        IN THE UNITED STATES COURT OF APPEALS

                     FOR THE FIFTH CIRCUIT
                              _______________

                                m 02-60156
                              Summary Calendar
                              _______________




                            NORMAN VICKNAIR,

                                                          Petitioner,

                                  VERSUS

                       AVONDALE INDUSTRIES, INC.;
         DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
                 UNITED STATES DEPARTMENT OF LABOR,

                                                          Respondents.



                         ________________________

                            Appeal from an Order of
                           the Benefits Review Board
                                   (00-0942)
                         _________________________
                                October 9, 2002




Before HIGGINBOTHAM, SMITH, and          JERRY E. SMITH, Circuit Judge:*
  CLEMENT, Circuit Judges.

                                            *
                                              Pursuant to 5TH CIR. R. 47.5, the court has
                                         determined that this opinion should not be pub-
                                         lished and is not precedent except under the limited
                                                                             (continued...)
    Norman Vicknair filed a claim under the               In 1997, an audiogram revealed that Vick-
Longshore and Harbor Workers’ Compensa-                nair was suffering from hearing loss. He testi-
tion Act, as amended, 33 U.S.C. § 901 (“the            fied that he was exposed to loud noises while
Act”), against his former employer, Avondale           working in fabrication shops at ISI; he denied
Industries, Inc. (“Avondale”), alleging that           being exposed to loud noises during load-outs.
while employed at Avondale from 1969 to                Although ISI’s Vice-President of Operations
1991, he suffered hearing impairment as a re-          stated that inspectors could be exposed to loud
sult of exposure to loud noises. Because we            noises during load-outs, there was no evidence
agree with the Benefits Review Board                   that Vicknair was ever so exposed.
(“BRB”) that the decision of the administrative
law judge (“ALJ”) was supported by substan-                                   II.
tial evidence, we affirm.                                 Vicknair initiated a claim against Avondale
                                                       under the Act. The ALJ determined that ISI,
                     I.                                not Avondale, was the last causative employer,
   Vicknair began working at Avondale in               and consequently dismissed the claim. The
1969 as a helper and pipefitter. He was ex-            BRB affirmed the ALJ’s decision. Vicknair
posed to loud noises generated from sledge             appeals, contending that the BRB erroneously
hammers banging against metal in confined              determined that he was a covered employee
areas and chipping and grinding from other             under the Act at ISI; even if he is, Vicknair
craft. Although he was given ear plugs, he did         claims that his time spent engaging in maritime
not always use them.                                   duties was de minimis. He also argues that ISI
                                                       cannot be the last causative employer, because
   In 1991, Vicknair left Avondale for Inspec-         he was never exposed to loud noises while
tion Services Incorporated (“ISI”), his current        performing maritime work there.
employer. ISI is a quality assurance company
that hires out its employees to oversee work                                  III.
being performed by its clients, who are pri-               Our review is limited to determining wheth-
marily builders of drilling rigs.                      er the BRB correctly concluded that the ALJ’s
                                                       order was “supported by substantial evidence
    Vicknair performs inspections of offshore          on the record as a whole and is in accordance
drilling platforms during the building process         with the law.” Avondale Indus., Inc. v. Direc-
and after completion of the project. Most of           tor, OWCP, 977 F.2d 186, 189 (5th Cir. 1992)
his inspections take place in fabrication shops,       (citations omitted). 1           The substan
where the offshore production equipment is
made, but he also is responsible for ensuring
that the products are properly loaded and un-             1
                                                            Substantial evidence is defined as “more than
loaded onto barges for shipment offshore.              a mere scintilla of evidence, which a reasonable
Vicknair testified that he spent approximately         mind might accept as adequate to support a conclu-
three weeks inspecting load-outs during an             sion.” Universal Camera Corp. v. NLRB, 340
eight-year period of employment with ISI.              U.S. 474, 477 (1951); see also Avignone Freres,
                                                       Inc. v. Cardillo, 117 F.2d 385, 386 (D.C. Cir.
                                                       1940) (stating that substantial evidence is “such
   *
    (...continued)                                     relevant evidence that a reasonable mind might
circumstances set forth in 5TH CIR. R. 47.5.4.                                            (continued...)

