R.M. v. P & O Ports Baltimore, Incorporated, BRB 09-0113

CourtCourt of Appeals of Longshore Complaints
Writing for the CourtPER CURIAM
Decision Date29 July 2009
Docket NumberBRB 09-0113
PartiesR.M., Claimant-Petitioner v. P & O PORTS BALTIMORE, INCORPORATED and PORTS INSURANCE COMPANY, Employer/Carrier-Respondents

R.M., Claimant-Petitioner



BRB No. 09-0113

July 29, 2009

Appeal of the Decision and Order Denying Benefits of Linda S. Chapman, Administrative Law Judge, United States Department of Labor.

Eugene A. Shapiro (Shapiro & Schaub), Baltimore, Maryland, for claimant.

Christopher J. Field (Field Womack & Kawczynski, L.L.C.), South Amboy, New Jersey, for employer/carrier.

Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.



Claimant appeals the Decision and Order Denying Benefits (2006-LHC-2136) of Administrative Law Judge Linda S. Chapman 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, who is a member of the International Longshoremen's Association, received an assignment on June 16, 2005, from the union hall, and was to report to the Port of Baltimore on June 17, 2005, beginning at 7:00 a.m., to unload cars from a ship. Due to traffic, he arrived after the designated start time – at approximately 7:15. Despite being told by the superintendent, Captain Bond, that he could not work, claimant boarded the vessel and entered one of the vehicles to be offloaded. Unable to locate a security guard or the second mate of the ship, Captain Bond went up the ramp and found claimant sitting in the car to be driven off the ship. There is no dispute that some sort of altercation occurred at the car when Captain Bond tried to open the door and claimant tried to keep it closed. Tr. at 145-147. After struggling with the door for several minutes, Captain Bond exited the ship. When claimant drove the vehicle down the ramp, he was stopped by security and escorted from the premises. Tr. at 34, 41, 65, 75. Claimant testified that his wrist and shoulder were injured during the altercation. He sustained a closed period of temporary total disability, June 18 through July 20, 2005, and filed a claim for benefits. On July 21, 2005, claimant returned to his usual work.

The dispute between the parties in this case involves whether there was an employer-employee relationship at the time of claimant's injury, and if so, whether claimant's injury occurred during the course of his employment. Specifically, there is contradictory testimony as to who had the authority to hire or replace claimant. Tr. at 37-38, 176-178. Claimant and Mr. Durham, his former foreman, testified that there is a 15-minute grace period during which only the foreman can determine whether to have an absent worker replaced. Tr. at 35-37, 107-108, 119-122, 124, 128. Claimant testified that he arrived within that 15-minute period and that Mr. Durham told him to get to work. Tr. at 26, 28, 108-110. Captain Bond and Mr. Bell, the timekeeper, testified that there is no 15-minute grace period and that the superintendent oversees, and has the final decision about, the labor. Tr. at 132-134, 176-178. They also testified that Captain Bond had told Mr. Bell, prior to 7:00 a.m., that anyone who had not arrived by 7:00 was to be replaced. Tr. at 139, 181-182. Mr. Bell testified that normal procedure requires that he confer with the foreman regarding the number of drivers who are missing and need to be replaced and report this to the superintendent. Once a worker has been replaced, he stated, that worker may be hired only by the superintendent. Tr. at 176-178.

According to Mr. Bell, at 7:00 a.m. on June 17, 2005, there were three missing longshoremen, one of whom was claimant. Mr. Bell stated that he followed procedure and discussed this with Mr. Durham, and at 7:05 a.m., he called the union hall to get replacements. Tr. at 182-183. At approximately 7:15, Mr. Bell informed Captain Bond of the missing men and told him that he had made the call for replacements. Tr. at 139-140, 183. While they were talking, claimant arrived. According to Mr. Bell and Captain Bond, Captain Bond told claimant he had been replaced and could not work. Tr. at 183-184. Captain Bond stated he also told Mr. Durham, but he was not sure Mr. Durham heard him. Captain Bond said claimant became belligerent and went aboard the ship anyway. Tr. at 143-144.

The administrative law judge found that claimant and Mr. Durham were questionable witnesses and that Captain Bond and Mr. Bell were credible. Decision and Order at 17-19. She concluded that claimant had been replaced for the day prior to his arrival and, thus, was not an "employee" when the altercation occurred.[1] Additionally, she found that claimant's injury did not occur within the course of his employment, and she denied benefits. Decision and Order at 15-20. Claimant appeals, and employer responds, urging affirmance.

Claimant, citing Section 2(2) of the Act, 33 U.S.C. §902(2), and the Board's decision in Kielczewski v. The Washington Post Co., 8 BRBS 428 (1978), contends his injury arose out of and in the course of his employment. He also asserts that he was an employee under the definition of Section 2(3), 33 U.S.C. §902(3), because he was engaged in maritime employment at the time of his injury. Employer argues that the Board...

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