Fusco v. Perini North River Associates, Nos. 1377

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before MESKILL; WYZANSKI
• Citation: 622 F.2d 1111
• Parties: Ronald FUSCO, Bernard Sullivan, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Petitioners, v. PERINI NORTH RIVER ASSOCIATES, and Hartford Accident & Indemnity Company, Respondents. to 1379, Dockets 79-4006, 79-4015, 79-4016.
• Docket Number: Nos. 1377
• Decision Date: 04 June 1980

Page 1111

622 F.2d 1111 Ronald FUSCO, Bernard Sullivan, and Director, Office of
Workers' Compensation Programs, United States
Department of Labor, Petitioners,
v.
PERINI NORTH RIVER ASSOCIATES, and Hartford Accident &
Indemnity Company, Respondents. Nos. 1377 to 1379, Dockets 79-4006, 79-4015, 79-4016. United States Court of Appeals,
Second Circuit. June 4, 1980.
As Amended on Denial of Rehearing Aug. 19, 1980.

Page 1112

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

WYZANSKI, Senior District Judge:

This case is before us on a remand from the Supreme Court of the United States.

Perini No. River v. Fusco, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980), vacated our judgment in Fusco et al. v. Perini North River Associates et al., 601 F.2d 659 (2nd Cir. 1979) and remanded the case to us "for further consideration in light of P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979)," Mr. Justice Brennan, Mr. Justice Marshall and Mr. Justice Blackmun dissenting.

As shown in our original opinion in Fusco v. Perini North River Associates, supra, p. 661, this case involves two separate 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. Each claimant was injured over navigable waters while engaged in constructing a sewage disposal project extending over the water.

The claimants contended that when injured they were "employees" within § 2(3) of LHWCA on the broad ground that each was "engaged in maritime employment" and on the narrow ground that each was a "harborworker." ¹

In Fusco's case Administrative Law Judge Lesser, without expressly ruling on the narrow ground that Fusco was a "harborworker," concluded 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." (p. 661). Accordingly, the ALJ allowed Fusco compensation.

In Sullivan's case Administrative Law Judge Feldman concluded that "Claimant is not a longshoreman, ship repairman, shipbuilder, or shipbreaker, nor could he be classified as a harbor worker," (p. 662), and, therefore, denied, him compensation under the LHWCA.

The Benefits Review Board (BRB) reversed the ALJ in Fusco and affirmed the ALJ in Sullivan on the ground that "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 claimants were not engaged in maritime employment pursuant to Section 2(3) and thus are not covered under the Act." (p. 662). Thus the BRB explicitly rejected the broad ground and implicitly rejected the narrow...