UNPUBLISHED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Remanded by unpublished per curiam opinion.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, MEREDITH & 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Unpublished opinions are not binding precedent in this circuit.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 navigable 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, repairing, dismantling, or building a vessel)." 33 U.S.C. § 903(a). After the

ALJ below determined that claimant's injury did occur upon a covered 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 intervening 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 evidence 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 sufficiency 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 construction, was effectively part of the pier under construction, and therefore 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 adjoining navigable waters.

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

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