George v. Lucas Marine Construction
| Decision Date | 28 September 1994 |
| Docket Number | BRB 93-1612 |
| Parties | SAM I. GEORGE Claimant-Petitioner v. LUCAS MARINE CONSTRUCTION and STATE COMPENSATION INSURANCE FUND Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order Denying Benefits and the Order Denying Reconsideration of Thomas Schneider, Administrative Law Judge, United States Department of Labor.
John R. Hillsman (McGuinn, Hillsman & Palefsky), San Francisco, California, for claimant.
Michael L. Mowrey, San Francisco, California, for employer/carrier.
Laura Stomski (Thomas S. Williamson, Jr., Solicitor of Labor; Carol DeDeo, Associate Solicitor; Samuel J. Oshinsky, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: DOLDER, Acting Chief Administrative Appeals Judge SMITH, Administrative Appeals Judge, and SHEA, Administrative Law Judge. [*]
DECISION AND ORDER
Claimant appeals the Decision and Order Denying Benefits and the Order Denying Reconsideration (92-LHC-1174, 92-LHC-1175) of Administrative Law Judge Thomas Schneider 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). The Board held oral argument in this case in San Francisco, California, on August 5, 1994.
Claimant, a pile-driver, was hired by employer to work on two projects. One project was on the American River at a water treatment plant in Sacramento, California, and the other was at the Navy docks on the Sacramento River.[1] Claimant alleges that, on October 17, 1990, during his lunch break from his duties at the American River project, his boss, Mr. Lucas, called from the Sacramento River project and asked claimant to bring an oxygen bottle to him. After lunch, claimant ordered the bottle, loaded it into a boat, took the boat from the barge to the shore and tied it down, hoisted the bottle to his shoulder, and, with one foot on the shore and one foot just exiting the boat, slipped and fell to the ground, aggravating a back condition. After walking off the immediate pain, claimant carried the bottle to a truck, drove to the Navy docks, and delivered the oxygen to Mr. Lucas. Tr. at 119-120. Thereafter, claimant filed a claim for compensation under the Act.
The American River, which is located entirely in the state of California, is a tributary of the Sacramento River. The treatment plant where the construction occurred is located between the H Street Bridge and the Howe Avenue Bridge on the American River. The H Street Bridge is approximately 7.1 miles upstream from the confluence of the American and the Sacramento Rivers, and the Howe Avenue Bridge is approximately 7.8 miles upstream from the confluence. Cl. Ex. 6; Cl's M/Partial Summ. Judg. ex. B (hereinafter "Map").[2] The Folsom Dam, built in the 1950's, lies approximately 18 miles upstream from the confluence of the two rivers. Tr. at 177; Map. The water downstream of the dam flows unimpeded to the Pacific Ocean.
The administrative law judge denied the claim for benefits based on his finding that the American River, in the vicinity of the accident site, is not navigable. Specifically, he rejected claimant's assertion that he should rely on the findings of the Army Corps of Engineers, the Coast Guard, and an 1885 decision of the Supreme Court of the United States to conclude that the American River is navigable at the accident site, and he relied instead on the law as it pertains to the admiralty power of the United States. The administrative law judge also found that use of a floating barge on the construction project, while being a maritime activity, does not make the water navigable and that there is no evidence of the River's present commercial use or of the River's susceptibility to future commercial use. Decision and Order at 2, 6. Further, he concluded that the tidal "ebb-and-flow" test is not a valid test for determining the navigability of a waterway and that the River at the area in question is not subject to tidal fluctuations. Id. at 4. Thereafter, claimant filed motions for reconsideration and oral argument, and the administrative law judge denied both motions. Order at 1, 4. Claimant now appeals the administrative law judge's decisions, and employer responds, urging affirmance. The Director, Office of Workers' Compensation Programs (the Director), responds, agreeing with claimant and urging reversal of the decisions.
To be covered under the Act, a claimant must meet both the status requirement of Section 2(3) and the situs requirement of Section 3(a). 33 U.S.C. §§902(3), 903(a). Section 3(a) 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 . . . .
