Petition — Odom Construction Co. v. United States Department of Labor

Supreme Court, U.S.

FILED

NO. 8 0 “957 OCT 21 1980

———————

MICHAEL RODAK, JR., CLERK

Iu the

Supreme Court of the United States

OCTOBER TERM, 1980

ODOM CONSTRUCTION COMPANY, INC.

AND AMERICAN MUTUAL LIABILITY

INSURANCE COMPANY

Petitioners

VERSUS

U.S. DEPT. OF LABOR AND DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION

PROGRAM, U.S. DEPT. OF LABOR AND

GARFIELD MAZE, JR.

Respondents

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

‘ PETITION FOR WRIT OF CERTIORARI

JOHN A. BIVINS

MOUTON, ROY, CARMOUCHE, BIVINS & KRAFT

P.O. Drawer Z

Lafayette, Louisiana 70502

Telephone (318) 233-7430

——— eee

A B Letter Service, Inc., 327 Chertres St., New Orleans, Le. (504) 581-5555

QUESTIONS PRESENTED FOR REVIEW

I.

Is an employee of a construction company, sent to re-

move mooring blocks from a barge fleeting area not customarily

used by his employer and whose testimony indicated that he

had only worked in proximity to navigable waters on one prior

occasion, a “maritime” worker within the meaning and intent

of 33 U.S.C. 902(3) and in light of P.C. Pfeiffer Company, Inc.,

et.al vs. Diverson Ford, et al, 100 S.Ct. 328 (1979)?

PARTIES TO THE PROCEEDING IN COURT

Odom Construction Company, Inc.

American Mutual Liability Insurance Company

Benefits Review Board, U.S. Department of Labor

Garfield Maze, Jr.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW................ i

LIST OF PARTIES... .. ccc ccsccccccccccrescesevceces li

TABLE OF AUTHORITIES ........ cee ceccsceevcceces iv

OPINIONS BELOW. ...... 0. ccccccceccccccccesecseene 1

GROUNDS ON WHICH JURISDICTION IS INVOKED...... 1

STATUTES INVOLVED. ........-cccccceecseceenecens 1

STATEMENT OF THE CASE........-eceeeeeceeesscees 2

ARGUMENT. ..... cc ccccccccvcccecccevesccsesecces J

iv

TABLE OF AUTHORITIES

Cases: Page

1) Northeast Marine Terminal Co., Inc. v. Caputo,

ik te ay Ty) ys ron Corr are ra rr ie +

2) Pfieffer v. Diverson Ford, et al,

SOD BAX. DAD BOTA). ois See bawiedssvovevesesasesdes 8

< 3) Pennsylvania Railroad Co. v. O’Rourke,

Fa BER. BOS LETS uh oo 665 OW ence ntes eb ows ces 5

OPINIONS BELOW

BRB NO. 76-388, decision filed January 20, 1978,

Reported at BRBS

U.S. Fifth Circuit Court of Appeals,

No. 78-1483, decision of July 21, 1980

Reported at 622 F2d. 100 (5th Cir. 1980)

Opinion of Administrative Law Judge,

Dated April 13, 1976, No. 76-LHCA-213,

OWCP No. 7-34536

GROUNDS ON WHICH JURISDICTION IS INVOKED

The date of the judgment of the U.S. Fifth

Circuit Court of Appeals sought to be

reviewed is July 21, 1980.

The statutory provision conferring jurisdiction

upon this Court to review this judgment by

writ of certiorari is 28 U.S.C. 2101.

STATUTES INVOLVED

33 U.S.C. 902

33 U.S.C, 903

STATEMENT OF THE CASE

Plaintiff, Garfield Maze, on the date of the accident, July

9, 1973, was sent by his employer, Odom Construction Com-

pany, to perform certain tasks at the Domtar Salt Mine Facili-

ties near Franklin, Louisiana. He had been instructed to cut and

tie cables to four barge concrete blocks in order to facilitate

the removal of the blocks from the edge of a navigable canal.

Several years prior to the incident, Domtar had placed the

blocks on dry land to provide a method of tying up salt barges

either awaiting removal to the Domtar loading facility or,

after the barges were loaded at the facility and returned to the

blocks, awaiting tow boats for their removal. Odom Construc-

tion, plaintiffs employer, took no part whatsoever in the tying

up, loading or fleeting of said barges.

Over the period of years following initial placement of

these blocks on dry land, erosion of the banks of the canal

caused the blocks to be in the edge of the water at the time of

plaintiff's injury.

The entire operation and involvement of Odom Construc-

tion, the plaintiffs employer, consisted of furnishing equip-

ment, the plaintiff and one other worker necessary to remove

these blocks to dry land and this procedure took two days to

perform.

At the time of plaintiff’s injury, near the end of the first

day’s work, plaintiff was standing some 20 feet from the water’s

edge on a dirt road. He was using an oxy-acetylene torch to

cut a cable to the proper length. The cable was to be attached

3

to one of the four concrete blocks in order to pull that block

from the water’s edge the following day. The torch exploded,

causing burns to both arms and the face of plaintiff.

Upon trial of the matter, evidence was elicited which in-

dicated that plaintiff had only de minimis contact with any

activities of his employer that had even a remotely maritime

connexity. The job being performed by plaintiff at the time of

his injury was only remotely related to maritime activity.

The accident occurred in an area that was not custom-

arily used by his employer in either loading, unloading, re-

pairing or building any vessels.

ARGUMENT

The Fifth Circuit Court of Appeals has decided an im-

portant question of federal law which has not been, but should

be, settled by this Court. This decision may also be in conflict

with applicable decisions of this Court.

There is no doubt that plaintiff-appellee was employed

by defendant-appellant, Odom Construction Company, but a

serious question exists as to whether or not plaintiff-eppellee

is an employee within the intendment of 33 U.S.C. 902(3),

which provides:

‘“‘The term ‘employee’ means any per-

son engaged in maritime employment,

including any Fis pian or other

son engaged in longshoring opera-

iieak iadaee harborworker, ss

a ship repariman, ship builder, an

ship-breaker. . .”

4

Necessarily, because of the statutory construction, to

adequately define employee one must also define the term

maritime employment. In a most important case interpreting

the 1972 amendments to the Longshoreman’s Act. Vortheast

Marine Terminal Co., Inc. v. Caputo, 97 S.Ct. 2348 (1977), this

Court undertook this task. It should be recalled that, although

their injuries occurred on land, both Respondent Caputo and

Respondent Blundo were engaged in handling ship’s cargo. Con-

ceding that Caputo and Blundo were employed by petitioners,

the Court first examined congressional intent to determine

whether or not there was a congressional purpose for expanding

the coverage of the LHWCA to include Caputo. The reason, of

course, was found in the House Report, H.Rep. 639 (67th

Cong. 2d Sess. 2), setting forth the initial reasons for the first

congressional attempts to provide a compensation act for mari-

time workers. At n. 12, the Court quoted:

“They are part of the local labor force

and are permanently subject to the

same conditions as are other local

workmen. The work of longshoremen

is not all on ship. Much of it is on the

wharves. They may be at one moment

unloading the dray or a railroad car or

moving articles from one point on the

dock to another, the rest actually en-

ed in the process of loading or un-

Coten cargo. Their need for uniform-

ity is one law to cover their whole

employment, whether directly part

of the process of loading or va ie, “ot

a ship or not.”

That plaintiff-appellee is not part of that labor force in-

tended to be covered by Congress and was not permanently

subject to the same conditions as other local workmen is best

exemplified by plaintiff-appellee’s own testimony. Additionally,

unlike Caputo and Blundo, when asked to describe his work in

general and not the work specifically being done at the time of

the accident, plaintiff-appellee described it as cement finishing

and building forms; that he did not operate any type of heavy

equipment, nor did he do any welding or cutting. (Tr. at 31).

Plaintiff apparently testified that in addition to the job

that he was on at the time of his injury, he had only previously

been on two other jobs involving any proximity to the water,

but only described one of those jobs as being on navigable

waters. (Tr. at 127-128).

On the other hand, Mr. Odom, testifying and corrobo-

rating his testimony through the use of plaintiff-appellee’s time

sheets, stated that plaintiff apparently had never been on

another job where he was anywhere close to navigable waters.

(Tr. at 119).

Prior to the 1972 amendments to the LHWCA, it was not

necessary that an employee be engaged in maritime employ-

ment, as long as he was injured while upon navigable waters.

Pennsylvania Railroad Co. v. O’Rourke, 73 S.Ct. 302 (1953).

Caputo held otherwise. The Court, in addressing itself to the

expanded definition of ‘‘navigable waters” found in 903(a),

stated at page 2357-2358:

“But with the definition of ‘navigable

waters’ expanded by the Amendments

to include such a large geographical

area, it became necessary to describe

affirmatively the class of workers

Congress desired to compensate. It

therefore added the requirement that

the injured worker be ‘engaged in

maritime employment’ which it de-

fined to include ‘any longshoreman

or other person engaged in longshor-

ing operations, and any harborworker

including a ship repariman, ship

builder and shipbreaker, but. . . not

. .amaster or member of a crew of

any vessel or any person engaged b

the master to load or repair any iia

vessel under eighteen tons net.” 33

U.S.C. %902(3).

