BRB No. 93-1737
JOSEPH A. CRAPANZANO )
)
Claimant-Petitioner )
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v. )
)
RICE MOHAWK, U. S. )
CONSTRUCTION COMPANY, ) DATE ISSUED: 05/13/1996
LIMITED )
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and )
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STATE INSURANCE FUND )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order of Ralph A. Romano, Administrative Law
Judge, United States Department of Labor.
George Poulos, Astoria, New York, for claimant.
Richard A. Cooper (Fischer Brothers), New York, New York, for
employer/carrier.
Before: BROWN, DOLDER, and McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (92-LHC-2462) of Administrative Law
Judge Ralph A. Romano 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 worked as a journeyman ironworker constructing a bridge across Grassy
Bay in New York.[1] His duties included:
unloading a barge by hooking pre-cast concrete girders to the crane, climbing to
the bridge structure, and "landing" the girders (positioning them onto the pile
caps); positioning reinforcement beams; and bolting clips onto the girders and
beams. Tr. at 15-18, 21-23, 36. On November 29, 1990, claimant tripped while
walking along the girders on the bridge structure. He hit his head on a scaffold,
was knocked unconscious, and fell to the ground below. Tr. at 35-37. Employer
paid benefits under the New York workers' compensation law, but claimant seeks
benefits under the Act.
The administrative law judge conducted a hearing solely on the issue of
jurisdiction. He found that claimant's injury is not covered by the Act, as it did
not occur over navigable waters, and as claimant failed to establish the status
element required by the Act. 33 U.S.C. §902(3); Decision and Order at 4-5.
Claimant appeals the decision, and employer responds, urging affirmance.
Claimant first contends his injury occurred over navigable waters. He avers
that his case is indistinguishable from Director, OWCP v. Perini North River
Associates, 459 U.S. 297, 15 BRBS 62 (CRT) (1983) (Perini), except
regarding the issue of "where the body falls." Specifically, claimant asserts that
his injury occurred on the seaward side of the Jensen line.[2] Id. at 8. The administrative law judge
rejected claimant's argument and held that claimant cannot invoke Perini to
support his claim, as he was working on a bridge, which is an extension of land and
is not considered to be "over navigable waters." Decision and Order at 4.
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, including any dry
dock, or that his injury occurred on a landward area covered by Section 3(a) and
that his work is maritime in nature and is not specifically excluded by the Act.
33 U.S.C. §§902(3), 3(a); Perini, 459 U.S. at 297, 15 BRBS at 62
(CRT); 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 jurisdiction exists, a claimant must satisfy the
"situs" and the "status" requirements of the Act. Id. In Perini, the
Supreme Court held that when a worker is injured on actual navigable waters while
in the course of his employment on those waters, he is a maritime employee under
Section 2(3). Regardless of the nature of the work being performed, such a
claimant satisfies both the situs and status requirements and is covered under the
Act, unless he is specifically excluded from coverage by another statutory
provision. Perini, 459 U.S. at 323-324, 15 BRBS at 80-81 (CRT); see also
Pulkoski v. Hendrickson Brothers, Inc, 28 BRBS 298 (1994); Johnsen v.
Orfanos Contractors, Inc., 25 BRBS 329 (1992).
In this case, claimant was walking on the bridge structure, along the girders,
towards the beach, when he tripped and fell, landing on the shore, 15 to 20 feet
from the water. Although he stated he spent 95 percent of his time working over
the water,[3] he testified that, on the day of the
injury, he tripped at a point "on the land" but "close to the water." Tr. at 34-36. Contrary to claimant's contention, this significant fact distinguishes his
case from the facts in Perini.[4]
Moreover, as the administrative law judge found, a bridge is permanently affixed
to land, is considered an extension of land, and is not within pre-1972
jurisdiction. See Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969);
Johnsen, 25 BRBS at 333. Therefore, we reject claimant's argument that his
injury occurred over navigable waters. We also reject claimant's "where the body
fell" distinction. The Board recently held that in determining whether an injury
occurs on navigable waters, the place of inception is the critical element of an
injury-causing occurrence. Kennedy v. American Bridge Co., ___ BRBS ___, BRB
No. 92-1966 (Jan. 23, 1996). In this case, claimant's injury began and ended on
land.
