Hough v. Vimas Painting Co. Inc.
| Decision Date | 24 May 2011 |
| Docket Number | BRB 10-0534 |
| Parties | JAMES D. HOUGH, Claimant-Petitioner v. VIMAS PAINTING COMPANY, INCORPORATED and INTECH CONTRACTING, L.L.C. And TRAVELERS INDEMNITY COMPANY OF CONNECTICUT Employers/Carrier- Respondents |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order of C. Richard Avery, Administrative Law Judge, United States Department of Labor.
Isaac H. Soileau, Jr., and Ryan A. Jurkovic (Soileau & Associates, L.L.C.), New Orleans, Louisiana, for claimant.
Joseph B. Guilbeau (Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley), Metairie, Louisiana, for Vimas Painting Company Incorporated.
Elton A. Foster (Waller & Associates), Metairie, Louisiana, for Intech Contracting, L.L.C., and Travelers Indemnity Company of Connecticut.
Before: SMITH, McGRANERY, and BOGGS, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order (2009-LHC-1252) of Administrative Law Judge C. Richard Avery 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).
Claimant was hired by employer as a bridge vacuumer in June 2007. [1] He worked seven days per week and eight to ten hours per day, weather permitting. He testified that vacuuming took place in a containment area on the bridge and that his duties required him to vacuum the debris which fell into the containment area as a result of the blasting process used to clean the bridge. While in the containment area, claimant was to wear a respirator and other protective gear such as an air-fed hood. The debris to which claimant was exposed in the containment area consisted of things such as dust, pigeon droppings, and paint chips. Tr. at 50-58. The vacuum for this particular job was attached by hose to a recycler on a barge that was spudded below the bridge on the Ohio River. [2] Bags of debris were stored on an adjacent barge in a dumpster and were to be disposed of at the end of the project.
One day in October 2007, claimant’s vacuum machine was shut down for repairs. Daniel Smallwood, the mechanic in charge of the equipment on the barge, obtained permission to allow claimant to help load materials needed to repair the vacuum machine onto the barge. In addition, claimant testified that he also assisted with cleaning the barge and moving debris bags from the recycler into the dumpster, that he did this barge work for approximately 18 hours over the course of three consecutive days, and that he was exposed on the barge to debris such as lead dust, pigeon droppings, and paint dust. Tr. at 59-61, 70-72; see also Decision and Order at 3, 6; Cl. Ex. 30 at 21. Claimant also testified that the debris was “spewed” from the machines on the barge or fell from the containment area above and that some of the bags of debris had holes in them. [3] Tr. at 70-72. Claimant testified that once the vacuum had been repaired he returned to work on the bridge; he worked for two days before he began feeling ill. He was hospitalized and eventually diagnosed with acute histoplasmosis. Tr. at 74-77. Claimant recovered with treatment and returned to work with another company. Following a meeting with his doctor, Dr. Kang, claimant believed he had to completely avoid dust, paint, etc., and, for a period of time, he ceased working altogether. Emp. Ex. 8; Tr. at 83-84, 91. Claimant filed a claim for benefits under the Act. [4]
The administrative law judge found that claimant contracted histoplasmosis while working on the bridge, not the barge. He stated that claimant’s description of his working conditions to Dr. Larosa, the attending physician at the hospital, did not match the description of conditions on the barge, and he found that there was no debris falling on the barge because the containment area was not over the barge. He also found that other employees who had symptoms similar to claimant’s were not barge workers. The administrative law judge found that the medical evidence supports this conclusion, as Drs. Kang and Emory stated that the gestation period for histoplasmosis is between one and three weeks and that prolonged exposure to large quantities of bird guano in a confined area is more likely to be the cause than open-air exposure. As the administrative law judge found that claimant contracted the disease while working on a bridge, he concluded that the injury did not occur on navigable waters and that claimant is not entitled to benefits under the Act pursuant to Director, OWCP v. Perini North River Associates, 459 U.S. 297, 15 BRBS 62(CRT) (1983). Further, as a bridge is an extension of land, the administrative law judge stated it is not a covered situs under 33 U.S.C. §903(a). The administrative law judge also stated that, even if claimant contracted the disease on the barge, he is not a covered employee because his presence on the barge was too insubstantial and fortuitous to convey coverage. Decision and Order at 11-12. Finally, the administrative law judge rejected claimant’s reliance on Walker v. PCL Hardaway/Interbeton, 34 BRBS 176 (2000), stating that claimant’s arguments for coverage were tenuous and that working on the barge was not part of his usual duties. Id. at 13. Claimant appeals the administrative law judge’s finding that he did not sustain his injury while under the Act’s coverage. Both employers respond, urging affirmance of the administrative law judge’s decision. Claimant filed a reply brief.
