Stork v. Clark Seafood, Inc.
| Decision Date | 09 November 2012 |
| Docket Number | BRB 12-0136 |
| Parties | WESLEY STORK Claimant-Petitioner v. CLARK SEAFOOD, INCORPORATED Employer-Respondent and NORTHROP GRUMMAN SHIPBUILDING and AMERICAN MUTUAL c/o MISSISSIPPI INSURANCE GUARANTY ASSOCIATION Employer/Carrier- Respondents |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order Denying Benefits of Larry W. Price Administrative Law Judge, United States Department of Labor.
Robert E. O’Dell, Vancleave, Mississippi, for claimant.
Vincent J. Castigliola, Jr. (Bryan, Nelson, Schroeder Castigliola & Banahan, P.L.L.C.), Pascagoula Mississippi, for Clark Seafood, Incorporated.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order Denying Benefits (2010-LHC-01850) of Administrative Law Judge Larry W. Price 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 filed claims for his hearing loss against Clark Seafood (employer) and Ingalls Shipbuilding. The administrative law judge found that claimant failed to file timely claims for compensation against either Ingalls or employer, see 33 U.S.C. §913(a), and he found that claimant failed to establish that his hearing loss is due to his work at Ingalls. [1] Decision and Order at 4-5, 8-9. With regard to the claim against employer, for whom claimant worked from 1952 until his retirement in 1991 or 1992, the administrative law judge found that employer is a commercial processor of fish and that claimant was an aquaculture worker specifically excluded from coverage by Section 2(3)(E) of the Act, 33 U.S.C. §902(3)(E). [2] Decision and Order at 6-7. Accordingly, the administrative law judge denied claimant’s claim for benefits.
Claimant appeals the denial of benefits. He contends the administrative law judge failed to apply the Section 20(a), 33 U.S.C. §920(a), presumption to the coverage issue, incorrectly found claimant to be an excluded aquaculture worker, and erred in finding his claim untimely filed. Employer responds, urging affirmance. We shall first address claimant’s contention that he is not an excluded aquaculture worker.
For a claim to be covered by the Act, a claimant must establish that his injury occurred upon the navigable waters of the United States, or that the injury occurred on a landward area covered by Section 3(a) and that the work is maritime in nature and is not specifically excluded by any provision in the Act. 33 U.S.C. §§902(3), 903(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). Thus, if the injury occurred on land, in order to demonstrate that coverage exists, a claimant must satisfy the “situs” and the “status” requirements of the Act. Id. In this regard, we reject claimant’s contention that Section 20(a) of the Act aids his claim. To the extent Section 20(a) applies to the Act’s coverage provisions, it is limited to questions of fact and not those of law. Texports Stevedore Co. v. Winchester, 632 F.2d 504, 12 BRBS 719 (5th Cir. 1980) (en banc), cert. denied, 452 U.S. 905 (1981); see also Fleischmann v. Director, OWCP, 137 F.3d 131, 32 BRBS 28(CRT) (2 d Cir.), cert. denied, 525 U.S. 981 (1998). In this case, the facts are undisputed, and the issue of coverage under the Act is a legal one to which the Section 20(a) presumption does not apply.
Section 2(3) of the Act provides:
20 C.F.R. §701.301(a)(12)(iii)(E)(emphasis added). [3]
The administrative law judge found that employer is a commercial processor of fish. He then addressed claimant’s duties in light of Alcala v. Director, OWCP, 141 F.3d 942, 32 BRBS 82(CRT) (9th Cir. 1998), holding that the claimant was not covered by the Act because his duties outside of aquaculture were infrequent or episodic and entirely discretionary in nature. The administrative law judge found that claimant in this case never worked on vessels but in the fish processing plant or the ice plant, and he found that less than five percent of claimant’s duties involved blowing ice onto the vessels. Moreover, he found that claimant never left the ice plant because he was required only to push a switch to change the direction of the ice flow. As everything about claimant’s employment “revolved around the processing of fish[, ]” the administrative law judge found that claimant’s duties were not maritime in nature. Therefore, he found that claimant was an aquaculture worker excluded by the Act’s coverage. Decision and Order at 7.