The next inquiry is whether claimant fulfilled the status and situs
requirements of the Act. Claimant contends he satisfies the Section 2(3) status
test and is a maritime employee. He argues that, under LeMelle v. B. F. Diamond
Construction Co., 674 F.2d 296, 14 BRBS 609 (4th Cir. 1982), cert.
denied, 459 U.S. 1177 (1983), all bridge construction workers are considered
maritime employees, regardless of whether the bridges on which they work aid
navigation. He also asserts that his duties involved unloading vessels. The
administrative law judge rejected claimant's argument that he is covered pursuant
to LeMelle, finding the record devoid of evidence suggesting the bridge
herein was being constructed to aid navigation. He also found that claimant's
duties do not fall within the definition of "maritime employment." Decision and
Order at 5.
Generally, bridge builders are not considered maritime employees because their
work aids highway and not maritime commerce. Nold v. Guy F. Atkinson Co.,
9 BRBS 620 (1979) (Miller, J., dissenting), appeal dismissed, 784 F.2d 339
(9th Cir. 1986). In LeMelle, the United States Court of Appeals for the
Fourth Circuit granted maritime status to a concrete finisher whose duties required
him to work on a bridge one mile from the shore. Because evidence established that
the bridge would aid navigation on the James River, the court determined that
claimant LeMelle was engaged in maritime employment. LeMelle, 674 F.2d at
298, 14 BRBS at 613. Recently, the Board rejected the argument that LeMelle
is broad enough to encompass all bridge workers, Pulkoski, 28 BRBS at 303,
and although claimant asserts in his brief that the purpose of the new bridge is
to aid in the navigation of the Grassy Bay, the administrative law judge correctly
noted the lack of record evidence supporting such an assertion.
Further, we reject claimant's assertion that his duties constitute maritime
employment. The United States Court of Appeals for the Second Circuit, wherein
jurisdiction of this case resides, has held that a construction worker whose duties
involved occasionally unloading a barge carrying materials for construction of a
structure which reaches from the shore to a point over the water was not engaged
in maritime employment, as there is no significant relationship to navigation or
commerce on navigable waters. Fusco v. Perini North River Associates, 622
F.2d 1111, 12 BRBS 328 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981)
(sewage disposal plant construction workers not maritime employees); see also
Laspragata v. Warren George, Inc., 21 BRBS 132 (1988) (sewage treatment plant
construction worker not a covered employee). Although claimant in the instant case
unloaded materials from a barge, those items were for the purpose of constructing
a non-maritime structure over water; therefore, his employment has no relationship
to maritime commerce under the case law of the Second Circuit.[5] See Fusco, 622 F.2d at 1113, 12 BRBS at
332; see also Pulkoski, 28 BRBS at 303 (bridge construction worker not a
maritime employee); Johnsen, 25 BRBS at 335 (bridge painter not a maritime
employee); Laspragata, 21 BRBS at 135. Consequently, claimant does not meet
the Section 2(3) status requirement and cannot be classified as a maritime
employee.
Claimant contends he has established that his injury occurred on a covered
situs pursuant to Section 3(a).[6] Citing
Hurston v. Director, OWCP, 989 F.2d 1547, 26 BRBS 180 (CRT) (9th Cir. 1993),
he argues that the structure upon which he worked is actually a pier because it was
not a completed bridge; therefore, it is a covered situs regardless of its use.
Claimant also asserts that the 1972 Amendments extended the Jensen line
landward thereby "overturning" Nacirema, 396 U.S. at 212.
Initially, we reject claimant's allegation that Nacirema has been
overturned. In Nacirema, the claimants were injured while they were working
on piers attaching railroad cargo to ships' cranes for loading onto the ships. The
Supreme Court noted well-settled law which, prior to enactment of the Act,
considered wharves, piers, and bridges permanently affixed to the land as
extensions of land. The Court also acknowledged the language and purpose of the
Act and concluded Congress specifically limited coverage under the Act to those
injuries which occurred on the seaward side of the Jensen line.
Consequently, it held that these claimants who were injured while working on piers
were not employees within the meaning of the Act. Nacirema, 396 U.S. at 212.
