R.M. v. P & O Ports Baltimore, Incorporated

• Decision Date: 29 July 2009
• Docket Number: BRB 09-0113
• Court: Longshore Complaints Court of Appeals
• Parties: R.M., Claimant-Petitioner v. P & O PORTS BALTIMORE, INCORPORATED and PORTS INSURANCE COMPANY, Employer/Carrier-Respondents

R.M., Claimant-Petitioner v. P & O PORTS BALTIMORE, INCORPORATED and 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.

DECISION and ORDER

PER CURIAM

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 need not address whether claimant's injury arose out of or during the course of his employment because there was no employment relationship at the time. Thus, it asserts, because claimant was not an employee, there can be no work-related injury.

In order to recover compensation, claimant and employer must be in an employer-employee relationship at the time of the injury. See Herold v. Stevedoring Services of America, 31 BRBS 127 (1987); Holmes v. Seafood Specialist Boat Works, 14 BRBS 141 (1981); Clauss v. The Washington Post Co., 13 BRBS 525 (1981), aff'd mem., 684 F.2d 1032 (D.C. Cir. 1982); see also 99 C.J.S. §138 (2000). Initially, we reject claimant's contention that he was an employee because he was engaged in the maritime work of unloading a vessel. The existence of an employment relationship between claimant and employer is a necessary element to establish entitlement in any workers' compensation scheme, including the Longshore Act. An employer-employee relationship must be established before the question of status under Section 2(3) based on the maritime nature of the work is addressed. See Holmes, 14 BRBS 141 (independent contractor is not an employee). While previous cases have not presented the Board with facts such as those here, involving whether claimant was in fact "employed" on the day of injury, we find persuasive authority in decisions from other jurisdictions and affirm the decision of the administrative law judge.

In order for an employer-employee relationship to exist, there must be an express or implied contract of employment with the informed consent of both parties. Potter v. Hawaii Newspaper Agency, 89 Haw. 411, 974 P.2d 51 (Haw. 1999); Vanzant v. Hall, 219 Conn. 674, 594 A.2d 967 (Conn. 1991); 99 C.J.S. §139 (2000). The type of relationship and its duration depends on the facts of each case, and the belief of the parties is immaterial. 99 C.J.S. §142 (2000). When the relationship ceases, either permanently or temporarily, the liability of the employer under a compensation act also ceases. Carnes v. Trasport. Ins. Co., 615 S.W.2d 909 (Tex. Civ. App. El Paso 1981), writ refused (Sept. 23, 1981); Kinnard v. Gibson, 172 S. 595 (La. Ct. App. 2d Cir. 1937);^[2] 99 C.J.S. §141 (2000). However the relationship ends, the worker must be given a reasonable time to leave the premises. 99 C.J.S. §141 (2000); 2 Larson's Workers' Compensation Law §26.01 (2007).

If an injury occurs before a worker has been hired, the basic rule is that there is no coverage. State Comp. Ins. Fund v. Workers' Comp. App. Bd. [Bate], 59 Cal.App. 3D 647, 130 Cal.Rptr. 831 (1976) (claimant slipped and fell while leaving the labor office on the employer's premises; not entitled to compensation because she was a job applicant, not an employee); 2 Larson's Workers' Compensation Law §26.02[1] (2007). When a worker is hired through a union hall, an issue exists as to when he becomes an employee. Generally, hiring is not official until the worker is accepted by the employer at the job site; thus, any injuries that occur prior to this time are not the employer's responsibility. Miller v. T.H. Browning Steamship Co., 73 F.Supp. 185 (W.D.N.Y.), aff'd, 165 F.2d 209 (2^d Cir. 1947) (claimant, injured walking along the deck of the ship before he was hired, was not covered under the Jones Act). Miller is discussed in Larson's treatise on workers' compensation as demonstrating the requirement of a binding agreement in existence between a claimant and employer at the time of injury in order for claimant to obtain compensation:

Although one gets the impression that plaintiff would have been hired as a matter of course [if he had not become injured], still [at the time of injury] he had not been officially accepted by the employer as an employee, nor had he made any agreement with the employer which would bind him or prevent him from turning and walking off the ship if he had chosen to do so.

2 Larson's Workers' Compensation Law §26.02[2] (2007); see Fluor Engineers & Contractors, Inc. v Kessler, 561 P.2d 72 (Okla. 1977) (claimant, a union worker who had received his assignment the night before he was to commence work, sustained injuries in an accident on the highway en route to the job site; the court held that there was no employer-employee relationship at the time...