Lee v. Elliot Turbomachinery
| Decision Date | 23 July 2003 |
| Docket Number | BRB 02-0761 |
| Parties | JAMES D. LEE, Claimant-Respondent v. ELLIOT TURBOMACHINERY and AMERICAN HOME ASSURANCE COMPANY, Employer/Carrier- Petitioners |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Robert D. Kaplan, Administrative Law Judge, United States Department of Labor.
Timothy F. Schweitzer (Cappiello Hoffman & Katz, P.C.) New York, New York, for claimant.
Richard L. Garelick (Flicker, Garelick & Associates), New York, New York, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and GABAUER, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order (2002-LHC-00174) of Administrative Law Judge Robert D. Kaplan rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. '901 etseq. (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).
On December 4, 2000, employer contracted with Orion Power to overhaul gas turbines at its Gowanus electrical generating station. The Gowanus facility is comprised of four barges that float on Upper New York Bay in Brooklyn, New York. Claimant worked for employer at the Gowanus facility from March 1 to April 16, 2001, when he injured his lower back during the course of his employment. Claimant's job duties for employer involved assisting in overhauling the gas turbines. The only job duty claimant performed off the barges was to retrieve parts from an adjoining pier. Claimant was working on a turbine when he injured his back.
In Caserma v. Consolidated Edison Co., 32 BRBS 25 (1998), the Board determined that an injury arising on a barge at the Gowanus facility is covered under the Act, pursuant to Director, OWCP v. Perini North River Associates [Perini], 459 U.S. 297, 15 BRBS 62(CRT) (1983), as the claimant was injured on a barge afloat in actual navigable waters. In his decision in the instant case, the administrative law judge found Caserma controlling. The administrative law judge rejected employer's argument that Caserma is not binding because the Board did not address coverage in the context of a claimant who is injured while "transiently or fortuitously on navigable waters." Decision and Order at 6. The administrative law judge declined to find that the Board in Caserma was unaware of the "transiently or fortuitously" language in Perini and Herb's Welding, Inc. v. Gray, 470 U.S. 414, 17 BRBS 78(CRT) (1985), as the Board cited these cases in Caserma. The administrative law judge also rejected employer's contention that the Fifth Circuit's decision in Bienvenu v. Texaco, Inc., 164 F.3d 901, 32 BRBS 217(CRT) (5th Cir. 1999)(en banc), compelled the finding that claimant was transiently or fortuitously on navigable waters. The administrative law judge noted that employer did not cite any precedent in which coverage was denied to an employee, such as the claimant in this case, whose usual employment duties at the date of injury are upon navigable waters. Accordingly, the administrative law judge resolved the sole issue before him by concluding that claimant is entitled to coverage under the Act because his injury occurred while he was performing his job duties for employer aboard a barge upon navigable waters. [1]
On appeal, employer asserts that the administrative law judge erred by finding Caserma controlling. Specifically, employer argues that because claimant's usual employment as a millwright is exclusively land-based, and due to the highly unusual circumstance that the Gowanus electrical generating plant is affixed to barges rather than on land, claimant's injury on navigable waters was fortuitous, and therefore coverage under the Act should be denied. Alternatively, employer argues that, pursuant to the 1984 Amendments to the Act, the holding in Perini that Congress did not intend to withdraw coverage from workers injured on navigable waters who would have been covered by the Act before the 1972 Amendments was superceded, in that every claimant must now establish the status element for coverage in addition to the situs element. Employer argues, pursuant to this contention, that claimant's work repairing gas turbines is not maritime employment, and that claimant's employment therefore does not satisfy the status element; thus, coverage under the Act should be denied. [2]
We initially address employer's contention that the administrative law judge erred by finding coverage under the Act because employer argues that claimant was fortuitously on navigable waters at the time of his injury. In order to establish coverage prior to the enactment of the 1972 Amendments to the Act, a claimant had to show that his injury occurred "upon the navigable waters of the United States (including any dry dock)...." See 33 U.S.C. '903(a)(1970)(amended 1972 and 1984). In 1972, Congress amended the Act to add the status requirement of Section 2(3), 33 U.S.C. '902(3), and to expand the sites covered under Section 3(a) landward. In Perini, 459 U.S. 297, 15 BRBS 62(CRT) (1983), the Supreme Court held that in making these changes to expand coverage, Congress did not intend to withdraw the coverage of the Act from workers injured on navigable waters who would have been covered by the Act before 1972. Perini, 459 U.S. at 315-316, 15 BRBS at 76-77(CRT). Accordingly, the Court held that when a worker is injured on actual navigable waters in the course of his employment on those waters, he is a maritime employee under Section 2(3). Perini, 459 U.S. at 323-324, 15 BRBS at 80-81(CRT). It is therefore well established that, regardless of the nature of the work being performed, such a claimant satisfies both the situs and status requirements and is covered under the Act, unless he is specifically excluded from coverage by another statutory provision. See generally Harwood v. Partredereit AF 15.5.81, 944 F.2d 1187, 1190-1191 (4th Cir. 1991), cert. denied, 503 U.S. 907 (1992); Zapata Haynie Corp. v. Barnard, 933 F.2d 256, 24 BRBS 160(CRT) (4th Cir. 1991), aff'g 23 BRBS 267 (1990); Center v. R & D Watson, Inc., 25 BRBS 137 (1991).
