     Case: 18-60004   Document: 00515113103     Page: 1   Date Filed: 09/11/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit

                                 No. 18-60004                       FILED
                                                            September 11, 2019
                                                               Lyle W. Cayce
TOM L. MAYS,                                                        Clerk

             Petitioner - Cross-Respondent

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR

             Respondent - Cross-Respondent

v.

HUNTINGTON INGALLS, INCORPORATED,

            Respondent - Cross-Petitioner




                       Petitions for Review of an Order
                        of the Benefits Review Board


Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Tom Mays and his former employer, Huntington Ingalls, Inc.
(“Avondale”), cross-petition for review of an order of the Benefits Review Board
denying Mays’s motion for modification of his Longshore and Harbor Workers’
Compensation Act benefits. We affirm.
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                                     No. 18-60004
                                           I.
      This case arises from nearly three decades of administrative and state-
court litigation. In the spring of 1991, Tom Mays was employed by Avondale
as a welder at its shipyard in Avondale, Louisiana. Avondale contracted with
International Marine & Industrial Applicators, Inc. (“IMIA” or “International
Marine”) for cleaning and sandblasting services on a Naval vessel. Under the
companies’ agreement, IMIA employees would work at Avondale’s facility for
up to ninety days, during which time they would continue to be supervised and
insured by IMIA. Although Avondale reserved the right to remove IMIA
employees from its shipyard, only IMIA could fire them. At the end of the
sandblasting job, Avondale was to pay IMIA a fixed lump sum, out of which
IMIA would compensate its own workers.
      John Gliott was one of the IMIA employees placed on temporary work
duty at the Avondale shipyard. On March 18, 1991, Gliott kicked Mays in the
head, fracturing Mays’s cheekbone and injuring his eye. Mays was treated for
his injuries, underwent surgery, and saw several psychiatrists to address a
resulting psychological condition. Avondale voluntarily paid Mays $5,514.68 in
disability and medical benefits for a five-month period, after which it requested
that he return to work. Mays did not return, and instead filed a claim for
workers’ compensation benefits under the Longshore and Harbor Workers’
Compensation Act (“the Act”). 1 The Office of Administrative Law Judges
(“ALJ”) initially denied Mays’s claims for medical benefits and wage
indemnity, but reversed its position as to medical benefits upon remand from
the Benefits Review Board (“BRB” or “Board”). Avondale appealed, and the
Board affirmed.




      1   33 U.S.C. § 901 et seq.
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       Meanwhile, Mays had filed suit against Gliott and IMIA in Louisiana
state court. In January of 2000, Mays accepted a settlement of $60,000 from
Gliott and IMIA without Avondale’s approval. As part of the settlement
agreement, Mays agreed to “dismiss all claims in the Longshoremen and
Harbor Workers Compensation matter against Avondale.” Following the
settlement, Avondale sought relief against Mays under Section 33(g) of the Act,
which requires an injured employee to obtain his employer’s approval before
accepting a third-party tort settlement for less than the value of his workers’
compensation benefits. 2 If the employee fails to obtain employer approval of
such a settlement, “all rights to compensation and medical benefits . . . shall
be terminated.” 3
       Avondale argued that because it had not approved Mays’s settlement
with Gliott and IMIA, it was no longer liable for his medical expenses pursuant
to Section 33(g). At the same time, Mays filed a request for modification of his
workers’ compensation award, providing new documentation showing that his
injuries were more extensive than previously recognized. 4 The ALJ denied
Avondale’s request because the $60,000 settlement exceeded the value of the
workers’ compensation benefits Mays had received up to that point, rendering
Section 33(g) inapplicable. However, the ALJ granted Avondale relief under
Section 33(f) of the Act, which entitles an employer to credit its liability for
medical benefits against the net settlement amount. 5 Finally, the ALJ denied
Mays’s request for modification as untimely.




       233 U.S.C. § 933(g).
       3Id. § 933(g)(2).
      4 Section 22 of the Act “provides two avenues for modification of a prior judgment: (1)

a change in conditions, or (2) a mistake in a determination of fact by the ALJ.” Island
Operating Co., Inc. v. Dir., OWCP, 738 F.3d 663, 667 (5th Cir. 2013); see 33 U.S.C. § 922.
      5 See 33 U.S.C. § 933(f).