                                                   2
tial evidence standard is less demanding than is        employer to expose the employee to injurious
the preponderance of the evidence standard,             stimuli before the date when he becomes
and the ALJ’s decision need not constitute the          aware that he is suffering from an occupational
sole inference that can be drawn from the               disease arising out of his employment. Avon-
facts. Diamond M. Drilling Co. v. Marshall,             dale, 977 F.2d at 189; Travelers Ins. Co. v.
577 F.2d 1003, 1005 (5th Cir. 1978) (citations          Cardillo, 225 F.2d 137, 145 (2d Cir. 1955).
omitted). As fact-finder, the ALJ determines            Section 20(a) of the Act provides a presump-
questions of credibility of witnesses and of            tion that claims fall within the provisions of the
conflicting evidence. Atl. Marine, Inc. v.              Act “in the absence of substantial evidence to
Bruce, 661 F.2d 898, 900 (Former 5th Cir.               the contrary.” 33 U.S.C. § 920(a). An em-
Nov. 1981).                                             ployer may rebut the § 20(a) presumption by
                                                        showing that the “employee was exposed to
                       IV.                              injurious stimuli while performing work cov-
   A two-pronged test determines whether an             ered under the [Act] for a subsequent em-
injured worker falls under the provisions of the        ployer.” Avondale, 977 F.2d at 190 (citation
Act and thus is entitled to benefits. A claimant        omitted).
must satisfy the Act’s status requirement, 33
U.S.C. § 902(3), and its situs requirement, 33             Initially, the ALJ found that Vicknair had
U.S.C. § 903(a). The status requirement                 presented sufficient evidence to create a pre-
defines those employees considered to be                sumption that his hearing loss was causally re-
engaged in maritime employment.2 The situs              lated to his employment at Avondale. The
requirement requires that an employee’s injury          ALJ determined, however, that Avondale had
take place upo n the navigable waters of the            rebutted the presumption by establishing that
United States, which includes in part any               Vicknair was exposed to injurious noise while
adjoining wharf, dry dock, or terminal. For             working at ISI, a subsequent maritime em-
purposes of the Act, a maritime employer is an          ployer.
“employer any of whose employees are em-
ployed in maritime employment, in whole or in                                  A.
part.” 33 U.S.C. § 902(4).                                  Vicknair first argues that at ISI, he has not
                                                        engaged in work covered under the Act. A
   The employer responsible for paying full             claimant engages in maritime employment if he
benefits in an occupational disease case, in-           is engaged in work that is integral to the load-
cluding a hearing loss case, is the last maritime       ing, unloading, constructing, or repairing of
                                                        vessels. See 33 U.S.C. § 902(3); Chesapeake
                                                        & Ohio Ry. v. Schwalb, 493 U.S. 40, 45
   1
                                                        (1989). An employee need only spend “at
    (...continued)                                      least some of his time in indisputably covered
accept as adequate to support a conclusion”).
                                                        activities” before he is considered to have en-
   2
     Section 902(3) defines “employee” as “any          gaged in maritime employment. Northwest
person engaged in maritime employment, including        Marine Terminal Co. v. Caputo, 432 U.S. 249
any longshoreman or other person engaged in             (1977).
longshoring operations, and any harbor-worker in-
cluding a ship repairman, shipbuilder, and ship-           In Boudloche v. Howard Trucking Co., 632
breaker . . . .” 33 U.S.C. § 902(3).

