Ferguson v. Southern States Cooperative
| Decision Date | 29 April 1993 |
| Docket Number | 89-3111,90-2264,BRB 89-3111 |
| Parties | DAWN R. FERGUSON (Widow of ROY N. FERGUSON) v. SOUTHERN STATES COOPERATIVE and AMY JO FERGUSON, ROBERT LYLE FERGUSON, CLIFFORD DELANE FERGUSON (Minor Children of ROY N. FERGUSON), Claimant-Respondents and SOUTHERN STATES INSURANCE EXCHANGE, Employer/Carrier-Petitioners CLIFFORD DELANE FERGUSON (Minor child of ROY N. FERGUSON), Claimant-Petitioner v. SOUTHERN STATES CORPORATION and SOUTHERN STATES INSURANCE EXCHANGE, Employer/Carrier-Respondents |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order, Supplemental Decision and Order -Granting Attorney Fees, and Order Denying Motions for Reconsideration of Theodor P. Von Brand, Administrative Law Judge, United States Department of Labor.
George M. Kelley, III (Cromwell, Sykes & Carnes, P.C.), Virginia Beach, Virginia, for claimants Dawn R. Ferguson, Amy Jo Ferguson and Robert Lyle Ferguson.
John H. Klein (Rutter & Montagna), Norfolk, Virginia, for claimant Clifford Delane Ferguson.
Daniel R. Lahne (Knight, Dudley, Dezern & Clarke), Norfolk Virginia, for employer/carrier.
Before: STAGE, Chief Administrative Appeals Judge, and SMITH and McGRANERY, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order and claimant Clifford Delane Ferguson appeals the Supplemental Decision and Order - Granting Attorney Fees and Order Denying Motions for Reconsideration of the fee (87-LHC-1762) of Administrative Law Judge Theodor P. Von Brand 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). .[1] 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). An attorney's fee award is discretionary and may only be set aside only if shown by the challenging party to be arbitrary, capricious, an abuse of discretion, or not in accordance with law. See, e.g., Muscella v. Sun Shipbuilding and Dry Dock Co., 12 BRBS 272 (1980).
On January 2, 1984, decedent was hired as a mechanic by employer at its fertilizer plant. On November 1, 1984, employer leased a warehouse on the waterfront for the sole purpose of receiving potash from self-unloading ships. Decedent was involved in every aspect of this venture from its inception from surveying the river depth in order to ascertain the feasibility of receiving the shipments, to making modifications to the warehouse to accommodate the booms of the incoming ships. In addition, decedent assisted the incoming ships in docking and directed the ship's crew as to where to position the ship's boom during the unloading process. Decedent also participated in the removal and construction of bulkheads to accommodate the incoming cargo, and was responsible for the maintenance of various machinery used in the shipping operation. On May 31, 1986, as decedent was leaving the warehouse roof where he had been cutting a hole to accommodate the boom of a jepson ship due to unload the next day, the roof gave way, causing him to fall to his death. Decedent was survived by his widow, Dawn R. Feguson, and their two minor children, Amy Jo and Robert Lyle Ferguson, and a minor child, Clifford Delane Ferguson, from a previous marriage, all of whom sought benefits under the Act pursuant to 33 U.S.C. §909.
After reviewing the evidence, the administrative law judge found that the record establishes that the employer's warehouse's located immediately adjacent to navigable waters qualifies as a maritime situs, thus satisfying the Section 3(a), 33 U.S.C. §903(a). The administrative law judge then determined that because decedent had spent at least "some" of his time in longshoring operations, decedent's duties were essential to the maritime industry and furthered the concerns of a covered employer, he was an "employee" covered under Section 2(3) of the Act. 33 U.S.C. §902(3. The administrative law judge proceeded to award claimants death benefits under the Act subject to a 33 U.S.C. §903(e) credit for the weekly death benefits previously awarded to each under the Virginia Workers' Compensation Act.
Thereafter, claimant's attorney filed a Petition for Award of an Attorney's Fee requesting $2,842.50, representing 19 attorney hours at $125.00 per hour for work done before January 1, 1989, 3.25 attorney hours at $145.00 per hour for work done after January 1, 1989, and .25 paralegal hours at $45.00 per hour. In his Supplemental Decision and Order - Granting Attorney Fees, the administrative law judge reduced the $145 hourly rate requested after January 1, 1989 to $125.00 per hour, reduced the hours claimed from 22.25 to 19.75, but otherwise granted the fee requested awarding claimant's counsel a total fee of $2,448.75 representing 19.5 attorney hours at $125.00 per hour plus 1/4 of a hour for paralegal services at $45.00 per hour. The administrative law judge issued an Order Denying Motions for Reconsideration on September 6, 1990.
