Tucker v. Steel

CourtCourt of Appeals of Longshore Complaints
Docket NumberBRB 04-0316
Decision Date28 December 2004

SAMUEL B. TUCKER, JR. Claimant-Respondent



BRB No. 04-0316

December 28, 2004


Appeal of the Decision and Order Awarding Benefits and Denying Special Fund Relief, the Errata, the Order Granting in Part and Denying in Part Motions for Reconsideration and Supplemental Decision and Order on Reconsideration, and the Order Denying Respondent Thames Valley Steel’s Second Motion for Reconsideration of Daniel F. Sutton, Administrative Law Judge, United States Department of Labor.

Samuel B. Tucker, Waterford, Connecticut, pro se.

David A. Kelly (Montstream & May, L.L.P.), Glastonbury, Connecticut, for Thames Valley Steel and Hartford Insurance Company.

Jean Shea Budrow (Latronico, Black, Cetkovic & Whitestone), Boston, Massachusetts, for Standard Structural Steel and Liberty Mutual Insurance Company.

Kathleen H. Kim (Howard M. Radzely, Solicitor of Labor; Donald S. Shire, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers’ Compensation Programs.

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



Thames Valley Steel (TVS) appeals the Decision and Order Awarding Benefits and Denying Special Fund Relief, the Errata, the Order Granting in Part and Denying in Part Motions for Reconsideration and Supplemental Decision and Order on Reconsideration, and the Order Denying Respondent Thames Valley Steel’s Second Motion for Reconsideration (2000-LHC-3381, 2000-LHC-3382, 2000-LHC-3383, and 2001-LHC-1667 through 2001-LHC-1676) of Administrative Law Judge Daniel F. Sutton 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). [1] 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, through the union hall, worked as a welder/ironworker for a number of employers in the 1960’s and 1970’s. In the early 1980’s, he became self-employed. In 1985, claimant was hospitalized between May 21 and August 26, suffering from a number of problems, including chronic ulcerative colitis, erosive gastritis, duodenal ulcer, recurrent fistula, rheumatoid arthritis, and diabetes. During the course of his stay, doctors discovered claimant also had splenomegaly, peritonitis, and a perforated cecum. [2] Additionally, claimant suffered from circulatory problems such as vasculitis and periarteritis nodosa. He underwent exploratory abdominal surgery, an appendectomy and a repair of the perforated cecum. Cl. Ex. 5rr; INA Ex. 4. Claimant did not return to any work, and he filed a claim with the Social Security Administration (SSA) for disability benefits. The SSA found claimant to be totally disabled due to chronic ulcerative colitis, arthritis and diabetes, and he began receiving benefits in 1986. Decision and Order at 10; Cl. Ex. 1ee, 2d; Tr. at 69.

Claimant has been hospitalized a number of times for colitis, arthritis, diabetes, sepsis, hypotension, cirrhosis, and splenomegaly. He testified that he began suffering from shortness of breath in 1985. Cl. Ex. 4a at 75. However, it was not until 1993 when he saw Dr. Cherniak, an occupational health specialist, that claimant first sought evaluation of his breathing problems. ALJ Ex. 62 at 80. Dr. Cherniak reported on April 1, 1993, that claimant’s pulmonary function test results were consistent with a pattern of restrictive lung disease. He stated that claimant’s x-rays revealed indisputable evidence of asbestos-related pleural disease with scarring on the lower lobe lining. INA Ex. 5.

Claimant filed a claim for disability and medical benefits against Electric Boat Corporation (EB) on May 18, 1993, alleging injury due to lung irritants, including asbestos. Cl. Ex. 1rr, vv. In March 2000, claimant filed additional claims against EB and other employers, including TVS, alleging he suffered from injuries to multiple organs related to exposure to asbestos and other hazardous substances, and from arthritis and thoracic outlet syndrome related to the use of vibrating tools and to crawling, kneeling, etc., during the course of his work. Claimant alleged he has been totally disabled from these occupational diseases since 1985. Decision and Order at 4-5; ALJ Ex. 1. The administrative law judge found that TVS is the employer responsible for permanent total disability benefits from May 21, 1985, and continuing, at the compensation rate of $298.39 per week, medical benefits, and interest. The administrative law judge dismissed the claims against EB, United States Steel (USS) and Standard Structural Steel (SSS). Decision and Order; Errata; Order on Recon; Order on 2nd M/Recon. TVS appeals the award, challenging a number of findings. SSS and the Director, Office of Workers’ Compensation Programs (the Director), have filed response briefs.