                                                    3
F.2d 1346 (5th Cir. Unit A 1980), we decided              but not a “substantial portion,” engaging in
that a truck driver who unloaded his cargo on-            maritime work. Id. Because Vicknair testified
to ships was engaged in maritime employment.              that he “sometimes” inspected the load-out
Id. at 1348. “The fact that his employer also             process, his activities undoubtedly fall within
assigned him broader duties as a truck driver             the scope of § 902(3).
cannot override its choice to make [the
claimant] a maritime employee under the Act.”                Vicknair still contends that coverage is un-
Id.                                                       warranted, because his participation in load-
                                                          outs was de minimis. In Boudloche, in finding
   Vicknair does not dispute that the inspec-             that the truck driver claimant engaged in mari-
tion of load-outs qualifies as the type of work           time employment, we left open the question of
contemplated by § 902(3).3 He instead argues              when an employee’s longshoring activities
that because he spent only three weeks in-                might become “so momentary or episodic
specting load-outs during an eight-year peri-             [that] it will not suffice to confer status.” Id.
od,4 his maritime activities are insufficient to          Importantly, the truck driver in Boudloche
qualify him under the Act. We reject his argu-            spent only 2½% to 5% of his working time
ment. In Boudloche, we emphasized that an                 performing longshoring activities.            Id.
employee need only spend “some” of his time,              Nevertheless, we declined to address whether
                                                          he met a de minimis threshold, because he was
                                                          “directed to regularly perform” longshoring
   3
     In arguing that the load-out inspections were        activities. Id. Vicknair argues that his
de minimis, Vicknair notes that the monitoring was        longshoring activities were de minimis because
done at a distance and that his purpose was “not to       his load-out inspections constituted less than
get involved with the actual procedure.” Even if
                                                          one percent of his overall working time.
we were to construe this observation as an
argument that load-out inspections do not qualify
as maritime work under the Act, it would fail under
our “expansive view” of § 902(3). Caputo, 432                This court has never attempted to quantify
U.S. at 268.                                              a precise mathematical point at which an em-
                                                          ployee’s maritime activities become de mini-
   An employee satisfies the status requirement of        mis. Instead, Boudloche indicates that as long
§ 902(3) where he engages in work that is                 as an employee is directed regularly to perform
“integral” to the loading, unloading, constructing,       some portion of what is indisputably maritime
or repairing of vessels. Id. at 271. Those                work, his activity will not be considered
personnel not directly involved in the loading or         momentary or episodic.5
unloading of cargo, such as inspectors, have
consistently been determined to be covered under §
902(3). E.g., id. (permitting coverage for employ-
                                                             5
ee whose job was to check and mark items of                    See Lennon v. Waterfront Transp., 20 F.3d
cargo); Levins v. BRB, 724 F.2d 4, 9 (1st Cir.            658, 661 (5th Cir. 1994) (applying Boudloche for
1984) (permitting coverage of a book clerk who            the proposition that claimant’s handling of cargo
identified and recorded cargo).                           was “sufficiently regular so as not to be considered
                                                          episodic”); see also Levins, 724 F.2d at 9 (noting
   4
     Based on a forty-hour work week, Vicknair            that a “de minimis situation” does not exist,
spent less than one percent of his work time              because claimant’s maritime activities “were part
inspecting load-outs.                                                                         (continued...)