Claimant contends the administrative law judge erred in finding that his injury is not covered under the Act. Specifically, he argues that the Section 20(a), 33 U.S.C. §920(a), presumption applies to presume he is covered by the Act and that employer has not rebutted the presumption. Claimant also asserts his injury is covered under Perini, as he states it is more probable than not that he contracted his disease while working on the barge without protective gear than in the containment area with protective gear. Claimant alternatively avers that he is covered because he loaded the barge with materials from the transport boat and while vacuuming debris from the bridge.
For a claim to be covered by the Act, a claimant must establish that the injury occurred upon the navigable waters of the United States, including any dry dock, or that the injury occurred on a landward area covered by Section 3(a) and that the work is maritime in nature and is not specifically excluded by the Act. 33 U.S.C. §§902(3), 903(a); Perini, 459 U.S. 297, 15 BRBS 62(CRT); P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 11 BRBS 320 (1979); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977). Thus, in order to demonstrate that coverage exists, a claimant must satisfy the “situs” and the “status” requirements of the Act. Id. In Perini, the Supreme Court of the United States held that when a worker is injured on actual navigable waters while in the course of his employment on those waters, he is a maritime employee under Section 2(3); regardless of the nature of the work being performed, he satisfies both the situs and status requirements and is covered by the Act, unless he is specifically excluded from coverage by another statutory provision. [5] Perini, 459 U.S. at 323-324, 15 BRBS at 80-81(CRT); see also Ezell v. Direct Labor, Inc., 33 BRBS 19 (1999); Caserma v. Consolidated Edison Co., 32 BRBS 25 (1997); Nelson v. Guy F. Atkinson Constr. Co., Ltd., 29 BRBS 39 (1995), aff’d mem. sub nom. Nelson v. Director, OWCP, 101 F.3d 706 (9 th Cir. 1996) (table); Pulkoski v. Hendrickson Brothers, Inc, 28 BRBS 298 (1994); Johnsen v. Orfanos Contractors, Inc., 25 BRBS 329 (1992).
The Supreme Court has also held that a bridge is permanently affixed to land, is considered an extension of land, and does not fall within pre-1972 Act jurisdiction. [6] Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969); accord Kehl v. Martin Paving Co., 34 BRBS 121 (2000); Johnsen, 25 BRBS 329. With regard to bridge workers specifically, prior to 1972, employees engaged in bridge construction who were injured on navigable waters were held covered by the Act. See Davis v. Dept. of Labor, 317 U.S. 249 (1942); Peter v. Arrien, 325 F.Supp. 1361 (E.D. Pa. 1971), aff’d, 463 F.2d 252 (3 d Cir. 1972); Dixon v. Oosting, 238 F.Supp. 25 (E.D. Va. 1965). Since the 1972 Amendments were enacted, it has generally been held that employees engaged in bridge construction are covered by the Act only if they establish that their duties include working aboard, or loading or unloading materials from, vessels on navigable waters or that a particular bridge construction project will aid navigation. Gilliam v. Wiley N. Jackson Co., 659 F.2d 54, 13 BRBS 1048 (5 th Cir. 1981), cert. denied, 459 U.S. 1169 (1983); F.S. [Smith] v. Wellington Power Co., 43 BRBS 111 (2009); Gonzalez v. Tutor Saliba, 39 BRBS 80 (2005); Kehl, 34 BRBS at 121; Crapanzano v. Rice Mohawk, U.S. Constr. Co., Ltd., 30 BRBS 81 (1996); Kennedy v. American Bridge Co., 30 BRBS 1 (1996); Pulkoski, 28 BRBS 298; Johnsen, 25 BRBS 329. Where the employee is working from a fixed structure, such as the bridge itself, the Board has generally held such employees are not covered because bridge projects aid overland commerce and do not involve inherently maritime work. Id.; but see LeMelle v. B.F. Diamond Constr. Co., 674 F.2d 296, 14 BRBS 609 (4 th Cir. 1982), cert. denied, 459 U.S. 1177 (1983) (employee who assisted in the construction of a bridge designed, in part, to aid navigation, was a covered maritime employee under Section 2(3)).
In this case, the administrative law judge found...
To continue reading
Request your trial