Claimant contends that as “at least some” of his duties were “indisputably maritime, ” he is covered under the Act pursuant to the decisions in Alcala and Ljubic v. United Food Processors, 30 BRBS 143 (1996). In Ljubic, the administrative law judge determined that the claimant, a maintenance supervisor and mechanic for a fish cannery who spent 40 percent of his time maintaining unloading equipment and repairing docking facilities, was not an aquaculture worker pursuant to Section 2(3)(E). As he spent “at least some of his time” in covered activity, the Board affirmed the finding that the claimant was not excluded from coverage as an aquaculture worker. Ljubic, 30 BRBS 143.
In Alcala, the United States Court of Appeals for the Ninth Circuit affirmed the administrative law judge’s finding that a forklift operator who moved fish from an area near a cannery’s freezer entrance into a freezer was an “aquaculture worker” excluded from coverage under the Act. Although he occasionally moved bins of fish on the dock when insufficient outside drivers were available, the court stated this activity was infrequent, episodic, and discretionary, and did not confer coverage. The court noted that a worker need not be engaged in canning or processing cultivated or harvested fish to be considered an excluded aquaculture worker, as the definition is broad enough to encompass those workers who clean, process, or can any fish. Alcala, 141 F.3d 942, 32 BRBS 81(CRT).
Although the decisions in Alcala and Ljubic addressed the nature of the claimants’ work activities to determine if they were “maritime, ” we need not address claimant’s contention that he spent “at least some” time in indisputably maritime activities. See generally Caputo, 432 U.S. 249, 6 BRBS 150. The United States Court of Appeals for the Fifth Circuit, within whose jurisdiction this case arises, has held it is unnecessary to reach that issue in cases involving statutory exclusions to coverage that are based on the nature of the employing entity. Thus, although the Fifth Circuit has not addressed the aquaculture exclusion previously, its other exclusion cases are analogous and persuasive. Specifically, the Fifth Circuit has held that individuals who are employed by clubs, camps, recreational operations, etc.; marinas (with the exclusion of construction workers); or vendors, suppliers, or transporters, are not covered by the Act, provided they are covered under state law. 33 U.S.C. §902(3)(B), (C), (D); [4] Boomtown Belle Casino v. Bazor, 313 F.3d 300, 36 BRBS 79(CRT) (5th Cir. 2002), cert. denied, 540 U.S. 814 (2003) (); Daul v. Petroleum Communications, Inc., 196 F.3d 611, 33 BRBS 193(CRT) (5th Cir. 1999) (consultant for a cell phone company who sold goods excluded under Section 2(3)(D) vendor exclusion as all elements were met); Green v. Vermilion Corp., 144 F.3d 332, 32 BRBS 180(CRT) (5th Cir. 1998), cert. denied, 526 U.S. 1017 (1999) (despite being injured while tying up and unloading supplies from vessel, cook/maintenance man at a duck-hunting camp excluded by Section 2(3)(B) because his work was in furtherance of club/camp operation); [5] see also Keating v. City of Titusville, 31 BRBS 187 (1997) ().
In Bazor, the Board held that the decedent, the chief engineer of the employer’s vessel casino, was covered by the Act because his duties, were “shipbuilding” activities, performed prior to the completion of the vessel and some of these duties exposed him to maritime hazards, despite his being an employee of a recreational operation. Bazor v. Boomtown Belle Casino, 35 BRBS 121 (2001), rev’d, 313 F.3d 300, 36 BRBS 79(CRT) (5th Cir. 2002), cert denied, 540 U.S. 814 (2003). Reversing this decision, the Fifth Circuit held that the decedent was excluded from coverage under the recreational operation exception of the Act, Section 2(3)(B),...
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