UNPUBLISHED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Remanded by unpublished per curiam opinion.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, MER- EDITH & 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_________________________________________________________________ Unpublished opinions are not binding precedent in this circuit.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),

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 navi- gable 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, repair- ing, dismantling, or building a vessel)."

(a). After the ALJ below determined that claimant's injury did occur upon a cov- ered situs, we decided Sidwell v. Express Container Services,

(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 interven- ing Sidwell decision, claimant's injury occurred upon a situs covered by the LHWCA.*

REMANDED _________________________________________________________________

*Reid Associates alternatively challenges the sufficiency of the evi- dence 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 suf- ficiency of the evidence to support an award of benefits in this case.

2 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 construc- tion, was effectively part of the pier under construction, and there- fore 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 adjoin- ing navigable waters.

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

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