In Perini, the Supreme Court, in dicta, noted it expressed no opinion on whether coverage extends to a worker "injured while transiently or fortuitously on actual navigable water." Perini, 459 U.S. at 324 n. 34, 15 BRBS at 81 n. 34(CRT). In Herb's Welding, the Court reiterated this statement in holding that a worker injured on a fixed oil platform in state waters was not covered as he was a land-based worker, since a fixed platform is akin to an island, and the claimant was not engaged in maritime employment under Section 2(3). The Court noted that "Gray traveled between platforms by boat and might have been covered, before or after 1972 had he been injured while in transit." Herb's Welding, 470 U.S. at 427 n. 13, 17 BRBS at 84 n. 13(CRT). The Court cited Perini as support for this proposition, but followed it with a "but see" citation to the Perini Court's reservation of an opinion with regard to those "transiently or fortuitously" on navigable waters. The Court concluded by noting "in passing a substantial difference between a worker performing a set of tasks requiring him to be both on and off navigable waters, and a worker whose job is entirely land-based but who takes a boat to work." Id.
In Bienvenu, the Fifth Circuit specifically addressed the question reserved by the Supreme Court and concluded that the signals in the Supreme Court's opinions in Perini and Herb's Welding "indicate the Supreme Court would hold that a workman who is aboard a vessel simply transiently or fortuitously, even though technically in the course of his employment, does not enjoy coverage under the LHWCA." Bienvenu, 164 F.3d at 908, 32 BRBS at 223(CRT). The court declined to set "the exact amount of work performance on navigable waters sufficient to trigger [Longshore Act] coverage, " instead electing to leave "that task to the case-by-case development for which the common law is so well suited." Id. The court held the claimant in Bienvenu covered because he spent 8.3 percent of his time working on production equipment aboard a vessel. As this time was sufficient to confer coverage, the court did not consider whether the time claimant spent aboard the vessel being shuttled to various platforms should be included in determining whether claimant spent sufficient work time on navigable waters. [3] Id. at n. 6.
In this case, employer does not dispute that claimant spent 99 percent of each workday on navigable waters on the barges at the Gowanus electrical generating station, and that his injury arose during the course of his employment on the barges. In Caserma, the claimant's job duties as a mechanic included repairing the generators located on the barges at the Gowanus facility, and he was injured on a barge at the Gowanus facility during the course of his employment. Thus, pursuant to Perini, the Board held that claimant Caserma was covered by the Act. Caserma is directly on point with the instant case, and the administrative law judge properly found Caserma controlling. Caserma, 32 BRBS at 27-29.
Moreover this case, wherein the injury occurred in Brooklyn, New York, arises within the jurisdiction of the United States Court of Appeals for the Second Circuit. Thus, we reject employer's contention that the Fifth Circuit's decision in Bienvenu would necessarily control. In any event, claimant was not transiently on navigable waters under Bienvenu, as 99 percent of claimant's work duties were performed upon navigable waters on the barges at the Gowanus facility, Tr. at 33; i...
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