The amendments thus changed what

had been essentially only a ‘situs’ test

of eligibility for compensation to one

looking to both the ‘situs’ of the injury

and the ‘status’ of the injured. We

must now determine whether respond-

ents satisfied these requirements.”

The Court thus found that to determine Caputo’s

“status”, it must determine whether Caputo was engaged in

“maritime employment” and therefore an ‘‘employee’’ at the

time of his injury. Relying upon a typical, but non-exclusive,

example given by Congress, the Court quoted at length n. 27

on page 2358:

“The intent of the Committee is to

permit a uniform compensation sys-

tem to apply to employees who would

7

otherwise be covered by this Act for

part of their activity. To take a typical

example, cargo, whether in break bulk

or containerized form, is typically

unloaded from the ship and immedi-

ately transported to a storage or

holding area on the pier, wharf, or

terminal adjoining navigable waters.

The employees who perform this

work would be covered under the bill

for injuries sustained by them over the

navigable waters or on the adjoining

land area. The Committee does not

intend to cover employees who are

not engaged in loading, unloading, re-

pairing, or building a vessel, just be-

cause they are injured in an area ad-

joining navigable waters used for such

activity. Thus, employees whose re-

sponsibility is only to pick u stored

cargo for further transshipment

would not be covered, nor would

purely clerical employees whose jobs

do not require them to participate in

the loading or unloading of cargo.

However, = Be Blog for example,

are directly involved in the loading or

unloading functions are covered by

the new amendment. Likewise the

Committee has no intention of ex-

tending coverage under the Act to in-

dividuals who are not employed by a

person who is an employer, i.e., a

person at least some of whose em-

ployees are engaged, in whole or in

part, in some form of maritime em-

ployment. Thus, an individual em-

ployed by a person none of whose em-

ployees oak. in whole or in part, on

navigable waters, is not covered even

if injured on a pier adjoining navigable

waters. (Emphasis added.)

An important, recent case decided by this Court is P.C.

Pfeiffer Co., Inc. v. Ford, 100 S.Ct. 328 (1979) in which the

“occupational test” doctrine was further examined.

A worker such as Caputo or Blundo, who works on land,

but who also checks, marks or otherwise handles cargo is

covered by the Act. This Court also noted that:

“Landbased workers who do not

handle containerized cargo also may

be engaged in loading, unloading, re-

pairing or building a vessel.” P.C.

Pfieffer Co., Inc. v. Ford, 100 S.Ct.

328 (1979).

Presumably, the listed categories of workers would also

be covered. In the above-cited case, this Court held Respondent

Ford to have been engaged in the type of duties that long-

shoremen perform in transferring goods between ship and land

transportation and consequently, to be covered by the Act,

although injured on :and.

Mr. Maze, at the time of his injury, was engaged in cut-

ting steel lines with a welding torch in order to move concrete

blocks from the water’s edge to dry land. It is submitted that

this is not the type of work traditionally engaged in by long-

shoremen, nor was he involved in the repairing or building of a

vessel.

It is not rational to think that the Congress, in its clearly

expressed intent to cover certain employees for all of their

activities in order to provide uniformity when they would

otherwise only be covered for part of their activities, intended

that the LHWCA cover that employee for all of his activities

when his contact with traditionally maritime employment was

strictly of a de minimis nature. This is made clear by the Caputo

decision at page 2362, where the Court states:

“The Act focuses primarily on occu-

pations —— _longshoreman, harbor

worker, ship repairman, shipbuilder,

shipbreaker. Both the test and the his-

tory demonstrate a desire to provide

continuous coverage throughout their

employment to these amphibious

workers who, without the amend-

ments, would be covered only for part

of their activity. It seems clear, there-

fore, that when Congress said it

wanted to cover ‘Siahsetinen”. it

had in mind persons whose employ-

ment is such that they spend at least

some of their time in indisputable

longshoring operations and who,

without the amendments, would be

cevered for only part of their activ-

ity.” (Emphasis added.)

That these concrete blocks were to be used to anchor

barges belonging to someone other than defendant-appellant,

Odom Construction Company, is not controverted. That these

concrete blocks resemble neither a pier or wharf is given. They

are used only for the temporary securing of barges and not for

loading or unloading. (Tr. at 110).

In the words of Caputo at 2362:

“It seems clear, therefore, that when

Congress said it wanted to cover ‘long-

10

shoremen’, it had in mind persons

whose employment is such that they

spend some of their time in indis-

putable longshoring operations and

who, without the amendments would

be covered for only part of their activ-

ity.” (Emphasis added.) 7

It is to be noted that plaintiff-appellee herein would have

apparently been covered for none of his activities prior to the

amendments in view of the paucity of testimony that he had

worked over navigable waters, and in view of the fact that his

injury occurred upon dry land. It is further submitted that it

was not the congressional intent to cover claimants, as plaintiff-

appellee herein, who had only de minimis contacts with mari-

time activity.

To allow a land-based construction worker such as the

plaintiff to be classified as a maritime worker under the Act

would upset the intended sharing of risks resulting from in-

surance coverage. Premiums are paid at differing rates based

upon coverage afforded, and to require maritime coverage for

one such as plaintiff, who was only fleetingly in proximity to a

navigable waterway, would require a re-structuring of all cover-

ages provided to construction companies such as your petitioner

and, for the most part, needles expenditure of premium dollars

and overhead expense.

The Court should grant the requested writ in order to

clear up this question which has never been directly addressed

by this Court in consideration of a non-cargo handler, non-

shipbuilder or non-‘ship-breaker”’, but merely a land-based con-

struction worker. -

11

STATE OF LOUISIANA

PARISH OF LAFAYETTE

BEFORE ME, the undersigned authority, personally

came and appeared:

JOHN A. BIVINS

who, after being duly sworn stated:

That to his knowledge, information and belief the mailing

of the Petition for a Writ of Certiorari to the Fifth Circuit Court

of Appeal, in the matter of Odom Construction Company, Inc.

and American Mutual Liability Insurance Company vs. Benefits

Review Board and Garfield Maze, Jr., In the Supreme Court of

the United States took place on the 20th day of October, 1980.

S_

JOHN A. BIVINS

SWORN TO AND SUBSCRIBED, BEFORE ME, this

20th day of October, 1980.

12

PROOF OF SERVICE

I HEREBY CERTIFY that the required number of copies

of the foregoing Petition for a Writ of Certiorari were properly addressed

to all parties and deposited in the United States Mail, postage prepaid, as

follows: |

1. 40 copies of the Petition to the Office of the Solicitor

—_ Department of Justice, Washington, D.C

2. Mr. John E, Conery

Attorney at Law

P.O. Box 1026

Franklin, Louisiana 70538

Attorney for Garfield Maze, Jr.

3. Benefits Review Board

U.S. Department of Labor

Director, Office of Workers’

Compensation

1111 20th Street, N.W.

Suite 757

Washington, D.C. 20036

Lafayette, Louisiana, this day of November, 1980.

JOHN A. BIVINS

A)

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APPENDIX

33 U.S.C. 902:

‘Definitions.

When used in this chapter ~

1) The term ‘person’ means individual, partnership,

corporation, or association.

2) The term ‘injury’ means accidental injury or death

arising out of and in the course of employment and such

occupational disease or infection as arises naturally out

of such employment or as naturally or unavoidable re-

sults from such accidental injury, and includes an injury

caused by the willful act of a third person directed a-

gainst an employee because of his employment.

3) The term ‘employee’ means any person engaged in

maritime employment, including any longshoreman or

other persons engaged in longshoring operations, and any

harborworker including a ship repariman, shipbuilder,

and shipbreaker, but such term does not include a master

or member of a crew of any vessel, or any person engaged

by the master to load or unload or repair any small vessel

under eighteen tons net.

4) The term ‘employer’ means an employer any of

whose employees are employed in maritime employment,

in whole or in part, upon the navigable waters of the

United States (including any adjoining pier, wharf, d

dock, terminal, building way, marine railway, or other 7

joining area customarily used by an employer in loading,

unloading, repairing, or building a vessel).

5) The term ‘carrier’ means any person or fund

authorized under section 932 of this title to insure under

this chapter and includes self-insurers.

6) The term ‘Secretary’ means the Secretary of Labor.

7) | The term ‘deputy commissioner’ means the deputy

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commissioner having jurisdiction in respect of an injury

or death,

8) The term ‘State’ includes a Territory and the Dis-

trict of Columbia.

9) The term ‘United States’ when used in a geo-

pm sense means the several States and Territories

and the District of Columbia, including the territorial

waters thereof.

10) ‘Disability’ means incapacity because of injury to

earn the wages which the employee was receiving at the

time of injury in the same or any other employment.

11) ‘Death’ as a basis for a right to compensation

means only death resulting from an injury.

12) ‘Compensation’ means the money allowance pay-

able to an employee or to his dependents as provided for

in this chapter, and includes funeral benefits provided

therein.

13) ‘Wages’ means the money rate at which the service

rendered is recompensed under the contract of hiring in

force at the time of the injury, including the reasonable

value of board, rent, housing, lodging, or similar advan-

tage received from the employer, and gratuities received

in the course of employment from ch sa than the em-

ployer.

