APPENDIX
(Department of Labor Seal)
U.S. Department of Labor
Benefits Review Board
800 K Street, N.W.
Washington, D.C. 20001-8001
BRB NOS. 95-1556 AND 96-1278
MICHAEL C. BRICKHOUSE, CLAIMANT-RESPONDENT
v.
JONATHAN CORPORATION AND
CRAWFORD & COMPANY, EMPLOYER/CARRIER-PETITIONERS
DECISION AND ORDER
Appeals of the Decision and Order - Awarding Benefits of Daniel A. Sarno,
Jr., Administrative Law Judge, United States Department of Labor, and the
Order Designating Authorized Treating Physician of B.E. Voultsides, District
Director, United States Department of Labor.
John H. Klein (Rutter & Montagna), Norfolk, Virginia, for claimant.
F. Nash Bilisoly and Kelly O. Stokes (Vandeventer, Black, Meredith &
Marin), Norfolk, Virginia, for employer/carrier.
Before: SMITH, BROWN and DOLDER, Administrative Appeals Judges.
SMITH, Administrative Appeals Judge:
Employer appeals the Decision and Order - Awarding Benefits (94-LHC-1330)
of Administrative Law Judge Daniel A. Sarno, Jr., and the Order Designating
Authorized Treating Physician (Case No. 5-89883) of District Director B.E.
Voultsides rendered on a claim filed pursuant to the provisions of the Longshore
and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et
seq. (the Act). We must affirm the findings of fact and conclusions of law
of the administrative law judge which are rational, supported by substantial
evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman &
Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant suffered a work-related injury on August 14, 1993, during the course
of his employment with Tidewater Steel, a wholly owned subsidiary of employer,
when a piece of steel fell on him. Claimant underwent surgery to his coccyx
and has not returned to work since the date of the accident.
The facts involved in this case are not in dispute. Claimant's injury occurred
at Tidewater Steel's facility in Chesapeake, Virginia. The facility sits
on a 90 acre site adjoining the South Branch of the Elizabeth River. Large
completed projects are shipped out by barges which dock at the facility.
The building in which claimant's injury occurred is about 800 feet from
the river's edge and is divided into three bays; Bays 2 and 3 are used for
steel construction for various contractors, while Bay 1 is devoted solely
to employer's shipboard construction contracts. Claimant's accident occurred
in Bay 3 while claimant was working on a non-maritime railroad bridge project.
Claimant's overall work as a welder, however, involved both maritime and
non-maritime construction. He testified that he did most of his work at
the Tidewater Steel facility, but was often assigned to perform shipboard
construction at other employer and Navy locations; for example, in 1993,
a significant amount of claimant's work involved fabrication of flight decks
for Navy ships.
The only issue before the administrative law judge was jurisdiction. In
his Decision and Order, the administrative law judge found that employer's
Tidewater Steel facility is bounded on one side by navigable water, and
that a significant amount of the work done at the facility is maritime related.
Accordingly, the administrative law judge concluded that claimant's injury
occurred in an "adjoining area" under Section 3(a) of the Act,
33 U.S.C. §903(a) (1988), and that the situs requirement of Section
3(a) has thus been satisfied. The administrative law judge next found that
since a significant amount of claimant's work for employer was maritime
in nature, claimant established the status element under Section 2(3) of
the Act, 33 U.S.C. §902(3) (1988). Accordingly, the administrative
law judge found that claimant established jurisdiction under the Act and
awarded temporary total disability benefits. 33 U.S.C. §908(b).
Employer filed its Notice of Appeal of the administrative law judge's Decision
and Order on May 25, 1995. BRB No. 95-1556. Employer filed a second appeal
in this case on June 26, 1996; this subsequent appeal concerned the district
director's Order Designating Authorized Treating Physician. BRB No. 96-1278.
In an Order dated July 31, 1996, the Board consolidated these appeals, holding
that, in light of the consolidation, the one year period of review provided
by Public Law No. 104-134 will run from June 26, 1996. On September 3, 1996,
employer moved to withdraw its appeal of the district director's order,
BRB No. 96-1278. Section 802.401(a), 20 C.F.R. §802.401(a), of the
Board's implementing regulations provides that at any time prior to the
issuance of a decision by the Board, the petitioner may move that the appeal
be dismissed. Consistent with this section, we hereby grant employer's motion
and dismiss its appeal of the district director's Order Designating Authorized
Treating Physician, BRB No. 96-1278, with prejudice. 20 C.F.R. §802.401(a).