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      On appeal, the Board affirmed the ALJ’s grant of Section 33(f) relief but
found that Mays’s modification action was not time-barred. The Board
remanded the case with instructions to determine whether Mays was entitled
to any further periods of disability compensation and, if so, whether his
lifetime compensation benefits would become subject to forfeiture under
Section 33(g).
      Mays withdrew his request for modification in 2006 but reinstated it
several years later, this time arguing that a mistake of fact had been made in
the earlier proceedings. Mays claimed that he had never entered into a third-
party settlement because Gliott was a borrowed servant of Avondale, not a
third-party employee of IMIA. Because Longshore Act compensation is the
exclusive remedy for an employee injured by a person “in the same employ,”
neither Section 33(f)’s setoff provision nor Section 933(g)’s forfeiture provision
would apply if Gliott were determined to be Avondale’s borrowed servant. 6
      In July of 2016, the ALJ rejected Mays’s mistake-of-fact argument and
found that Gliott was not a borrowed servant. However, the ALJ also found
that Mays was entitled to additional disability compensation of $335,012.08. 7
Had the inquiry ended there, Mays’s compensation would have been modified
upward by this amount. However, per the Board’s earlier instruction, the ALJ
next considered the interaction between the hypothetical increase in
compensation and Mays’s settlement with Gliott and IMIA. Before the
hypothetical increase, Mays’s workers’ compensation was less than his
recovery under the settlement. However, with the increase, Mays’s
compensation would far exceed his recovery under the settlement, and this
change would trigger Section 33(g) of the Act. Because Avondale had not


      6 Id. § 933(i); see Gaudet v. Exxon Corp., 562 F.2d 351, 354 & n.4 (5th Cir. 1977).
      7 Because of a technical error, the ALJ initially found that Mays was entitled to an
additional $502,518.13. It corrected that figure downward on reconsideration.
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approved the settlement and Gliott was not an Avondale employee, Mays
would forfeit his benefits under the Act. In short, if the ALJ were to make the
hypothetical increase in benefits, it would also have to cancel those benefits
under Section 33(g)—resulting in no change for Mays. Thus, the ALJ denied
the modification.
       In affirming this decision, the Benefits Review Board stated that because
the request for modification was denied, the status quo ante remained in place:
“The result of the denial of [Mays’s] motion for modification is that the
administrative law judge’s prior award of medical benefits to claimant and
offset to employer of the net amount of the third-party settlement pursuant to
Section 33(f) remain in effect.” The Board denied both parties’ motions for
reconsideration. Mays and Avondale now cross-petition for review of the
Board’s affirmance. Mays objects to the Board’s findings on Gliott’s
employment status, while Avondale challenges the Board’s denial of Section
33(g) relief.
                                              II.
                                              A.
       Our review of BRB decisions is limited. We inquire only whether the
Board “correctly concluded that the ALJ’s order was ‘supported by substantial
evidence on the record as a whole and is in accordance with the law.’” 8 Evidence
is substantial if “a reasonable mind might accept [it] as adequate to support a
conclusion.” 9 “The substantial evidence standard is less demanding than that
of preponderance of the evidence, and the ALJ’s decision need not constitute




       8 Avondale Indus., Inc. v. Dir., OWCP, 977 F.2d 186, 189 (5th Cir. 1992) (quoting Odom
Constr. Co. v. United States Dep’t of Labor, 622 F.2d 110, 115 (5th Cir. 1980)); see Ceres Gulf,
Inc. v. Dir., OWCP, 683 F.3d 225, 228 (5th Cir. 2012).
        9 Avondale, 977 F.2d at 189 (quoting Diamond M Drilling Co. v. Marshall, 577

