Fusco v. Perini North River Associates

• Citation: 601 F.2d 659
• Decision Date: 21 August 1979
• Docket Number: Nos. 869,s. 869
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Parties: Ronald FUSCO, Petitioner, and Bernard Sullivan, Petitioner, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Petitioner, v. PERINI NORTH RIVER ASSOCIATES, and Hartford Accident & Indemnity Company, Respondents. to 871, Dockets 79-4006, 79-4015 and 79-4016.

Page 659

601 F.2d 659

Ronald FUSCO, Petitioner and Bernard Sullivan, Petitioner and Director, Office of Workers' Compensation Programs, United States Department of Labor, Petitioner, v. PERINI NORTH RIVER ASSOCIATES, and Hartford Accident &amp Indemnity Company, Respondents.

Nos. 869 to 871, Dockets 79-4006, 79-4015 and 79-4016.

United States Court of Appeals Second Circuit.

Argued April 30, 1979.

Decided June 29, 1979.

Rehearing Denied Aug. 21, 1979.

Bernard S. Epstein, Epstein & Epstein, New York City, for petitioner Ronald Fusco.

Joseph Klotz, New York City, for petitioner Bernard Sullivan.

Carin Ann Clauss, Laurie M. Streeter, Mark C. Walters, U. S. Dept. of Labor, Washington, D. C., for petitioner Director, Office of Workers' Compensation Programs.

William F. Fischer, Jr., Martin Krutzel, Fischer Brothers, New York City, for respondents Perini North River Associates and Hartford Accident and Indemnity Company.

Before GURFEIN and MESKILL, Circuit Judges, and WYZANSKI, Senior District Judge. ^*

WYZANSKI, Senior District Judge:

The main question presented is whether a construction worker whose principal duties are performed on navigable waters, as that term was defined in § 3(a) of the original Longshoremen and Harbor Workers' Act, (LHWCA) 44 Stat. 1426, 33 U.S.C. § 903(a), and who sustains on such waters a work-related injury is, within the meaning of § 2(3) of LHWCA, as amended in 1972, 86 Stat. 1251, 33 U.S.C. § 902(3) (1970 ed., Supp. V) a "person engaged in maritime employment" so as to be covered by LHWCA. ¹

Fusco and Sullivan, having sustained work-related injuries in separate accidents in the course of their employment by Perini during the construction of a sewage disposal plant, called the North River Pollution Control Project, filed claims for compensation under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), as amended in 1972, 86 Stat. 1251, 33 U.S.C. § 901, (1970 ed., Supp. V) Et seq.

Lesser, A.L.J. heard Fusco's case; Feldman, A.L.J. heard Sullivan's case. Each A.L.J. made findings as to the Perini project. These findings differ slightly from one another and from parallel findings by Cappo, A.L.J. in a companion case, which the BRB found most accurate. For our purposes the following two paragraphs serve as a fair summary of the findings as to Perini.

Perini is engaged in the business of heavy construction. The City of New York awarded it a contract to construct a substructure for a sewage disposal plant called the North River Pollution Control Project, to be located on the North River between 133rd and 148th Streets and to extend from the shoreline out over the water approximately 700 feet to the pierhead.

Perini's contract required it to place 2,300 hollow circular pipes, called caissons, in navigable waters down to imbedded rock, to fill the caissons with concrete, to connect them together at proper elevations above the water with concrete beams, and to place precast concrete slabs on top of the beams.

Lesser, A.L.J. found that Fusco "worked on floating stages assisting the so-called 'dock building' in the construction of the substructure, performing such tasks as fetching materials from barges or from the shore, assisting in the driving of caissons into the riverbed, pouring concrete into the caissons, fabricating wood forms for the pouring of concrete beams across the caissons and helping to construct platforms across those beams," and that "he fell while descending a ladder" and "in falling struck his head against a concrete form." The ALJ added that "one witness (whom the ALJ seems to have credited) did observe the Claimant climbing down a ladder from one of the concrete forms down to a raft below; the witness saw the ladder twist and the Claimant suddenly disappear from sight." The ALJ stated as a conclusion of law that "at the time of his injury the Claimant was employed as a construction laborer engaged in the construction of a substructure for a sewage disposal plant over navigable waters, which employment was within the coverage of the Act." The ALJ entered an order directing respondents to compensate Fusco. Respondents appealed to the Benefits Review Board (BRB).