                                                      4
   There is substantial evidence that Vicknair             covered employee while performing load-out
was so directed. Michael Foret, ISI’s office               inspections, but not non-maritime activities.
manager, deposed that Vicknair’s duties were
essentially to oversee projects from beginning                Vicknair is correct that the record is void of
to completion. Foret stated that an inspector              evidence that he was exposed to loud noises
goes “wherever he would be required to                     while inspecting load-outs at ISI.           No
perform his duties.” He stated that an                     witnesses disputed his testimony that the
inspector’s duties include making sure that                crane’s used during these load-outs produced
products manufactured in fabrication yards are             only moderate amounts of noise. Although
properly loaded and tied down on barges for                William Downey stated that inspectors might
shipment offshore. The fact that Vicknair’s                be exposed to loud noises during load-outs if
inspection of load-outs was a regular part of              welders or gougers are present, there was no
his duty of seeing projects completed from                 evidence that Vicknair participated in these
beginning to end directs the conclusion that his           load-outs. Instead, the evidence shows that
maritime activities were not de minimis.6                  his exposure to loud noises occurred only
                                                           while he performed non-maritime work in
                        B.                                 fabrication shops.
    Vicknair also contends that he does not sat-
isfy the Act’s status requirement because there               Nevertheless, the fact that Vicknair’s expo-
is no evidence that he was exposed to injurious            sure t o injurious stimuli came only while he
noises while engaging in maritime activities at            performed non-maritime work does not defeat
ISI.7 In effect, Vicknair argues that he was a             his status as a maritime employee under
                                                           § 902(3). In Hullinghorst Indus., Inc. v. Car-
                                                           roll, 650 F.2d 750 (5th Cir. Unit A July 1981),
   5                                                       we held that maritime employee status can be
    (...continued)
of his regularly assigned duties as a whole”);
                                                           based “either upon the maritime nature of the
Graziano v. Gen. Dynamics Corp., 663 F.2d 340,             claimant’s activity at the time of his injury or
343 (1st Cir. 1981) (“Although only 2.5 to 5               upon the maritime nature of his employment as
percent of Boudloche’s overall employment was              a whole.” Id. at 754 (emphasis added).
maritime in character, the Fifth Circuit extended
coverage because ‘he was directed to regularly                Permitting coverage based on the overall
perform some portion of what was indisputably
longshoring work.’”).
   6                                                          7
     See Levins, 724 F.2d at 9 (“These do not                  (...continued)
appear to have been discretionary or extraordinary         As the BRB points out, however, this argument is
occurrences, but rather a regular portion of the           irrelevant, because the last-employer rule does not
overall tasks to which petitioner could have been          require a causal relationship between the
assigned as a matter of course.”) (citations               subsequent employment and hearing loss. Rather,
omitted).                                                  the exposure to injurious stimuli need only have the
                                                           potential to cause hearing impairment. See
   7
     Vicknair also argues that his hearing did not         Avondale, 977 F.2d at 190 (stating that “regardless
get worse after he left Avondale, implying perhaps         of the brevity of exposure, if it has the potential to
that he was not exposed to injurious stimuli at ISI.       cause disease, it is considered injurious”) (citation
                                    (continued...)         omitted).

                                                       5
maritime nature of employment is consistent                   Because we agree that there was substantial
with Congress’s intent to prevent                          evidence supporting the ALJ’s decision, the
longshoremen from walking in and out of                    order of the BRB is AFFIRMED.
coverage.8     Because we already have
established the overall maritime nature of
Vicknair’s employment, we reject his
argument that a lack of exposure to noise
while performing maritime work defeats
coverage under § 902(3).9


   8
      Caputo, 432 U.S. at 273 (“[T]o exclude [an
employee] from the Act’s coverage in the morning
but include him in the afternoon would be to re-
vitalize the shifting and fortuitous coverage that
Congress intended to eliminate.”). In Caputo, the
Court specifically rejected the “point of rest” the-
ory that would have assigned coverage based on
whether the employee was engaged in a maritime
activity at the time of injury. Caputo, 432 U.S.
at 275-76.
   9
      Notably, Vicknair does not invoke the Act’s
situs requirement, § 903(a), in his attempt to argue
that ISI is not the last causative employer. Section
903(a) requires that a compensable injury occur
“upon the navigable waterways of the United
States,” including a dry dock or wharf.

   Even if Vicknair had made this argument, we
are doubtful that the situs requirement applies to
subsequent employers in cases applying the last-
employer rule. As a “rule of liability assessment,
not of jurisdiction,” Fulks v. Avondale Shipyards,
Inc., 637 F.2d 1008, 1012 (5th Cir. 1981), the last-
employer rule requires only that the claimant be ex-
posed “to injurious stimuli while performing work
covered under the [Act] for a subsequent em-
ployer.” Avondale, 977 F.2d at 190 (citation
omitted).

                                                              9
    Whether work is covered under the Act is an                (...continued)
issue independent of the situs requirement, which          “makes it exceedingly difficult, if not practically
deals only with the location of injury. Moreover,          impossible, to correlate the progression of the
the nature of occupational diseases, unlike injury,        disease with specific points in time or specific
                                    (continued...)         industrial experiences.” Cardillo, 225 F.2d at 144.

                                                       6
