Opinion
No. 09-0288-ag.
December 17, 2009.
Petition for review of a decision by the Benefits Review Board ("BRB").
UPON DUE CONSIDERATION of this petition for review of a decision of the BRB, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
David C. Barnett, Barnett Lerner, Fort Lauderdale, FL (Joshua T. Gillelan II, Longshore Claimants' National Law Center, Washington, D.C., on the brief), for Petitioner.
Christopher P. Boyd, Taylor, Day, Currie, Boyd Johnson, P.A., Jacksonville, FL, for Weeks Marine, Inc. and Liberty Mutual Insurance Co., for Respondent.
PRESENT: GUIDO CALABRESI, JOSÉ A. CABRANES, and B.D. PARKER, Circuit Judges.
SUMMARY ORDER
Petitioner Brian R. Austin ("petitioner" or "Austin") seeks review of the November 25, 2008 decision of the BRB affirming the decision of the Administrative Law Judge ("ALJ") denying Austin's claims for compensation and medical benefits under the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. § 901 et seq. ("Longshore Act"), for injuries that allegedly occurred while petitioner was employed by respondent Weeks Marine, Inc. ("Weeks") at the World Trade Center site after September 11, 2001. Petitioner argues that the BRB erred in denying Austin's claims because the BRB improperly concluded that the ALJ's finding that Weeks did not "assign" Austin to the World Trade Center site was sufficient to establish that any injury Austin incurred was not "in the course of [his] employment," and thus, not compensable under the Longshore Act. See 33 U.S.C. § 902(2). We assume the parties' familiarity with the facts and procedural history of this case.
In reviewing a decision of the BRB, we review only whether the BRB made any errors of law and whether the factual findings of the ALJ are supported by substantial evidence. See, e.g., Rainey v. Dir., Office of Workers' Comp., 517 F.3d 632, 634 (2d Cir. 2008). Our review of questions of law is de novo. Barscz v. Dir., Office of Workers' Comp. Programs, 486 F.3d 744, 749 (2d Cir. 2007). In considering whether a factual finding of the ALJ is supported by substantial evidence, we must consider "the whole record" taking into account "whatever in the record fairly detracts from its weight." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); see also Rainey, 517 F.3d at 634 (quoting Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. 456).
Here, petitioner challenges only the legal conclusions of the BRB and fails to challenge the ALJ's factual findings. An argument not raised in an appellate brief is deemed abandoned and lost, United States v. Joyner, 313 F.3d 40, 44 (2d Cir. 2002), and thus we will assume that the ALJ's findings of fact are supported by substantial evidence.
In his reply brief, Austin argues that he did not abandon any challenge of the ALJ's factual findings. We disagree. We note, however, that were we to review the ALJ's findings of fact, we would conclude that these findings were supported by substantial evidence.
Petitioner only argues that the BRB erred in concluding as a matter of law that the ALJ's factual finding that Weeks had not officially assigned Austin to the World Trade Center site was sufficient to establish that Austin's injuries were not incurred "in the course of [his] employment," 33 U.S.C. § 902(2), with Weeks. We agree with petitioner's contention that whether an employee is assigned to a particular work site is not dispositive of whether an injury was incurred in the course of employment. See, e.g., U.S. Indus./Fed. Sheet Metal v. Dir., Office of Workers' Comp. Programs, 455 U.S. 608, 615, 102 S.Ct. 1312, 71 L.Ed.2d 495 (1982) (defining "in the course of employment" as "refer[ring] to the time, place, and circumstances of the injury" and noting that the injury must "have arisen during the employment") (internal quotation marks omitted).
We disagree, however, with petitioner's assertion that either the ALJ or the BRB relied on assignment as the dispositive factor. First, although the ALJ did conclude that Austin was never assigned to work at the World Trade Center site, the ALJ also concluded that Austin "was not engaged in maritime work at the [World Trade Center] project during his employment with [Weeks]," more generally. J.A. 38. In its review, the BRB concluded that substantial evidence supported the ALJ's finding that Austin "was not at the [World Trade Center] site at the behest of employer" and thus the ALJ's denial of compensation and medical benefits was proper. J.A. 54. The phrase "at the behest of employer" adequately addresses the requirement that the injury occur "in the course of employment," generally, to merit compensation under the Longshore Act without the need to import additional requirements, such as official assignment to the site. We therefore conclude that the BRB did not err.
CONCLUSION
For the reasons stated above, the petition for review is DENIED.