Maher Terminals v. Director, Office of Workers', 01-3343.

• Decision Date: 29 May 2003
• Docket Number: No. 01-3343.,01-3343.
• Citation: 330 F.3d 162
• Parties: MAHER TERMINALS, INC., Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Vincent Riggio Respondents.
• Court: U.S. Court of Appeals — Third Circuit

330 F.3d 162

MAHER TERMINALS, INC., Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Vincent Riggio Respondents.

No. 01-3343.

United States Court of Appeals, Third Circuit.

Argued February 24, 2003.

Filed May 29, 2003.

William M. Broderick, (Argued), Richard P. Stanton, Jr., New York, for Petitioner.

Jim C. Gordon, Jr., Joshua T. Gillelan, II, United States Department of Labor, Office of the Solicitor, Washington, for Respondent Director, Office of Workers' Compensation Programs.

Philip J. Rooney, (Argued), Israel, Adler, Ronca & Gucciardo, New York, for Respondent Vincent Riggio.

Before BECKER, Chief Judge,^* SCIRICA, Circuit Judge^** and SHADUR,^*** District Judge.

OPINION OF THE COURT

BECKER, Circuit Judge.

The sole question in this petition for review of the order of the United States Department of Labor, Benefits Review Board (the "Board") is whether the claimant, Vincent Riggio, is a covered maritime employee under the Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 901 et seq. (the "Act"). Riggio was employed by petitioner Maher Terminals, Inc. ("Maher") as both checker, a covered position, and delivery clerk, a job that is not covered by the Act.¹ Although Maher stipulated at oral argument that Riggio split his time evenly between these jobs, the company argues that Riggio is not covered by the Act because on the day of his injury he was working as a delivery clerk and was not subject to reassignment. In response, Riggio asks us to follow the reasoning of the Board and find him covered because although he was not working in a covered position on the day of his injury, he regularly engaged in covered maritime employment. Thus, Riggio submits, his job at Maher required him to spend "at least some of [his] time in indisputably longshoring operations," the test for coverage articulated by the Supreme Court in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 273, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977).

We agree with Riggio's interpretation of the Act and will not adopt Maher's narrow interpretation of the Act's coverage analysis that would include only the day on which the claimant was injured. Instead, we believe that we must look at the claimant's regular duties to determine whether he is engaged on a regular basis in maritime employment. We will therefore deny Maher's petition for review.

I.

The facts are not disputed. On February 3, 1994, Riggio injured his left arm when he fell off a chair while working in the office of Berth 62 of Maher's port facilities in Elizabeth, New Jersey. Although he was employed as a delivery clerk on the day of his injury, Riggio split his time evenly between work as a checker and as a delivery clerk for Maher.² He was a member of the local checker's union and remained on Maher's permanent hire list, but not on a specified job list, so that the dock boss could assign him to a different job each day. When Riggio worked as a checker, he was required to be in the shipping lanes, but when employed as a delivery clerk, Riggio worked exclusively in the office entering data into a computer. In both jobs, his function was to handle paperwork for the in-coming and out-going cargo.

This case has a lengthy administrative history. Because the facts are not in dispute the sole issue in the administrative proceedings was the legal question whether Riggio's claim is covered under the Longshore & Harbor Workers Compensation Act, 33 U.S.C. § 901 et seq. The first administrative law judge ("ALJ") to hear the case, Judge Ainsworth Brown, denied coverage because he found that Riggio's job as a delivery clerk was excluded from coverage because it was a clerical position under 33 U.S.C. § 902(3)(A) (stating that "individuals employed exclusively to perform office clerical, secretarial, security, or data processing work" shall not be considered maritime employees covered by the Act). Judge Brown determined that even though Riggio also worked as a checker, this was insufficient to satisfy his burden of proving coverage under this court's decision in Maher Terminals, Inc. v. Farrell, 548 F.2d 476 (3d Cir.1977) (holding that a delivery clerk is not covered under the Act).