F.2d1003, 1006 (5th Cir. 1978)).
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the sole inference that can be drawn from the facts.” 10 To the contrary, the ALJ
“is exclusively entitled to assess both the weight of the evidence and the
credibility of witnesses,” and neither the Court nor the Board may substitute
its judgment for that of the ALJ. 11
                                              B.
       We consider the nine Ruiz factors to determine whether an employee is
a borrowed servant:
       (1) Who has control over the employee and the work he is
       performing, beyond mere suggestion of details or cooperation?
       (2) Whose work is being performed?
       (3) Was there an agreement, understanding, or meeting of the
       minds between the original and the borrowing employer?
       (4) Did the employee acquiesce in the new work situation?
       (5) Did the original employer terminate his relationship with the
       employee?
       (6) Who furnished tools and place for performance?
       (7) Was the new employment over a considerable length of time?
       (8) Who had the right to discharge the employee?
       (9) Who had the obligation to pay the employee? 12
Although no single one of these factors is decisive, the first is the most
critical. 13 As we have stated, “[t]he central question in borrowed servant cases




       10  Id.
       11  Bis Salamis, Inc. v. Dir., OWCP, 819 F.3d 116, 126 (5th Cir. 2016) (quoting Ceres
Gulf, 683 F.3d at 228); see Ingalls Shipbuilding, Inc. v. Dir., OWCP, 991 F.2d 163, 165 (5th
Cir. 1993).
        12 Gaudet, 562 F.2d at 355 (citing Ruiz v. Shell Oil Co., 413 F.2d 310, 312–13 (5th Cir.

1969)).
        13 See Hall v. Diamond M Co., 732 F.2d 1246, 1249 (5th Cir. 1984) (per curiam).

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is whether someone has the power to control and direct another person in the
performance of his work.” 14
                                             C.
       In general, the Longshore and Harbor Workers’ Compensation Act
“allows injured workers, without forgoing compensation under the Act, to
pursue claims against third parties for their injuries.” 15 However, Sections
33(f) and 33(g) of the Act place limits on this right. Section 33(f) provides in
relevant part:


       If the person entitled to compensation institutes proceedings
       [against a third-party tortfeasor] the employer shall be required to
       pay as compensation under this chapter a sum equal to the excess
       of the amount which the Secretary determines is payable on
       account of such injury or death over the net amount recovered
       against such third person.

In other words, when an injured worker successfully sues a third party, the
worker’s employer is entitled to reduce the benefits it would otherwise owe
under the Act by the amount the worker recovers from the third party. 16
       In addition, Section 33(g) imposes duties on the worker-plaintiff himself.
Under Section 33(g)(1), an injured worker must obtain his employer’s written
approval before accepting a settlement from a third-party tortfeasor for any
“amount less than the compensation to which the [employee] would be entitled
under” the Act. 17 If the employee fails to obtain that prior approval, “all future




       14  Hebron v. Union Oil Co. of Cal., 634 F.2d 245, 247 (5th Cir. Unit A Jan. 1981) (per
curiam) (citing Gaudet, 562 F.2d at 355).
        15 Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 471 (1992).
        16 See Jackson v. Land & Offshore Servs., Inc., 855 F.2d 244, 246 (5th Cir. 1988) (per

curiam) (noting that the employer’s “right to set-off the amount of the settlement against
future payments” furthers the statutory goal of “protect[ing] the compensation scheme from
costs that should be borne by third party tortfeasors”).
        17 33 U.S.C. § 933(g)(1).

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benefits including medical benefits are forfeited.” 18 Where an employee obtains
a court judgment against a third party or accepts a settlement for more than
the compensation due under the Act, his duty to his employer is less onerous.
In such cases, Section 33(g)(2) requires only that the employer receive notice,
not register its approval. 19 Together, these provisions of Section 33(g) are
“designed to ensure that the employer’s rights are protected . . . and to prevent
the claimant from unilaterally bargaining away funds to which the employer
or its carrier might be entitled under” the Act. 20
                                            III.
       Mays contends that the Benefits Review Board erred by concluding that
Gliott was an independent contractor employed by IMIA rather than a
borrowed servant of Avondale. Specifically, Mays challenges the Board’s
analysis of the Ruiz factors and its conclusions as to Avondale’s purported
judicial admissions regarding Gliott’s employment status and the relevance of
certain Board precedent.
                                             A.
       The ALJ found that eight of the nine Ruiz factors weighed against
borrowed servant status, and one factor was neutral. The Board affirmed,
concluding that while the evidence may not have been as overwhelming as the
ALJ suggested, “at least five of the nine factors favor the finding that . . . Gliott
is a ‘third party’ and not [Avondale’s] borrowed employee.” We find no genuine
issue as to any of the facts concerning the Ruiz factors. 21 Therefore, the only




