UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CAROLINA STEVEDORING COMPANY;
HOMEPORT INSURANCE COMPANY,
Petitioners,

v.

ELLENOR DAVIS; BRENDA SHAW
                                                                     No. 99-1283
MCNEIL; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order of the
Benefits Review Board.
(98-860, 98-861, 98-862)

Submitted: July 27, 1999

Decided: September 14, 1999

Before ERVIN, WILKINS, and NIEMEYER,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Richard P. Salloum, FRANKE, RAINEY & SALLOUM, P.L.L.C.,
Gulfport, Mississippi, for Petitioners. E. Paul Gibson, RIESEN LAW
FIRM, L.L.P., North Charleston, South Carolina, for Respondents
Davis and McNeil. Henry L. Solano, Solicitor of Labor, Carol A. De
Deo, Associate Solicitor, Samuel J. Oshinsky, Counsel for Longshore,
Andrew D. Auerbach, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent Director.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Carolina Stevedoring Company ("Carolina Stevedoring") and
Homeport Insurance Company petition for review of the decision and
order of the Department of Labor's Benefits Review Board ("Board")
affirming the Administrative Law Judge's ("ALJ") decision and order
awarding death benefits to Gerald Warren's two minor children under
the Longshore and Harbor Workers' Compensation Act, U.S.C.A.
§§ 901-950 (West 1986 & Supp. 1999) ("LHWCA"). Warren, an
employee of Carolina Stevedoring, was fatally injured at work on Jan-
uary 20, 1996. Carolina Stevedoring contends that despite the fact that
Warren was killed during a job-related incident, Warren's own mis-
conduct, specifically concealing from Carolina Stevedoring a history
of grand mal seizures, precludes an award of benefits. Carolina Steve-
doring also contends that Warren did not have the wage earning
capacity of a longshoreman at the time of the fatal accident. Finding
no reversible error, we affirm.

Warren, a longshoreman, was killed after being run over by a trac-
tor trailer truck as he was standing on the docks talking with a co-
worker. (Joint Appendix ("J.A.") at 179-82, 280). Warren died at the
scene as a result of multiple traumatic crushing injuries of the thorax,
upper abdomen, and left upper extremity. (J.A. at 134-36).

Warren had a history of grand mal seizures. His first known seizure
was in July 1993. (J.A. at 73). Warren had another seizure in Novem-

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ber 1993. (J.A. at 74-79). Dr. John Plyler, a neurologist, prescribed
Dilantin and prohibited Warren from driving until he experienced no
seizures for six months. He further advised Warren to take "precau-
tions" when working around hazardous machinery. (J.A. at 69-70).
Warren had seizures again in December 1993 and January 1994. (J.A.
at 146).

In February 1994, Warren visited Dr. Plyler and reported the Janu-
ary seizure. Plyler kept Warren on Dilantin and maintained the driv-
ing and work restrictions. (J.A. at 64). Despite having a seizure in
August 1994, Warren told Plyler in December 1994 that he had not
had any seizures within the past six months. Based on this representa-
tion, Plyler permitted Warren to resume full work responsibilities.
(J.A. at 66, 85). Warren, however, suffered additional seizures in
April 1995 and January 1996. Emergency room records note that
Warren had not been taking Dilantin as prescribed. (J.A. at 92, 99,
104). Warren died at work nineteen days after his last seizure.

Carolina Stevedoring contends that it was not notified of Warren's
entire history of seizures, particularly the seizure that occurred on
January 1, 1996. Carolina Stevedoring further contends that if it had
known that Warren had an unstable seizure condition, he would not
have been employed as a longshoreman and, consequently, would not
have been on the docks the day of the accident. (J.A. at 214-18).

At the hearing before the ALJ, a rehabilitative counselor testified
that given Warren's medical history, he should not have been
employed as a longshoreman. (J.A. at 344-47). The counselor further
testified that in light of his medical condition, Warren had an earning
capacity of $4.75 to $6.00 per hour. Warren earned $18 to $20 an
hour as a longshoreman. (J.A. at 353).