Consequently, the only appeal pending in this matter is employer's appeal
of the administrative law judge's Decision and Order, BRB No. 95-1556. Arguably,
since employer filed a motion to withdraw the consolidated case prior to
September 12, 1996, the original May 25, 1995 appeal date should apply,
in which case the administrative law judge's decision could be administratively
affirmed pursuant to Public Law No. 104-134, since this appeal was more
than one year old on September 12, 1996. However, in view of the consolidation
of the two appeals and our order stating that employer's second appeal extended
the period of review until June 26, 1997, we will consider the issues raised
by employer in its appeal of the administrative law judge's decision.
In its appeal of the administrative law judge's decision, employer contends
that the administrative law judge erred in finding situs and status. Specifically,
employer asserts that since claimant's injury occurred in a portion of the
facility devoted to non-maritime uses, claimant was not injured in an "adjoining
area" under Section 3(a). Employer further argues that the status test
was not met since the vast majority of claimant's work was non-maritime
and he was engaged in non-maritime work at the time of his injury. Claimant
responds, urging affirmance of the administrative law judge's decision.
In order to be covered under the Act, a claimant must satisfy both the "situs"
requirement of Section 3(a) and the "status" requirement under
Section 2(3) of the Act. See P.C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69,
11 BRBS 320 (1979); Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S.
249, 6 BRBS 150 (1977). Section 3(a) provides that:
Compensation shall be payable under this Act . . . only if the disability
or death results from an injury occurring on the navigable waters of the
United States (including any adjoining pier, wharf, dry dock, 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) (1988) (emphasis added.). In Sidwell v. Express Container
Services, Inc., 71 F.3d 1134, 29 BRBS 138 (CRT) (4th Cir. 1995), the United
States Court of Appeals for the Fourth Circuit, wherein this case arises,
held that an area is "adjoining" navigable waters only if it is
contiguous with or otherwise touches navigable waters. To be included as
an "other area" under the Act, the area must be "customarily
used by employer in loading, unloading, repairing, dismantling, or building
a vessel." 33 U.S.C. § 903(a) (1988); see Parker v. Director,
OWCP, 75 F.3d 929, 30 BRBS 10 (CRT) (4th Cir. 1996).
In concluding that claimant's injury had occurred on an adjoining area,
the administrative law judge found that employer's Tidewater Steel facility
is bound on one side by the South Branch of the Elizabeth River, and that
this part of the river is navigable. Moreover, located at the facility is
a dock area from which large completed projects are shipped out by barge.
Lastly, the building wherein claimant was injured is only 800 feet from
the river's edge, and at least one-third of the amount of work performed
at the Tidewater facility involves ship construction. See Emp. Ex. C. Based
upon the foregoing undisputed facts, we hold that the result reached by
the administrative law judge is consistent with Sidwell; accordingly, we
affirm the administrative law judge's determination that employer's Tidewater
Steel facility is an adjoining area within the meaning of Section 3(a) of
the Act since that facility both touches navigable waters and is customarily
used for vessel construction, loading and unloading.
In so holding, we reject employer's contention that for purposes of determining
situs, employer's Tidewater Steel facility should be divided into two functioning
areas, maritime and non-maritime. Employer argues that since claimant's
injury occurred in a portion of the Tidewater Steel facility devoted to
non-maritime uses, situs should not be conferred. As the court stated in
Sidwell, however, the situs inquiry is concerned with whether the parcel
of land adjoins navigable waters, "not the particular square foot on
that parcel upon which a claimant is injured." Sidwell, 71 F.3d at
1140 n.11, 29 BRBS at 144 n.11 (CRT). Thus, situs will be conferred, even
where an injury occurs on a non-maritime portion of a facility, if the overall
facility upon which claimant is injured constitutes an "adjoining area"
under Section 3(a).1
Employer additionally challenges the administrative law judge's determination
that claimant satisfied the Act's "status" requirement. Section
3(a) defines an "employee" for purposes of coverage under the
Act as "any person engaged in maritime employment, including any longshoreman
or other person engaged in longshoring operations, and any harbor-worker
including a ship repairman, shipbuilder and ship-breaker. . . ." See
33 U.S.C. §902(3) (1988). While maritime employment is not limited
to the occupations specifically enumerated in Section 2(3), claimant's employment
must bear a relationship to the loading, unloading, building, or repairing
of a vessel. See generally Chesapeake & Ohio Ry. Co. v. Schwalb, 493
U.S. 40, 23 BRBS 96 (CRT) (1989). Moreover, an employee is engaged in maritime
employment as long as some portion of his job activities constitutes covered
employment. Caputo, 432 U.S. at 275-276, 6 BRBS at 166. Under Caputo, a
claimant need not be engaged in maritime employment at the time of injury
to be covered under the Act, as the Act focuses on occupation rather than
on duties at the time of injury. See, e.g., Dupre v. Cape Romain Contractors,
Inc., 23 BRBS 86 (1989).
