UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REID ASSOCIATES, INCORPORATED,
Petitioner,

v.

WALTER VAN NOSTRAND; DIRECTOR,
                                                                  No. 96-2600
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(94-275)

Argued: October 30, 1997

Decided: November 21, 1997

Before MURNAGHAN, HAMILTON, and LUTTIG,
Circuit Judges.

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Remanded by unpublished per curiam opinion. Judge Murnaghan
wrote a concurring opinion.

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COUNSEL

ARGUED: F. Nash Bilisoly, IV, VANDEVENTER, BLACK, MER-
EDITH & MARTIN, L.L.P., Norfolk, Virginia, for Petitioner. John
Harlow Klein, RUTTER & MONTAGNA, L.L.P., Norfolk, Virginia,
for Respondents. ON BRIEF: Kelly O. Stokes, VANDEVENTER,
BLACK, MEREDITH & MARTIN, L.L.P., Norfolk, Virginia, for
Petitioner. Matthew H. Kraft, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Petitioner Reid Associates seeks judicial review of an order of the
Benefits Review Board awarding Reid's former employee, respondent
Walter R. Van Nostrand, with disability benefits under the Longshore
and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901
et seq. Petitioner contends that Van Nostrand is not entitled to
LHWCA benefits because he has not proven that his injury occurred
upon a LHWCA-covered situs, that is, that it occurred "upon the navi-
gable waters of the United States (including any adjoining pier, wharf,
drydock, terminal, building way, marine railway, or other adjoining
area customarily used by an employer in loading, unloading, repair-
ing, dismantling, or building a vessel)." 33 U.S.C. § 903(a). After the
ALJ below determined that claimant's injury did occur upon a cov-
ered situs, we decided Sidwell v. Express Container Services, 71 F.3d
1134 (4th Cir. 1995), in which we addressed comprehensively the
geographical reach of LHWCA coverage. Moreover, even under
Sidwell, it is impossible to discern from the record as it is currently
developed whether claimant's injury occurred on an"other adjoining
area" within the meaning of the LHWCA. Accordingly, we remand
this case to the agency to determine whether, in light of the interven-
ing Sidwell decision, claimant's injury occurred upon a situs covered
by the LHWCA.*

REMANDED
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*Reid Associates alternatively challenges the sufficiency of the evi-
dence to support the decision awarding Van Nostrand benefits. Because
we are remanding for further consideration in light of our interpretation
of the "situs" requirement in Sidwell, we express no opinion as to the suf-
ficiency of the evidence to support an award of benefits in this case.

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MURNAGHAN, J., concurring:

I believe that the construction ditch carrying fuel and steam pipes
to be loaded onto Navy ships, 300 yards from the pier under construc-
tion, was effectively part of the pier under construction, and there-
fore was a covered situs under the LHWCA. However, it is likely
that on remand the ALJ will find that the part of the ditch in which
Van Nostrand was injured and the pier under construction together
amounted to one construction ditch. Applying the Sidwell analysis the
ALJ will likely conclude that the injury took place in an area adjoin-
ing navigable waters.

I, therefore, find a dissent useless and accordingly concur.

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