Sheerer v. Bath Iron Works Corp.

• Decision Date: 01 May 2001
• Docket Number: BRB 00-0778
• Parties: TERRY E. SHEERER, Claimant-Respondent v. BATH IRON WORKS CORPORATION, Self-Insured Employer-Petitioner
• Court: Longshore Complaints Court of Appeals

TERRY E. SHEERER, Claimant-Respondent v. BATH IRON WORKS CORPORATION, Self-Insured Employer-Petitioner

BRB No. 00-0778

May 1, 2001

Appeal of the Decision and Order – Awarding Benefits of David W. Di Nardi, Administrative Law Judge, United States Department of Labor.

Marcia J. Cleveland, Brunswick, Maine, for claimant.

Stephen Hessert (Norman, Hanson & DeTroy, LLC), Portland Maine, for self-insured employer.

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

DECISION and ORDER

PER CURIAM:

Employer appeals the Decision and Order – Awarding Benefits (99-LHC-1631) of Administrative Law Judge David W. Di Nardi 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 findings of fact and conclusions of law of the administrative law judge if they are rational, supported by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).

Claimant, who worked for employer as a painter, sustained a ruptured left patellar tendon on September 5, 1997, while playing ping-pong during his lunch break at employer's pipe shop. On September 4, 1997, claimant was assigned to work an 8 hour shift from 10:30 p.m. to 7:00 a.m., with a 30 minute lunch break between 3:00 a.m. and 3:30 a.m. Upon his arrival that night, claimant worked as a painter in the pilot house of a vessel at the main shipyard. At about 3 a.m., claimant walked about 50 yards from the vessel to the building that housed employer's pipe shop where he proceeded to have his lunch. Once there, he and three co-workers set up a portable ping-pong table and began to play a doubles match. During the match, claimant slipped and fell to the ground. He received immediate treatment from Dr. Van Arden, an orthopedic surgeon, who diagnosed a ruptured patellar tendon of the left knee, immediately performed corrective surgery, and prescribed physical therapy. Dr. Van Arden returned claimant to light duty work with restrictions, and employer provided appropriate work to claimant as of October 30, 1997.

Claimant sought benefits under the Act for the period between September 5, 1997, through October 30, 1997. Employer disputed the claim, asserting that claimant's injury did not occur in the course and scope of his employment but rather during so-called "horseplay" or recreational activities while claimant was on his lunch break. In his decision, the administrative law judge determined that claimant's injury arose out of and in the course of his employment with employer as it occurred on company property while claimant was still "on-the-clock" engaging in an activity, i.e., ping-pong, impliedly authorized by employer by way of its purchase of the equipment and placement of the equipment in the "break room." He therefore concluded that employer is liable for temporary total disability benefits from September 5, 1997, through October 30, 1997, ^[1] as well as for medical benefits related to the work injury.

On appeal, employer challenges the administrative law judge's determination that claimant's injury is compensable under the Act. Claimant responds, urging affirmance. Employer argues that contrary to the administrative law judge's determination, claimant's injury did not arise in the course of his employment. Employer maintains that, pursuant to the factors discussed by the Board in Vitola v. Navy Resale & Services Support Office, 26 BRBS 88 (1992), claimant's injury is not compensable as it occurred while claimant was engaged in a voluntary recreational activity during a break period for which he was not paid. Employer also avers that the administrative law judge erred in stating that an "on-site" break serves employer's interests, and that the administrative law judge erred in relying on the fact that claimant's injury is not compensable under the Maine Workers' Compensation Act.

Section 2(2) of the Act, 33 U.S.C. §902(2), requires that claimant's injury arise out of and in the course of employment, and the Section 20(a) presumption, 33 U.S.C. §920(a), provides that in the absence of substantial evidence to the contrary, the claim comes within the provisions of the Act. For an injury to have occurred within the course of employment, the injury must be shown to have occurred within the time and space boundaries of employment and in the course of an activity whose purpose is related to the employment. Durrah v. Washington Metropolitan Area Transit Authority, 760 F.2d 322, 17 BRBS 95(CRT) (D.C. Cir. 1985); 2 Arthur Larson & Lex K. Larson, LARSON'S WORKERS' COMPENSATION LAW §20.00 (2000). Generally, an activity is related to the employment if it carries out the employer's purposes or advances its interests directly or indirectly. However, the Larson treatise states that

under the modern trend of decisions, even if the activity cannot be said in any sense to advance the employer's interests, it may still be in the course of employment if, in view of the nature of the employment environment, the characteristics of human nature, and the customs and practices of the particular employment, the activity is in fact an inherent part of the conditions of that employment.

2 LARSON §20.00. The Act does not expressly say that the employee must at the time of injury have been benefitting the employer; it merely says that the injury must have arisen in the course of employment. If it can be shown that the particular activity, beneficial or not, was a part of the employment, either because of its general nature, e.g., activities falling within the personal comfort doctrine, or because of the particular customs and practices at the individual worksite, e.g., certain recreational and social activities, the statute is satisfied. See id. at §§20.01, 20.02. This is, in essence, the general test applied by the Board in Boyd v. Ceres Terminals, 30 BRBS 218 (1997), wherein the Board held that the claimant, who was injured during a work break while helping to start a co-worker's car which was parked on employer's premises, was in the course of employment under this general test when injured, ^[2] as the administrative law judge rationally found that the assistance claimant rendered to his co-worker was for professional reasons, i.e., a cooperative workplace, rather rather than for personal reasons. The Board rejected employer's contention that the "recreational or social activity test" was applicable as the claimant was not participating in either a recreational or a social activity at the time of his injury.

In Vitola, 26 BRBS 88, the Board addressed the issue of whether a claimant's injury, which occurred while he was involved in a recreational activity associated with his work, was in the course of employment and thus compensable under the Act. The claimant was injured while playing softball in an after-hours game between the employer's senior civilian management and its military personnel on the military base where employer had some of its operations. Id. The Board observed that pursuant to Section 22 of the Larson treatise, recreational or social activities are within the course of employment when one of the following conditions is present:

1) they occur on the premises during a lunch or recreation period as a regular incident of employment; or

2) the employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment.

Vitola, 26 BRBS at 90-91. Subsequent to the issuance of Vitola, the Larson treatise added a third basis for coverage:

the employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

2 LARSON, §22.01 (2000).

In Vitola, the Board held that the first two conditions did not apply as the softball game was after normal working hours and participation was voluntary. The Board thus looked to other factors that have generally been relevant in determining whether an injury during a voluntary social or recreational activity arose in the course of employment, see 26 BRBS at 91-96, and held that the claimant's injury did not arise in the course of employment. The instant case, however, is distinguishable from Vitola, as the first condition enumerated by the Larson treatise is applicable: claimant herein was injured on employer's premises during a lunch or recreation period. Thus, the treatise and the test stated in Vitola support the administrative law judge's finding here that claimant was injured in the course of his employment.

Neither the Board nor the United States Court of Appeals for the First Circuit, within whose jurisdiction this case arises has specifically addressed the issue of whether an employee's injury sustained during recreational activity on employer's premises while on his lunch break is compensable under the Act. Generally, injuries occurring on the premises during a regular lunch hour arise in the course of employment, even though the lunch break is technically outside the regular hours of employment because the worker receives no pay for that time and is not under the control of the employer. 2 LARSON, §21.02[1][a] (2000). "[R]ecreational injuries during the noon hour on employer's premises have been held compensable in the majority of cases." Id. at §22.03[1] (2000). If the activity the claimant was engaged in at the time of injury has achieved some standing as a custom or practice either in the industry generally or in the particular work place, it becomes a regular incident...