Martin v. Bpu Management, Inc.
| Decision Date | 04 April 2012 |
| Docket Number | BRB 11-0502 |
| Parties | DAVID MARTIN, Claimant-Respondent v. BPU MANAGEMENT, INCORPORATED/SHERWIN ALUMINA COMPANY and LIBERTY MUTUAL INSURANCE COMPANY, Employer/Carrier- Petitioners |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order and Modified Decision and Order Awarding Benefits on Reconsideration of Lee J. Romero, Jr. Administrative Law Judge, United States Department of Labor.
Daniel F. Horne (Stone and Horne, L.L.P.), Corpus Christi, Texas for claimant.
John C. Elliott and James C. Woolsey (Fitzhugh & Elliott P.C.), Houston, Texas, for employer/carrier.
Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order and Modified Decision and Order Awarding Benefits on Reconsideration (2010-LHC-00230) of Administrative Law Judge Lee J. Romero, Jr., 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 sustained a lower back injury on February 15, 2006, while shoveling raw bauxite onto an underground cross-tunnel conveyor belt at employer’s Sherwin Alumina facility, which is located on the Texas Gulf Coast. The primary purpose of employer’s facility is to extract aluminum oxide (alumina) from bauxite ore. The raw bauxite is unloaded from vessels at Dock 5 of employer’s deep water port to the storage building by means of an overhead conveyor system. The overhead conveyor system carries the raw material over a street and fence separating the dock area from the alumina processing facility and dumps it into discreet piles according to grade in Building 15. Once a particular grade of raw bauxite is selected for the extraction process, it falls through one or more of 60 trap doors into an underground area referred to as the reclaim system. Once in the reclaim system, the raw bauxite passes through a screw feeder which sifts the rocks and bigger clumps of bauxite into a fine powder and then drops it onto the reclaim conveyor belt, which then, in turn, transports and drops the material onto the cross-tunnel conveyor. The cross-tunnel conveyor belt, which is approximately 25-30 feet underground, transfers the pre-sifted, pre-blended bauxite to the rod mill, where the material is further pulverized as part of the manufacturing process. Often, some bauxite spills off the cross-tunnel conveyor onto the floor of the cross-tunnel area, thereby requiring workers, like claimant, to intermittently shovel the spilled bauxite back onto the cross-tunnel conveyor belt. It is in the course of this particular assignment underneath Building 15 that claimant sustained his injury. Once at the rod mill, the bauxite proceeds through the remaining steps in the manufacturing process whereby the alumina is extracted. The finished product is stored and eventually loaded and delivered from the facility either by rail car or ship (Dock 90).
On the day of his injury, claimant stated that while performing the cleanup work in the cross-tunnel, he felt something pop in his lower back. He went to employer’s medical clinic and thereafter sought treatment from Dr. Walker, a chiropractor. On February 17, 2006, Dr. Walker released claimant to return to work with restrictions and claimant performed light-duty work for employer until March 31, 2006. [1] Claimant did not work again until he obtained a position as a warehouse safety coordinator at Wendland Air Conditioning and Heating (WACH) in Portland, Texas, on May 22, 2009, a position he continued to hold as of the date of the hearing.
Claimant subsequently filed a claim seeking benefits under the Act. [2] In his decision, the administrative law judge found that claimant’s injury occurred on a covered situs. 33 U.S.C. §903(a). On the merits, the administrative law judge found that claimant was unable to return to his usual employment until May 6, 2010, the date he was released to return to regular duty by Dr. Likover. As employer presented no evidence regarding the availability of suitable alternate employment during this time frame, [3] the administrative law judge concluded that claimant is entitled to temporary total disability benefits from February 15, 2006, to July 31, 2006, permanent total disability benefits from July 31, 2006, to May 6, 2010, and that he suffered no disability from that point forward. 33 U.S.C. §908(a), (b). The administrative law judge also awarded claimant medical benefits under Section 7, 33 U.S.C. §907. On reconsideration, the administrative law judge rejected employer’s argument that he erred by rejecting the parties’ stipulation that claimant suffered no permanent disability. The administrative law judge, however, found that claimant’s work with WACH constituted suitable alternate employment. He, thus, modified his decision to reflect claimant’s entitlement to permanent partial rather than permanent total disability benefits from May 22, 2009, to May 6, 2010. 33 U.S.C. §908(c)(21), (h).