14) ‘Child’ shall include a posthumous child, a child

legally adopted prior to the injury of the employee, a

child in relation to whom the deceased employee stood in

loco parentis for at least one year prior to the time of in-

jury, and a stepchild or acknowledged illegitimate child

dependent upon the deceased, but does not include

married children unless wholly dependent on him.

‘Grandchild’ means a child as above defined of a child as

above defined. ‘Brother’ and ‘sister’ includes stepbrothers

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and stepsisters, half brothers and half sisters, and brothers

and sisters by adopted, but does not include married

brothers nor married sisters unless wholly dependent on

the employee. ‘Child’, ‘grandchild’, ‘brother’, and ‘sister’

include only a person who is under eighteen years of age,

or who, —— eighteen years of age or over, is (1)

wholly dependent upon the employee and incapable of

selr-support by reason of mental or physical disability, or

(2) a student as defined in paragraph (19) of this section.

15) The term ‘parent’ includes step-parent and parents

by adoption, parents-in-law and any person who for more

than three years prior to the death of the deceased em-

ployee stood in the place of a parent to him, if dependent

on the injured employee.

16) The terms ‘widow or widower’ includes only the

decedent’s wife or husband living with or dependent for

support upon him or her at the time of his or her death;

or living apart for justifiable cause or by reason of his or

her desertion at such time.

17) The terms ‘adoption’ or ‘adopted’ mean legal adop-

tion prior to the time of the injury.

18) The term ‘student’ means a person regularly pur-

suing a full-time course of study or training at an insti-

tution which is -

(A) A school or college or university operated

or directly supported by the United States, or by

any State or local government or political sub-

division thereot.

(B) A school or college or university which has

been accredited by a State or by a State recognized

or nationally recognized accrediting agency or

body.

(C) A school or college or university not so ac-

A-4

credited but whose credits are accepted, on trans-

fer, by not less than three institutions which are so

accredited, for credit on the same basis as if trans-

ferred from an institution so accredited, or

“(D) An additional type of educational or train-

ing institution as defined by the Secretary.

but not after he reaches the age of twenty-three or has

completed four years of education beyond the high

school level, except that, where his tewnty-third birthday

occurs during a semester or other enrollment period, he

shall continue to be considered a student until the end

of such semester or other enrollment period. A child shall

not be deemed to have ceased to be a student during any

interim between school years if the interim does not ex-

ceed five months and if he shows to the satisfaction of

the Secretary that he has a bona fide intention of contin-

uing to pursue a fulltime course of education or training

during the semester or other enrollment period imme-

diately following the interim or during periods of reason-

able detetiod during which, in the judgment of the Secre-

tary, he is prevented by factors beyond his control from

pursuing his education. A child shall not be deemed to be

a student under this chapter during a period of service

in the Armed Forces of the United States.

19) The term ‘national average weekly wage’ means the

national average weekly earnings of production or non-

supervisory workers on private nonagricultural payrolls.

20) The term ‘Board’ shall mean the Benefits Review

Board.

21) The term ‘vessel means any vessel upon which or

in connection with which any person entitled to bene-

fits under this chapter suffers injury or death arising out

of or in the course of his employment, and said vessel’s

owner, owner pro hac vice, agent, operator, charter or

bare boat charterer, master, officer, or crew member.

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22) The singular includes the plural and the masculine

includes the feminine and neuter.”

B) 330U.S.C. 903:

‘‘(a) 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 custom-

arily used by an employer in loading, unloading, re-

pairing, or building a vessel). No compensation shall be

payable in respect of the disability or death of ~

1) A master or member of a crew of any vessel, or

any person engaged by the master to load or un-

load or repair any small vessel under eighteen tons

net; or

2) An officer or employee of the United States or any

agency thereof or of any State or foreign govern-

ment, or of any political subdivision thereof.

(b) No compensation shall be payable if the injury was

occasioned solely by the intoxication of the employee or

by the willful intention of the eraployee to injury to kill

himself or another.”’

A6

C) Opinions Attached:

1) BRB NO. 76-388, Decision filed January 20, 1978.

2) U.S. Fifth Gircuit Court of Appeals, No. 78-1483, Decision of

July 21, 1980

Reported at 622 F.2d 100 (5th Gir. 1980).

3) Opinion of Administrative Law Judge,

Dated April 13, 1976, No. 76-LHCA-213, OWCP No. 7-34536.

Ae7

GARFIELD MAZE, JR. Benefits Revies Board

Claimant Case No, 76-LHCA-213

v. OWCP No, 7-34536

A-8

DIBCISION AND ORDER

This proceeding is on the claim of Garfield Maze, Jr., for

compensation under the provisions of the Longshoremen’s and Harbor

Workers’ Compensation Act, 33 U.S.C. § 901, et seq. (hereinafter re-

. ferred to as “the Act”), Pursuant to the provisions of Section 19(d) of

the Act, 33 U.S.C. §919(d), and the Rules and Regulations set out in

Parts 701 and 702 of Title 20, Code of Federal Regulations, a formal

hearing was held in the matter on January 15, 1976 in New Orleans,

Louisiana, The Claimant, Employer, and Carrier were afforded a full

opportunity to be heard, to adduce relevant evidence, to call, examine,

and cross-examine witnesses, to make oral argument and to submit post-

hearing briefs. The Solicitor of Labor, the Employer and Carrier (herein-

after together referred to as “Respondents”) and Claimant filed post-

hearing briefs which, together with Claimant's Pre-Trial Memorandum,

have been made part of the record in this proceeding and have been

fully considered in reaching a decision herein. 1/

Statement of the Case

The circumstances of Claimant's injury, as well as his work

history, are not in dispute. Claimant, Garfield Maze, Jr., was accidentally

injured on July 9, 1973 when an oxyacetylene torch that he was using to

cut wire rope, exploded, burning his forearms, His burns were treated by a

u/ Respondents filed a Supplemental Brief dated March

25, 1976, in response to the Solicitor'’s Brief. The Supplemental Brief has

also been made part of the record and has been fully considered in

reaching a decision herein.

A-9

local physician who discharged Claimant from his care on July 17, 1973,

and cleared his return to work, Since the time of the accident Gaimant has

only worked about seven weeks, contending that he is unable to remain

employed because of pain and weakness in his left wrist and hand caused

by burns sustained in the accident.

At the time of his injury Claimant was employed by Odom

Construction Company (hereinafter referred to as “Odom”), and was cut-

ting wire rope with an acetylene torch. The rope was fastened to concrete

blocks, weighing about 20 tons each, which were being used to moor

barges along a canal. The blocks, which were being moved to higher

ground, had sunk into the canal because of erosion caused by towboats.

The barges were being used to haul salt from the Domtar Salt Company

mine, which is adjacent to the Gulf of Mexico in Louisiana, to various

points in the United States via the canal and the Intracoastal waterway sys-

tem.

The Domtar salt mine itself is located on Miller’s Island,

which is bounded on one side by the Gulf of Mexico and on the other by

the Intracoastal Canal, Domtar’s canal, where Claimant was hurt, is about

500 feet long and connects Domtar’s docks, where salt is loaded onto

barges, with the Intracoastal Canal, which, in turn, connects with the In-

tracoastal Waterway System. Thus, a barge load of salt can be towed from

Domtar’s dock to any navigable river or waterway in the United States via

the Intracoastal Waterway. The purpose of the mooring blocks alongside

the Domtar canal was to secure barges waiting to be loaded at Domtar’s

dock. Barges could tie up to the blocks by attaching lines to the wire rope

7%

|

A-10

which was wrapped around each block.

Workmen's Compensation Act at the rate of $65 per week since the date

of the accident.

Issues

jurisdiction of the Longshore Act because Claimant does not have the

status of a maritime employee; and it is not an “employer” within the

meaning of Section 2(4) of the Act. In addition, Odom contends that

Claimant is not totally and permanently disabled, as he claims, but rather

is at most suffering from an impairment of 25 percent to 50 percent of the

left hand,

Opinion

It is the Presiding Officer’s judgment that Claimant's acci-

dent, not only comes within the jurisdiction of the Act, but that he is per-

manently and totally disabled.

I. Jurisdiction

In order to come within the jurisdiction of the Act, the

accident must have occurred upon the navigable waters of the United

States as defined in Section 3(a) of Act; Odom must meet the definition of

“employer” in Section 2(4) of the Act; and Claimant must meet the defi-

nition of “employee” in Section 2(3) of the Act.

The situs of Claimant’s accident was on the bank of a

canal which connects the Domtar salt mine with the Intracoastal Water-

way. These are navigable waters of the United States by virtue of the fact

A-11 oa

that the canal is used by commercial barges to access the Intracoastal

Waterway. Odom contends, however, that since it is not engaged in the

loading, unloading, repairing or building of vessels the fact that Claim-

ant’s accident may have occurred in an “adjoining area” was not enough

to confer jurisdiction. Odom also contends that its role on the day of the

accident was simply to raise the four concrete blocks which had slipped

into the canal because of erosion, and to imbed them on higher ground

so that they could continue to be used to moor barges awaiting their turn

to be loaded at Domtar’s docks; and this was not sufficient to bring it

within the Act.

