BRB No. 96-358
LINDA D. STONE )
)
Claimant-Petitioner )
)
v. )
)
INGALLS SHIPBUILDING, )
INCORPORATED ) DATE ISSUED: 11/22/1996
)
Self-Insured )
Employer-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order Denying Benefits and Denying Claimant's
Motion to Reopen and the Decision on Motion to Reconsider of Samuel J.
Smith, Administrative Law Judge, United States Department of Labor.
Bobby G. O'Barr, Biloxi, Mississippi, for claimant.
Paul B. Howell (Franke, Rainey & Salloum), Gulfport, Mississippi, for
self-insured employer.
LuAnn Kressley (J. Davitt McAteer, Solicitor of Labor; Carol A. DeDeo,
Associate Solicitor; Janet R. Dunlop, 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, SMITH and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order Denying Benefits and Denying
Claimant's Motion to Reopen and the Decision on Motion to Reconsider (94-LHC-3138,
94-LHC-3139) of Administrative Law Judge Samuel J. Smith 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 was hired in 1991 as a joiner-helper at employer's shipyard with the
understanding that she may be called upon to perform joiner duties; therefore, she
was required to dress accordingly.[1] Emp. Ex.
32 at 16, 25; Tr. at 40. She worked in a trailer office near the main gate of the
shipyard, and her duties included ordering material for shipbuilding, tracking
material, filing, putting together work-station packages, researching budgets, and
acting as a liaison between the foremen and the planners. Emp. Ex. 32 at 17-18.
In May 1992, claimant slipped while taking the trash out of the trailer and injured
her back.[2] She returned to work with
restrictions in February 1994, worked two weeks in light duty, and was again
injured on March 1, 1994. On that day, she clocked out, exited a security gate,
and as she crossed an access road to get to the employee parking lot, she tripped
over a cable on the roadway. She fell and injured her mouth and broke her arm.
Tr. at 56-58, 62-66. Claimant returned to work in November 1994 and eventually
resumed most of her normal duties except that she can no longer go onto the ship
because of her back condition. Employer voluntarily paid claimant disability
benefits under the state workers' compensation law. Tr. at 33, 66-68, 95.
Thereafter, claimant filed a claim for benefits under the Act.
The administrative law judge found that claimant did not meet the Section
2(3), 33 U.S.C. §902(3) (1988), status requirement for either injury, and she
did not meet the Section 3(a), 33 U.S.C. §903(a) (1988), situs requirement for
the second injury. Decision and Order at 10-12. The administrative law judge also
found it may be asserted that claimant's second injury was within the course and
scope of her employment, but he concluded it was unnecessary to make such a
determination in light of his previous findings. Decision and Order at 13.
Therefore, the administrative law judge denied benefits. He also denied claimant's
motion for reconsideration. Claimant appeals the decisions, and the Director,
Office of Workers' Compensation Programs (the Director), responds, in agreement
with claimant. Employer responds to both parties, urging affirmance. For the
reasons that follow, we affirm the administrative law judge's decisions.
Claimant first contends the administrative law judge erred in finding her to
be an excluded clerical employee pursuant to Section 2(3)(A) of the Act, 33 U.S.C.
§902(3)(A) (1988).[3] For a claim to be
covered by the Act, a claimant must establish that her injury occurred upon a site
covered by Section 3(a) and that she was a maritime employee under Section 2(3) and
not subject to any specific statutory exclusions. 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);
Kennedy v. American Bridge Co., 30 BRBS 1 (1996). Thus, in order to
demonstrate that she is covered by the Act, a claimant must satisfy both the
"situs" and the "status" requirements. Id.; see also Crapanzano v. Rice
Mohawk, U.S. Construction Co., Ltd., 30 BRBS 81 (1996).
Generally, a claimant satisfies the "status" requirement if she is an employee
engaged in work which is 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). To satisfy this
requirement, she need only "spend at least some of [her] time" in maritime
activities. Caputo, 432 U.S. at 273, 6 BRBS at 165. Although an employee
is covered if some portion of her activities constitute covered employment, those
activities must be more than episodic, momentary or incidental to non-maritime
work. Boudloche v. Howard Trucking Co., 632 F.2d 1346, 12 BRBS 732 (5th Cir.
