Fleischmann v. Director, Office of Workers' Compensation Programs

• Decision Date: 23 February 1998
• Docket Number: D,No. 1401,1401
• Citation: 137 F.3d 131
• Parties: Theodore FLEISCHMANN, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Seahorse Coastal Assistance & Towing and State Insurance Fund, Respondents. ocket 96-4146.
• Court: U.S. Court of Appeals — Second Circuit

Page 131

137 F.3d 131

Theodore FLEISCHMANN, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Seahorse Coastal Assistance & Towing and State Insurance Fund, Respondents.

No. 1401, Docket 96-4146.

United States Court of Appeals Second Circuit.

Argued April 1, 1997.

Decided Feb. 23, 1998.

Jacob Shisha, New York City (Ralph J. Mellusi, Stephen B. Roberts, Tabak & Mellusi, of counsel), for Theodore Fleischmann.

Joshua Gillelan, Washington, DC (J. Davitt McAteer, Acting Solicitor of Labor, Department of Labor, Washington, DC, Carol A. De Deo, Associate Solicitor, Samuel J. Oshinsky, Counsel for Longshore, Laura J. Stomski, Attorney, of counsel), for Director, Office of Workers' Compensation Programs.

Richard A. Cooper, New York City (Elissa B. Landa, Fischer Brothers), for Seahorse Coastal Assistance & Towing and State Insurance Fund.

Before OAKES and KEARSE, Circuit Judges, and MURTHA, Chief District Judge. ^*

OAKES, Senior Circuit Judge:

Appellant Theodore Fleischmann appeals the judgment entered October 4, 1994, by G. Marvin Bober, Associate Chief Administrative Law Judge ("ALJ Bober"), denying his application for benefits. Fleischmann was injured while repairing a washed-out bulkhead in a canal. ALJ Bober held that Fleischmann was not entitled to coverage under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950 (1994), because he was not injured on navigable waters, and because he did not qualify as an "employee" within the meaning of § 902(3). We reverse and remand, finding that Fleischmann meets the LHWCA's standards both as to his status as an employee and as to the situs of his injury.

Reversed and remanded.

I. Facts

The parties do not dispute the following facts. Petitioner Theodore Fleischmann was employed in 1991 by Respondent Seahorse Coastal Assistance & Towing ("Seahorse") as a pile driver and a laborer. Fleischmann worked on constructing bulkheads, piers, and floating docks. In October of 1991, Fleischmann was helping to remove and replace a bulkhead at Center Island, on a canal off Oyster Bay leading to the northern shore of Long Island Sound. While ordinarily a bulkhead, which acts as a retaining wall for land, must border land on one side and water on the other, a large part of this bulkhead had collapsed forward into the water when the land behind had washed into the canal in a series of storms. A private residence abutted the area where the bulkhead had collapsed. The water contained a floating dock belonging to the property owner, to which a boat belonging to the owner's employee was tied. The completed bulkhead would prevent erosion of the land into the water.

Seahorse built the new bulkhead by driving piles deep into the bed of the canal, and attaching a horizontal retaining system to those piles. At the time of Fleischmann's accident, twelve to fifteen feet of water and muck still separated the solid land of this residence from the bulkhead. The repaired bulkhead was attached to the land at both ends, but pores in the bulkhead wall permitted water to seep behind it.

To complete construction of the bulkhead, Fleischmann helped to move material from the canal bottom to fill in the area landward of the bulkhead. Seahorse used material from the bottom of the canal as filler, to save money on material and transportation, and to deepen the water in the canal. Fleischmann and other Seahorse workers had nearly completed the process of moving dredging material behind the bulkhead at the time of Fleischmann's accident.

While repairing the bulkhead, Fleischmann worked primarily on a floating dock, which was tied to a barge. The equipment used to repair the bulkhead was floated to the job site on a barge belonging to Seahorse, and Fleischmann testified that he had helped to tie and untie the work boats that moved the barge there.

On October 22, 1991, Fleischmann was cleaning up the barge and removing lumber from the floating dock. At the time of his accident, he was on top of the bulkhead and moving the barge by pulling on a tow line. As Fleischmann reached for a second tow line, he slipped on the top of the bulkhead and fell over the landward side. His foot caught on the bulkhead, and he fell into the dredging material and water. Although Fleischmann got wet when he fell, his trapped boot kept him from going under the water completely. At the time Fleischmann fell, the tide was such that there was enough water behind the bulkhead to cover his body. At the point where he fell, he was approximately fifteen feet from solid land.