       18 Cowart, 505 U.S. at 471.
       19 See 33 U.S.C. § 933(g)(2).
       20 Parfait v. Dir., OWCP, 903 F.3d 505, 509 (5th Cir. 2018).
       21 See Kiff v. Travelers Ins. Co., 402 F.2d 129, 131 (5th Cir. 1968) (noting that where

the relevant facts are undisputed, the borrowed servant determination is a question of law
to be decided by the court).
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question for this Court is whether the BRB erred as a matter of law in finding
that Gliott was an independent contractor. 22
       Regarding the first and most important Ruiz factor, the ALJ and BRB
agreed that IMIA retained control over Gliott and his work at the Avondale
shipyard. The primary evidence for this conclusion was the testimony of IMIA’s
president that his on-site foremen were in charge of all tasks to be performed
by IMIA employees. Mays now argues that the control factor favors borrowed
servant status for four reasons. First, “[c]ontrary to the [ALJ’s] conclusion, the
control factor does not require micromanagement.” Second, Avondale inspected
the work of the IMIA employees to ensure it was up to Avondale’s standards—
a power Mays describes as “the essence of control.” Third, Avondale, not IMIA,
conducted the investigation of the Mays-Gliott altercation. Finally, ultimate
direction over IMIA’s tasks came from Avondale: “IMIA did not simply appear
one day at the Avondale site and begin working where it wanted, doing
whatever it wanted.” Therefore, “[a]ny orders Gliott received from his
supervisors were in direct response to IMIA’s orders from Avondale.” Avondale
counters that “[t]here is absolutely no evidence in the record that anyone from
Avondale had control over Mr. Gliott’s work in any manner.” Furthermore,
Mays himself testified that he and Gliott had two separate foremen, indicating
that IMIA never relinquished control over Gliott’s employment. 23
       We agree with the administrative courts below that the first factor
weighs in favor of independent contractor status. As we have long noted, “a
careful distinction must be made ‘between authoritative direction and control,
and mere suggestion as to details or the necessary co-operation, where the



       22See Gaudet, 562 F.2d at 358–59.
       23See Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 616, 618 (5th Cir. 1986)
(considering “direct supervision” by an agent of the purported borrowing employer as a factor
supporting borrowed servant status).
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work furnished is part of a larger undertaking.’” 24 “‘Co-operation,’ as
distinguished from ‘subordination,’ is not enough to create an employment
relationship.” 25 Here, the facts indicate that although Avondale monitored the
sandblasting project it had hired IMIA to complete, Avondale did not direct the
actions of IMIA employees during the course of their daily work. Some degree
of oversight is a necessary component of any contract relationship; it is never
the case that an independent contractor “simply appear[s]” at a job site and
does “whatever it want[s].” Avondale’s quality checks and general site
management are readily distinguished from the conduct of a borrowing
employer, who gives direct orders to its borrowed servant. 26
       Next, we disagree with the ALJ and BRB’s conclusion that the second
Ruiz factor—whose work is being performed—is neutral. Instead, we conclude
that the second factor weighs in favor of borrowed servant status. It is true
that unlike the labor pool companies that feature in many borrowed servant
cases, IMIA did have a substantial business function independent of its work
with Avondale. 27 However, the discrete tasks IMIA completed at the Avondale
shipyard were crucial to Avondale’s ship-expansion contract with the United
States Navy. In analogous cases, the Court has consistently held that a worker
assisting with a company’s central task is functionally an employee of the
company, even if his payroll employer is a separate entity. In Melancon, for
example, we held that a welder whose work assisted the borrowing employer
with “an essential, although only incidental, aspect of [its] business” was