1980), cert. denied, 452 U.S. 915 (1981); Coleman v. Atlantic Container
Service, Inc., 22 BRBS 309 (1989), aff'd, 904 F.2d 611, 23 BRBS 101
(CRT) (11th Cir. 1990). In 1984, Congress amended Section 2(3) to specifically
exclude certain employees from coverage. Section 2(3)(A) provides:
(3) The term "employee" means any person engaged in maritime employment,
including any longshoreman or other person engaged in longshoring
operations, and any harbor-worker including a ship repairman,
shipbuilder, and ship-breaker, but such term does not include--
(A) individuals employed exclusively to perform office clerical,
secretarial, security, or data processing work [if such persons
are covered by State workers' compensation laws];
33 U.S.C. §902(3)(A) (1988) (emphasis added). Both claimant and the Director
contend that claimant's duties were not "exclusively" clerical so as to place her
within the exclusion.
According to the legislative history, the term "exclusively" modifies all four
classifications of work. 1984 U.S.C.C.A.N. 2734, 2736; see also Spear v.
General Dynamics Corp., 25 BRBS 132 (1991). Specifically, the House committee
was concerned with whether the nature of an employee's work exposes him "to
traditional maritime hazards." Id. It also noted that the term "office"
modifies the term "clerical" and that "[n]ot all clerical work is intended to be
excluded -- merely that which is performed exclusively in a business office of the
employing enterprise."[4] Id. at 2737.
Moreover, by separately excluding secretarial and data processing employees,
Congress clearly recognized that there are employees performing other clerical
functions in an office setting and that these employees also are excluded from
coverage. In this case, claimant admits that most of her work occurred in an
office setting. She also concedes that, as a joiner-helper, it is her
responsibility to do paperwork. Emp. Ex. 32 at 43; Tr. at 42-45. Her supervisor,
Mr. McLeod, confirmed this information and in fact considered claimant's job
"office help." Tr. at 83. However, he also considered their work an important
contribution to the shipbuilding process. Id. at 93-94.
Claimant performed many tasks for employer. She testified that most of her
time is divided between ordering and tracking material and researching budgets and
dates of completion, depending on where they are in the building process. All
material she ordered and/or tracked was material to be put onto the newly
constructed ships. When she received a bill (a list of compartments on the ship
and the materials needed for their completion), she would order the materials from
a warehouse on the shipyard, file the bill, track the material to make sure it
arrived, and if necessary locate missing materials (generally by telephone).[5] Emp. Ex. 32 at 24-27; Tr. at 34, 36-37, 55.
Claimant also prepared spread sheets for work-station packages (a list of bills to
be worked), gathering and compiling the appropriate information for presentation
to the foremen.[6] Emp. Ex. 32 at 29-33. She
also mapped the status of the compartments, keeping track of the date each
compartment passed quality assurance and was sold. Additionally, claimant balanced
her books with those of management and the foremen. If there were any
discrepancies, she would meet with management's secretary or the foremen to correct
them.[7] Emp. Ex. 32 at 34-35, 38-39. In
addition to the above duties, approximately two days per week, claimant would help
the secretary in the wet dock building. She would file documents, move boxes,
unpack coveralls, answer the phone, punch holes in reports, take head counts, and
do whatever needed to be done. Emp. Ex. 32 at 19-20; Tr. at 61-62. Finally,
claimant stated that she was not on the clerical wage scale; rather, she was under
the union contract making craft wages and required to obey craft rules. Tr. at 70.
In this case, with regard to her first injury, the administrative law judge
stated:
After closely examining [claimant's] duties, the undersigned
finds that Claimant is excluded from coverage under Section
2(3)(A). Persuasive in this determination is the fact that
the overwhelming majority of Claimant's work was performed in
an office. * * * This finding is not affected by the fact
that Claimant occasionally went outside and aboard the ships
under construction. * * * These extremely rare trips are
simply not enough to remove Claimant from the clerical worker
exclusion.
Decision and Order at 9-10. The administrative law judge also found that claimant
is excluded with regard to her second injury, stating that "her work was even more
office oriented" during the two weeks between her return to work and her second
injury because she was not keeping the books and had no reason to leave the office.
Id. at 10-11. Thus, the administrative law judge specifically found that
most of claimant's work is performed in an office trailer and that her "extremely
sporadic" trips to the ship "hardly subjected her" to traditional maritime hazards.
Decision and Order at 10. Claimant contends these findings are in error, and she
relies on several cases to support her argument that she is involved in covered
employment.
For example, claimant contends her situation is similar to that found in
LeBatard v. Ingalls Shipbuilding Div./Litton Systems, Inc., 10 BRBS 317
(1979). In LeBatard, the Board determined that a senior pipe clerk whose
duties included receiving requisitions for pipe, locating the pipe and loading the
pipe onto trucks for delivery to the ships or directly onto the ships, was covered
under the 1972 Amendments to the Act. The Board held that the claimant was
directly involved in shipbuilding because his duties were a necessary prerequisite
to shipbuilding. Specifically, the claimant personally located and hand-carried
pipes onto the ship under construction which were then installed on the ship.