Odom’s position is not sustained by the Act. Clearly, the

general area where Claimant was injured was used by an employer, Dom-

tar, to load its barges. The whole purpose of the concrete blocks on

which Claimant was working at the time of the accident was to moor

barges awaiting their turn to be loaded. The fact that neither Odom nor

the fee simple owner of the canal bank might have been e in

loading the barges is immaterial. The statute speaks in terms of an

eraployer, not the employer, and Claimant’s accident occurred in a pro-

tected situs under Section 3(a),

Odom is an employer within the meaning of Section 2(4)

of the Act. Mr. Jessie C. Odom, the company’s owner and manager testi-

fied that about 20 percent of Odorm’s business was maritime in nature,

consisting primarily of marine pile driving and bulkheading, by crews

specially designated for marine work. In support of that activity Odom

also owned several boats. Since Section 2(4) provides, in part, that an

“employer” is one, “any of whose employees are employed in maritime

A-12

employment, in whole, or in part, upon the navigable waters of the

United States” (Emphasis supplied), and since about one-fifth of Odom’s

workers are so employed, Odom must be considered an “employer”.

Ciaimant meets the definition of “employee” in Section

2(3), because the work in which he was engaged at the time of his in-

jury - cutting wire rope attached to barge mooring blocks - was clearly

maritime in nature, and the situs of his injury was upon navigable waters

of the United States as defined in Section 3(a) of the Act. The defintion

of “employee” in Section 2(3) is a broad one, since only two groups are

specifically excluded: masters or members of crews of vessels or any-

one engaged by the master to load, unload or repair a small vessel. There

appears to be no sound reason why Claimant could not be considered a

harbor worker; but even if the area where he was working when injured

should not be considered a “harbor’’, it is well established that the Act

is to be liberally construed in favor of the Claimant and that all factual

doubts are to be resolved in his favor. Voris v, Eikel, 345 U.S. 328, 333

(1973); J.V. Vozzolo, Inc. v. Britton, 377 F.2d 144 (D.C. Gr. 1967).

The area where Claimant was working was at the edge of a

navigable canal connecting the loading dock of the Domtar Salt Com-

panty with the Gulf Intracoastal Waterway, an avenue of maritime com-

merce. Claimant’s duties at the time of the accident were to dig under

four mooring blocks that had slipped by erosion into the canal, attach

wire rope to them so that they could be lifted from the canal by a winch

and reimbedded along the banks; and cut additional lengths of wire rope

which could be wrapped around the blocks at their higher elevations, so

that barges could be moored to them while awaiting a berth at the load-

A-13

ing dock. Clearly, Claimant was in a protected area within the meaning of

Section 3(a), because, however the canal bank is described, whether it is

a pier or wharf or “other adjoining area” it was used by Domtar for load-

ing its vessels - the salt barges. Claimant, having met both the status and

situs tests of the Act, will be found to be within the Act’s coverage.

Il. The Extent of Claimant’s Disabilicy

Claimant will be found to be totally and permanently

disabled. The starting point in reaching a determination as to the nature

and extent of disability is Section 20(a) of the Act, which creates a

statutory presumption that a claim comes within the Act. That section

has been recently interpreted by the United States Court of Appeals for

the District of Columbia Grauit (in Suinton v. J.Frank Kelly, Inc.,

Case No. 741164, decided February 3, 1976) and the Benefits Review

Board (in Norat v. Universal Terminal and Stevedoring Corp., BRB Nos.

75-162, 75-162-A, decided January 12, 1976); and the holdings of those

decisions are that the statutory presumption of Section 20(a) applies to

all elements of a daim, including the relationship between Maze’s acci-

dent and his disability.

There is no dispute herein that Claimant’s left hand and

wrist were injured in the accident out of which this claim arose. He testi-

fied that he attempted to work after the accident but the pain and weak-

ness in his left hand were such that surgical intervention was necessary,

approximately five months after the accident, in December 1973. From

then on he began taking physical therapy, but when there was no sub-

stantial improvement he was discharged from the active care of his physi-

cian, Dr. Cromwell, approximately one year after the surgery, in Decem-

A-14

ber 1974, At the hearing Mr. Maze testified that he still had no strength

in his left hand, Caimant’s testimony is substantiated by that of the phy-

sician who treated him, an orthopedic surgeon, Dr. Terry A. Cromwell,

whose deposition is in evidence, and who found upon his last examina-

tion of Mr. Maze in December 1974 that he had a marked weakness in

the grip of the left hand. That weakness was measured on a hand-gripping

device called a dynamometer, and ranged from an “unbelievably weak”

(Cromwell Deposition, p. 7) reading of five pounds on his first visit on

October 30, 1973 to 30 pounds of pressure at his final visit in December

1974. The relative weakness was all the more significant because Mr.

Maze was left-handed, and the grip strength of his right hand was 118

pounds (Deposition, p. 7). Based upon this weakness, Dr. Cromwell was

of the opinion that Mr. Maze would be unable to carry out any type of

heavy labor.

Rebutting Dr. Cromwell’s testimony is that of Dr. Irving

Redler, an orthopedic surgeon of thirty years’ experience who examined

Mr. Maze once, on July 2, 1975. Based upon that examination Dr. Redler

found no medical impairment of the left hand. However, in reaching this

condusion Dr. Redler did not administer a dynamometer test, because it

was “completely subjective” and “useless,” because “‘you have to depend

upon the cooperation of the patient and that takes it out of the realm of

objective opinion” (Redler Deposition, p. 15). Dr. Cromwell, when asked

during his deposition why he relied upon such a test, stated that the dyna-

mometer readings were consistent; they did not widely vary; ard the

measurements made by a Rehabilitation Center in February 1974, upon

A-15

which he also relied, were consistent with his own findings (Cromwell

Deposition, Attachment 2). Dr, Cromwell stated that he did not share the

opinion of Dr. Stokes, who had examined Mr. Maze, on or about Septem

ber 23, 1974, and concluded that he was not applying maximum pressure

with his left hand. 2/ Dr, Cromwell’s words were (Cromwell Deposition,

pp. 21-22):

“And the reason why I don’t share that o-

pinion is because I looked in his wrist. I

operated on him, and I saw him a number

of times, and I feel like he was telling me

the truth, .. .”

Claimant testified that at the time of the hearing he was

54 years of age; that he had a fourth grade education; and no formal

finishing, oil field construction and pipe line work, oyster shucking,

truck driving, and heavy labor-type work. His duties for Odom included

cement finishing, form-building, and heavy manual labor. All of the fore-

2/ Respondents’ objection to admission of the Rehabil-

itation Center’s Report dated February 21, 1974 because it is hearsay, is

overruled. It is in the same category as the testimony of Dr. Stokes,

which was admitted, even though he did not testify (Tr. 130). The Re-

habilitation Center Report has been considered only to the extent that

Dr. Cromwell referred to it in his deposition as having information con-

sistent with his own findings. Dr. Stoke’s report indicates that he used a

dynamometer test and that there was a wide variation in the measure-

ment of strength in the right and left hand; but his conclusion that the

patient was not applying maximum pressure with the left hand, as he was

instructed to do, is not substantiated in his report, and, therefore, cannot

be given any weight (Respondent’s Exhibit 10, p. 2).

A-16

going jobs involve heavy use of hands, wrists, and arms.

In concluding that Claimant is permanently and totally

disabled the Presiding Officer is relying upon the testimony of Dr. Crom-

well rather than Dr. Redler. Not only was Dr. Cromwell better

acquainted with Mr. Maze, having treated and observed him over a period

of many months, but also his examination of the left wrist was more

complete. 9/

Dr. Redler’s opinion that dynamometer testing of hand strength was not

valid was shared evidently by neither Dr. Stokes nor the Rehabilitation

Center, both of whom used the test. Since Dr. Redler’s opinion was not

based on all the relevant facts, the dynamometer test having been omit-

ted, Odom has not rebutted the presumption of Section 20(a) by sub-

stantial evidence and a finding regarding physical impairment must be

made in favor of Gaimant.Norat, supra, at 6.

It is well settled that the degree of disability cannot be

measured by physical condition alone, but there must also be considered

such other factors as age, education, industrial history, and availability

of work which Claimant can do. St. Clair Blakes v. Dixie Stevedores, Inc.,

BRB No. 75-193, decided December 2, 1975. The facts regarding Mr.

Maze’s age, education, and industrial history have already been recited.

In addition the testimony of record is that Claimant lives in Franklin,

3/ ‘The fact that Dr, Redler may have examined Mr. Maze

about seven months after Dr. Cromwell I find to be without significance.

In his deposition Dr. Redler gave no substantial reason why his opinion

ought to be given greater weight because of that fact. (See Redler Depo-

sition, pp. 33-36).

A-17

Louisiana, a small community about 125 miles from New Orleans. Job

opportunities are scarce there for persons with Mr. Maze’s background.

In any event, the burden was on Odom to show that suitable work op-

portunities are available for the injured employee. Offshore Food Service

v. Murillo, 1 BRBS 9,11 (1974). The burden was not met by Respond-

ents; so Claimant must be found to be totally and permanently disabled.

Therefore, based upon the entire record in this proceed-

ing, including my observation of the witnesses and their demeanor, as

well as my study of the applicable law, I make the following Findings of

Fact, Conclusions of Law, and Order.

Findings of Fact

1. Claimant, Garfield Maze, Jr., at the time of the hearing

was 54 years old, and has a fourth grade education.