       24   Ruiz, 413 F.2d at 313 (quoting Standard Oil Co. v. Anderson, 212 U.S. 215, 222
(1909)).
       25 Id. (quoting Anderson, 212 U.S. at 226).
       26 See, e.g., Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 (5th Cir. 1988); Hebron,
634 F.2d at 247.
       27 See, e.g., Capps, 784 F.2d at 616 (according borrowed servant status to a worker

whose nominal employer was “a company specializing in the supplying of general laborers to
companies in need of temporary help”).
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properly categorized as a borrowed servant. 28 Moreover, at least one court
adjudicating a separate dispute involving the same corporate parties has
concluded that the tasks IMIA employees performed at the Avondale shipyard
were ultimately part of Avondale’s work. 29
       Next, although the ALJ considered the third Ruiz factor neutral, the
Board found that “there was no agreement between the two employers that
Gliott would become [Avondale’s] servant.” We agree with the ALJ and hold
that the third Ruiz factor is neutral. Given that discovery took place more than
two decades after the underlying altercation, it is unsurprising that Avondale
was unable to produce the Master Service Agreement between itself and IMIA.
Lacking the Agreement or the testimony of the executives who arranged it, the
Court cannot credit the inferences urged by either side. 30
       The fourth Ruiz factor considers whether the employee acquiesced in his
new work situation. 31 The ALJ and the Board concluded that Gliott did not
acquiesce to becoming Avondale’s borrowed servant because the Avondale job
lasted only a few months, during which IMIA maintained control over Gliott’s
tools, equipment, and wages. As Mays points out, however, the administrative
courts applied an incorrect legal standard. The question is not whether Mays
agreed to become Avondale’s employee but whether he “was aware of his work




       28 Melancon, 834 F.2d at 1245; see also Lemaire v. Danos & Curole Marine Contractors,
Inc., 265 F.3d 1059, at *2, *5 (5th Cir. 2001) (unpublished) (per curiam) (describing a
situation in which workers’ nominal employers “were under contract with Texaco to provide
employees to operate Texaco platforms offshore” as exemplifying “the nature of the ‘borrowed
employee’” relationship).
       29 Musa v. Litton-Avondale Indus., Inc., 10-627 (La. App. 5 Cir. 3/29/11), 63 So. 3d 243,

247.
       30 Given the age of the document and the many corporate transitions that have

happened in the years since it was executed, the Court declines Mays’s request to draw an
adverse inference against Avondale for failing to produce the Agreement.
       31 Gaudet, 562 F.2d at 355 (citing Ruiz, 413 F.2d at 312–13).

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conditions and chose to continue working in them.” 32 It is clear from the facts
presented that Gliott was aware of his working conditions at the Avondale site
and voluntarily continued to work there. 33 The fourth Ruiz factor therefore
supports borrowed servant status.
       However, the fifth factor—whether the original employer terminated his
relationship with the employee—clearly supports independent contractor
status. The ALJ and the Board agreed “that [IMIA] continued to employ
[Gliott], provided for his Longshore insurance, paid his wages, provided him
with his tools and equipment for work, and supervised him on a daily basis.”
Moreover, Gliott moved with IMIA to its next job when the contract at
Avondale was finished. Of course, the fifth Ruiz factor does not “require[] a
lending employer to completely sever his relationship with the employee”
before the employee may be considered a borrowed servant. 34 However, it does
require that the lending employer “cease[] control in its relationship” with the
employee. 35 Here, IMIA retained control over all the most important aspects of
Gliott’s employment: his pay, his performance, his supplies, and his insurance.
       The sixth factor—who furnished the tools and place of performance—
likewise indicates that Gliott was an independent contractor, not an Avondale
employee. The ALJ found that “International Marine provided the scaffolding
and [Gliott’s] tools of work, while [Avondale] provided the ship and shipyard
on which he worked.” Contrary to the Board’s conclusion, however, this
bifurcation of duties between IMIA and Avondale does not render the sixth



       32 Brown v. Union Oil Co. of Cal., 984 F.2d 674, 678 (5th Cir. 1993) (per curiam) (citing
Melancon, 834 F.2d at 1246).
       33 See Fontenot v. Mobil Oil Expl. & Producing Se., Inc., 997 F.2d 881, at *3 (5th Cir.