TVS first contends the administrative law judge erred in finding claimant to be a maritime employee in 1977 when he last worked for TVS. Specifically, TVS argues that claimant was not working in maritime employment on a covered situs at that time and that the administrative law judge erred in relying on the Board’s unpublished decision in Bonin v. Thames Valley Steel Corp., BRB Nos. 93-1943/A (July 30, 1996), while rejecting the precedent set in Cunningham v. Bath Iron Works Corp., 37 BRBS 76 (2003) (Hall, J., concurring and dissenting), aff’d sub nom. Cunningham v. Director, OWCP, 377 F.3d 98, 38 BRBS 42(CRT) (1st Cir. 2004). The administrative law judge found that claimant satisfied both the status and situs requirements during his employment at TVS. He found that claimant’s work for TVS at the EB shipyard in Groton was covered and that, pursuant to Bonin, claimant’s work in the fabrication shop in New London was also covered. Decision and Order at 13-14; Order on M/Recon at 8. He rejected TVS’s assertion that Cunningham is controlling in this case. Order on M/Recon. at 8.

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 employee is a maritime employee under Section 2(3) and is not in an occupation 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). Thus, in order to demonstrate that coverage exists, a claimant must satisfy the “situs” and the “status” requirements of the Act. Id.; see also Crapanzano v. Rice Mohawk, U.S. Constr. Co., Ltd., 30 BRBS 81 (1996). The last employer covered under the Act to expose claimant to injurious stimuli is the employer responsible for the payment of benefits. See, e.g., Newport News Shipbuilding & Dry Dock Co. v. Stilley 243 F.3d 179, 35 BRBS 12(CRT)(4th Cir. 2001).

Claimant testified that he worked at TVS in two capacities: as a welder and as an ironworker. He worked both in TVS’s fabrication shop at its facility in New London, Connecticut, and for TVS at the EB shipyard in Groton, Connecticut. At the shop, claimant worked as a welder fabricating components for placement on EB ships and submarines, and at the EB shipyard, he repaired overhead cranes. ALJ Ex. 26 at 57; Tr. at 185-186. He testified that his last work for TVS at EB occurred in 1973 and that his last work for TVS in 1977 was in the New London shop. ALJ Ex. 26 at 116; Tr. at 197. Claimant stated that he was exposed to asbestos stripheaters, as well as airborne substances from sanding, welding and grinding tools at the shop, ALJ Ex. 26 at 66, 86, 113-114, and he was exposed to asbestos at the EB facility from welding rods and paints. [3] ALJ Ex. 26 at 69-70, 73, 115.

Generally, an employee satisfies the “status” requirement if he is 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). In this case, claimant testified that he worked in TVS’s shop fabricating tanks and other parts for EB to use in constructing submarines. ALJ Ex. 26 at 144-115; Tr. at 186-187, 198. The administrative law judge found that claimant was the only witness to give testimony regarding his work, Order on M/Recon. at 7; thus, this evidence is uncontested. As the fabrication of components used in shipbuilding constitutes maritime employment, we affirm the administrative law judge’s finding that claimant’s work in the TVS fabrication shop satisfies the Section 2(3) status requirement. Alford v. American Bridge Div., 642 F.2d 807, 13 BRBS 268, on reh’g, 655 F.2d 86, 13 BRBS 837 (5th Cir. 1981), cert. denied, 455 U.S. 927 (1982); McCullough v. Marathon Letourneau Co., 22 BRBS 359 (1989); Dennis v. Boland Marine & Manufacturing, Inc., 13 BRBS 528 (1981).

TVS also disputes the administrative law judge’s finding that claimant worked on a maritime situs. Section 3(a) of the Act states:

Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading unloading, repairing, dismantling, or building a vessel).

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