Although the piers and wharves referenced in Nacirema would now be covered
under the Act as amended in 1972, see 33 U.S.C. §903(a) (1982);
Johnsen, 25 BRBS at 332 n.1, the case still espouses good law regarding
other extensions of land. In later cases, the Supreme Court acknowledged that the
1972 Amendments to the Act pertaining to jurisdiction were drafted in response to
its holding in Nacirema; however, it has not stated that those Amendments
made its decision null and void. See Perini, 459 U.S. at 316-318, 15 BRBS
at 74-75 (CRT); Caputo, 432 U.S. at 249, 6 BRBS at 150. Thus, the notion
that a structure, such as a bridge, is an extension of land and may not constitute
a covered situs is still legal precedent. See, e.g., Kennedy, slip op. at
5; Johnsen, 25 BRBS at 332-333; Laspragata, 21 BRBS at 135.
We also reject claimant's reliance on Hurston. Claimant's insistence
that the structure upon which he worked should be classified as a "pier" (an
enumerated adjoining area) instead of a bridge (not an enumerated adjoining area)
is not persuasive. In Hurston, the United States Court of Appeals for the
Ninth Circuit determined that the sites enumerated in Section 3(a) are covered
sites regardless of whether they possess a maritime nexus, whereas "other adjoining
area[s]" must be "customarily used by an employer in loading, unloading, repairing,
dismantling, or building a vessel[.]" 33 U.S.C. §903(a); Hurston, 989
F.2d at 1549-1550, 26 BRBS at 184-185 (CRT); see also Johnsen, 25 BRBS at
334-335. By labelling the structure a pier, using the Hurston definition
("a structure built on pilings extending from land to navigable waters"), claimant
attempts to disregard the fact that the accident site in this case was not used for
maritime activities. Despite claimant's assertion, the structure herein is a
bridge over Grassy Bay. A bridge is not an enumerated situs; therefore, it must
be shown to have a maritime nexus before it can be considered covered under the Act. Id. There is no evidence in the record that this
work site was used for maritime purposes. Therefore, as a matter of law, claimant
also fails to fulfill the situs requirement. Consequently, we affirm the
administrative law judge's denial of benefits under the Act.
Accordingly, the administrative law judge's Decision and Order is affirmed.
SO ORDERED.
_______________________________
JAMES F. BROWN
Administrative Appeals Judge
_______________________________
NANCY S. DOLDER
Administrative Appeals Judge
_______________________________
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)The work site included the bridge structure, consisting of pre-cast concrete pilings and pile caps, a barge carrying a crane, and a barge carrying
construction materials. Tr. at 13.
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2)In Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917),
the Supreme Court established what is called the "Jensen line" which is the
line where water meets land. It marks the limit of admiralty jurisdiction. See
Nacirema Operating Co. v. Johnson, 396 U.S. 212, 216 (1969).
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3)The parties agree that Grassy Bay constitutes navigable waters.
Decision and Order at 2.
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4)In Perini, claimant Churchill was working on a barge
over navigable waters when he sustained his injuries. Consequently, he was covered
under the Act, as he would have been covered prior to the 1972 Amendments.
Perini, 459 U.S. at 297, 15 BRBS at 62 (CRT).
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5)Other circuits have held that the loading and unloading of
construction materials constitutes traditional longshoring activities. Browning
v. B.F. Diamond Construction Co., 676 F.2d 547, 14 BRBS 803 (11th Cir. 1982),
cert. denied, 459 U.S. 1170 (1983) (rig foreman involved with unloading
construction materials from barge for bridge construction is a covered employee);
Gilliam v. Wiley N. Jackson Co., 659 F.2d 54, 13 BRBS 1048 (5th Cir. 1981),
cert. denied, 459 U.S. 1169 (1983) (construction worker unloading materials
from barge for bridge construction is covered); Smith v. Universal Fabricators,
Inc., 21 BRBS 83 (1988), aff'd, 878 F.2d 843, 22 BRBS 104 (CRT) (5th
Cir. 1989), cert. denied, 493 U.S. 1070 (1990); cf. Wilson v. General
Engineering & Machine Works, 20 BRBS 173, 176 n.4 (1988) (Board noted that
notion of "traditional cargo" is outdated, but distinguished between maritime and
military cargo). See also Kennedy, slip op. at 4. In Kennedy, the
Board followed the lead of the Fifth and Eleventh Circuits in a Third Circuit case
and held that a bridge ironworker is covered because he loaded and unloaded
construction materials to and from a barge (Board also held Kennedy covered because
his injury occurred on a gangplank over navigable waters).
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6)The administrative law judge did not address whether claimant's
work site constitutes a covered situs under the Act; however, we shall address this
legal issue, as the facts involved are undisputed.
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NOTE: This is a PUBLISHED LHCA Document.
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