Fitzgerald v. Stevedoring Services of America

• Decision Date: 31 January 2001
• Docket Number: BRB 00-0724
• Parties: HERBERT FITZGERALD, Claimant-Respondent, v. STEVEDORING SERVICES OF AMERICA, and HOMEPORT INSURANCE COMPANY, Employer/Carrier-Petitioners, DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent, NATIONAL ASSOCIATION OF WATERFRONT EMPLOYERS, Intervenor
• Court: Longshore Complaints Court of Appeals

HERBERT FITZGERALD, Claimant-Respondent, v. STEVEDORING SERVICES OF AMERICA, and BRB No. 00-0724

January 31, 2001

Appeal of the Interim Decision and Order on Jurisdiction of Daniel F. Sutton, Administrative Law Judge, United States Department of Labor.

Ralph R. Lorberbaum Zipperer & Lorberbaum, Savannah, Georgia for claimant.

Shari S. Miltiades Sanders & Miltiades, Savannah, Georgia, for employer/carrier.

Joshua T. Gillelan II Judith E. Kramer, Acting Solicitor of Labor Carol A. DeDeo, Associate Solicitor, Washington, D.C., for the Director, Office of Workers' Compensation Programs United States Department of Labor.

Charles Thomas Carroll, Jr. Wilcox, Carroll & Froelich, P.L.L.C., Washington, D.C., for intervenor.

Before: HALL, Chief Administrative Appeals Judge, SMITH, McGRANERY, and McATEER, Administrative Appeals Judges, and NELSON, Acting Administrative Appeals Judge.^[1]

DECISION and ORDER EN BANC

PER CURIAM

Stevedoring Services of America (SSA) appeals the Interim Decision and Order on Jurisdiction (99-LHC-00420) of Administrative Law Judge Daniel F. Sutton 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 if they 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 worked for Georgia Ports Authority (GPA) for ten years operating various equipment at the Garden City Terminal located on the Savannah River. GPA is the terminal operator which owns the terminal as well as the equipment and cranes needed to load and unload vessels. Pursuant to a leasing arrangement known as "the tariff, " GPA leases its equipment and equipment operators to stevedoring companies such as SSA.^[2] Claimant testified that he spent approximately 70 to 80 percent of his work time in 1992 assisting vessel operations for stevedores, and the remainder of the time working in the field where he took orders from a GPA clerk. On May 28, 1992, while assigned to SSA to load containers onto trucks, claimant fell from a platform on a rubber tire gantry approximately 20 feet and suffered injuries to his left arm and left foot, as well as a possible psychological injury. It is undisputed that claimant received disability benefits from GPA pursuant to the State of Georgia's workers' compensation scheme for various periods in 1992 and 1993. Claimant filed a claim against SSA under the Act, contending that since he was working under the control of SSA at the time of the accident, SSA should be liable for his disability compensation and medical benefits under the Act. Claimant and employer agreed to a bifurcated proceeding, wherein the sole issue was whether there was an employer-employee relationship between SSA and claimant at the time of the May 28, 1992, accident.

In his Interim Decision and Order on Jurisdiction, the administrative law judge concluded that SSA was claimant's borrowing employer at the time of the accident, and therefore liable for benefits under the Act.^[3] On appeal, SSA challenges the administrative law judge's decision. Specifically, SSA contends that since claimant was an employee of GPA, a subdivision of the State of Georgia, he is excluded from coverage under the Act by operation of Section 3(b) of the Act, 33 U.S.C. §903(b). SSA further contends that the administrative law judge erred in determining that it was claimant's borrowing employer at the time of claimant's accident, asserting that the administrative law judge's conclusion is contrary to the holding of the United States Supreme Court in Standard Oil Co. v. Anderson, 212 U.S. 215, 220 (1909). On July 6, 2000, the Board granted a motion filed by the National Association of Waterfront Employers (NAWE) to intervene in the instant case, and accepted its brief as part of the record. 20 C.F.R. §802.214. In its brief before the Board, NAWE supports employer's position that the administrative law judge erred in finding that SSA was claimant's borrowing employer. NAWE further contends that the Eleventh Amendment to the United States Constitution precludes jurisdiction in the instant case. Claimant responds, urging affirmance of the administrative law judge's Interim Decision and Order on Jurisdiction. The Director, Office of Workers' Compensation Programs (the Director) filed a motion to dismiss the appeal in which he argued, inter alia, that the administrative law judge properly applied the borrowed employee analysis in the instant case in a manner unaffected by Section 3(b). Specifically, the Director asserts that as the administrative law judge found that claimant was the employee of SSA at the time of his injury pursuant to the borrowed employee doctrine, then SSA, not GPA, was his employer at that time and therefore, Section 3(b) has no application to the instant case.