II. The ALJ's Decision

Fleischmann sustained injuries to his right knee from the fall and applied for benefits under the LHWCA. At his hearing, the parties stipulated that Fleischmann was "deemed to be temporary totally disabled from the date of accident." His petition was heard by Administrative Law Judge ("ALJ") Aaron Silverman, who retired prior to deciding the case. ALJ G. Marvin Bober was assigned to the matter and rendered a decision solely on the written record.

Section 920(a) of the LHWCA grants a presumption of coverage, which applies unless the employer presents substantial evidence to rebut the presumption. 33 U.S.C. § 920(a) (1994). ALJ Bober held that the § 920(a) presumption did not apply to questions of situs or status, and, thus, that Fleischmann had the burden of proving facts establishing his coverage under the Act.

ALJ Bober noted that to establish coverage under the LHWCA, Fleischmann had to establish both that he had status as an "employee" under § 902(3) and that the injury occurred on a situs covered under § 903(a). ALJ Bober also noted that if Fleischmann could show that he were injured on "navigable waters," as defined before the 1972 amendments to the LHWCA, he would be covered, without any further showing regarding his employee status, because the 1972 amendments were designed to expand, not to limit, coverage. ALJ Bober found that although the canal itself constituted navigable waters, Fleischmann was not injured on actual navigable waters as defined before 1972, because water in the area where Fleischmann fell had been permanently withdrawn from the canal. ALJ Bober went on to find that Fleischmann lacked status as an "employee" within the meaning of § 902(3).

The Claimant's job was not related to the movement of cargo between ship and land transportation, nor did it serve to facilitate these functions. Several Supreme Court decisions addressing Section 2(3) have "clearly decided that, aside from the specified occupations, land-based activity occurring within the § 903 situs will be deemed maritime only if it is an integral or essential part of loading or unloading a vessel." As the Claimant's employment did not entail such duties, it is not encompassed within the coverage afforded by Section 2(3).

He therefore made no ruling on the question whether Fleischmann's accident occurred upon a covered situs, as defined under the amended LHWCA.

Fleischmann appealed to the Benefits Review Board ("BRB"), and the Office of the Solicitor filed an amicus letter in his support. Because the BRB failed to render a decision within one year, the ALJ's decision was deemed affirmed. See Omnibus Consolidated Rescission and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321, 1321-219 (1996). Fleischmann now brings direct appeal to our court, under § 921(c) of the LHWCA.

III. Discussion

A. Standard of Review

The BRB hears appeals from decisions made by an ALJ under the LHWCA. 33 U.S.C. § 921(b)(3) (1994). The BRB must apply a narrow standard of review to those decisions and is required to affirm the ALJ's findings of fact as long as they are supported by substantial evidence in the record considered as a whole. Id.; see also King v. Director, Office of Workers' Comp. Programs, 904 F.2d 17, 18 (9th Cir.1990) (per curiam); 20 C.F.R. § 802.301 (1997). We review BRB decisions "for errors of law and for adherence to the statutory standard governing the [BRB's] review of the administrative law judge's factual determinations." King, 904 F.2d at 18 (citation omitted). ¹

Although we agree with Fleischmann that the ALJ erred by failing to apply the § 920(a) presumption of coverage to questions of fact and by placing the burden of production of evidence on Fleischmann, this error does not affect our ruling. Because we base our ruling on essentially undisputed facts of record, addressing legal issues only, we would reach the same conclusion even if we determined that the presumption did not apply.

B. Coverage Under the LHWCA

Before 1972, the LHWCA covered only employees who were injured on actual navigable waters; the LHWCA did not cover employees injured on land, or on structures connected to land, no matter how close to the water the injury occurred. See Nacirema Operating Co. v. Johnson, 396 U.S. 212, 223-24, 90 S.Ct. 347, 354, 24 L.Ed.2d 371 (1969) (holding that the LHWCA did not extend to injuries sustained on a pier). Recognizing that "compensation ... should not depend on the fortuitous circumstance of whether the injury occurred on land or over water," Congress amended the LHWCA in 1972. H. Rep. No. 92-1441, at 10 (1972), reprinted in 1972 U.S.C.C.A.N. 4698, 4708. The 1972 amendments extended coverage under § 903(a) to include injuries that occurred "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, or building a vessel)." 33 U.S.C. § 903(a) (1994). While Congress expanded the number of locations of injury that would allow an employee to qualify for coverage, it also added language to § 902(3) to restrict the kinds of employees that the LHWCA covers. Under the 1972 amendments, an injured worker must be "engaged in maritime employment" to be covered under the LHWCA. 33 U.S.C. § 902(3). Thus, the LHWCA as amended...