Stanley v. Western Maryland Ry. Co.

• Decision Date: 01 September 1982
• Docket Number: No. 1919,1919
• Citation: 56 Md.App. 235,467 A.2d 559
• Parties: James W. STANLEY v. The WESTERN MARYLAND RAILWAY COMPANY. ,
• Court: Court of Special Appeals of Maryland

Page 235

56 Md.App. 235

467 A.2d 559

James W. STANLEY v. The WESTERN MARYLAND RAILWAY COMPANY.

No. 1919, Sept. Term, 1982.

Court of Special Appeals of Maryland.

Nov. 4, 1983.

Paul D. Bekman, Baltimore, with whom were Daniel S. Katz, and Kaplan, Heyman, Greenberg, Engelman & Belgrad, P.A., Baltimore, on brief, for appellant.

George F. Pappas, Baltimore, with whom were H. Russell Smouse, Melnicove, Kaufman, Weiner & Smouse, P.A., Baltimore, and John P. Higinbothom, Towson, on brief, for appellee.

Argued before GILBERT, C.J., and MOYLAN and WEANT, JJ.

WEANT, Judge.

The appellant, James W. Stanley, had been employed by the Western Maryland Railway Company (Western Maryland) since 1942. Beginning in 1955 or 1956 and continuing through 1980, Stanley operated a crane known as the "Number 1 crane" at the Curtis Bay Ore Pier. It was used to unload ore from ships docked there. According to Stanley, the crane produced "... a loud roar. It's a hydraulic pump that pumps pressure and it's a real high pitched roar, a humming, like a humming roar ...." After operating the crane, Stanley claims to have experienced a ringing in his ears for approximately one hour. He first noticed difficulty in hearing at home and at work in 1977. Stanley sought testing and treatment for this problem in 1978; he currently wears a hearing aid in both ears.

On 14 November 1979 Stanley filed his declaration in what was then the Superior Court of Baltimore City seeking damages under the Federal Employer's Liability Act (FELA), 45 U.S.C. §§ 51 et seq. (1981), alleging negligence on the part of Western Maryland. That company filed a Motion for Summary Judgment, claiming that Stanley's exclusive remedy was pursuant to the Longshoremen's and Harbor Worker's Compensation Act (LHWCA or the Act), 33 U.S.C. §§ 901 et seq. (1980), as amended, 26 November 1972. The trial court granted the motion and entered judgment for Western Maryland, from which Stanley now appeals. This action carries with it the novel issue of whether the remedy for an occupational disease lies exclusively within the LHWCA when the employee was covered under that Act only after its amendment but was exposed to the injurious stimuli both before and after he was covered.

The appellant requests this Court to address two questions:

I. Was the lower court in error in holding that Stanley's exclusive remedy was pursuant to the provisions of the LHWCA and not the FELA?

II. Was the lower court's action in granting the Motion for Summary Judgment erroneous as there were no facts in the record to demonstrate that Stanley's binaural hearing loss was due solely to his post-1972 exposure?

The Longshoremen's and Harbor Worker's Compensation Act

Prior to 26 November 1972, the Longshoremen's and Harbor Worker's Compensation Act applied only to maritime workers injured "upon the navigable waters of the United States." In 1972, Congress amended the LHWCA, broadening the definition of "navigable waters" to include "... any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining areas customarily used by an employer in loading, unloading, repairing or building a vessel." 33 U.S.C. § 903(a). Congress also amended the definition of persons covered by the LHWCA. In order to receive benefits under the Act, the injured employee must be "engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker ...." 33 U.S.C. § 902(3).

The purpose of the 1972 amendments was to remedy the disparity in benefits between state and federal worker's compensation coverage depending on which side of the water's edge the accident occurred. See Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 262-64, 97 S.Ct. 2348, 2356-57, 53 L.Ed.2d 320 (1977), citing to H.R.Rep. No. 1441, 92d Cong., 2d Sess. 10-11 (1972), U.S.Code Cong. & Admin.News 1971, p. 4698. Under the amended Act, courts and agencies now look to the "status" of the injured worker as well as to the "situs" of the injury to determine coverage.

The LHWCA, both before and after the 1972 amendments, had also provided that if an employee is within its coverage, the LHWCA furnishes his exclusive remedy against his employer. See 33 U.S.C. § 905(a); Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037, 1048-49 (4th Cir.1980).

Both parties agree that prior to the 1972 amendments to the LHWCA, the LHWCA did not cover pier-based exposure to injurious stimuli, such as Stanley's, but that such pier-based exposure is within the LHWCA after 1972. The parties also agree that Stanley was subjected to the noise of the Number 1 crane from 1955 or 1956 until after his hearing problems appeared in 1977.

We turn now to the questions posed by the appellant.

Stanley claims that the trial court erred in holding that his remedy is exclusively within the LHWCA. Because any injury resulting from pier-based exposure to harmful stimuli prior to 26 November 1972 was not covered by the LHWCA, Stanley argues that recovery under the FELA should be available for injury received before that date.

Stanley's argument centers around Verderane v. Jacksonville Shipyards, Inc., 6 Ben.Rev.Bd.Serv. 642, BRB No. 76-244 (31 Aug. 1977). See also Verderane v. Jacksonville Shipyards, Inc., 14 Ben.Rev.Bd.Serv. 220.15 (13 Aug. 1981) (appeal from the recommended decision on remand). The claimant, Verderane, was employed at the Jacksonville Shipyards from 1965 to 1974. 6 Ben.Rev.Bd.Serv. at 643-44. Throughout his employment at Jacksonville Shipyards, he was exposed to injurious noise. The claimant had experienced hearing problems and vertigo in the early 1960's, and suffered a recurrence of vertigo and a ringing in his ears in "either 1972 or 1973." Id. at 643.

Because Verderane's last position as Safety Manager was not a covered "status" under § 902(3) of the amended LHWCA, his employer argued that Verderane's injury was not compensable under the LHWCA. The Benefits Review Board ¹ (BRB or Board) held that Verderane did not suffer an accidental injury during his employment as Safety Manager, but sustained an "occupational disease" caused or aggravated by exposure to injurious stimuli throughout his employment. 14 Ben.Rev.Bd.Serv. at 223. In determining jurisdiction under the LHWCA, the Board stated that the crucial factor is whether the worker was covered by the Act during the period of his exposure to injurious stimuli. Id.

The Board concluded that it would apply pre-amendment law to the period of exposure prior to 1972 and post-amendment law to exposure thereafter. The Board held that Verderane's entire disability was compensable under the LHWCA based on the pre-amendment law.

A closer examination of Verderane reveals that the pre- and post-amendment distinction the BRB draws does not alter the trial court's conclusion that Stanley's exclusive remedy lies under the LHWCA. The result in Verderane indicates that a claimant is eligible for compensation under the LHWCA if he can prove that he was subjected to any of the harmful stimuli which contributed to his injury while covered by the Act.

The BRB held in Verderane that the claimant's entire injury...