On appeal, employer challenges the administrative law judge’s findings that claimant established he was injured on a covered situs and is thus covered by the Act, as well as his rejection of the parties’ stipulation that claimant suffered no permanent disability as a result of his work injury. Claimant responds, urging affirmance of the administrative law judge’s decision.
Employer contends the administrative law judge erred in finding that claimant established the situs element pursuant to Section 3(a) of the Act, 33 U.S.C. §903(a). In support of its contention, employer argues that the cross-tunnel is physically separated from the docks by several hundred yards, it is 25-30 feet underground, and is devoted solely to transferring bauxite from one phase of the manufacturing process to the next without regard to whether a vessel is at the dock. Thus, employer avers that this area serves no functional role in the loading and/or unloading process. Employer further argues that the Board’s decision in Gavranovic v. Mobil Mining & Minerals, 33 BRBS 1 (1999), is factually distinguishable from this case and thus, does not, in contrast to the administrative law judge’s finding, support the conclusion that the cross-tunnel is a covered situs.
For a claim to be covered by the Act, a claimant must establish that his injury occurred on a site described in Section 3(a) and that he is a maritime employee under Section 2(3) of the Act. 33 U.S.C. §§902(3), 903(a); Director, OWCP v. Perini North River Associates, 459 U.S. 297, 15 BRBS 62(CRT) (1983); 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 coverage under the Act, a claimant must satisfy both the “situs” and “status” requirements. [4] Section 3(a) states:
Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).
33 U.S.C. §903(a); Texports Stevedoring Co. v. Winchester, 632 F.2d 504, 12 BRBS 719 (5 th Cir. 1980), cert. denied, 452 U.S. 905 (1981). In this case, as claimant was not injured on navigable waters or on an enumerated site, his injury must have occurred in an “other adjoining area customarily used by an employer” in loading or unloading a vessel. 33 U.S.C. §903(a); Charles v. Universal Ogden Services, 37 BRBS 37 (2003); Stratton v. Weedon Engineering Co., 35 BRBS 1 (2001)(en banc); Stroup v. Bayou Steel Corp., 32 BRBS 151 (1998); Melerine v. Harbor Constr. Co., 26 BRBS 97 (1992).
Where a facility is used for both maritime and non-maritime functions, case precedent recognizes that there is a point at which the loading and unloading process ceases, [5] and the manufacturing process begins and vice versa. [6] Dryden v. The Dayton Power & Light Co., 43 BRBS 167 (2009); Stroup, 32 BRBS 151; Melerine, 26 BRBS 97. The inquiry in “mixed-use cases, ” i.e., those involving a site with both a manufacturing and a maritime component, concerns whether the claimant’s injury occurred in the area used for loading or unloading vessels, as that area has a functional relationship with navigable water. See Bianco v. Georgia Pacific Corp., 304 F.3d 1053, 36 BRBS 57(CRT) (11th Cir. 2002), aff’g 35 BRBS 99 (2001); see also D.S. [Smith] v. Consolidation Coal Co., 42 BRBS 80 (2008), aff’d sub nom. Consolidation Coal Co. v. Benefits Review Board, 629 F.3d 322, 44 BRBS 101(CRT) (3 d Cir. 2010); Maraney v. Consolidation Coal Co., 37 BRBS 97 (2003); Dickerson v. Mississippi Phosphates Corp., 37 BRBS 58 (2003); Jones v. Aluminum Co. of America, 35 BRBS 37 (2001).
In addressing situs, the administrative law judge found that this case is analogous to Gavranovic, 33 BRBS 1 since the area where claimant sustained his injury, i.e., the cross-tunnel under Building 15, is linked to the unloading process at the dock. The administrative law judge found particularly significant to this case, the Board’s statement, in Gavranovic, that “[i]n light of the location of employer’s facility [the Board observed that the entire facility and the building in question are adjacent to navigable water and to the docks...
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