The ALJ found that neither Warren's failure to take his medication
nor his failure to inform his physician that he had suffered seizures,
constituted an intervening cause of the accident that took his life,
although these factors would have made him ineligible for employ-
ment. The sole cause of Warren's death, the ALJ found, was the inju-
ries suffered as a result of the accident. The ALJ also calculated
Warren's death benefits based upon his average weekly wage of
$854.35. The parties stipulated to this amount at the hearing. (J.A. at

                    3
5-6). The Board affirmed the ALJ's order in all respects. (J.A. at 10-
16).

Under 33 U.S.C. § 903(a), workers' compensation shall be payable
if an employee dies from an injury occurring upon a navigable
waters' adjoining dock. Except for injuries caused solely by the dece-
dent's intoxication or "willful intention . . . to injure or kill himself
or another," 33 U.S.C. § 903(c), compensation is payable irrespective
of fault as a cause of the injury. See 33 U.S.C. § 904(b); Newport
News Shipbuilding & Dry Dock Co. v. Hall, 674 F.2d 248, 250 (4th
Cir. 1982) (exceptions under § 903(c) are the only exceptions to an
employer's liability). Our review of the Board's decisions under the
LHWCA is limited to a search for errors of law and deviations from
the statutory conclusiveness afforded to those factual findings by the
ALJ that are supported by substantial evidence. See 33 U.S.C.
§ 921(b)(3); Newport News Shipbuilding & Dry Dock Co. v. Tann,
841 F.2d 540, 543 (4th Cir. 1988).

There is no evidence that Warren was intoxicated or that he had the
willful intent to injure or kill himself or another at the time of the fatal
accident. Warren may have disregarded his own safety by working
and not taking his medication, but this falls short of a willful intent
to injure or kill. See, e.g., Hall, 674 F.2d at 250 (employee's fraudu-
lent misrepresentations regarding his medical condition provided no
exception to employer's liability); Glens Falls Indem. Co. v.
Henderson, 212 F.2d 617, 618 (5th Cir. 1954) (worker who died dur-
ing strenuous labor did not intend to injure or kill himself despite a
physician's warning that such labor could be fatal). Nor, as the ALJ
noted, is there any evidence that Warren was having a seizure at the
time of the accident.

Carolina Stevedoring argues that it is not liable for benefits because
Warren's conduct was an intervening cause of his death. Specifically,
it is asserted that Warren's failure to inform his employer of his medi-
cal condition and his failure to take his medications caused his fatal
injury. Normally, an employer is liable for all injuries that naturally
flow from a work related accident, even if such injuries occur at a
later point in time. Where, however, injuries occurring subsequent to
the work accident are the direct result of the employee's own unex-
cused conduct, such conduct may be considered to be an intervening

                     4
cause of the employee's injuries and absolve an employer from liabil-
ity. See Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 1051 (5th
Cir. 1983).

In Lira, the employee sought compensation for his addiction to nar-
cotic pain killers that he took as a result of a work-related back injury.
The employee, however, intentionally did not inform his treating phy-
sician of a pre-accident addiction to narcotics. Such conduct, the court
found, was the cause of the addiction. Thus, the addiction was not
compensable because the addiction was not merely a consequence of
the back injury. In the instant case, there was no subsequent injury
related to the original fatal accident. Nor did Warren's conduct
worsen the result of the accident. Thus, the intervening cause doctrine
is inapplicable to this case.

Carolina Stevedoring also contends that benefits should not be
based upon Warren's average weekly wage at the time of the accident
because Warren was not eligible to be a longshoreman at the time of
the accident due to his unstable seizure history. Rather, it is argued
that compensation should be based upon Warren's wage earning
capacity as an individual with unstable seizures. An injured employ-
ee's average weekly wage at the time of the accident is typically the
basis upon which compensation is determined. See 33 U.S.C. § 910.
During the hearing before the ALJ, the parties stipulated that Warren
had an average weekly wage of $854.35. (J.A. at 332-33). Absent
exceptional circumstances, the parties and this court are bound by
stipulations or concessions of fact made below. See Richardson v.
Director, Office of Workers' Compensation Programs , 94 F.3d 164,
167 (4th Cir. 1996). Given that the ALJ relied on the parties' stipula-
tion and the formula typically used in longshore cases for determining
wage earning capacity, we find that substantial evidence supports her
findings with regard to Warren's average weekly wage and the
amount of compensation awarded to the survivors.

Accordingly, we affirm the Board's order. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid in
the decisional process.

AFFIRMED

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