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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-60349
Summary Calendar
MICHAEL P. DAUL,
Petitioner,
VERSUS
PETROLEUM COMMUNICATIONS, INC.; TRAVELERS
INSURANCE COMPANY; DIRECTOR, OFFICE OF WORKER'S
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order of the
Benefits Review Board
December 8, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
Michael P. Daul (hereinafter "petitioner") filed a claim for
benefits pursuant to the United States Longshore and Harbor
Workers' Compensation Act (hereinafter the "Act") against his
employer, Petroleum Communications, Inc. (hereinafter "Petro
Comm"), and its compensation insurer, Travelers Insurance Company.
The claim proceeded to trial before an administrative law judge
(hereinafter the "ALJ") who issued a decision and order denying

benefits. The ALJ found that petitioner was a "salesman of
cellular air time for his employer, Petroleum Communications, Inc."
and that he was barred from coverage by the "vendor exclusion" set
forth at 33 U.S.C. § 902(3)(D). The Benefits Review Board affirmed
the decision and order of the ALJ. Petitioner filed a petition for
review with this Court. For the reasons stated hereinafter, we
DENY the petition.
BACKGROUND
Petro Comm is one of two companies licensed to provide
cellular telephone communications to users in the Gulf of Mexico.
Petro Comm sells air time and either sells or leases equipment that
facilitates the use of that air time. When new equipment is being
installed or existing equipment is undergoing major relocations,
Petro Comm subcontracts such work to SOLA Communications, Inc. and
its technicians who accomplish the actual installation and
relocation work required. The petitioner had worked for Petro Comm
since 1989 and his title was "communications consultant." A Petro
Comm communications consultant's duties are to maintain customer
relations, to call on customers, to transport new equipment offered
by Petro Comm to customers, and to attempt to sell such equipment
and air time to them, and to pick up broken or defective equipment
and/or return repaired equipment.
On Monday, May 15, 1995, petitioner accompanied a technician
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from SOLA Communications, Inc. to the Houma office of Global
Pipelines Plus, Inc. (hereinafter "Global") for the purpose of
installing equipment on the barge CHICKASAW, which was owned by
Global and was docked on the Houma navigational canal. While
descending steps on the barge carrying a desk phone, the petitioner
slipped and fell allegedly because of "slippery food material" on
the stairs. Following his injury, petitioner received worker's
compensation benefits under the Louisiana Worker's Compensation law
from June 12, 1995, to the date of hearing before the ALJ in this
claim.
The critical issue in this case is whether petitioner was
barred from coverage by the "vendor exclusion" in 33 U.S.C. §
902(3)(d).1 The ALJ found:
a.
that Petro Comm derives 95% of its revenues from the
1
The relevant portions of § 902(3)(d) are as follows:
(3)
The term "employee" means any person engaged in
maritime employment, . . . but such term does not include
--
* * *
(D)
individuals who (i) are employed by suppliers,
transporters, or vendors, (ii) are temporarily doing
business on the premises of an employer described in
paragraph (4), and (iii) are not engaged in work normally
performed by employees of that employer under this
Chapter;
* * *
If individuals described in clauses (A) through (F) are
subject to coverage under a state worker's compensation
law.
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sale of air time and that petitioner spends a majority of his
work time in "public relations" capacity which contributed to
the sale of air time to customers of Petro Comm such that
claimant is engaged in "selling employer's product."
b.
that petitioner, at the time of his injuries, was
temporarily doing business on the premises of Global, a
maritime employer within the meaning of 33 U.S.C. § 902(4);
and
c.
that the work which petitioner performed aboard the
CHICKASAW involved assisting in the installation of new
cellular equipment and in maintaining good relations with
Global in the hope of furthering sales of cellular air time;
and that employees of Global did not normally perform either
of these tasks.
The Benefits Review Board affirmed these factual findings; and
based thereon affirmed the ALJ's conclusion that petitioner is
excluded from coverage under the Act and that petitioner is not
entitled to coverage simply by virtue of an injury on actual
navigable waters.
CONCLUSION
Petitioner timely filed a petition for review with this Court
and neither party has asked for oral argument. We have carefully
reviewed the briefs, the record excerpts, and relevant portions of
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the record itself. We find that the factual findings of the ALJ,
which were affirmed by the Benefits Review Board, are amply
supported by substantial evidence. We further find that the
conclusion of law that petitioner is excluded from coverage under
the Act by the provisions of 33 U.S.C. § 902(3)(D), which was the
conclusion of the ALJ affirmed by the Benefits Review Board, is
fully consistent with applicable law. Accordingly, the petition
for review is
DENIED.
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