Id. at 319-320. By contrast, claimant herein did not personally move ship
components, but merely ordered and tracked the parts from her office.
Claimant also asserts her case is analogous to Levins v. Benefits Review
Board, 724 F.2d 4, 16 BRBS 24 (CRT) (1st Cir. 1984), and to Powell v.
International Transportation Services, 18 BRBS 82 (1986). In Levins,
the United States Court of Appeals for the First Circuit concluded that a book
clerk who processes ships' manifests, records and identifies cargo, documents
receipts and deliveries, and who had to perform these clerical duties on the ship
if there were discrepancies, and acted as a "runner" checking the seal numbers on
the containers aboard ships when cargo was loaded on vessels under 300 tons was
covered under the Act. The First Circuit stated that although the claimant did not
actually handle cargo, he was engaged in "peculiarly maritime" work, agreeing with
the administrative law judge that the claimant's function was analagous to that of
a checker. In addition, the court found the claimant regularly performed maritime
duties outside the office. Levins, 724 F.2d at 8, 16 BRBS at 31 (CRT).[8] In Powell, the claimant was a vessel
planning and stowaways coordinator who worked in an office on the dock, planning
and coordinating the loading and unloading of vessels, the necessary manpower, and
the storage of hazardous materials. The claimant's work determined the sequence
in which containers were loaded and their location in order to ensure the vessel's
seaworthiness. He was required to be available during the loading and unloading
process in case a change in plan was needed. The Board affirmed the administrative
law judge's conclusion that the claimant is covered under the Act, finding his work
to be peculiarly maritime. The Board also noted that the administrative law judge
likened the claimant's duties to that of a supercargo prior to the advent of
containerization. Powell, 18 BRBS at 83.
The Director, in support of claimant's position, argues that Lennon v.
Waterfront Transport, 20 F.3d 658, 28 BRBS 22 (CRT) (5th Cir. 1994), is
dispositive of the issue herein. The United States Court of Appeals for the Fifth
Circuit, which has appellate jurisdiction over the present case, held in
Lennon that a marine dispatcher meets the status requirement because his job
included contacting boats by radio, arranging crew changes, answering the phones,
and managing a film account whereby he actually loaded and unloaded the film from
passenger ships. The court affirmed the finding that the claimant's work was not
exclusively office clerical work and that he handled cargo sufficiently regularly
to be covered under the Act. Id.; see also Boudloche, 632 F.2d at 1346, 12
BRBS at 732.
Reliance on the above cases by claimant and the Director is misplaced, as
those cases are distinguishable from the present case. In each of these cases,
the claimant's work at times involved maritime activities performed outside the
office environment requiring his physical presence on the ships or in the terminals
to check on cargo or ship components. LeBatard and Lennon also differ
in that the claimants were directly involved in shipbuilding or the loading and
unloading process on more than an episodic basis; both employees had duties other
than processing paperwork. In Levins, the claimant performed duties
analagous to those of a checker. In Powell, the claimant coordinated
manpower efforts and was integral to the loading and unloading process because his
work was required for the vessel to be loaded, as he planned the actual placement
of containers and determined the manpower necessary for the job. See also
Jannuzzelli v. Maersk Container Service Co., 25 BRBS 66 (1991)(Clarke, J.,
dissenting) (claimant whose primary duties were performed in office not excluded
because he regularly worked on docks checking men in to load and unload);
Caldwell v. Universal Maritime Service Corp., 22 BRBS 398 (1989) (office
bound clerk-checker covered as he was subject to reassignment as a checker and his
work hours were tied to the movement of cargo).
In cases in which the 1984 clerical exclusion was applied, the Board has held
that a key punch operator and a key machine operator whose duties were exclusively
clerical were excluded from coverage under the Act. Hall v. Newport News
Shipbuilding & Dry Dock Co., 24 BRBS 1 (1990); Bergquist v. Newport News
Shipbuilding & Dry Dock Co., 23 BRBS 131 (1989). Further, the Board held that
a delivery clerk who processed papers necessary to release cargo to outbound truck
drivers was also excluded from coverage. Sette v. Maher Terminals, Inc., 27
BRBS 224 (1993).[9] Thus, clerical work which is
pertinent, and even integral, to the longshoring process may still be excluded if
the work is exclusively performed in an office.
Clearly, those workers who are not involved in the shipbuilding or longshoring
process are excluded from coverage. See Crapanzano, 30 BRBS at 81; Odness
v. Import Dealers Service Corp., 26 BRBS 165 (1992). Similarly, workers whose
jobs are exclusively clerical and performed exclusively in an office are also
excluded from coverage pursuant to the provisions of the clerical exclusion in
Section 2(3)(A), although they might otherwise qualify as maritime employees.