2. Claimant's industrial history consists of employment as

a carpenter, cement finisher, oil field construction worker, pipe line

worker, truck driver, oyster shucker, and manual laborer.

3, Claimant, on July 9, 1973, while employed by Odom

Construction Co., Inc., was accidentally burned when the hose parted on

an acetylene torch which he was using to cut wire rope.

4, Claimant’s accident occurred on a navigable canal con-

necting a loading dock of the Domtar Salt Co. with the Gulf Intracoastal

Waterway.

5. Claimant at the time of his accident was cutting wire

rope attached to barge mooring blocks which had slipped by erosion into

the canal.

A-18

6. Claimant’s average weekly wage at the time of the acci-

dent was $151.75, which yields a compensation rate of $101.17 per

week.

7. Claimant has been paid compensation under the

Louisiana Workmen’s Compensation Act at the rate of $65 per week

since the time of the accident.

8. Claimant sustained a burn on his left wrist for which

he received treatment until December 1974.

9. Claimant returned to Odom on or about July 30,

1973, and worked until September 27, 1973, when he quit. The reason

that he quit his job was because of continuing pain and weakness in his

left hand.

10. Claimant also tried truck driving and cement finishing

since the accident, but was unable to perform those tasks because of

weakness in his left hand.

11. Claimant has been offered no other employment suit-

able to his age, educational and industrial history, or physical condition.

12. Claimant has reached the maximum level of medical

13. At the time of the hearing Claimant was unemployed,

and has been unemployed except for the period of time in which he

worked for Odom following the accident.

Conclusions of Law

1. At the time of his accident, Claimant was an “‘crmploy-

ee” within the meaning of Section 2(3) of the Act, and was injured upon

A-19

the navigable waters of the United States, as defined in Section 3(a) of the

Act. 33 U.S.C. § §902(3) and 903(a).

2. At the time of his injury Claimant was engaged in mari-

time employment, and the injury arose out of and in the course of such

employment, within the meaning of Sections 2(a) and 2(3) of the Act.

33 US.C § §902(a) and 903(3).

3. Claimant is entitled to an award of compensation under

Section 3(a) of the Act for permanent total disability under Section 8(a)

of the Act. 33 U.S.C. § §903(a) and 908(a).

4, Claimant’s permanent total disability commenced on

July 9, 1973, and Claimant is entitled to compensation at the rate of

$101.17 per week.

5. Any payments of compensation should be reduced by

the amount of compensation that Claimant has received under the Louisi-

ana Workmen’s Compensation Act. Western Boat Builders Co. v. O'Leary,

198 F.2d 409, 411, 412 (9th Gir. 1952),

6. Any payments of compensation should be reduced by

the amounts which Claimant earned following his accident while in the

employ of Odom Construction Company.

7. An assessment of interest at the rate of six (6) percent

per annum must be made against the Employer, computed from the date

that each compensation payment was due and until it is paid. Ryan v.

McKie, 1 BRBS 221, 229-230 (1974).

8. The Employer or Carrier is liable for an award of a

reasonable fee of Claimant’s attorney-atlaw, under Section 28(d) of the

Act. 33 U.S.C. $928(d).

A-20

9, The Employer or Carrier is also liable for costs for neces-

sary witnesses, attending the hearing. This would include the costs of

taking depositions of necessary witnesses. Since 1 am hereby finding Dr.

Terry A. Cromwell to be a necessary witness, I am assessing against the

Employer and Carrier the cost of taking his deposition, in the amount of

$82 (Claimant’s Exhibit 2). 33 U.S.C. §928(d).

10. Claimant is entitled to payment by the Employer or

Carrier of, or reimbursement for, the reasonable cost of such medical treat-

ment and care as the nature of his injury, may require in the future. Act,

Section 7; 33 U.S.C. §907.

Order

1. The Employer or Carrier shall pay compensation to

Claimant in a lump sum at the rate of $101.17 per week from July 9,

1973 to the date of this order; and, thereafter, in semi-monthly install-

ments until otherwise ordered.

2. Compensation payments shall be subject to deductions

for payments made to Claimant under the Louisiana Workmen’s Com

pensation Act and for wages paid by the Employer to Claimant since the

date of the accident.

3, The Employer or Carrier shall pay interest to Caimant

on accrued benefits at the rate of six (6) percent per annum, computed

from the date that each payment was made and until paid; and the total

amount of such payments as are now due and owing shall be paid to

Claimant in a lump sum.

4. Claimant’s attorney will file an application for an

attorney’s fee within thirty (30) days of the date of this Order. Such

application shall conform to Sections 702.132-702.135 of the US.

A-21

Department of Labor, and be accompanied by a certificate showing

service upon Respondents’ counsel, who will have ten (10) days in which

to file a response. The ten day period will commence with the postmark

date of the application and end with the postmark date of the response.

5. The Employer or Carrier shall pay directly to Elaine D.

Gallaspy, Court Reporter, P.O. Box 51946, Lafayette, Louisiana 70501,

the amount of $82 in a lump sum.

6. The Employer or Carrier shall pay Claimant for, or re-

imburse him for, the reasonable cost of all necessary medical treatment

and care as the nature of his injury may in the future require.

A-22

GARFIELD MAZE, JR.

Claimant-Respondent

v. Benefits Review Board

ODOM CONSTRUCTION OO,, INC BRB No, 76-388

and DECISION

AMERICAN MUTUAL LIABILITY INSURANCE

OOMPANY

Employer /Carrier-

Petitioners

DIRECTOR, OFFICE OF WORKERS’

OOMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR

Party-in-Interest

Appeal from the Decision and Order of John J, O'Malley,

Jr., Administrative Law Judge, United States Department

of Labor,

John A. Bivins (Mouton, Roy, Carmouche, Hailey, Bivins

and McNamara), Lafayette, Louisiana, for the employer/

carrier,

Mary A. Sheehan (Carin Ann Clauss, Solicitor of Labor,

Laurie M. Streeter, Associate Solicitor), Washington, D.C,

for the Director, Office of Workers’ Compensation Pro-

grams, United States Department of Labor,

Before: SMITH, Chairman, and MILLER, Member.

MILLER, Member:

This is an appeal by the employer/carrier from a Decision

and Order (76-LHCA-213) of Administrative Law Judge John J.

O'Malley, Jr., pursuant to the provisions of the Longshoremen’s and

A-23

Harbor Workers’ Compensation Act, as amended, 33 U.S.C, §901 et seq.

(hereinafter referred to as the Act).

Claimant, Garfield Maze, Jr., was injured on July 9, 1973

when an oxyacetylene torch he was operating blew up. The explosion

and fire burned his hands and forearms, Claimant is left-handed. His left

were treated by a physician and he was discharged from treatment when

they healed, Claimant experienced continued soreness and weakness in

his left hand, arm and wrist, In November of 1973 he was referred to a

specialist by the employer’s insurance carrier. His condition was diag-

nosed as tenosynovitis and carpal tunnel compression. Claimant under-

went surgery in December 1973 in order to relieve the pain and weakness

he was experiencing in his left hand and arm, After surgery and a course

of physical therapy there was, according to claimant's testimony, no sub-

stantial reduction of pain or increase in strength in his left hand,

At the time of his injury, claimant was employed by

Odom Construction Company. Odom had a contract with Domtar Salt

Company to move four concrete blocks out of a man-made canal and

onto higher ground on the bank. The blocks had slipped into the water

because of the erosion of the canal bank. A dock runs down the center of

this canal. Barges are loaded with salt at the dock and then hauled to the

These barges tie up to one of the concrete blocks along the bank, so they

will not drift, while they wait for room at the loading dock. Claimant

was preparing to cut some wire cable to wrap around the block as a hoist

when he was injured, |

A-24

At the formal hearing Odom contested jurisdiction and

degree of disability, The administrative law judge found that the claim

came within the jurisdiction of the Act and that claimant was perma-

nently totally disabled. An award of compensation was made, Odom has

appealed to this Board arguing that the administrative law judge erred in

finding the daim within the jurisdiction of the Act, and finding that

claimant's disability is cotal.

Odom denies that claimant is an “employee”. The Act de-

fines an “employee” as

any person engaged in maritime employ-

ment, incl 4 He aera

person e imac bya vem

and any -worker incl ee

pairman, shipbuilder, and ship-breaker. . .

33 U.S.C. §902(3). The definition in Section er

“maritime employment”. It specifically mentions longshoremen and har-

bor workers but “maritime employment” is an even broader category.

In Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533

(Sth Cir, 1976) the U.S. Court of Appeals for the Fifth Gircuit held that

certain workers injured while handling cargo on shore or while fabricating

parts on shore to be installed on a newly launched ship are maritime em

ployees, The court concluded that these workers were “directly involved”

with longshoring and shipbuilding work. The court went on to state that,

b]y this hol do not to

paso Vnp Doe a at te

be characterized as loading wre ee

ag dere iene breaking, and

not y involved” ar lentenee

It has been held that a worker who was sandblasting a dis-

assembled crane used in shipbuilding is engaged in maritime employment,

since repair and maintenance was an essential aspect of the business. Alo-

bama Dry Dock and Shipbuilding Co. v. Kininess, 554 F.2d 176 (5th Cir.