In his motion to dismiss employer's appeal, the Director also asserted that, as the appeal is taken from a non-final order, the Board should remand the case to the administrative law judge for the award or denial of benefits without addressing the contentions raised in employer's appeal. In an Order issued on August 11, 2000, the Board denied the Director's motion to dismiss employer's appeal. While the Board generally does not accept interlocutory appeals, the Board denied the Director's motion in light of the significance of the issue in this case to the parties and the industry. See Huff v. Mike Fink Restaurant, 33 BRBS 179 (1999); Williams v. Whiting Turner Contracting Co., 19 BRBS 33 (1986). Subsequent to the Board's Order, claimant filed a Supplemental Brief in Support of the Administrative Law Judge's Decision, wherein claimant urged the Board to dismiss employer's appeal on the ground that it was taken from a non-final order. At the oral argument in this case, held on September 12, 2000, in Savannah, Georgia, see 20 C.F.R. §802.306, the Director renewed his motion to dismiss employer's appeal. For the reasons stated in the Board's Order of August 11, 2000, we deny the Director's and claimant's motions to dismiss employer's appeal.^[4]

We now consider the merits of the instant case. On appeal, SSA, supported by NAWE, argues that claimant is excluded from coverage under the Act by operation of Section 3(b), inasmuch as claimant was, at the very least, the nominal employee of GPA, a governmental subdivision of the State of Georgia, at the time of his accident. In effect, SSA and NAWE argue that Section 3(b) prevents liability from being shifted from a governmental subdivision to a statutory employer, and therefore, the borrowed employee doctrine is not applicable in the instant case.^[5] For the reasons set forth below, we reject the contentions raised by employer and NAWE.

Section 3(b) of the Act provides: "No compensation shall be payable in respect of the disability or death of an officer or employee of the United States, or any agency thereof, or of any State or foreign government, or any subdivision thereof." 33 U.S.C. §903(b). See generally Tyndzik v. Director, OWCP, 53 F.3d 1050, 29 BRBS 83 (CRT)(9th Cir. 1995), rev'g in part Tyndzik v. Univ of Guam, 27 BRBS 57 (1993)(Smith, J., dissenting); Keating v. City of Titusville, 31 BRBS 187 (1997). In the instant case, it is uncontested that GPA is a governmental subdivision of the State of Georgia, and that claimant received his wages from GPA. However, in determining whether claimant is excluded from coverage under the Act by virtue of Section 3(b), our inquiry does not end there. The issue relevant to the instant case is whether Section 3(b) prevents the application of the borrowed employee doctrine, which recognizes that "[o]ne may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, with all the legal consequences of the new relation." Standard Oil, 212 U.S. at 220. Contrary to the contentions of SSA and NAWE, we hold that Section 3(b) concerns the immunity of governmental entities from liability under the Act, and does not prevent a nominal state employee from becoming the borrowed employee of a statutory employer under the Act. In so holding, we are guided by the language of Section 4(a) of the Act, which provides: "Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title." 33 U.S.C. §904(a)(1994)(emphasis added). Thus, under Section 4(a), all employers, including borrowing employers, are liable for compensation under the Act. See, e.g., Total Marine Services, Inc. v. Director, OWCP, 87 F.3d 774, 30 BRBS 62 (CRT)(5th Cir. 1996), reh'g en banc denied, 99 F.3d 1137 (5th Cir. 1996), aff'g Arabie v. C.P.S. Staff Leasing, 28 BRBS 66 (1994); Ricks v. Temporary Employment Services, Inc., 33 BRBS 81 (1999); Pilipovich v. CPS Staff Leasing, Inc., 31 BRBS 169 (1997). Pursuant to Section 5(a) of the Act, 33 U.S.C. §905(a), that liability is the exclusive remedy against a statutory maritime employer. In his Interim Decision and Order below, the administrative law judge found that although claimant was the nominal employee of GPA, he was the borrowed employee of SSA at the time of his injury. We hold that Section 3(b) does not prevent a finding that SAA was claimant's borrowing employer at the time of his injury. Rather, a determination as to whether claimant is excluded from coverage under Section 3(b) is dependent on whether the administrative law judge properly determined that SSA was claimant's...