Malta v. Wood Group Production Services

• Decision Date: 23 July 2018
• Docket Number: BRB 18-0059
• Parties: LUIGI MALTA Claimant-Respondent v. WOOD GROUP PRODUCTION SERVICES and SIGNAL MUTUAL INDEMNITY ASSOCIATION Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent
• Court: Longshore Complaints Court of Appeals

LUIGI MALTA Claimant-Respondent v. WOOD GROUP PRODUCTION SERVICES and SIGNAL MUTUAL INDEMNITY ASSOCIATION Employer/Carrier-Petitioners

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent

BRB No. 18-0059

Court of Appeals of Longshore

July 23, 2018

Appeal of the Decision and Order on Second Remand of Larry W. Price Administrative Law Judge, United States Department of Labor.

Al J Robert, Jr. (Law Office of Al J. Robert, Jr., LLC), New Orleans, Louisiana, for claimant.

Scott A. Soule and Emily C. Canizaro (Blue Williams, L.L.P.) Mandeville, Louisiana, for employer/carrier.

Matthew W. Boyle (Kate S. O'Scannlain, Solicitor of Labor; Maia S. Fisher, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before: HALL, Chief Administrative Appeals Judge, BUZZARD and ROLFE, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM

Employer appeals the Decision and Order on Second Remand (2013-LHC-01511) of Administrative Law Judge Larry W. Price 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 rational, supported by substantial evidence, and in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

This case is before the Board for the third time. To recapitulate on April 14, 2012, claimant sustained injuries to his back, left arm, shoulder, and foot, in the course of his work for employer as an offshore warehouseman at its Black Bay Central Facility, a fixed platform in state waters, when a CO2 bottle he was unloading from a cargo basket forcefully discharged. HT I at 25. The administrative law concluded that claimant's injury did not occur on a situs covered by the Act and he thus denied benefits. Claimant appealed, and the Board reversed the administrative law judge's decision, holding that the Central Facility is a covered situs pursuant to Section 3(a) of the Act, 33 U.S.C. §903(a). Malta v. Wood Group Prod. Services, 49 BRBS 31 (2015). The Board remanded the case for consideration of any remaining issues. Id. at 35.

On remand, the administrative law judge conducted a second hearing on the issue of whether claimant was engaged in "maritime employment" pursuant to Section 2(3) of the Act, 33 U.S.C. §902(3).^[1] After this hearing, the parties stipulated that the Board's decision established jurisdiction under the Act, but that employer reserved its "right to properly controvert payment of benefits due to a change of status." Joint Stipulation at 2-3. The administrative law judge, in a decision dated June 10, 2016, incorporated the parties' Joint Stipulation in its entirety, and ordered employer to pay claimant benefits from April 18, 2015, at a rate of $289.15 per week for his loss in wage-earning capacity. See Decision and Order Based on the Parties' Joint Stipulation at 2.

Employer appealed, challenging the administrative law judge's "finding" that claimant is a "maritime employee" under Section 2(3) of the Act. The Board, stating that the parties' joint stipulation incorrectly interpreted the Board's decision as holding that claimant was an employee covered under the Act, vacated the administrative law judge's June 10, 2016 decision.^[2] Malta v. Wood Group Prod. Services, BRB No. 16-0552 (Apr. 13, 2017) (unpub.) Stating that the administrative law judge did not make any specific findings or reach any legal conclusions with regard to claimant's status as a maritime employee, the Board remanded the case to the administrative law judge "for consideration of the issue of status and the other remaining issues." Id.

In his Decision and Order on Second Remand, the administrative law judge found claimant's employment activities satisfy the status requirement of the Act. 33 U.S.C. §902(3). He therefore ordered employer to pay claimant ongoing temporary partial disability benefits from April 18, 2015, and medical benefits.

On appeal, employer challenges the administrative law judge's finding that claimant's work duties constituted maritime employment covered by the Act. Claimant, and the Director, Office of Workers' Compensation Programs, have each filed a response brief, urging affirmance of the administrative law judge's Decision and Order on Second Remand.

