Potter v. Great Falls Insurance Co., 122920 MESC, WCB-19-456

Docket NºWCB-19-456
Opinion JudgeCONNORS, J.
Party NameDARLA J. POTTER v. GREAT FALLS INSURANCE COMPANY et al.
AttorneyJoshua Birocco, Esq., and Chelsea Suvlu, Esq. (orally), Tucker Law Group, Bangor, for appellant Great Falls Insurance Company Kevin M. Noonan, Esq. (orally), McTeague Higbee, PA, Topsham, for appellee Darla J. Potter Michael Tadenev, Esq., and Ryan P. Dumais, Esq. (orally), Eaton Peabody, Ellswor...
Judge PanelPanel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
Case DateDecember 29, 2020
CourtSupreme Judicial Court of Maine

2020 ME 144

DARLA J. POTTER

v.

GREAT FALLS INSURANCE COMPANY et al.

No. WCB-19-456

Supreme Court of Maine

December 29, 2020

Argued: September 18, 2020

Joshua Birocco, Esq., and Chelsea Suvlu, Esq. (orally), Tucker Law Group, Bangor, for appellant Great Falls Insurance Company

Kevin M. Noonan, Esq. (orally), McTeague Higbee, PA, Topsham, for appellee Darla J. Potter

Michael Tadenev, Esq., and Ryan P. Dumais, Esq. (orally), Eaton Peabody, Ellsworth, for appellee Cooke Aquaculture USA, Inc.

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

CONNORS, J.

[¶1] The question presented in this appeal is whether Darla J. Potter- an aquaculture worker-is a "seaman" within the meaning of the Jones Act, 46 U.S.C.S. § 30104 (LEXIS through Pub. L. No. 116-214). The answer, based on the facts in this record, is no.

[¶2] Great Falls Insurance Company appeals from a decision of the Workers' Compensation Board Appellate Division affirming the decree of the Board [Pelletier, ALJ) granting Potter's petitions for award of compensation for injuries sustained in the course of her employment with Cooke Aquaculture USA, Inc.1 Great Falls contends that the Appellate Division erred by applying a deferential standard of review to the ALJ's decree and by affirming the ALJ's determination that Potter is not a seaman for purposes of the Jones Act. We disagree and affirm the decision.

I. BACKGROUND

[¶3] The following facts found by the administrative law judge and contained in the Board's decree are deemed final for the purpose of this appellate review. See Bailey v. City of Lewiston, 2017 ME 160, ¶ 9 & n.6, 168 A.3d 762; 39-A M.R.S. §§ 318, 322(3) (2020).

[¶4] Potter worked as a marine technician for Cooke Aquaculture's offshore saltwater salmon farming operation in Eastport for twenty-five years. As a marine technician, her primary job was to care for the salmon, which were raised in cages located less than one mile offshore. Potter's duties consisted of tending, feeding, and harvesting the fish, as well as cleaning, maintaining, and repairing the pens and nets. The job was physically demanding, requiring her to tend salmon cages that were 300 feet in circumference and to stand for hours on pipes that bobbed up and down in the ocean.

[¶5] To feed the salmon, Potter occasionally spent time on a "feed barge," which was a large blue box anchored to the ocean floor for years at a time. The feed barge had no means of self-propulsion or running lights for navigation, and a tow boat was required to move it. Because the feed barge could not move under its own power, a large motorized barge was used to transport the feed to the feed barge.

[¶6] To reach the salmon cages, Potter traveled by either the large motorized barge or a twenty-four-foot skiff. The ride took approximately thirty minutes in each direction. While aboard the transportation vessels, Potter was a crew member engaged in activities associated with being a seaman.2 On occasion, Potter returned to shore during her work day to get additional supplies or feed, but the time that she spent on the transportation vessels for this occasional trip was offset by other duties that she performed onshore.3 Great Falls presented no evidence demonstrating that Potter's onshore duties were connected to the maintenance or operation of the transportation vessels.

[¶7] Potter typically worked between eight and nine hours a day, and 75 percent of her work day was spent undertaking duties associated with the salmon cages. According to the ALJ, Potter's testimony that less than 30 percent of her working hours were spent working on a vessel was "entirely credible." No evidence was presented regarding how much time Potter spent on the feed barge.

