This post is a continuation of our review of interesting cases decided during 2019 (see Part One here).
The claimant was an ironworker on a new bridge construction project. He worked from a temporary work platform that he stood on to reach up and bolt girders. The platform was attached to a “bridge pier” permanently anchored in the riverbed. The section of the bridge that he was working on was not attached to either shoreline.
Did the worker meet situs for coverage under the Longshore and Harbor Workers’ Compensation Act (Longshore Act)?
The U.S. Department of Labor’s Administrative Law Judge (ALJ) found situs was not met because the apparatus supporting the claimant was permanently anchored in the riverbed, making it a “fixed platform”, analogous to the fixed oil and gas platforms that the U.S. Supreme Court found were not covered sites in Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985).
What about coverage under Perini v. North River Associates (Churchill), 459 U.S. 297 (1977)? The U.S. Supreme Court held in Perini that a worker injured upon the navigable waters of the U.S. was covered under the Longshore Act as a maritime employee regardless of the nature of the work (carrying over pre-1972 Amendment coverage). The claimant in this case was injured literally over the water standing on a temporary work platform. Why not Perini coverage?
To be injured “upon” the navigable waters, the injury must occur on a structure that is “actually afloat”. Here the claimant’s work platform was attached to a bridge pier permanently attached to the riverbed. No floating structure – no Perini – no situs – no coverage under the Longshore Act. The Benefits Review Board (BRB) affirmed the finding of no coverage.
An interesting Perini case.
In this hearing loss case, the claimant worked for the employer from 1973 until his retirement on October 1, 2016. He had an audiogram at the employer’s request on October 11, 2016, which showed a right-sided monaural impairment of 5.625%. He filed a hearing loss claim on August 28, 2017.
Additional audiograms on November 8, 2017 (13.69% binaural impairment) and February 5, 2018 (9.31% binaural impairment) showed significantly higher hearing loss.
The employer paid for the 5.625% monaural impairment on April 22, 2018.
At the formal hearing, where the claimant sought additional compensation for the higher post-retirement audiograms, the ALJ granted summary judgment to the employer based on the “exit audiogram”, and the BRB affirmed.
“…an employer can protect itself by providing employees with an audiogram at the time of retirement and thereby freezing the amount of compensable hearing loss attributable to the claimant’s employment.” (Bath Iron Works v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, 506 U.S. 153 (1993).
More on this case, and the adjudication of hearing loss claims, can be found in this past Longshore Insider article.
Coverage under the Defense Base Act (DBA) was at issue in this case. The claimant was a flight attendant employed by an airline under contract to the U.S. Department of Defense to provide charter flights to transfer personnel and equipment overseas. She was injured in a car accident on her way back from mandatory drug testing in Arlington, Texas.
The general principle is that the DBA applies to work performed outside of the continental U.S. Was this injury in Texas covered under the DBA?
It was. The BRB affirmed the holding of the ALJ that the claimant was acting “under” the contract at the time of the injury. It did not matter that she was injured in the U.S. She was injured while meeting an “essential requirement” of the contract.
This case deals with a situs issue that arises regularly.
The claimant was injured when he stepped in a pothole in the employer’s parking lot while walking from his car to the production security gate at the start of his workday. The parking lot is within the boundaries of the shipyard, but it is separated from the production areas by fencing and a security gate.
The BRB reversed the ALJ and found that this claimant met the situs requirement for coverage under the Longshore Act: “…the test is whether the injury occurred within a contiguous shipbuilding area adjoining navigable water.”
NOTE: In the federal Fifth Circuit Court of Appeals, where this case arose, “adjoining” means touching.
An injury in a part of the facility not actually used for shipbuilding does not preclude coverage.
This case addresses a similar situs issue as the Church case discussed above. This time it was a chassis yard where the claimant worked stacking and unstacking chassis (that are attached to trucks bringing containers into and out of the terminal).
Fences enclosed the chassis yard, but the ALJ found that the yard was part of the terminal, an enumerated site in Section 903(a) of the Longshore Act. The fencing “…does not meaningfully sever the contiguity” between the terminal and the chassis yard.
In the federal Fourth Circuit Court of Appeals, where this case arose, Sidwell v. Express Container Services, Inc. 71 F. 3d 1134, (1995) was cited for the proposition that, “It is not unusual for marine terminals to cover many hundreds of acres. Such terminals are covered in their entirety. It is not necessary that the precise location of an injury be used for loading and unloading operations …; the test is whether the injury occurred within a contiguous shipbuilding area adjoining navigable water”.
This was a hearing loss claim filed in 2015 by a 71-year-old claimant based on alleged exposure to injurious noise during a four-week period, November 5 – December 4, 1981.
This case is more curious than interesting. At this point, we are not surprised to see a hearing loss claim filed against a maritime employer based on decades-old exposure. That’s not what makes it curious.
The ALJ found that the employer rebutted the Section 920(a) presumption of causation. He found that, based on the record as a whole, the claimant failed to establish causation by a preponderance of the evidence, and he denied the claim.
Here’s where it gets curious. On appeal, the BRB affirmed the ALJ’s conclusion that the claimant did not establish that he suffers from a work-related hearing loss based on the record as a whole. The Board did, however, remand the case for the ALJ to reconsider the initial question of whether the employer rebutted the Section 920(a) presumption based on the substantial evidence standard.
So depending on what the ALJ does on remand, the claim may get paid even though the BRB affirmed the denial based on the record as a whole.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.