On appeal, the Benefits Review Board vacated Judge Brown's denial of benefits. It noted that because Riggio also worked as a checker, he could not have been "exclusively" employed as a delivery clerk within the meaning of 33 U.S.C. § 902(3)(A). The Board remanded the case to the Office of Administrative Law Judges for further proceedings. Before the case was heard again, Maher petitioned this court for review of the Board's order, but we dismissed the petition for lack of jurisdiction. The parties also agreed on a stipulation resolving the medical and compensation issues subject to the final resolution of the coverage issue.

On remand, the case was assigned to a different ALJ, Judge Ralph A. Romano, whom the parties informed about their stipulation, although they did not ask him to enter the stipulation into the record at that time. Judge Romano held that a delivery clerk could be covered by the Act only if he were subject to reassignment as a checker during the course of a single workday. Since Riggio worked only as a delivery clerk on the day of his injury and did not demonstrate that he was subject to reassignment during that day, Judge Romano denied him coverage. Riggio appealed again to the Board, which rejected Judge Romano's "same day of injury" status test. Instead, the Board found Riggio to be covered because "he was assigned to work as a checker by [Maher] as a part of his regular duties," even though he did not work as a checker on the day of his injury or even in the two weeks previous. Accordingly, the Board reversed Judge Romano's order and remanded the case "for consideration of any remaining issues."

Within the mandated 60 day period to appeal, see 33 U.S.C. § 921(c), Maher filed a petition in this court for review of the Board's decision. Riggio subsequently filed a motion to hold briefing in abeyance pending the finalization of the stipulation referred to above regarding the amount recoverable upon resolution of the coverage issue. The final version of the stipulation read in relevant part:

There is dispute [sic] between claimant and employer as to the existence of jurisdiction under the Longshore and Harbor Workers' Compensation Act. The employer does not concede the existence of such jurisdiction by reason of the execution of this stipulation. The parties agree, in the event of a finding of jurisdiction under the Act, that the injury has caused a permanent loss of use to the left upper extremity and that the claimant is entitle [sic] to an award of 4% of the left arm, equaling 12.48 weeks, at a weekly rate of $738.30 pursuant to 33 U.S.C. 908(c)(1).

...

Additionally, in the event that the third Circuit [sic] finds jurisdiction under the [Act], and an award of 4% of the left arm is awarded, a fee of $7,500.00 should be paid to the firm of Israel, Adler, Ronca & Gucciardo up and above compensation paid to the claimant.

Judge Romano issued an order approving the stipulation, but he characterized the stipulation as a settlement. Recognizing that Judge Romano's order of settlement was not what the parties wanted, Maher petitioned Judge Romano to amend the order to reflect that the agreement is a stipulation and not a settlement. In a subsequent order, Judge Romano complied with this request.

We have appellate jurisdiction to review the Board's order under 33 U.S.C. § 921(c).³ Our examination is "limited to a determination of whether the Board acted in conformance with applicable law and within its proper scope of review." Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d 805, 807 (3d Cir.1988). Because the Board does not administer the Act, our review of its interpretation of the Act is "essentially plenary" but we "will `respect' [the Board's] interpretation if it is `reasonable.'" Sea-Land Serv., Inc. v. Rock, 953 F.2d 56, 59 (3d Cir.1992) (quoting Curtis, 849 F.2d at 808).

II. Coverage

A. Description of the Coverage Test

The 1972 amendments to the Longshore and Harbor Workers Compensation Act created a "two-part test `looking both to the "situs" of the injury and the "status" of the injured,' to determine eligibility for compensation." Rock, 953 F.2d at 60 (quoting Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 265, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977)). Because Congress included a broad geographical area in the "situs" component of the test, including both injuries on water and areas on land that are connected to maritime activity, it limited the persons who fulfill the "status" test to those who "engaged in maritime employment." 33 U.S.C. § 902(3). The Act defines such persons as:

any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include —

(A) individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;

Id. We noted in Rock that this definition of "maritime employment" is rather imprecise, but that Congress "came closest to defining this key term in the `typical example' of the expanded coverage set forth in the legislative history." 953 F.2d at 60. The legislative history explains:

The intent of the Committee is to permit a uniform compensation system to apply to employees who would otherwise be covered for part of their activity. To take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area.... [E]mployees whose responsibility is only to pick up stored...