award and to reopen the record. Both motions sought to evade
the company's stipulation, claiming that under the borrowed servant
doctrine, Atkinson, not Abacus, had been Hicks' employer at the time
of his death. Both motions were denied, and the ALJ's decision was
subsequently affirmed by the Benefits Review Board. Abacus now
appeals.

II.

Under the LHWCA, if a compensable injury causes an employee's
death, a child of the deceased is entitled to benefits. 33 U.S.C.
§ 909(b),(c). The Act defines "child" to include "a stepchild or
acknowledged illegitimate child dependent upon the deceased," 33
U.S.C. § 902(14), with dependency determined as of the time of the
injury, 33 U.S.C. § 909(f). The deceased's employer is liable for pay-
ment of compensation due under the Act. 33 U.S.C.§ 904(a).

On appeal, Abacus argues that it was not Hicks' employer for pur-
poses of the Act and that the children were no longer dependent on
Hicks when he was injured. The company's first contention is fore-

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closed by its stipulation. As to the second, we find that the ALJ's
finding of dependency is supported by substantial evidence and must
therefore be affirmed.

A.

Notwithstanding its stipulation to the contrary, Abacus contends
that under the borrowed servant doctrine, Atkinson Dredging was
Hicks' employer at the time of his death and should be responsible
for any compensation award. Abacus makes several arguments in an
attempt to get around the stipulation. The company first insists that
the ALJ should not have accepted the stipulation because it was con-
trary to the law and the facts. Abacus maintains that Hicks was clearly
the borrowed servant of Atkinson under Huff v. Marine Tank Testing
Corp., 631 F.2d 1140 (4th Cir. 1980), because Hicks "performed all
his work at Atkinson's work site and was completely under the con-
trol of their supervisors, using their equipment." While these factual
assertions may be correct, there is no evidence in the record to sup-
port them.* Indeed, the only evidence regarding Hicks' employment
relationship with Abacus or Atkinson was the stipulation itself. The
ALJ, then, can hardly be faulted for crediting a stipulation into which
Abacus had freely entered.

Abacus asserts, however, that the ALJ abused his discretion in
refusing to disregard the stipulation and modify the compensation
order. The company maintains that the ALJ should have reconsidered
the award in light of the Board's subsequent decision in Arabie v.
C.P.S. Staff Leasing, 28 B.R.B.S. 66 (1994), which Abacus claims
established new law with respect to the borrowed servant doctrine.
Even if this claim is correct, an ALJ is authorized to modify a com-
pensation award only "on the ground of a change in conditions or
because of a mistake in a determination of fact." 33 U.S.C. § 922. As
the language of the statute suggests, this does not authorize modifica-
_________________________________________________________________
*Abacus sought to introduce such evidence via its motion to reopen
the record. The administrative record, however, cannot be reopened "ex-
cept upon a showing that new and material evidence has become avail-
able which was not readily available prior to the closing of the record."
29 C.F.R. § 18.54. Abacus makes no claim that this requirement was met
here.

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tion on the basis of a change in the law. McDonald v. Director, Office
of Workers' Compensation Programs, 897 F.2d 1510, 1512 (9th Cir.
1990). Moreover, even characterizing the stipulation as a mistake of
fact would not aid Abacus; "Section 22 petitions are designed to pre-
vent injustice resulting from the erroneous fact-finding of officials
such as an ALJ, not to save litigants from the consequences of their
counsel's mistakes." Verderane v. Jacksonville Shipyards, 772 F.2d
775, 780 (11th Cir. 1985) (citations omitted).

Having voluntarily entered into a stipulation agreeing that the com-
pany was Hicks' employer at the time of his death, Abacus must live
with its terms.

B.

Abacus further contends that the record does not support the ALJ's
determination that the children were dependent on Hicks when he
died. We must uphold this finding, however, if it is supported by
"substantial evidence." 33 U.S.C. § 921(b)(3). "On review, the ALJ's
findings may not be disregarded on the basis that other inferences
might have been more reasonable. Deference must be given the fact-
finder's inferences and credibility assessments, and we have empha-
sized the scope of review of ALJ findings is limited." Newport News
Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir.
1988) (citation omitted). Under this standard, we find no cause to dis-
turb the ALJ's finding of dependency.

While acknowledging that the children were supported by Hicks
while he was living with King, Abacus insists that any dependency
ceased once he left in 1989. Abacus asserts that the clothing and other
items Hicks brought the children following his departure were no
more than de minimis gifts. Hicks' ongoing support, however, cannot
be so readily dismissed. The clothing and other items represented reg-
ular contributions to his children's welfare, and the significance of
this support must be considered in light of the ALJ's observation that
the family was "virtually destitute." Furthermore, Hicks not only had
a legal duty to support the children, see Va. Code § 20-61, but he had
also signed a written agreement with the Petersburg Department of
Social Services promising to make bi-weekly child support payments
and to purchase various necessities such as milk and clothing. Indeed,

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the fact that Hicks was not providing greater support was due only to
the fact that he had managed to evade enforcement of his legal obliga-
tions. The LHWCA is designed to assist needy children bereft of
parental support due to a covered employee's death. It would be
ironic to deny impoverished children benefits under the Act only
when their fathers were able to successfully avoid the duty to pay
child support.

Abacus also maintains that the children were dependent on public
assistance rather than Hicks, pointing to payments King received from
the Aid to Dependent Children program. The fact that the children
received modest public assistance cannot defeat their claim, however.
"It is well settled that partial dependency will support an award under
the statute." Myers v. Bethlehem Steel Co. , 250 F.2d 615, 616 (4th
Cir. 1957). The LHWCA requires complete dependency only when a
child is married or over the age of eighteen. 33 U.S.C. § 902(14). In
Myers, the court held that a grandchild was dependent on a deceased
employee even though the daughter of the deceased was employed
and able to pay for her and her child's room and board. The court was
"not impressed by the argument that the child should be deemed to
have been supported by the meager earnings of the daughter and that
the contributions made by deceased were not necessary to its support
and should be considered as mere gifts to the daughter. The evidence
shows that they were made for the support of the child." Id. at 617.

Our task on appeal is a limited one. We inquire only whether the
ALJ's decision had a reasonable foundation in the record. In light of
the above considerations, we conclude that the ALJ's finding that the
children were dependent on Hicks at the time of his death was prop-
erly supported by substantial evidence.

III.

For the foregoing reasons, we affirm the judgment.

AFFIRMED

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