1993) (per curiam) (citing Capps, 784 F.2d at 617) (“[T]his court considers [a worker’s]
acceptance of a job that regularly sent him to temporary work places as acquiescence to each
of those employment situations.”).
       34 Capps, 784 F.2d at 617.
       35 Melancon, 834 F.2d at 1246 (emphasis added).

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factor neutral. In this case, the tools provided by IMIA were essential to Gliott’s
task, while the location of the work was merely incidental. The facts are readily
distinguished from Melancon, which Mays cites for the proposition that the
company at whose site the work takes place should generally be considered the
true employer. In Melancon, the worker was required to be on the borrower’s
premises because operation of the premises—an oil drilling platform—was the
very job to be performed. 36 In this case, by contrast, “[i]f the ship had been on
International Marine’s premises, [Gliott’s] work and tools would be the same.”
      As to the seventh factor, the ALJ found that Gliott’s employment was not
“over a considerable length of time” 37 because “the job in question lasted no
more than 90 days after which Gliott moved with International Marine to its
next job.” The Board considered this factor neutral, noting that while “a
lengthy period of employment tends to support a finding that the worker is a
borrowed employee . . . a laborer employed for only one day may be a borrowed
servant” under the right set of facts. 38 Although scattershot findings abound,
the case law provides little guidance on how to categorize Gliott’s ninety-day
term at Avondale. In Brown, for instance, a thirty-day period of employment
was considered neutral, 39 while in Melancon a seven-year term weighed in
favor of borrowed servant status. 40 In another case, we noted that “it is
debatable whether approximately a year and a half is a ‘considerable’ length of
time.” 41 Given these precedents, we hold there is substantial evidence to
support the ALJ’s conclusion that Gliott’s 90-day term should lead to a neutral
finding on the seventh Ruiz factor.



      36 See Melancon, 834 F.2d at 1241.
      37 Gaudet, 562 F.2d at 355.
      38 See Capps, 784 F.2d at 618.
      39 984 F.2d at 679.
      40 834 F.2d at 1246.
      41 U.S. Fire Ins. Co. v. Miller, 381 F.3d 385, 390 (5th Cir. 2004).

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                                    No. 18-60004
      The eighth factor asks which company—the nominal employer or the
purported borrowing employer—had the right to discharge the employee.
Testimony before the ALJ established that while Avondale could not terminate
Gliott’s employment, it did have the right to remove him from its property for
inappropriate conduct. The ALJ concluded that this factor favored independent
contractor status, but the Board found the opposite. We agree with the Board.
As Mays argues, “the proper focus when considering who has the right to
discharge the employee” is whether the purported borrower “had the right to
terminate [the worker’s] services with itself,” not his employment with the
lending employer. 42 Avondale does not contest that it could remove Gliott from
working on its premises. Therefore, Avondale had the right to “discharge”
Gliott within the meaning of the eighth Ruiz factor. 43
      Finally, we agree with the ALJ and the Board that the ninth factor—who
had the obligation to pay the employee—weighs in favor of independent
contractor status. The ALJ found that Avondale “paid [IMIA] a lump sum”
upon completion of the contract, and IMIA paid its own employees out of that
sum. Avondale never made direct payments to Gliott and had no obligation to
do so. Citing Capps and Melancon, Mays contends that “[w]here the lending
employer receives the funds to pay the employee from the borrowing employer,
the borrowing employer, in essence, has paid the employee.” 44 This is not an
entirely accurate representation of our case law. Although a payment to a
nominal employer may sometimes constitute an indirect payment to the
borrowed servant, that is not always the case. Mays’s interpretation would
swallow any analysis of this factor; after all, a contractor can always trace his
payment in wages back to another employer. Typically, the distinguishing


      42 Capps, 784 F.2d at 618 (emphasis added); see Hebron, 634 F.2d at 247–48.
      43 See, e.g., Melancon, 834 F.2d at 1246.
      44 See Capps, 784 F.2d at 618; Melancon, 834 F.2d at 1246.

