Sansone v. Atlantic Technical Services, BRB 03-0814

• Court: Court of Appeals of Longshore Complaints
• Writing for the Court: PER CURIAM
• Parties: MARCUS J. SANSONE, Claimant-Respondent v. ATLANTIC TECHNICAL SERVICES, Self-Insured Employer-Petitioner
• Docket Number: BRB 03-0814
• Decision Date: 25 August 2004

MARCUS J. SANSONE, Claimant-Respondent
v.
ATLANTIC TECHNICAL SERVICES, Self-Insured Employer-Petitioner

BRB No. 03-0814

August 25, 2004

UNPUBLISHED OPINION

Appeal of the Decision and Order Awarding Benefits of Alice M. Craft, Administrative Law Judge, United States Department of Labor.

Bernard J. Sevel (Sevel & Sevel, P.A.), Baltimore, Maryland, for claimant.

Christopher J. Wiemken (Taylor & Walker, P.C.), Norfolk, Virginia, for self-insured employer.

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

DECISION AND ORDER

PER CURIAM

Employer appeals the Decision and Order Awarding Benefits (2001-LHC-1267) of Administrative Law Judge Alice M. Craft rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 etseq. (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 worked for employer as a foreman and mechanic. On December 18, 2000, claimant felt stiffness and then a sharp pain in his back when coming up from under a chassis he was repairing. He tried to work it off and walk it off, but as he was walking from this particular chassis to the next, he stopped because of severe pain in his back and leg. Tr. at 33-35. Claimant called for help on his walkie-talkie. Help arrived, and he was taken to the clinic. Tr. at 36-37. He has not returned to any work since then. Tr. at 29, 38. Claimant was eventually diagnosed with herniated discs at L1-2, L3-4, L4-5, spondylolisthesis at L5-S1, and degenerative changes, and he underwent surgery in July 2001. Cl. Exs. 2, 4, 7; Emp. Exs. 4-6, 8. ^[1] Employer has not paid disability or medical benefits for this injury. Claimant filed a claim for temporary total disability and medical benefits. After 39 years on the waterfront, claimant retired on October 1, 2001. Tr. at 49.

The administrative law judge found that claimant is a maritime employee and that he suffered a work-related injury. Decision and Order at 10-11. Because there is no evidence of claimant’s condition having reached maximum medical improvement, the administrative law judge concluded that claimant’s condition is temporary. Further, she found that claimant established a prima facie case of total disability and that, even if light duty work at employer’s facility was available, claimant could not perform it. Therefore, the administrative law judge awarded claimant temporary total disability benefits from December 18, 2000, and continuing, as well as medical benefits. Decision and Order at 12-14. Employer appeals the award, and claimant responds, urging affirmance.

Status

Employer first contends the administrative law judge erred in finding that claimant is a maritime employee. Employer asserts that claimant’s job as a roadability foreman dealt only with assuring that chassis and containers leaving the port were roadworthy. As his duties related to land and not sea transportation, employer argues that claimant is not covered by the Act. It further argues that the administrative law judge erred in relying on Atlantic Container Service, Inc. v. Coleman, 904 F.2d 611, 23 BRBS 101(CRT) (11th Cir. 1990), to hold that claimant’s work is covered. Claimant asserts that Coleman is applicable but that he is also covered because of his work as a mechanic on the repair lane.

For a claim to be covered by the Act, a claimant must establish that the injury occurred upon the navigable waters of the United States, including any dry dock, or that it occurred on a landward area covered by Section 3(a) and that the work is maritime in nature and is not specifically excluded by the Act. 33 U.S.C. §§902(3), 3(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); Stone v. Ingalls Shipbuilding, Inc., 30 BRBS 209 (1996); Kennedy v. American Bridge Co., 30 BRBS 1 (1996). Thus, to demonstrate that coverage under the Act exists, a claimant must satisfy the “situs” and the “status” requirements of the Act. ^[2] Id.; see also Crapanzano v. Rice Mohawk, U.S. Construction Co., Ltd., 30 BRBS 81 (1996). Generally, a claimant satisfies the “status” requirement if he is an employee engaged in work integral to the loading, unloading, constructing, or repairing of vessels. See 33 U.S.C. §902(3); Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 46, 23 BRBS 96(CRT) (1989). To satisfy this requirement, he need only “spend at least some of [his] time in indisputably longshoring operations.” Caputo, 432 U.S. at 273, 6 BRBS at 165; Boudloche v. Howard Trucking Co., 632 F.2d 1346, 12 BRBS 732 (5th Cir. 1980), cert. denied, 452 U.S. 915 (1981). Although an employee is covered if some portion of his activities constitutes covered employment, those activities must be more than episodic, momentary or incidental to non-maritime work. Boudloche, 632 F.2d 1346, 12 BRBS 732; Coleman v. Atlantic Container Service, Inc., 22 BRBS 309 (1989), aff’d, 904 F.2d 611, 23 BRBS 101 (CRT) (11th Cir. 1990).