Under Section 2(3) of the Act, a covered employee is "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker . . . ." 33 U.S.C. §902(3). Generally, a claimant satisfies the status requirement as a maritime employee if he is an employee engaged in work which is integral to the loading, unloading, constructing, or repairing of vessels. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96(CRT) (1989). To satisfy this requirement, claimant need only "spend at least some of [his] time" in indisputably maritime activities. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 273, 6 BRBS 150, 165 (1977); see Universal Fabricators, Inc. v. Smith, 878 F.2d 843, 22 BRBS 104(CRT) (5th Cir. 1989), cert. denied, 493 U.S. 1070 (1990).

As an offshore warehouseman, claimant's duties included shipping, receiving, warehousing, and dispatching tools and supplies to different operators for use on various satellite platforms, and loading and unloading vessels at various times throughout the day. HT I at 10-11, 13. There is no dispute that claimant spent "at least some" of his time loading and unloading vessels and that his injury occurred while performing such duties. See Emp. Br. at 5. In this regard, claimant's undisputed testimony establishes he spent approximately 25 to 35 percent of each seven-day work period loading and unloading something on to, or off of, vessels. HT II at 37-38. This was confirmed by employer's project manager, Ray Pitre, who testified that loading and unloading vessels was a "big part of [claimant's] job." HT I at 27-29. The record also establishes claimant was injured while he was unloading a pressurized cylinder from a vessel via a cargo basket. Id. at 16-18; CXs 1, 2.

The administrative law judge found claimant satisfied the status requirement because he spent 25 to 35 percent of his work day loading and unloading supplies from third-party vessels that originated in Venice, Louisiana. In reaching this conclusion, the administrative law judge noted that the Board's rationale in finding the functional component of the situs test satisfied, i.e., that the location where claimant suffered the injury was customarily used for the loading and unloading of vessels, ^[3] "can be equally applied to status." Decision and Order on Second Remand at 5. He also found Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 27 BRBS 103(CRT), reh'g denied, 8 F.3d 24 (5th Cir. 1993), cert. denied, 511 U.S. 1086 (1994), factually distinguishable. While claimant Munguia "loaded and unloaded unto a boat only the gear and equipment he needed to perform his individual platform-related duties," claimant in this case "used a crane to unload pipes, compressors, valves, drinking water, tools, chemicals, repair parts, nitrogen cylinders, and phalanges from supply vessels coming in from Venice, Louisiana, on a daily basis." Decision and Order on Second Remand at 5 (citing HT 1 at 19, 30).

Employer contends that claimant's employment activities, which included unloading and loading equipment and tools for use in the oilfield, are akin to the activities of claimant Munguia in that they were unrelated to maritime commerce and did not serve a maritime purpose or involve the movement of cargo.

In Munguia, the Fifth Circuit concluded that the claimant's loading and unloading of supplies and tools from a small crew boat and repairing this boat were merely incidental to his job on fixed oil platforms. Specifically, the court reasoned that this "loading" and "unloading" alone did not warrant a conclusion that the employee was engaged in "maritime employment" as the work on fixed platforms is not maritime in nature. The Munguia court relied on the rationale espoused in Fontenot v. AWI, Inc., 923 F.2d 1127, 24 BRBS 81(CRT) (5th Cir. 1991), to find there is a limit to conferring coverage by "loading:"

the unloading and loading, and construction activities that the [Supreme] Court recognizes as the focus of the maritime employment test . . . can be unconnected with maritime commerce. . . . For example, an employee might unload one train, and load another; or an employee might engage in construction activities, but build an airplane instead of a ship. Nothing intrinsic in any of these activities established their maritime nature; rather it is that they are undertaken with respect to a ship or vessel. When the tasks are undertaken to enable a ship to engage in maritime commerce, then the activities become "maritime employment."

Munguia, 999 F.2d at 813, 27 BRBS at 107(CRT) (quoting Fontenot, 923 F.2d at 1131, 24 BRBS at 85(CRT)). The court concluded that "Munguia's daily activities as a pumper-gauger were intrinsically related to the servicing and maintenance of fixed platform wells" which is not "inherently maritime" work. Id. (citing Herb's Welding, Inc. v. Gray, 470 U.S. 414, 17 BRBS 78(CRT) (1985)). As Munguia's work was not integral to the loading or unloading of cargo from vessels, the court held he was not engaged in maritime employment. Id.

We affirm the administrative law judge's finding that claiman...