See Sette, 27 BRBS at 224; Hall, 24 BRBS at 1; Bergquist, 23
BRBS at 131. Thus, employees whose jobs may be integral to the shipbuilding or
loading and unloading process but whose positions are exclusively clerical and
office-oriented are removed from coverage, as is evidenced by the case at bar. In this case, the
administrative law judge specifically found that most of claimant's work is
performed in an office and that which is not is too sporadic to warrant coverage.
See Odness, 26 BRBS at 165. Thus, although claimant may perform a function
that is integral to the shipbuilding process, she works in an office setting and
her visits to the ships were merely incidental to her clerical work. Consequently,
the administrative law judge found claimant is an office clerical employee
exclusively, and this finding excludes her from coverage.[10] Therefore, we affirm the administrative law judge's conclusion that
claimant has not satisfied the status requirement and is not covered by the Act,
as his conclusion is supported by substantial evidence and accords with law.[11]
Accordingly, the administrative law judge's decisions are affirmed.
SO ORDERED.
_______________________________
BETTY JEAN HALL, Chief
Administrative Appeals Judge
_______________________________
ROY P. SMITH
Administrative Appeals Judge
_______________________________
JAMES F. BROWN
Administrative Appeals Judge
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Footnotes.
1)Claimant was required to wear pants to work. When she went
outside the office-trailer, she was required to wear safety goggles, steel-toed
shoes, ear-plugs, and a hard hat. Emp. Ex. 32 at 25; Tr. at 40.
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2)This was not part of her regular duties, but the man who
generally took out the trash was absent that day. Tr. at 56.
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3)The Director argues that Section 20(a), 33 U.S.C. §920(a),
places the burden of showing that claimant is not covered on employer. The Board
has consistently held that the Section 20(a) presumption does not apply to the
legal issues relating to coverage under the Act. See George v. Lucas Marine
Construction, 28 BRBS 230 (1994), aff'd mem., No. 94-70660 (May 30,
1996); Davis v. Doran Co. of Calif., 20 BRBS 121 (1987), aff'd mem.,
865 F.2d 1257 (4th Cir. 1989). Therefore, we reject the Director's argument.
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4)For example, Congressman Miller stated:
[Checkers and cargo clerks] are to be distinguished from those other
employees of waterfront employers, such as office clerical, secretarial,
security or data processing workers, who are not intimately concerned
with the movement and processing of ocean cargo, and who are confined
physically and by function to the administrative areas of the employer's
operations.
House Report on Conference Report on S.38 (Sept. 18, 1984). See 20 C.F.R.
§701.301(a) (12)(iii)(A) (restating statutory exclusion but providing that
longshore cargo checkers and cargo clerks are not excluded).
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5)On rare occasions, she had to go to the trim shop by the wet
dock to locate small items which had been misplaced there. Emp. Ex. 32 at 33-34.
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6)Claimant testified that all bills and other documents she
compiled were completed by others. She did not have the authority to make
decisions regarding materials or time frames but merely logged in changes, and
reported her findings or information she received to
others. Tr. at 45-46, 49, 53.
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7)She met with the secretary in the wet dock building and with
the foremen on the ships. Emp. Ex. 32 at 38-39; Tr. at 84. According to claimant,
she went aboard the ships to correct discrepancies only three or four times before
her first injury. Emp. Ex. 32 at 40-42. She was not responsible for the books
during the two weeks preceding her second injury, and she has not gone aboard a
ship since her first injury, as her back condition prevents such activity. Emp.
Ex. 32 at 65; Tr. at 84-85, 95.
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8)The administrative law judge in the case at bar correctly
assessed that the basis for determining coverage does not rest solely on job
classification. See Levins, 724 F.2d at 7, 16 BRBS at 30 (CRT); Decision and
Order at 9. Thus, claimant's union status is not determinative of the coverage
issue.
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9)See also Sea-Land Service, Inc. v. Rock, 953 F.2d 56,
25 BRBS 112 (CRT) (3d Cir. 1992); Maher Terminals, Inc. v. Farrell, 548 F.2d
476, 5 BRBS 392 (3d Cir. 1977)
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10)The facts of this case establish that claimant is covered by
a state workers' compensation law. See 33 U.S.C. §902(3) (1988); Tr.
at 66.
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11)Because we affirm the administrative law judge's conclusion
that claimant has not fulfilled the status requirement, we need not address
claimant's contention that the administrative law judge erred in finding that the
second injury occurred on a non-covered situs.
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NOTE: This is a PUBLISHED LHCA Document.
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