On appeal, employer contends that although decedent spent some time performing indisputably longshore activities, the time decedent spent performing these activities was too episodic and de minimis to confer status under the Longshore Act. In the alternative, employer contends that even if decedent is covered under the Act, the administrative law judge erred in failing to allow it to credit the state compensation benefits paid to Clifford Ferguson, decedent's child from a previous marriage, who opted to receive benefits under the Virginia Act, against its compensation liability to decedent's widow and her two children under the Longshore Act under Section 3(e), 33 U.S.C. §903(e) . BRB No. 89-3111. Claimant cross-appeals the Supplemental Decision and Order - Granting Attorney's Fees, contesting both the administrative law judge's reduction in the hourly rate and the disallowance of one hour of travel time. BRB No. 90-2264.
After consideration of the arguments raised on appeal, the administrative law judge's Decision and Order, and the evidence of record, we affirm the administrative law judge's finding of jurisdiction under the Longshore Act as it is rational, supported by substantial evidence, and accords with applicable law. See O'Keeffe supra. To be covered under the Act, a claimant must satisfy both the "status" requirement of Section 2(3) of the Act, 33 U.S.C. §902(3), and the "situs" requirement of Section 3(a) of the Act, 33 U.S.C. §903(a). See P. C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 74, 11 BRBS 320, 322 (1979); Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 264, 6 BRBS 150, 159 (1977); Harwood v. Partredereit AF, 944 F.2d 1187, 1190 (4th Cir. 1991), cert. denied, 112 S.Ct. 1265 (1992).[2] The term "employee" is defined in Section 2(3) 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 . . . ." 33 U.S.C. §902(3). Although the amendments to the Act requiring a showing of status are to be liberally construed, Northeast, 432 U.S. at 268, 6 BRBS at 161, "Congress did not seek to cover all those who breathe salt air." Herb's Welding, Inc. v. Gray, 470 U.S. 414, 423, 17 BRBS 78, 82 (CRT) (1985). Furthermore, while "maritime employment" is not limited to the occupations specifically mentioned in Section 2(3), claimant's employment must bear a relationship to the loading, unloading, building or repairing of a vessel. See Chesapeake and Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96, 99 (CRT) (1989). Section 2(3) of the Act covers not only employees who are directly engaged in loading or construction of ships, but also employees who are "harbor-workers." The term harbor-worker includes at least those persons involved in the construction, repair, alteration, or maintenance of harbor facilities. Hawkins v. Reid Associates, 26 BRBS 8, 10 (1992); Stewart v. Brown & Root, Inc. v. Joyner, 7 BRBS 356, 365 (1978), aff'd sub nom. Brown & Root, Inc. v. Joyner, 607 F.2d 1087, 11 BRBS 86 (4th Cir. 1979), cert. denied, 446 U.S. 981 (1980). Such employees are engaged in activity that is an integral part of and essential to the overall process of loading or unloading a ship. See Schwalb, 293 U.S. 40, 23 BRBS 96 (CRT).
The record in the present case reflects that decedent's job duties included removing and constructing bulkheads and cutting holes in the roof of employer's warehouse to accommodate the booms of the incoming ships. As decedent was directly involved in the construction and alteration of employer's harbor facility for the purpose of receiving self-unloading ships, he was a covered harbor worker. See Hawkins, 26 BRBS at 10. The record further reflects that although ships did not arrive at employer's maritime facility on a regular basis, decedent would assist in docking every ship which did come in and would aid in directing the position of the unloading boom via walkie talkie, duties clearly integral to the unloading process. Schwalb 493 U.S. 40, 23 BRBS 96 (CRT). Moreover decedent's work in repairing the front end loaders used to load potash from the warehouse to the rail or truck and in repairing the bucket elevator used to move potash from one level of the warehouse to another also constitutes covered employment because it involved the maintenance of machinery essential to the unloading process. Price v. Norfolk and Western Rail Co., 618 F.2d 1059 (4th Cir. 1990); See also Hayes v. CSX Transportation, Inc., F.2d __, No. 92-1706 (4th Cir. Jan. 22, 1993).
Although as employer avers, decedent's longshore activities made up only approximately two percent of his overall work duties, we reject employer's assertion that time decedent spent in performing these tasks was too episodic and irregular to confer status under the Act. A claimant is covered under the Act if he spends "at...
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