1977). Likewise, those who maintain and repair equipment used in

loading and unloading cargo from ships are maritime employees. Tex-

ports Stevedore Co. v. Winchester, 554 F.2d 245 (5th Cir. 1977); Brad-

shaw v. J.A. McCarthy, Inc., 3 BRBS 195, BRB No. 75-209 (Jan. 26,

1976), Aff'd, No. 76-1146 (3nd Cir. Sept. 19, 1977); Herron v. Brady-

Hamilton Stevedore Co., 1 BRBS 273, BRBNo. 74-171 (Jan. 23, 1975).

An engineer who died while being trained as a scuba diver

to inspect the underwater facilities of his employer was held to be a mari-

time employee. Sharp v. Pacific Gas and Electric Co., 2 BRBS 381, BRB

No. 75-170 (Oct. 30, 1975). In that case this Board stated that

activities, 33 U.S.C, $902(3).

Sharp, supra at 384.

A-26

Therefore, we conclude claimant is covered by Section 2(3)

of the Act in that the work he performed was maritime employment. He

was repairing and maintaining a temporary docking area in a ship loading

facility. This waiting area requires periodic maintenance, as did the ship

loading equipment in Texports Stevedore Co. v. Winchester, supra. The

temporary docking arrangement was essential and functionally related to

the safe, orderly barge loading process at Domtar’s Salt Mine.

Employer also argues that the injury which claimant suf-

fered did not occur at an appropriate situs as specified in Section 3(a) of

the Act. 33 U.S.C. §903(a). That section states that

It has been held that an area within a shipbuilding facility

where men repair, assemble and maintain equ’pment used in shipbuilding

is a situs as described in Section 3(a). This is so even though the main-

tenance area is several blocks away from the water’s edge. Texports

Stevedore Co. v. Winchester, supra at 247; Alabama Dry Dock and Ship-

building Co. v. Kininess, supra at 178. Clearly an area at the water’s edge

which is customarily used as a wharf and is within the employer’s ship

loading facility is such a situs. Although no actual loading or unloading

A-27

goes on at this exact location it is a necessary temporary landing place

for barges and is essential to the shiploading operation at the pier a short

distance across the canal.

Odom also argues that a proper reading of the parentheti-

cal language in Section 3(a) requires that the claimant’s own employer

must use the area to load, unload, repair or build a vessel in order for it

to be a covered situs. The Board has interpreted this language in accord-

ance with its plain meaning and has not required a specific employer to

load or unload vessels at the situs. Harris v. Maritime Terminals, Inc., 1

BRBS 301, 305, BRB No, 74-178 (Feb. 3, 1975).

Odom repeats this argument in reference to identical lan-

guage in Section 2(4) of the Act. 33 U.S.C. §902(4). Odom contends

that it is not an employer since it is not involved in loading, unloading,

repairing or building a vessel. Section 2/4) only requires that the claim

ant’s own employer have employees engaged in maritime employment to

be a covered employer. The Fifth Gircuit in Jacksonville Shipyards v.

Perdue held that “if a daimant can satisfy Sections 902(3) and 903(a),

his employer is automatically brought within Section 902(4).” See also

Kelly v. Handcor, Inc., 1 BRBS 319, 323-24, BRB Nos. 74-165, 165A

(Feb. 28, 1975); Harris v. Maritime Terminals, Inc., 1 BRBS 301, 304,

BRB No. 74-178 (Feb. 3, 1975); Thompson v. Oceanic Container Ser-

vice, 5 BRBS 831, 835, BRB No. 76-294, (May 12, 1977). Odom, there-

fore, fulfills the definition of an employer under Section 2(4) of the Act.

Since the injury occurred to a maritime employee, em-

ployed by a covered employer, at an appropriate situs, daimant is within

the jurisdiction of the Act.

A-28

Finally, Odom contends that the administrative law judge

erred when he found that daimant was permanently and totally disabled.

The Board must affirm the Decision of the administrative law judge when

it is supported by substantial evidence, is not irrational and is in accord-

ance with law, 33 U.S.C. §921(b)(3); O'Keefe v. Smith Associates, 380

U.S. 359 (1965).

Disability is an economic concept based on a medical

foundation. Owens v. Traynor. 396 F.2d 783 (4th Cir. 1968), cert. de-

nied, 393 U.S. 962 (1968). Disability therefore cannot be measured by

physical condition alone. Consideration must be given to claimant’s age,

education, industrial history, and the availability of employment he can

perform after the mjury. American Mutual Ins. Co. v. Jones, 426 F.2d

1263 (D.C. Gir. 1970). The administrative law judge relied heavily on the

claimant’s testimony and that of claimant’s doctor in arriving at the con-

clusion that daimant is permanently totally disabled. Uncontested evi-

dence in the record indicates that claimant was 54 years old at the date

of the hearing, that he has a fourth grade education, and that his work

history is entirely made up of jobs which involve heavy use of hands,

wrists, and arms. Claimant testified that he has attempted to work as a

truck driver and as a cement finisher since the time of the accident but

that he is unable to do either of these jobs because of weakness and pain.

Mr, Odom testified that there were jobs for unskilled

laborers in the area where claimant lived but on cross-examination he in-

dicated that these jobs all require use of both hands. He testified that he

had no familiarity with the job market for someone unable to do heavy

labor or construction work.

A-29

The burden is on the employer to establish

that an employee injured in the course of

rath: Sayre oye: wach ama

Perini Corp. v. Heyde, 306 F.Supp. 1321, 1325-26 (DRL. 1969). See

also American Stevedores, Inc. v. Salzano, 538 F.2d 933 (2d Cir. 1976).

Odom does not argue that claimant is able to perform his regular duties

as a heavy construction laborer, Odom has not met the burden of estab-

lishing that daimant has actual opportunities to obtain other work in

the geographic area where he lives. Therefore, considering the record and

the applicable law, claimant must be considered to be permanently

totally disabled.

Accordingly, the Decision and Order of the administrative

law judge is affirmed.

{S{ JULIUS MILLER.

JULIUS MILLER, Member

I Concur:

SAMUEL J. SMITH, Chairman

ee on

A-30

SERVICE SHEET

BRB No. 76-388: GARFIELD MAZE, JR. v. OOOM CONSTRUCTION

CO., INC. AND AMERICAN MUTUAL LIABILITY

INSURANCE COMPANY (Case No. 76-LHCA-213)

(OQWCP No. 7.34536) bs

A copy of this Decision was sent to the following parties:

John A. Bivins, Esq. Certified

Mouton, Roy, Carmouche, Hailey,

Bivins and McNamara

P.O, Drawer Z

Lafayette, Louisiana 70501

John E. Conery, Esq. Certified

Lippman, Hunter and Rawss

P.O. Box 1026

Franklin, Louisiana 70538

Miss Laurie M. Streeter

Associate Solicitor

U.S. Department of Labor

Suite N-2716, NDOL

Washington, D.C. 20210

Mr. R.J. Shea

US DOL/ESA/OWCP

Federal Office Building South

600 South Street

New Orleans, Louisiana 70130

Judge John cities , Jr.

Verge Bold Building, Suite 720

Washington, D.C. 20036

Mr. Everett P, Jennings

Acting Director, Office of Workers’

Compensation Programs

U.S. Department of Labor

Suite $-3524, NDOL

Washington, D.C. 20210

A-32

ODOM CONSTRUCTION COMPANY, INC.,

Employer, and American Mutual Insurance

Company, Carrier, Petitioners,

Vv.

UNITED STATES DEPARTMENT OF LABOR

and Director, Office of Workers’ Compensation

Programs, United States Department of Labor

and Garfield Maze, Jr., Respondents

No. 78-1483

United States Court of Appeals,

Fifth Circuit.

July 21, 1980

Employer sought review of decision of Benefits Review

Board affirming award of total and permanent disability benefits under

the Longshoremen’s and Harbor Workers’ Compensation Act. The Court

of Appeals, Godbold, Circuit Judge, held that: (1) worker who was en-

gaged in attempting to move mooring blocks at the time of the injury was

' engaged in maritime work; (2) worker was employed on a covered situs;

and (3) evidence sustained determination of total and permanent dis-

ability.

Affirmed.

1. Workers’ Compensation - - 262

Worker who was injured while removing concrete mooring

blocks from canal into which they had fallen was engaged in maritime

work for purposes of determining whether he was covered by the Long-

shoremen’s and Harbor Workers’ Compensation Act. Longshoremen’s

and Harbor Workers’ Compensation Act, § 2(3), 33 USCA. §902(3).

A-33

2. Workers’ Compensation - - 262

Fact that injured worker spent a great majority of his time

doing indisputably land-based jobs did not preclude coverage under Long:

shoremen’s and Harbor Workers’ Compensation Act where he was doing

maritime work at the time of the injury and a significant part, 20%, of

the employer’s overall work was maritime. Longshoremen’s and Harbor

Workers’ Compensation Act, § 23), 3 USCA $§902(3).

3. Workers’ Compensation - - 262

Fact that it was some other employer, rather than claim

ant’s employer, which used the mooring blocks on which the claimant

was working at the time of his injury did not preclude a finding that the

claimant was injured on a covered situs; it is sufficient if an employer,

not necessarily the daimant’s employer, is engaged in maritime work.

Longshoremen’s and Harbor Workers’ Compensation Act, § 3(a), 33

US.CA. §903(a).

