Dryden v. Dayton Power & Light Co.

• Decision Date: 31 December 2009
• Docket Number: BRB 09-0315
• Court: Longshore Complaints Court of Appeals
• Parties: REX DRYDEN, Claimant-Respondent v. THE DAYTON POWER & LIGHT COMPANY, Self-Insured Employer-Petitioner

REX DRYDEN, Claimant-Respondent v. THE DAYTON POWER & LIGHT COMPANY, Self-Insured Employer-Petitioner

BRB No. 09-0315

December 31, 2009

Appeal of the Decision and Order-Awarding Benefits of Larry S Merck, Administrative Law Judge, United States Department of Labor.

Kirk E. Karamanian, Birmingham, Michigan, for claimant.

Todd M. Powers and Megan C. Ahrens (Schroeder, Maundrell, Barbiere & Powers), Mason, Ohio, for self-insured employer.

Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM:

Employer appeals the Decision and Order-Awarding Benefits (2007-LHC-02029) of Administrative Law Judge Larry S. Merck 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 administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v Smith, Hinchman & Grylls Associates, Inc., 380 U.S 359 (1965).

Claimant injured his back on June 17, 2002, opening a water valve (PIV 15) when a "cheater bar" slipped off a valve handle. Employer's electricity generating facility, the J.M. Stuart Station (Stuart Station), is located on the Ohio River. Coal is delivered to the facility by river barges. The coal is unloaded onto and transported by a series of conveyor belts directly to the power plant silos, or it is diverted to a coal pile from which it is later re-loaded, as needed, onto conveyor belts and transported to the power plant. Claimant was employed by employer as a coal handling operator for 24 years. He was qualified to perform all of the duties of a coal handling operator, including operating a barge unloader and tow boat, for which he obtained a Coast Guard license. Employer paid claimant disability benefits under Ohio's workers' compensation statute from June 2002 to December 2004, and under its Illness and Disability Plan from January 2005 to January 2008. Claimant filed a claim for compensation under the Act, which employer controverted.

In his decision, the administrative law judge found that claimant was injured on a covered situs pursuant to Section 3(a) of the Act, 33 U.S.C. §903(a). The administrative law judge also found that claimant's regular employment was integral to unloading coal from vessels and that claimant, therefore, is a maritime employee pursuant to Section 2(3) of the Act, 33 U.S.C. §902(3), and consequently, that claimant established coverage under the Act.^[1] The administrative law judge found, based on the record as a whole, that claimant's June 17, 2002 work injury caused or aggravated a herniated disc and leg radiculopathy, and aggravated his pre-existing degenerative disc disease. The administrative law judge accepted the parties' stipulation that claimant's back condition reached maximum medical improvement on March 23, 2004. The administrative law judge found that claimant is unable to return to his usual employment and that employer did not establish the availability of suitable alternate employment. Claimant was therefore awarded compensation for temporary total disability from June 18, 2002 through March 22, 2004, 33 U.S.C. §908(b), and for permanent total disability commencing March 23, 2004, 33 U.S.C. §908(a). The administrative law judge also found claimant entitled to medical treatment for work-related back and leg pain. 33 U.S.C. §907. The administrative law judge accepted the parties' stipulation that employer is entitled to a Section 3(e) credit, 33 U.S.C. §903(e), for compensation payments totaling $65, 521.16 it made to claimant under Ohio law. The administrative law judge denied employer a credit pursuant to Section 14(j), 33 U.S.C. §914(j), for $23, 150.60 it paid claimant under its Illness and Disability Plan.

On appeal, employer challenges the administrative law judge's findings that claimant was injured on a covered situs and that it is not entitled to a Section 14(j) credit for the sum it paid claimant pursuant to its Illness and Disability Plan. Claimant responds, urging affirmance of the administrative law judge's findings. Employer filed a reply brief.

Employer first contends the administrative law judge erred in finding that claimant's injury occurred on a site covered by Section 3(a) of the Act. Employer contends that the location of claimant's injury at PIV 15 is not an adjoining area under the decision of the United States Court of Appeals for the Fourth Circuit in Sidwell v. Express Container Services, Inc., 71 F.3d 1134, 29 BRBS 138(CRT) (4^th Cir. 1995), cert. denied, 518 U.S. 1028 (1996). Employer also argues that the location of claimant's work injury is geographically and functionally removed from the coal unloading process at its Stuart Station facility and, therefore, that claimant was not injured on an "adjoining area."