[¶8] In November 2015, Potter slipped on a pipe connected to the salmon cages, and her left knee struck a hard surface. She continued to work on the salmon cages until January 2017, when the progressive worsening of her knee's condition prevented her from working on the salmon cages, and she was given an onshore job.

[¶9] Potter filed petitions seeking compensation for the November 2015 sudden injury and the January 2017 gradual injury. Great Falls opposed both petitions, raising the affirmative defense that the Board lacked subject matter jurisdiction because Potter was a "seaman" pursuant to the Jones Act, 46 U.S.C.S. § 30104, and was therefore not an "employee" entitled to benefits pursuant to the Workers' Compensation Act, 39-A M.R.S. § 102(11) (2020).

[¶10] In 2018, the ALJ held a two-day hearing at which it heard testimony from Potter and another Cooke Aquaculture employee and admitted documentary exhibits, including photographs, medical records, and certain employment-related forms. In its decision, the ALJ acknowledged that the parties had agreed to certain stipulations of fact and law, including that the salmon cages were not "vessels" for purposes of the Jones Act.4 Based on these stipulations and evidence admitted at the hearing, the ALJ concluded that Great Falls had failed to establish that Potter was a Jones Act seaman and granted Potter's petitions. Great Falls filed a motion for further findings of fact and conclusions of law, which the ALJ denied.

[¶11] Great Falls appealed the ALJ's decision to the Appellate Division and requested that it review the ALJ's decision de novo, citing Dorr v. Maine Maritime Academy, 670 A.2d 930 (Me. 1996). The Appellate Division declined Great Falls' request, stating that the issue of whether Potter was a seaman pursuant to the Jones Act is a mixed question of fact and law and that its review of factual findings was limited to ensuring that the findings were supported by competent evidence. See39-AM.R.S.§321-B(2) (2020). The Appellate Division further stated, "Because we do not possess superior expertise than the ALJ in evaluating the claimant's status as an employee or a seaman, we apply our ordinary standard of review, as set forth in Pomerleau." See Pomerleau v. United Parcel Serv., 464 A.2d 206 (Me. 1983).

[¶12] The Appellate Division concluded that the ALJ's finding that Potter spent less than 30 percent of her working hours on or in service of a vessel was supported by competent evidence in the record. Although Potter spent some amount of time on the feed barge, the Appellate Division declined to address the ALJ's conclusion that the feed barge was not a vessel because there was no evidence in the record indicating how much time Potter spent on the feed barge, and, therefore, Great Falls had failed to sustain its burden of proof on that issue. With less than 30 percent of her documented time spent on a vessel, the Appellate Division agreed with the ALJ's conclusion that Potter was not a Jones Act seaman and affirmed.

[¶13] We granted Great Falls' petition for appellate review. See 39-A M.R.S. § 322 (2020); M.R. App. P. 23.

II. DISCUSSION

A. Standard of Review

[¶14] The central issue in this appeal is whether Potter's claims fall within the jurisdiction of federal admiralty law or state workers' compensation law. As a preliminary matter, however, Great Falls contends that the Appellate Division erred by applying a deferential standard of review to the ALJ's factual findings and legal conclusions because our holding in Dorr required the Appellate Division to review the Board's decree de novo. Great Falls likewise urges us to undertake a de novo review of the record.

[¶15] Great Falls interprets our holding in Dorr too broadly. Whether a worker is a "seaman" as that term is used in the Jones Act is a "mixed question of law and fact." 46 U.S.C.S. § 30104; Chandris, Inc. v. Latsis, 515 U.S. 347, 369 (1995); McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356 (1991). In Dorr, we stated that "[t]he issue of whether an employee falls within the exclusive jurisdiction of a federal statute does not involve an interpretation of the Workers' Compensation Act, nor does it fall within the [Board's] traditional area of expertise," so we conduct an "independent review." 670 A.2d at 932 (citing LeBlanc v. United Eng'rs & Constructors Inc., 584 A.2d 675, 677 (Me. 1991)).

[¶16] By "independent review," we did not mean a de novo review of the facts and law. Id. This point is clear from our citation in Dorr to LeBlanc. In Leblanc, the issue was whether the full faith and credit owed to a prior New Hampshire award barred the Maine Workers' Compensation Commission from granting disability benefits. 584 A.2d at 677-78. In answering in the negative, we stated that, in our review of the Commission's decision for errors of law only, we defer to its expertise. Id. Given that its expertise is limited to the Maine Workers' Compensation...

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