4. Workers’ Compensation - - 187

Company which used mooring blocks as an integral part

of its facilities for loading sale onto barges was a statutory employer

under the Longshoremen’s and Harbor Workers’ Compensation Act.

Longshoremen’s and Harbor Workers’ Compensation Act, § §2(4), 3(a),

33 US.CA. § § 902(4), 903(a).

5, Workers’ Compensation - - 186

Phrase “customarily used by an employer” as used in

original Longshoremen’s and Harbor Workers’ Compensation Act to des-

cribe a covered situs was meant to insure that an employer who is liable

only when it has real or constructive notice that the area is used for mari-

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time purposes and is thus likely to be a covered situs; the claimant’s ac-

tual employer need not be the customary user. Longshoremen’s and

Harbor Workers’ Compensation Act, § 3(a), 33 USCA. §903(a).

6. Workers’ Compensation - - 1935, 1939.4(4)

Decision of the benefits review board on the issue of total

and permanent disability must be upheld if it correctly finds that the

ALJ’S decision is supported by substantial evidence on the record as a

whole; all doubts are to be construed in favor of the employee in accord-

ance with the remedial purposes of the Longshoremen’s and Harbor

Workers’ Compensation Act.

7. Workers’ Compensation - - 1662

Evidence that injured worker was 54 years old and had a

fourth grade education with no formal technical training, that all of his

work history involved jobs requiring heavy use of the arms, that his left,

dominant, hand and arm was injured when an oxyacetylene torch ex-

ploded, that he lived in a small town 125 miles from New Orleans, that

he had attempted to return to work as cement finisher and driver of

heavy trucks but could not perform those duties, that he had an acci-

dent-related weak grip, and absence of evidence of available work which

he could perform sustained determination of total and permanent disa-

bility.

Petition for Review of an Order of the Benefits Review

Before GODBOLD, GARZA and RANDALL, Circuit

Judges.

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GODBOLD, Circuit Judge:

This is a petition by the employer and its insurer for re-

view of a decision by the Benefits Review Board affirming an Administra-

tive Law Judge’s award to the respondent Maze of permanent disability

benefits under the Longshoremen’s and Harbor Workers’ Compensation

Act, 33 U.S.C. § 901, et seq. (“LHWCA”). The petitioners raise three

arguments: (1) Maze was not a covered “employee” within the meaning of

33 U.S.C. § 902(3);1 (2) he was not injured on a situs covered under 33

U.S.C. § 903(a);2 and (3) he was not permanently disabled as defined in

33 U.S.C. § 902(10).7

1. 33 U.S.C. § 902(3) provides that:

[t]the term ‘employee’ means any person engaged in

maritime employment, including any longshoreman or other person en-

gaged in longshoring operations, and any harborworker including a ship re-

pairman, shipbuilder, and shipbreaker, but such term does not include a

master or member of a crew of any vessel, or any person engaged by the

master to load gr unload or repair any small vessel under eighteen tons net.

* 33 U.S.C. § 903(a) provides in relevant part that:

[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, or building a vessel}.

3. 33 U.S.C, § 902(10) provides that:

‘| d Jisability’ means incapacity because of injury to earn

the wages which the employee was receiving at the time of injury in the

same or any other employment.

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I. Coverage under LHWCA

The facts underlying Odom’s arguments that Maze was not

a covered employee injured on a covered situs are largely undisputed.

Maze, an employee of Odom, was accidentally injured on July 9, 1973

when an oxyacetylene torch, which he was usirg to cut wire rope, ex-

ploded and burned his forearms. Maze was normally a land-based con-

struction worker. On the day of his injury he was engaged in a two-day job

that required moving four large concrete blocks that had been located on

the bank of a navigable canal 4 but had sunk into the water because of e-

rosion. Earlier in the day of his injury Maze had been in the water digging

under the blocks so that wire rope could be passed around them, but he

was standing on shore when the torch exploded. The blocks were used

solely as a place vo tie off or moor barges that were waiting to be moved to

the loading facilities of Domtar Salt Mine Company and barges that, after

being loaded, were awaiting towboats.

1. Maze’s status under 33 U.S.C. § 902(3)

Odom argues that Maze is not a covered “employee” both

because moving the concrete blocks was not maritime work and because

the great majority of Maze’s work for Odom was indisputably nonmari-

time. We reject both arguments.

[1] First, the act of moving the blocks is maritime work.

Section 902(3) lists harborworkers among the types of workers covered. It

is at least arguable that the repair of moorings, even of those not adjacent

4. The canal was connected to the Intracoastal waterway

system so that barges could be moved to various points in the United

States.

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to main docks, is a type of job that could be performed by a typical har-

borworker. Yet we need not hold that Maze was engaged in “harbor-

working” at the time of his injury, for § 902(3) by its own terms states

that longshoremen and harborworkers are not the only persons engaged in

maritime employment. Cf. P.C. Pfeiffer Co. v. Ford, US. >

———, 100 S.C. 328, 334, 62 LEd.2d 225, 233 n.7 (1979); North-

east Marine Terminal Co, v. Caputo, 432 U.S. 249, 265 n.25, 97 S.Ct.

2348, 2358, 53 L.Ed.2d 320, 334 n.25 (1977) (maritime employment in-

cludes more than longshoring). Moving the blocks directly furthered mari-

time commerce. By tying up to the blocks, barges were moored and held

in place before loading until they could be moved to the loading facilities

and, after loading, until they could be taken away by tugs. Relocating the

blocks after they had fallen or slipped into the water from erosion is not

the type of job peripherally related to maritime matters that Congress said

was not to be covered by the LHWCA, such as trans-shipment of stored

cargo or dlerical work. See S.Rep. No. 92-1125, 92d Cong., 2d Sess. 13;

H.R.Rep. No. 92-1441, 92d Cong, 2d Sess. 10-11, quoted in P.C. Pfeiffer

Co., supra, -——U.S. at , 100 S.Ct. at 335, 62 LEd.2d at 234;

Caputo, supra, 432 U.S, at 265 n.27, 97 S.Ct. at 2358, 53 L.Ed.2d at 334

n.27. On the facts before us, where the job being done clearly had “a

realistically significant relationship to ‘traditional maritime activity in-

volving navigation and commerce on navigable waters’. . .,” Weyerhauser

Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir. 1975), cert. denied, 429 U.S.

868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976) (citations omitted), Maze’s

work at the time of his injury was maritime.

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[2] The appellants urge that even if Maze was doing mari-

time work at the time of his injury, he is not a covered employee be-

cause he spent the great majority of his time doing indisputably land-

based jobs. They assert that the 1972 amendments extended coverage

only to workers whe do primarily maritime employment. Arguably, our

decision that Maze is a covered employee could be based solely upon the

foregoing conclusion: that he was engaged in maritime work at the time

of his injury. See Thibodaux v. Atlantic Richfield Co., 580 F.2d 841,

843-45 (5th Gr. 1978), cert. denied, 442 US. 909, 99 S.Ct. 2820, 61

L.Ed.2d 274 (1979); 1A Benedict on Admiralty § 16a (1979); cf. Fusco

v. Perini North River Assoc., 601 F.2d 659, 668 (2d Cir. 1979), vacated

and remanded, U.S. ——, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980)

(claimant must have major activities on navigable waters). We need not

rest on this narrow ground, however, but can look at all the circum

stances of Maze’s employment. Where, as here, the claimant was doing

maritime work that required him to go into the water and where a sig-

nificant part of the employer’s overall work, 20%, was maritime, the

policy of the Act strongly favors coverage.

A finding that Maze was not covered would create a major

opportunity for abuse of the Act, a risk that is illustrated by the facts of

this case. Mr. Odom testified in the hearing before the ALJ that, at the

time of Maze’s injury, approximately 20% of his company’s work

further that he had a separate crew for that type of work and in fact had

separately incorporated those operations just before the hearing. If any

member of this “maritime” group had been the claimant here, there

>

A-39

would be no doubt about his status as a covered employee. Odom should

not benefit from the fact that it has not elected to assign Maze, who was

injured while engaged in clearly maritime activity, to some group or crew

identified as carrying on maritime activity.

At least twice, in construing the maritime employment re-

quirement of the Act, the Supreme Court has pointed out that coverage

should not turn on the employers’ assignment policies. In P.C. Pfeiffer

who, on the days of their injuries, could have been assigned to work on

navigable waters. The Court stated that under such an interpretation an

prohibiting some of his cargo-moving employees, who would otherwise

have been covered, from working on navigable waters. —— U.S. at

——, 100 S.CX. at 337, 62 L.Ed.2d at 237. In Caputo, the employer

urged that the Act covered only workers who handled cargo before it

reached its first “point of rest” on land. The Court noted that such a

construction would permit an employer to define the limits of his

liability at his whim by moving the point of rest. 432 U.S. at 275 n.38,

97 S.Ct, at 2363, 53 L.Ed.2d at 340 n.38. In both cases the Court found

that permitting coverage to turn on assignment policies was inconsistent

with the professed Congressional desire for uniform coverage.