To obtain benefits under the Act, an injury must occur on a covered situs. Section 3(a) of the Act states:

Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon 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). In this case, as claimant was not injured on navigable waters or on an enumerated site, his injury must have occurred in an "other adjoining area customarily used by an employer" in loading or unloading a vessel. See generally Rizzi v. Underwater Constr. Corp., 84 F.3d 199, 30 BRBS 44(CRT) (6th Cir.), cert. denied, 519 U.S. 931 (1996). In construing "adjoining area, " the courts have generally recognized that the phrase encompasses both a geographic and functional nexus with navigable water. See Cunningham v. Director, OWCP, 377 F.2d 98, 38 BRBS 42(CRT) (1^st Cir. 2004); Bianco v. Georgia Pacific Corp., 304 F.3d 1053, 36 BRBS 57(CRT) (11^th Cir. 2002); Nelson v. American Dredging Co., 143 F.3d 780, 32 BRBS 115(CRT) (3^d Cir. 1998); Sidwell v. Express Container Services, Inc., 71 F.3d 1134, 29 BRBS 138(CRT) (4^th Cir. 1995), cert. denied, 518 U.S. 1028 (1996); Texports Stevedore Co. v. Winchester, 632 F.2d 504, 12 BRBS 719 (5^th Cir. 1980) (en banc), cert. denied, 452 U.S. 905 (1981); Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 7 BRBS 409 (9^th Cir. 1978). Regarding the functional nexus, a site must have a customary maritime use, but need not be used exclusively or primarily for such maritime purposes. See Winchester, 632 F.2d 504, 12 BRBS 719; Herron, 568 F.2d 137, 7 BRBS 409. Regarding the geographic nexus, the Fifth and the Ninth Circuits have held that an area can be an "adjoining area" within the meaning of the Act if it is in the vicinity of navigable waters, or in a neighboring area, and is customarily used for maritime activity. Winchester, 632 F.2d at 513-516, 12 BRBS at 726-728, Herron, 568 F.2d at 141, 7 BRBS at 411; see also Cunningham, 377 F.2d 98, 38 BRBS 42(CRT) ("there must be at least some sense of a largely continuous neighborhood of maritime uses, some shape of a perimeter . . . that extends out from the water's edge"); Stratton v. Weedon Engineering Co., 35 BRBS 1 (2001) (en banc). The Fourth Circuit, in contrast, has held that an "adjoining area" must be a discrete shoreside structure or facility that is actually contiguous with navigable waters. Sidwell, 71 F.3d at 1139, 29 BRBS at 143(CRT); accord Parker v. Director, OWCP, 75 F.3d 929, 30 BRBS 10(CRT) (4^th Cir. 1996), cert. denied, 519 U.S. 812 (1996); Kerby v. Southeastern Public Service Authority, 31 BRBS 6 (1997), aff'd mem., 135 F.3d 770 (4^th Cir. 1998), cert. denied, 525 U.S. 816 (1998).

In this regard, we reject employer's argument that PIV 15 is not an "adjoining area" because it is not adjacent to navigable water as required by the Fourth Circuit in Sidwell, 71 F.3d 1134, 29 BRBS 138(CRT). In Sidwell, the Fourth Circuit held, with regard to the definition of "other adjoining areas, " that non-enumerated areas must actually abut navigable waters, be similar to the enumerated areas, and be customarily used for maritime activity. Thus, the court held that the "raison d'etre" for the facility or structure must be for use in connection with the navigable waters in order for a site to be covered. Sidwell 71 F.3d at 1138-1139, 29 BRBS at 142-144(CRT). This case arises within the jurisdiction of the United States Court of Appeals for the Sixth Circuit, 33 U.S.C. §921(c), which has not addressed the meaning of the word "adjoining." We note that Sidwell has not been applied outside the jurisdiction of the Fourth Circuit. See Cunningham, 377 F.2d 98, 38 BRBS 42(CRT); Nelson, 143 F.3d 780, 32 BRBS 115(CRT); Gavranovic v. Mobil Mining & Minerals, 33 BRBS 1 (1999). In this case, we need not address whether a site must be adjacent to navigable waters to be an "adjoining area, " as the administrative law judge found the site at issue was adjacent to navigable water. Stuart Station is located on the north side of the Ohio River. EX 8 at 25. Coal is unloaded from barges on the river and moves through the facility on conveyor belts from south to north and from east to west. PIV 15 is located outside, between the power plant and the river. Tr. at 73; EXs 8 at 1; 25; 19 at ex 5. As claimant was injured on a facility located adjacent to the Ohio River, a geographic nexus with navigable waters is established; application of Sidwell in this case thus does not lead to a different...