33 U.S.C. §903(a). Pursuant to the Supreme Court's decision in Director, OWCP v. Perini North River Associates, 459 U.S. 297, 15 BRBS 62 (CRT) (1983), a claimant injured on actual navigable waters meets both the status and situs requirements.[3] Perini, 459 U.S. at 323-324, 15 BRBS at 80-81 (CRT); see also Rizzi v. Underwater Construction Corp., 27 BRBS 273, 276 (1994); Laspragata v. Warren George, Inc., 21 BRBS 132, 134 n.3 (1988); Ransom v. Coast Marine Construction, Inc., 16 BRBS 69, 72 (1984). As the administrative law judge rested his opinion solely upon the navigability of the American River, no other issues relating to claimant's status are raised on appeal in this case. The issue before the Board, therefore, is whether the administrative law judge's finding that the American River is non-navigable, downstream of the Howe Avenue Bridge, at the site of the injury, is in accordance with law and is supported by substantial evidence.
Claimant contends the administrative law judge erred in finding that the American River is not a navigable body of water. Specifically, he argues that the administrative law judge misapplied the test for navigability and should have considered the River's past, present, and future susceptibility to commercial use. In this regard, claimant contends that the American River is "navigable in fact, " in that it presently supports maritime activity, was historically navigable, and is susceptible to future commercial use, thus conferring coverage under the Act. Additionally, claimant contends that the American River is navigable because it is a tidal water, subject to the ebb and flow of the tide from the Sacramento River. In response, employer argues that the correct test for ascertaining whether a body of water is navigable is whether it is presently used for commercial purposes or whether it is susceptible to such use in the future, and that under this test, the River is not navigable. Employer also maintains that the ebb-and-flow test was rejected as a test for navigability. Claimant replies, delving into a history of the American River to show that it was once a busy trade route. The Director also responds to claimant's appeal, supporting claimant's position and arguing that the administrative law judge erred in placing the burden of proving navigability on claimant and in finding the American River at the point in question to be non-navigable.
Initially, the Director contends the administrative law judge erroneously placed the burden of proving jurisdiction on claimant. She argues that the Section 20(a), 33 U.S.C. §920(a), presumption places the burden of proof with regard to factual questions on employer. The Board has held that the Section 20(a) presumption does not apply to the legal interpretation of the jurisdictional provisions of the Act. Palma v. California Cartage Co., 18 BRBS 119 (1986); Sheridon v. Petro Drive, Inc., 18 BRBS 57 (1986); Wynn v. Newport News Shipbuilding & Dry Dock Co., 16 BRBS 31 (1983). More specifically, the Board has determined that claimants must satisfy both the status and situs tests without benefit of the presumption. Hagenzeiker v. Norton Lilly & Co., 22 BRBS 313 (1989); Boughman v. Boise Cascade Corp., 14 BRBS 173 (1981); Sedmak v. Perini North River Assoc., 9 BRBS 378 (Miller, J., dissenting), aff'd sub nom. Fusco v. Perini North River Assoc., 622 F.2d 1111, 12 BRBS 328 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981). Moreover, this case primarily involves the application of legal principles; thus, even if the presumption applied to facts underlying jurisdictional determinations, it would be inapplicable to this case. Consequently, we reject the Director's argument that the Section 20(a) presumption applies to the issue of the navigability of the River.
It is well-established that the question of whether a body of water is navigable is one of fact to which complicated legal tests must be applied. United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940); United States v Utah, 283 U.S. 64 (1931). The basic test of navigability for purposes of admiralty jurisdiction was set forth by the Supreme Court in The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L.Ed. 1058 (1852). In that case, the Supreme Court stated that the "navigable water" within the scope of the admiralty and maritime jurisdiction of the federal government "is not limited to tide-waters, but extends to all public navigable lakes and rivers, where commerce is carried on between different States, or with a foreign nation." In Ex Parte Boyer, 109 U.S. 629 (1884), the Court noted that its decisions in The Daniel Ball, 10 Wall....
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