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factor is the basis on which the purported borrower makes its payments. In
both Capps and Melancon, the borrower paid the nominal employer based on
the number of hours the borrowed servant worked, and then the nominal
employer paid the borrowed servant a percentage of that payment. 45 Here, by
contrast, “[t]he amount International Marine received . . . was not connected
to the hours worked” by Gliott or any other IMIA employee.
       In sum, four of the nine Ruiz factors, including the most important factor
of control, indicate that Gliott was not Avondale’s borrowed servant. Three
factors weigh in favor of borrowed servant status, while the remaining two are
neutral. Given this calculus, we affirm the Board’s conclusion “that the ALJ’s
order was supported by substantial evidence on the record as a whole and is in
accordance with the law.” 46
                                               B.
       Mays raises two further challenges to the Board’s borrowed servant
analysis. First, citing Nicholson v. Securitas Security Services USA, Inc., he
argues that Avondale is estopped by prior admissions from denying that Gliott
was its borrowed servant. 47 In support, Mays points to various statements
made by Avondale agents in which Gliott was described as an “employee” of
Avondale. For example, in a witness report submitted shortly after Mays’s
injury, an Avondale employee described the incident as an “altercation
between two employees.” Later, Avondale appeared to admit in a discovery
response that Mays and Gliott were “co-employees,” though later in the same
document Avondale expressly denied that Gliott was a borrowed employee. For
its part, Avondale characterizes these statements as “inadvertent use[s]” of the


       45 See Capps, 784 F.2d at 618; Melancon, 834 F.2d at 1246.
       46 Avondale, 977 F.2d at 189.
       47 See Nicholson, 830 F.3d 186, 189 (5th Cir. 2016) (“[T]he ‘right to control test’ is not

implicated when there is an admission by a defendant of employment.” (internal quotation
marks omitted)).
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                                       No. 18-60004
term “employee” and directs the Court to numerous discovery documents in
which Avondale denied that Gliott was its employee or borrowed servant.
       Avondale is correct that none of the statements to which Mays points
constitutes a judicial admission. “A judicial admission is a formal concession
in the pleadings or stipulations by a party or counsel that is binding on the
party making them.” 48 A statement made during the course of a lawsuit—even
a statement made in a pleading filed with the court—should be considered a
judicial admission only “if it was made intentionally as a waiver, releasing the
opponent from proof of fact.” 49 An evidentiary admission, by contrast, “is
‘merely a statement of assertion or concession made for some independent
purpose,’ and it may be controverted or explained by the party who made it.” 50
       Avondale’s admissions were of the latter variety. The evidence shows
that although Avondale agents occasionally referred to Gliott as an employee,
such statements were never made in a context indicating intentional waiver.
To the contrary, when specifically asked during discovery, Avondale denied
that Gliott was a borrowed employee. Nicholson does not dictate a different
result. There, the employer had averred that Nicholson was its employee in an
employment contract and in its answer, and conceded the point in its briefing
to the Court. 51 Unlike here, there were no inconsistent discovery materials or
denials of Nicholson’s employment status. 52 Considering the full context of the
litigation, the ALJ properly concluded that the statements made by Avondale



       48 Martinez v. Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir. 2001).
       49 Id.; see Dartez v. Owens-Ill., Inc., 910 F.2d 1291, 1294 (5th Cir. 1990).
       50 Martinez, 244 F.3d at 476–477 (quoting McNamara v. Miller, 269 F.2d 511, 515

(D.C. Cir. 1959)).
       51 Nicholson, 830 F.3d at 189.
       52 See Heritage Bank v. Redcom Labs., Inc., 250 F.3d 319, 329 (5th Cir. 2001) (“To

