Marinelli v. American Stevedoring, Ltd.
| Decision Date | 01 August 2000 |
| Docket Number | BRB 99-1135 |
| Parties | VICTOR MARINELLI Claimant-Respondent v. AMERICAN STEVEDORING, LIMITED Self-Insured Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Interim Decision and Order on Jurisdiction and the Decision and Order of Ralph A. Romano, Administrative Law Judge, United States Department of Labor.
Philip J. Rooney (Israel, Adler, Ronca & Gucciardo), New York New York, for claimant.
Lawrence P. Postol (Seyfarth, Shaw, Fairweather & Geraldson), Washington, D.C., for self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
DECISION and ORDER
Employer appeals the Interim Decision and Order on Jurisdiction and the Decision and Order (97-LHC-2580) of Administrative Law Judge Ralph A. Romano 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 findings of fact and conclusions of law of the administrative law judge if they are rational, supported by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant worked as a shop steward at employer's facility where he mediated labor-management disputes, and received his wages from employer pursuant to the collective bargaining agreement between employer and the union. After engaging in a dispute with some of the workers, claimant, on March 16, 1997 experienced chest pain and passed out after taking nitroglycerin tablets, striking his head. Claimant was taken to a hospital and underwent a cardiac catherization. He was discharged on March 18, 1997, and thereafter treated with medication. It is undisputed that claimant, who has not returned to work since this incident, suffered from pre-existing coronary artery disease, previously underwent a coronary bypass procedure in 1989, and had been suffering from chest pain for three years before the incident occurred. Subsequent to March 16, 1997, claimant began treatment for psychological symptoms. Claimant filed a claim for permanent total disability compensation, contending that stressful conditions at his employment aggravated his underlying heart and psychological conditions.
In his Interim Decision and Order on Jurisdiction, the administrative law judge found that as employer is required to pay claimant's wages pursuant to the collective bargaining agreement, an employer-employee relationship existed between claimant and employer. The administrative law judge further found that claimant's job duties as a shop steward were an integral part of employer's stevedoring business, and therefore claimant was a covered maritime employee under Section 2(3) of the Act, 33 U.S.C. §902(3). In his Decision and Order on the merits, the administrative law judge first found that claimant was entitled to invocation of the presumption at Section 20(a) of the Act, 33 U.S.C. §920(a), and that employer established rebuttal of the presumption based on the opinion of Dr. Israel. The administrative law judge thereafter credited the opinions of Drs. Konka, Lomazow and Mannucci, over the contrary opinions of Drs. Israel and Head, to find that claimant's work stress aggravated his underlying cardiac condition and caused adverse psychiatric consequences. After finding that claimant is unable to return to his usual employment, the administrative law judge awarded claimant permanent total disability compensation under the Act, 33 U.S.C. §908(a), and medical benefits, 33 U.S.C. §907.[1]
On appeal, employer challenges the administrative law judge's award of benefits. Specifically, employer contends that the administrative law judge erred in finding that it, and not claimant's union, was claimant's employer, and in finding that claimant satisfied the status requirement for coverage under the Act. Employer further challenges the administrative law judge's findings regarding causation and the nature and extent of claimant's disability, contending that claimant's symptoms were not caused or aggravated by his employment, but rather, were due to his underlying heart condition, and that claimant is not permanently and totally disabled. Employer further contends that the administrative law judge's analysis does not comply with the requirements of the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A). Claimant responds, urging affirmance of the administrative law judge's decisions, and requesting an attorney's fee for work performed before the Board in the instant appeal. Employer replies, reiterating its arguments on appeal, and objecting to the fee petition as it fails to state who performed the work and his qualifications.
The threshold issue presented by the instant appeal is whether the administrative law judge erred in finding that claimant was an employee of employer on March 16, 1997. In the instant case, claimant worked for many years on the waterfront as a safety man before being appointed shop steward by the union in 1986 or 1987. He was later elected to this position by the union members. See April 23, 1998 Tr. at 20; January 29, 1999 Tr. at 91. It is undisputed that, pursuant to the collective bargaining agreement between employer and the union, employer paid claimant's wages. See April 23, 1998 Tr. at 112. Claimant testified that his chief duty as shop steward was to mediate labor disputes between management and the workers, which often concerned work safety issues and staffing shortages. Id. at 21-33. He had an office on employer's premises and would be present on the pier and on board vessels to talk to workers and management, but he was paid as long as a ship was being worked regardless of his presence at employer's facility. Id. at 32-33, 112, 116. He would often go to Frank Jordan, the assistant terminal manager or to Sabato Catucci, employer's owner, to voice the workers' complaints, specifically when work crews were not fully manned. Claimant testified, however, that in some disputes he sided with management regarding the enforcement of work rules. Id. at 41, 66-67, 76. Mr. Catucci testified that he had no control over when claimant arrived and left the work site, nor did he have control over claimant's work activities. Id. at 110.
In rendering his determination in the instant case, the administrative law judge reasoned that the most significant factor in his analysis of whether an employer-employee relationship existed between employer and claimant was that employer was required to pay claimant's salary in accordance with the existing collective bargaining agreement. The administrative law judge further found that employer, a stevedoring company, was a statutory employer under Section 2(4) of the Act, 33 U.S.C. §902(4), [2] and that whether claimant's job duties as a shop steward were under the control of the union has no bearing on the analysis, as he was engaged in maritime employment and therefore was a covered maritime employee. See 33 U.S.C. §902(3) and discussion, infra. Thus, the administrative law judge found that claimant was an employee of employer by reason of its contract with the union. See Interim Decision and Order on Jurisdiction at 4. On appeal, employer asserts that since it had no control over claimant's job duties, it is not claimant's employer and thus is not liable for any compensation liability.
33 U.S.C. §902(2). Thus, for a claim to be compensable under the Act, the injury must arise out of and in the course of employment; therefore, an employer-employee relationship between the employer and claimant necessarily must exist at the time of the injury. See Clauss v. Washington Post Co., 13 BRBS 525 (1981), aff'd mem., 684 F.2d 1032 (D.C. Cir. 1982). Generally, the Board has applied three tests to determine whether an employer-employee relationship exists within the meaning of the Act: (1) the relative nature of the work, (2) the right to control details of the work, and (3) those listed in the Restatement (Second) of Agency, Section 220, subsection 2, which encompasses factors set forth in each of the other two tests.[3] The administrative law judge should apply whichever test is best suited to the facts of the particular case. See Herold v. Stevedoring Services of America, 31 BRBS 127 (1997); Reilly v. Washington Metropolitan Area Transit Authority, 20 BRBS 8 (1987); Tanis v. Rainbow Skylights, 19 BRBS 153 (1986). Where the administrative law judge's application of one test is affirmable, the Board need not address the administrative law judge's application of the other tests. See Holmes v. Seafood Specialist Boat Works, 14 BRBS 141 (1981).
After consideration of employer's contentions on appeal, we affirm the administrative law judge's finding that employer was claimant's employer at the time of the injury, as it is supported by substantial evidence. Contrary to employer's argument, the instant case does not concern the borrowed employee doctrine, see Total Marine Services, Inc. v. Director, OWCP, 87 F.3d 774, 30 BRBS 62 (CRT)(5th Cir. 1996), reh'g en banc denied 99 F.3d 1137 (5th Cir. 1996); Ricks v. Temporary Employment Services, Inc., 33 BRBS 81 (19...
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