In determining that claimant satisfied the status requirement, the administrative
law judge found that a significant or substantial portion of claimant's
regular employment included maritime work. Specifically, the administrative
law judge noted that claimant, in 1993, helped fabricate both flight decks
and boat cab assemblies for ships, and that claimant thereafter assisted
in the installation of the complete flight decks. In challenging the administrative
law judge's conclusion that claimant satisfied the "status" requirement
of the Act, employer contends that claimant did not routinely or regularly
perform maritime activities in his position as a welder. However, our review
of the record supports the administrative law judge's conclusion that a
significant portion of claimant's job activities involved vessel repair
and construction, enumerated occupations under the Act. As the administrative
law judge found, claimant's work for employer, at the Tidewater Steel facility
and other facilities, involved in large measure the fabrication of Navy
and commercial vessels. See Emp. Ex. A; Tr. At 21-22, 27. Indeed, employer
implicitly concedes that 25 percent of claimant's job duties were maritime
in nature. See Employer's Brief at 4, 11. Thus, the testimony and record
evidence credited by the administrative law judge establishes, at the very
least, that "some portion" of claimant's job activities constituted
maritime employment. See Caputo, 432 U.S. at 275-276, 6 BRBS at 166; see
also Atlantic Container Service, Inc. v. Coleman, 904 F.2d 611, 23 BRBS
101 (CRT) (11th Cir. 1990); Boudloche v. Howard Trucking Company, Inc.,
632 F.2d 1346, 12 BRBS 732 (5th Cir. 1980), cert. denied, 452 U.S. 915 (1981).
We therefore affirm the administrative law judge's determination that claimant's
maritime welding duties were sufficient to confer coverage under Section
2(3) of the Act, as that finding is supported by substantial evidence and
is in accordance with law. See Schwalb, 493 U.S. at 47, 23 BRBS at 99 (CRT).
Accordingly, the administrative law judge's Decision and Order - Awarding
Benefits is affirmed.
SO ORDERED.
/s/ ROY P. SMITH
ROY P. SMITH
Administrative Appeals Judge
I concur:
/s/ NANCY S. DOLDER
NANCY S. DOLDER
Administrative
Appeals Judge
1 Employer's reliance on Melerine v. Harbor Construction Co., 26 BRBS 97
(1992), and Eckhoff v. Dog River Marina and Boat Works, Inc., 28 BRBS 51
(1994), is misplaced. In Melerine, the Board stated that situs is determined
by the nature of the place of work at the moment of injury. In that case,
the employee suffered an injury at a steel mill that was not used for any
maritime purpose. In Eckhoff, whether claimant' s injury occurred on an
adjoining area was not at issue; the claimant suffered chest pains while
working on a pier, an enumerated situs, and at home. The Board reversed
the administrative law judge's decision to combine the pier and home into
one area, and held that since claimant was injured on an area specifically
enumerated in Section 3(a), the situs requirement was met. Thus, these cases
are not dispositive of the issue herein. In determining whether an area
is an "adjoining area" under Section 3(a), the Board looks to
the nature of the place of work at the moment of injury. Accordingly, while
claimant in the instant case was injured in the non-maritime bay, the nature
of the Tidewater Steel facility is maritime since at least one-third of
the work performed at the facility is dedicated exclusively to vessel construction.