qualify as a judicial admission, [a] statement must be,” among other things, “deliberate, clear,
and unequivocal . . . .”); Dartez, 910 F.2d at 1294 (“Procedural context may . . . prevent the
use as admissions of statements made by a party . . . .”).
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                                       No. 18-60004
agents regarding Gliott’s employment were not judicial admissions of borrowed
servant status.
                                              C.
       Next, Mays argues that the Board erred by failing to follow its own
precedent on borrowed servant liability. In Mays’s view, the Board’s 2010
opinion in Phillips v. PMB Safety & Regulatory, Inc. “controls in this case.” 53
In Phillips, the claimant was injured in an attack by a coworker aboard a
Chevron oil rig. Although the attacker and the claimant were nominally
employed by separate subcontractors, the BRB concluded that Chevron was
liable for the claimant’s injuries under the Longshore Act because both workers
were Chevron’s borrowed servants. 54 Mays claims that Phillips’s liability
finding controls here because he and Gliott, like the workers in Phillips,
labored in a confined environment and were both doing work for the same
company. Avondale counters that Phillips provides no guidance because it does
not examine the Ruiz factors. Rather, the primary issue in Phillips was
whether the claimant was acting within the scope of his employment at the
time of his injury.
       Avondale is correct. Although factual similarities exist between Phillips
and the present case, Phillips’s legal conclusion is not controlling. At no point
in Phillips does the BRB mention Ruiz. In fact, both Phillips itself and the
Fifth Circuit case upon which it relies assume the prior establishment of
borrowed servant status. 55 Only after the Ruiz analysis has been conducted
and resolved in favor of borrowed servant status does Phillips become relevant.




       53 See Phillips, 44 BRBS 1 (2010 BRB).
       54 Id. at 5.
       55 Phillips, 44 BRBS at 5; see Perron v. Bell Maint. & Fabricators, Inc., 970 F.2d 1409,

1410 (5th Cir. 1992).
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                                       No. 18-60004
Because the Ruiz analysis in this case weighs in favor of independent
contractor status, Philips does not apply.
                                             IV.
       On cross-appeal, Avondale argues that the Board erred in its conclusion
as to the form of Section 33 relief to which Avondale is entitled. Section 33(f)
entitles an employer to credit “against his compensation payments . . . any
amount received by [an] employee by way of settlement with a third party
tortfeasor.” 56 Section 33(g) contemplates even more significant relief for the
employer. Where an employee fails to obtain his employer’s approval before
accepting a third-party tort settlement for less than the value of his longshore
benefits, the employer is completely excused from all statutory obligations to
the employee. 57
       In 2003, the Board affirmed the ALJ’s grant of Section 33(f) relief to
Avondale based on Mays’s $60,000 settlement with Gliott and IMIA. In 2016,
the ALJ found that Mays was entitled to additional disability compensation of
more than three hundred thousand dollars. However, because that additional
award would far exceed Mays’s earlier, unapproved settlement with Gliott and
IMIA, Section 33(g) would mandate forfeiture of the additional award. In other
words, it would be a wash. Accordingly, the ALJ denied Mays’s request for
modification. In affirming the ALJ’s decision, the Board noted that “the
administrative law judge’s prior . . . offset to employer of the net amount of the
third-party settlement pursuant to Section 33(f) remain[s] in effect.”
       Avondale now argues that the Board “should have affirmed the lower
Court’s ruling based on Section 33(g), which was the basis of the lower Court’s
decision.” To be clear, Avondale does not argue that the Board made an error


       56 Petroleum Helicopters, Inc. v. Collier, 784 F.2d 644, 646 (5th Cir. 1986) (citing 33
U.S.C. § 933(f)).
       57 33 U.S.C. § 933(g)(2); see Cowart, 505 U.S. at 471.

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of law; it argues that the Board “fail[ed] to consider the findings . . . of the
Administrative Law Judge whereby [Section] 33(g) was invoked.” But
Avondale misunderstands the ALJ’s decision: it did not modify Mays’s benefits
and then apply a Section 33(g) forfeiture to the modified amount. Rather, the
ALJ determined that modification was not required, because any upwards
modification would trigger, and be cancelled out by, a Section 33(g) forfeiture.
Thus, the Section 33(f) relief awarded by the ALJ remains in effect, and the
unmodified compensation award stands following this appeal.
                                      V.
      We find no error in the Board’s conclusion that the ALJ’s decision below
was supported by substantial evidence and in accordance with the law. The
Order of the Benefits Review Board is therefore affirmed.




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