Victorian v. International-Matex Tank Terminals
| Decision Date | 24 July 2018 |
| Docket Number | 17-0584A,BRB 17-0584 |
| Parties | DWAYNE D. VICTORIAN Claimant-Respondent Cross-Petitioner v. INTERNATIONAL-MATEX TANK TERMINALS and ZURICH AMERICAN INSURANCE COMPANY Employer/Carrier-Petitioners Cross-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeals of the Decision and Order and the Order Denying Motion for Reconsideration of Lee J. Romero, Jr. Administrative Law Judge, United States Department of Labor.
Isaac H. Soileau, Jr. (Soileau & Associates, LLC), New Orleans Louisiana, for claimant.
Jonathan A. Tweedy, Kelly F. Walsh, and Taylor M. Bologna (Brown Sims), New Orleans, Louisiana, for employer/carrier.
Isidro Mariscal (Kate S. O'Scannlain, Solicitor of Labor; Maia S. Fisher, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, BUZZARD and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals and claimant cross-appeals the Decision and Order and the Order Denying Motion for Reconsideration (2015-LHC-01290) of Administrative Law Judge Lee J. Romero, Jr., 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 rational, supported by substantial evidence, and 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 injured his neck, left shoulder and arm on June 25, 2014, while moving a 60-foot air hose at work. Tr. at 80-82. Employer paid claimant temporary total disability and medical benefits pursuant to the Louisiana Workers' Compensation Act from July 31, 2014 through October 25, 2016. Decision and Order at 3. Employer disputed coverage under the Longshore Act, whether claimant's left shoulder complaints are related to the work accident, and the nature and extent of claimant's work-related disability.
The administrative law judge found that claimant was a maritime employee who was injured on a covered situs. 33 U.S.C. §§902(3), 903(a). He further found that claimant did not present substantial evidence that his left shoulder labrum tear is related to the work accident and that claimant's work-related neck injury had not reached maximum medical improvement because claimant intends to undergo surgery and claimant is incapable of returning to his former employment. The administrative law judge determined that employer's labor market surveys established the availability of suitable alternate employment, but that claimant diligently, yet unsuccessfully, sought alternate employment. Accordingly, the administrative law judge awarded claimant continuing compensation for temporary total disability, 33 U.S.C. §908(b), from July 30, 2014, and medical benefits for his neck injury. He denied claimant's motion for reconsideration of the finding that his labrum tear is not related to the work accident.
On appeal, employer challenges the administrative law judge's findings of coverage under the Act, that claimant's work injuries have not reached maximum medical improvement, and that claimant diligently sought suitable employment. Claimant and the Director, Office of Workers' Compensation Programs, respond that employer's arguments should be rejected. Employer filed reply briefs. Claimant cross-appeals the administrative law judge's finding that his left shoulder labrum tear is not related to the work accident and that employer established the availability of suitable alternate employment. Employer responds, urging affirmance.
For a claim to be covered by the Act, a claimant must establish that his injury is maritime in nature pursuant to Section 2(3) and is not specifically excluded by any provision in the Act, and that his 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). 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, in order to demonstrate that coverage exists, a claimant must satisfy both the "status" and the "situs" requirements of the Act. New Orleans Depot Services, Inc. v. Director, OWCP [Zepeda], 718 F.3d 384, 47 BRBS 5(CRT) (5th Cir. 2013) (en banc).
Employer contends the administrative law judge erred in finding that its Gretna facility is an "adjoining terminal" within the meaning of Section 3(a) because it is a multipurpose facility used for manufacturing and treatment processes as well as for loading and unloading vessels. Bulk liquid is delivered to the Gretna facility overland or by vessel, where it is pumped through a series of pipes to tanks for storage and/or handling. Thereafter, tank-to-tank transfers occur as needed for the purposes of heating blending or sparging the liquid product.[1] Thus, because manufacturing processes take place at the Gretna facility, employer argues that it is not a marine terminal because it does not function solely to store liquid bulk product and transfer that product to and from ships.
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).
33 U.S.C. §903(a). The United States Court of Appeals for the Fifth Circuit, within whose jurisdiction this case arises, has held that an enumerated site should be defined not just by its physical appearance, but also by its function and maritime purpose, in order to be covered by the Act. Thibodeaux v. Grasso Prod. Mgmt., Inc., 370 F.3d 486, 38 BRBS 13(CRT) (5th Cir. 2004).
Claimant's injury occurred at storage tanks 106 and 107, which are within the fenced-in boundaries of employer's Gretna terminal. Decision and Order at 61-63; see Tr. at 64-68; CX 1 at 5. The administrative law judge noted that the Act does not define the term "terminal" in Section 3(a). Moreover, he observed that, while cases have found "terminals" to be covered situses, the term is not defined in those cases.[2] Decision and Order at 56-57. The administrative law judge thus gave weight to the Occupational Safety and Health Administration's definition of a "marine terminal" at 29 C.F.R. §1917.2, [3] and Webster's Dictionary definition of terminal and terminus and found that the Gretna facility is within these definitions.[4] Id. at 57-58. The administrative law judge noted that employer's website states that it operates 10 "marine terminals," including the Gretna facility, which is a 150-acre site on the west bank of the Mississippi River with deep-water container berths, 60 storage tanks, and the capability of also unloading railcars and trucks. Id. at 58; CX 1 at 1, 3. The administrative law judge gave weight to the deposition testimony of Bill Mercier, the Manager of Operations at the Gretna facility, that 94 percent of the bulk liquid product arrives by ship or barge at a dock and that, in the two years prior, 100 percent left by ship or barge. Decision and Order at 58; CX 23 at 52, 71-72; see also Tr. at 74. The administrative law judge also relied on the deposition testimony of Kevin Babbs, a shift foreman at the Gretna facility, who testified that the dock receives liquid product from ships 10 to 12 times a year and that barges arrive daily. Decision and Order at 59; CX 22 at 15. The administrative law judge concluded that the Gretna facility is a "marine terminal" because it is "the end of the transportation line" where liquid product is received and shipped by vessels, and where there is "adjacent storage . . . associated with the cargo" that moves between vessel and shore. Decision and Order at 59.
We affirm the administrative law judge's conclusion that employer's Gretna Facility is a maritime situs under Section 3(a). In this case, the definition of "terminal" used by the administrative law judge describes both the physical attributes of the area and the maritime purpose of the docks, pipelines and storage tanks at employer's Gretna facility, which is to move waterborne shipments from vessel to shore and product from shore to vessel. See Thibodeaux, 370 F.3d at 488-491, 38 BRBS at 14-15(CRT). Substantial evidence of record supports the finding that the Gretna facility ships and receives the overwhelming majority of its liquid bulk product from vessels at a dock on its property, and has 60 storage tanks for the liquid bulk product that is unloaded directly from ship to tanks and stored there.
Employer's contention that the site is not covered because "manufacturing" also takes place at the facility is misguided.[5] Where a site has functionally and/or geographically distinct loading/unloading and manufacturing areas, the latter are not covered under the Act. BPU Mgmt., Inc./Sherwin Alumina Co. v. Director, OWCP [Martin], 732 F.3d 457, 47 BRBS 39(CRT) (5th Cir 2013); Bianco v. Georgia Pacific Corp., 304 F.3d 1053, 36 BRBS 57(CRT) (11th Cir. 2002); Dryden v. The Dayton Power & Light Co., 43 BRBS 167 (2009)...
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