Feldman, A.L.J. found that Sullivan "was directly involved" in "the building and filling of caissons (large cylinders sunk upright into the water) into which steel re-enforcing rods were inserted . . . and re-enforcing horizontal beams hanging over the water from caisson to caisson. . . . While working on beams at high tide, Claimant . . . would frequently be standing in water. . . . Two or three times a week Claimant . . . went aboard barges to unload steel rods or to prepare such rods to be moved by cranes that were aboard some of the barges. . . . At the time of the accident, Claimant was standing about 12 inches above the water." The ALJ's conclusions of law were "that the situs requirements for coverage under the Act have been met, Claimant having been injured while at work upon navigable waters," and that "the Employer meets the requirements of Section 2(4) of the Act in that at least some of its employees are engaged in maritime employment," but that "Claimant is not a longshoreman, ship repairman, shipbuilder, or shipbreaker. Nor could he be classified as a harbor worker," and that "nothing in Claimant's occupation . . . entails maritime employment." The ALJ entered an order rejecting the claim. Sullivan appealed to the BRB.

The BRB heard in one proceeding Fusco, Sullivan, and two other cases, and permitted the Director, Office of Workers' Compensation Programs, United States Department of Labor, to become a party in interest. By its November 30, 1978 order, the BRB reversed Lesser, A.L.J. in Fusco and affirm Feldman, A.L.J. in Sullivan. Writing for himself and Member Kalaris, over the dissent of Member Miller, Chairman Smith of the BRB, ² after noting that "Claimants were found in each case to have satisfied the Section 3(a) situs test . . . (and that) (t)he findings of situs are not on appeal," held that "Since the claimants herein were engaged in the construction of a sewage disposal plant, their employment did not have a realistically significant relationship to maritime activities involving navigation and commerce over navigable waters. It follows that the claimants were not engaged in maritime employment pursuant to Section 2(3) and thus are not covered under the act."

Fusco, Sullivan, and the Director, relying upon 33 U.S.C. § 921(c), petitioned this Court to set aside the BRB November 30, 1978 order.

The petitions before us raise only one question, the so-called status issue whether the claimant at the time of his injury was a "person engaged in maritime employment," as that phrase is used in § 2(3) of the LHWCA, 86 Stat. 1251, 33 U.S.C. § 902(3) (1970 ed., Supp. V). Respondents contend that we must also consider the so-called situs issue whether the injuries occurred on navigable waters.

In Sullivan, where respondents succeeded before both the ALJ and the BRB, the respondents are entitled to contend that if they do not prevail before us on the status issue they are entitled to prevail on the situs issue. But in Fusco we need not consider respondents' contention because when respondents appealed from the ALJ to the BRB they abandoned the situs issue by their failure to assign it as error. (App. 31, note 2). Yet one of the arguments addressed to us by petitioners with respect to the status issue to wit, that under the 1927 Act before it was amended in 1972 petitioners would have been entitled to compensation for the injuries of which they complain makes it appropriate for us, before we tackle the status issue, to scrutinize the administrative findings not merely in Sullivan but also in Fusco in order to determine whether the injuries occurred upon navigable waters as that term was used in the original 1927 LHWCA and as it is now used under the 1972 amendments.

In our scrutiny we need to bear in mind that under the 1927 LHWCA, before its amendment, there was coverage only for "an injury occurring upon the navigable waters of the United States." 44 Stat. 1426, 33 U.S.C. § 903(a). Since the term "navigable waters" was then read literally and did not include extensions of land, there was no coverage of an injury occurring on a structure permanently affixed to land. Nacirema Operating Co. v. Johnson,396 U.S. 212, 214-215, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969). It was only after the 1972 amendments that the term navigable waters of the United States was defined to include "any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel." 86 Stat. 1251, 33 U.S.C. § 903(a) (1970 ed., Supp. V).

In Fusco the injury occurred as the claimant descended a swinging ladder from a concrete form to a raft, and the ladder twisted and threw him against the form, causing him to fall, perhaps but not certainly, into the water. Respondents contend that this was an injury occurring On a structure permanently affixed to land, and so was not within the coverage of the original 1927 Act. We conclude that respondents are mistaken. Fusco was injured over navigable waters while on a rope ladder temporarily affixed to a structure which may or may not have been permanently affixed to land. He was hit by the structure not while on it, but while on the ladder. Under both the 1927 LHWCA and the 1972 amendments Fusco's injury occurred "upon navigable waters."

In Sullivan the injury occurred while the claimant "was installing beams about 150 feet from the shore and was standing about 12 inches above the water." The ALJ does not tell us upon what he was standing. But from the ALJ's findings and the BRB's opinion we know that the part of Perini's construction work in which Sullivan was involved called for connecting embedded or sunken caissons at proper elevations above the water...