The administrative law judge found that the facts of Coleman are “very similar” to those in the instant case and, based on Coleman, she concluded that claimant’s “work as a foreman repairing containers and chassis was ‘integrally related to the loading and unloading procedures, connected with and vital to the movement of maritime cargo on navigable waters, ’ and he was therefore covered by the LHWCA.” Decision and Order at 10 (quoting Coleman, 904 F.2d at 613, 23 BRBS 103(CRT)). In Coleman, the claimant worked primarily to ensure that outbound containers and chassis were roadworthy. However, he also spent some time working to ensure that hustlers and inbound chassis and containers were in good repair. The Board affirmed the administrative law judge’s findings that the claimant was a covered employee, and it held that the claimant’s overall employment facilitated cargo movement. Coleman, 22 BRBS at 312; see also Coleman, 904 F.2d at 613, 23 BRBS at 103(CRT). The United States Court of Appeals for the Eleventh Circuit affirmed the Board’s conclusion and held:

Maintenance of the chassis in good working order is essential to prevent the loading and unloading process from breaking down. They must be kept in good condition to support the containers attached to them at dockside. They must be maintained in order to be hauled by hustlers as well as tractor trucks. Similarly, hustlers and containers, both of which Coleman worked on periodically, are essential to the loading and unloading process.

The fact Coleman worked primarily on making loaded chassis/container rigs road worthy does not diminish his involvement in the loading and unloading process. Without the essential maintenance necessary to make the outbound rigs road worthy, the unloading process would stop indefinitely at the Port Authority.

Coleman, 904 F.2d at 618, 23 BRBS at 108(CRT).

Although employer makes the argument that Coleman is incorrect because it gives maritime status to work performed in furtherance of the land transport of cargo, the claimant also was required to perform maintenance on hustlers, containers and chassis that remained within the confines of the port area, and those duties played a factor in deciding whether his “overall employment” was covered. Moreover, in Coleman, the court considered the Supreme Court’s decisions in Caputo, Ford, and Schwalb to arrive at the conclusion that repair of chassis and containers is covered work. In Schwalb, the Supreme Court stated:

Although we have not previously so held, we are quite sure that employees who are injured while maintaining or repairing equipment essential to the loading or unloading process are covered by the Act. Such employees are engaged in activity that is an integral part of and essential to those overall processes. That is all that §902(3) requires

Schwalb, 493 U.S. at 47, 23 BRBS at 99(CRT); see Coleman, 904 F.2d at 616, 23 BRBS at 105-106(CRT). The Supreme Court further stated that the determinative consideration is whether the ship loading/unloading process could continue without the claimant’s function. An employee need not be injured while actively engaged in tasks integral to the loading and unloading process; rather, the proper analysis looks to the claimant’s regular duties and the tasks to which he may be assigned. See Ford, 444 U.S. at 82, 11 BRBS at 328; Caputo, 432 U.S. at 272-274, 6 BRBS at 165; Maher Terminals, Inc. v. Director, OWCP [Riggio], 330 F.3d 162, 37 BRBS 42(CRT) (3 d Cir.), cert. denied, 124 S.Ct. 957 (2003). Thus, employer’s contention that Coleman was wrongly decided is without merit.

In this case, claimant worked as the roadability foreman where he was in charge of ensuring that trucks and containers were suitable for traveling on the roads outside the port. He also worked as a mechanic in the repair lane. In this regard, claimant made repairs on chassis and containers traveling within the port, including those chassis carrying containers from the ships. Tr. at 24, 30-32, 60, 71, 77, 85. Claimant switched between the roadability and repair lanes depending on the traffic in each. On the morning his back became symptomatic, claimant was completing repairs on a chassis in the repair lane. Tr. at 32-33, 72, 77. Although claimant’s primary designation was as roadability foreman, there is no dispute from employer that claimant’s job entailed both types of repairs and there is no dispute that he was repairing a chassis in the repair lane just prior to becoming symptomatic. Tr. at 32-33, 77. Because of...