Denying recovery to Maze here would allow employers

like Odom, who do substantial amounts of both maritime and nonmari-

time work, to avoid liability under the Act to workers injured while en-

geged in maritime activity simply by allowing each employee to do only

a limited amount of maritime work. Under the Supreme Court's analysis

A-40

in Caputo and Pfeiffer. such a result would be contrary to Congressional

intent,

2. The situs under 33 U.S.C. § 903(a)

Appellants contend that Maze was not injured on a

covered situs. They assert that the mooring blocks are not a “pier” or

“wharf” and that their site, therefore, comes within the jurisdiction of

the Act only if it is an “other adjoining area customarily used by an em-

ployer in loading, unloading, repair, or building a vessel.” They interpret

the phrase “customarily used by an employer . . . ” to extend coverage

only when the claimant’s employer normally uses the facility for loading

or unloading, They state that permitting coverage if the area is used for

the listed purposes by any employer other than the claimant’s would be

inconsistent with the definition of employer given in 33 U.S.C. §

902(4).°

[3,4] Odom’s suggestion that coverage would be available

only if it, the employer, used the mooring blocks is both an inappro-

priately strained reading of the statute and contrary to the overall Con-

gressional intent. The stated limitation is cast in terms of an employer,

+ 33 U.S.C. § 902(4) defines employer to mean:

an employer any of whose employees are employed in

maritime employment, in whole or in part. upon the navi-

gable waters of the | nited State= (including any adjoining

pier. wharf. dry dock, terminal. building way . marine rail-

way. or other adjuining area customarily used in loading.

unloading. repairing. or building a vessel).

On appeal. Odom does not contend seriously that it ix not

a statutory employer. That argument. however. was raised and rejected

by both the AT J and Benefits Review Board.

A-41

not the employer or the claimant’s employer. A more reasoned interpre-

tation is that the site must be used by a statutory employer. It is clear

from the record and the findings below that Domtar Salt, which uses the

blocks as an integral part of its facilities for loading salt onto barges, is a

statutory employer.

[5] In addition, it seems clear to us that the phrase “cus-

tomarily used by an employer. . .” was inserted to ensure that an employ-

er could be liable only when it had real or constructive notice that an area

was used for maritime purposes and was therefore likely to be a covered si-

tus. This notice function would not be aided substantially by requiring the

daimant’s employer to be the customary user, as illustrated by the fact

that Odom makes no claim here that it did not know about Domtar’s use

of this site.

Moreover, the appellants’ interpretation would open up a

significant loophole in the LHWCA since there would be no coverage if

the customary user of an area simply hired various independent contrac-

tors on a short-term basis to perform the necessary work. (The individual

independent contractors presumably would not qualify as customary

© Our analysis of the notice function would be essentially

the same regardless of whether the customary use requirement applies only

to “other areas.” see Caputo, 432 U.S. at 278-280, 97 S.Ct. at 2365, 53

L.Ed.2d at 34243 (reserving question but noting that such an interpre-

tation is probably correct) or to all areas on shore. See Jacksonville Ship-

yards, Inc. v. Perdue, 539 F.2d 533. 541-43 (5th Cir. 1976), vacated in

part and remanded, 433 U.S. 904, 97 S.Ct. 2967, 53 L.Ed2d 1088

(197°), adhered to on remand, 575 F.2d 79 (Sth Cir. 1978), aff'd on other

grounds sub nom. P.C. Pfeiffer Co. v. Ford, supra. As a result, w+ do not

need to define the exact parameter> of that requirement.

A-42

users.) This gap in coverage would be especially large if the limiting tan-

guage applies to all shore-side sites. Such a result would be inconsistent

Thus we accept the findings below that Maze was injured in a situs covered

under 33 U.S.C. § 903(a).

II. Disability

[6] On the existence of total and permanent disability, we

must uphold the Board’s decision if it correctly concluded that the ALJ’s

decision is “supported by substantial evidence on the record as a whole

and is in accordance with the law.” Diamond M. Drilling Co. v. Marshall,

577 F.2d 1003, 1005 (5th Cir, 1978) (citations omitted); see Jacksonville

Shipyards, Inc. v. Dugger, 587 F.2d 197, 198 (5th Cir. 1979); Army & Air

Force Exchange Service v. Greenwood, 585 F.2d 791, 793 (5th Cir. 1978).

All doubts are to be construed in favor of the employee in accordance

with the remedial purposes of the Act. Id. at 794.

As noted above, the Act defines disability as “incapacity

because of injury to earn the wages which the employee was receiving at

the time of injury in the same or any other employment.” 33 U.S.C. §

902(10). Although the Act does not provide a standard by which to

determine degree of disability, we have held that this determination must

be based not only on physical condition but also on other indicia such as

age, education, employment history, rehabilitative potential, and the

availability of work that the claimant can do. See Dugger, supra, 587 F.

2d at 198; Greenwood, supra, 585 F.2d at 796; Diamond M. Drilling Co.,

supra, 577 F.2d at 1005-06. Thus, “an individual may be totally disabled

for purposes of the Act when physically capable of performing certain

A-43

work but otherwise unable to secure that particular kind of work.” Id. at

1006.

[7] It is undisputed that Maze was 54 years old at the time

of his hearing four years ago and that he has a fourth grade education with

no formal technical training. His work history involved various jobs, all of

Maze attemted to work as a cement finisher and a driver of heavy trucks.

He stated that he was unable to do these jobs because of the injuries to his

left hand even though he had done similar work in the past. Finally, Maze

lives in a small town about 125 miles from New Orleans.

The primary issue regarding disability is whether there is

substantial evidence that Maze is permanently injured. Maze’s basic

complaint is that his left or dominant hand has a very weak grip. Dr.

Cromwell, who had treated Maze for a year, including the performance of

surgery on his left wrist, testified that Maze’s accident had caused him to

have a very weak grip even though there was little objective evidence to

show the existence of his injury. Appellants’ experts testified that Maze

showed no sign of permanent injury, and one expressed the opinion that

the dynamometer test used by Dr. Cromwell and the other expert was in-

valid. In concluding that Maze did have an accident-related weak grip, the

ALJ relied upon Dr. Cromwell’s testimony because he had treated Maze

over an extended period while appellants’ experts had seen Maze only one

invalid. The ALJ’s conclusions are supported by substantial evidence and

must stand.

A-44

Appellants also urge that Maze is not totally disabled. Dr.

Cromwell testified that Maze was unable to do heavy labor and could lift

no more than 30 pounds. The ALJ found that after the accident Maze was

unable to do two of the jobs that he had previously performed. Appellants

point out, however, that Dr. Cromwell said that Maze could do light work,

such as driving a light truck and lifting packages of up to 30 pounds and

that Maze apparently had not tried to find such light work. The Board

stated that because Odom did not contend that Maze could still do heavy

construction work on a regular basis, Odom had the burden to show the

availability of work that Maze could do, and since Odom had made no

such showing concluded that Maze was totally disabled.

Although the Act does not define a claimant’s burden for

establishing the existence of a disability, most courts have held that a

claimant has made out a prima facie case once he has shown that he can no

longer perform his previous job because of a job-related injury. At that

point the burden shifts to the employer to show the availability of other

jobs that the claimant could perform. See McCabe v. Sun Shipbuilding &

Dry Dock Co., 602 F.2d 59, 62 n.7 (3d Cir. 1979); Newport News Ship-

building & Dry Dock Co. v. Director, Office of Workers’ Compensation

Programs, 592 F.2d 762, 764-65 (4th Cir. 1979); Perini Corp. v. Heyde,

306 F.Supp. 1321, 1325-29 (D.R.L 1969); see also American Stevedores,

Inc. v. Salzano, 538 F.2d 933, 935-36 (2d Cir. 1976). But see Air Amencca,

Inc. v. Director, Office of Workers’ Compensation Programs, 597 F.2d

773, 778-781 (1st Gir. 1979) (burden shifts only when “‘claimant’s inability

to work seems probable, in light of claimant’s physical condition and other

circumstances - such as claimant’s age, education, and work experience”).

This two-step analysis is consistent with our decision in Base Billeting

A-45

Fund, Laughlin Air Force Base v, Hernandez, 588 F.2d 173, 178 (5th Cir.

1979). See also Greenwood, supra.”

Our decision in Diamond M. Drilling Co., is not to the

contrary. In that case the daimant had shown that he was unable to do

under those circumstances the employer had the burden of showing avail-

able work. Notably, however, the court did not say that the burden

shifted only after the daimant’s showing of complete inability to work.

We think, rather, that the daimant in Diamond M. simply carried more

than the initial burden of proof required of him in this circuit.

Under the ALJ’s findings of fact, which are supported by

substantial evidence, Maze made out a prima facie case by showing inabil-

ity to do his previous job because of a job-related injury. Odom has

presented no evidence of available work that Maze could still perform.

Thus the ALJ’s conclusion, as affirmed by the Benefits Review Board, that

Maze is totally and permanently disabled must stand.

The order of the Board must be affirmed.

AFFIRMED,

2. By analogy, in suits brought for disability benefits under

the Federal Old-Age, Survivors, and Disability Insurance Benefits Act,

42 U.S.C. §§ 40131, this court has consistently held that the burden to

show employment available to a claimant shifted to the Secretary of

Health, Education, and Welfare once the claimant showed that he was no

longer able to do his previous job. See Knott v. Califano, 559 F.2d 279,

281 (5th Cir. 1977); DePaepe v. Richardson, 464 F.2d 92, 100-01 (5th

Cir. 1972); 42 U.S.C. § 423.