Appendix — B. F. Diamond Construction Co. v. LeMelle

APPENDIX A

Petition for Review of a Final Order of

the Benefits Review Board before

Butzner, Russell and Sprouse, Circuit

TUAGOB. cc ccccccccccccscccssccce sll

APPENDIX B

Decision and Order of Julius Miller,

Administrative Appeals Judge ...B-1l

APPENDIX C

Decision and Order of Peter MCC. Giesey,

Administrative Law Judge .......C=-l

A-1

UNITED STATES COURT OF APPEALS

For the Fourth Circuit

No. 81-1559

Howard LeMelle,

Petitioner,

-V~-

B. F. Diamond Construction

Company and Aetna Casualty

& Surety Company,

and

Director, Office of Workers’

Compensation Programs, United

States Department of Labor,

Respondents.

On Petition for Review of a Final Order

of the Benefits Review Board.

Argued: December 11, 1981

Decided: March 25, 1982

Before BUTZNER, RUSSELL and SPROUSE,

Circuit Judges.

John H. Klein, Mark C. Walters (Breit,

Rutter & Montagna on brief) for

Appellant; Ralph E. Lawrence (White,

Johnson & Lawrence on brief) for

Appellees.

SPROUSE, Circuit Judge:

Howard E. LeMelle appeals from the

decision of the Benefits Review Board

(Board) of the Department of Labor that

he was not entitled to benefits under

the Longshoremen's and Harbor Workers’

Compensation Act, 33 U.S.C. §§901 et seq.

(LHWCA). At issue is whether a

construction worker employed in building

a bridge over navigable water, designed

to benefit both highway traffic and river

navigation, is engaged in maritime

employment within the meaning of the

LHWCA. We hold that he is and reverse

the determination of the Board.

LeMelle was employed by B. F. Diamond

Construction Co. as a concrete finisher

on the James River Bridge project at

Newport News, Virginia. The purpose of

the project was to demolish and replace

the old James River Bridge. Both the old

and new bridges contained a stationary

section and a "lift" or draw section that

could be raised to allow water traffic to

pass through.

LeMelle was working on a fixed

section of the bridge approximately one

mile from shore and eight to ten feet

above the water. He was pouring and

vibrating concrete inside a form on the

piling closest to the draw section of the

bridge. He was transported to work by

boat and was carried ashore by tugboat

after his injury before he could be

transported to a hospital. During his

work, he had been required to wear a life

jacket and was continually over the

water.

The James River, at the site of the

bridge, is indisputably navigable. The

United States Coast Guard was consulted

in the planning of the bridge project and

a Coast Guard official concluded:

Navigation of the James River

through the bridge site includes

ocean going ships, tugs with

tows, and a wide range of

pleasure craft from small power

boats to large cabin cruisers

and sailboats.

Both the Coast Guard and the Virginia

Department of Highways were required to

comment officially on various aspects of

the project. The Coast Guard indicated

that the improved bridge would be an aid

to navigation:

The proposed bridge provides a 100

feet more horizontal clearance

than the existing bridge. The

additional horizontal clearance

allows more space for use by

vessels passing each other bereath

the bridge and reduces the chances

of a vessel collision with the

bridge. The proposed bridge

provides 10 feet more vertical

clearance than the existing bridge

which is expected to eliminate

most draw openings except for

ocean going ships.

The Department of Highways' state-

ments were of the same tenor--that the

new lift span was designed to be, among

other things, an aid to navigation.

The LHWCA, as it was amended in 1972,

requires an injured worker, in order to

be eligible for benefits, to qualify

under both a situs test and a status

test. Pfeiffer Co. v. Ford, 444 U.S. 69

(1979); I.T.0. Corporation of Baltimore

v. Benefits Review Board, 542 F.2d 903

(4th Cir. 1976), modified en banc, 542

F.2d 903 (4th Cir. 1976). That is, the

injury must occur upon the navigable

waters of the United States as defined by

the Act and the claimant must have the

status of an employee as defined in the

Act. The parties here agree that the

situs requirement for LeMelle's claim is

satisfied. The only contested issue is

his status as a covered employee.

Section 2(3) of the LHWCA as amended in

1972 provides:

The term ‘employee’ means any

person engaged in maritime

employment, including any long-

shoreman or other person engaged

in longshoring cperations, and

any harborworker including a

ship repairman, 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.

33 U.S.C. §902(3).

The respondents Diamond and Aetna

urge, and the majority of the Board

found, that LeMelle was not engaged in

maritime employment, and therefore was

not an employee covered by the Act. The

Board held that "a claimant's employment

must have a realistically significant

relationship to maritime activities

involving navigation and commerce over

navigable waters in order for that

employment to be deemed maritime employ-

ment under Section Section 2(3)." The

Board's opinion, while admitting that the

new bridge would be an aid to navigation,

said:

However, the James River Bridge,

like all bridges, is a means of

land transportation, not maritime

commerce. As claimant points

out, the bridge was being con-

structed in a manner to minimize

its actual obstruction of maritime

traffic. Nevertheless, the very

presence of a bridge obstructs

navigation, serves no maritime

purpose and in no way benefits

navigation and commerce.

We do not agree with that rationale

and hold that the work performed by

LeMelle was maritime employment as

defined in section 2(3). It is not

necessary to relate again the tortured

history of employee coverage under the

LHWCA, except to note that bridge

construction and demolition workers

employed over navigable water were

covered prior to the 1972 amendments.

Davis v. Department of Labor, 317 U.S.

249 (1942); Hardaway Contracting Co. v.

O'Keefe, 414 F.2d 657 (5th Cir. 1968);

Peter v. Arrien, 325 F.Supp. 1361

(E.D. Pa. 1971), aff'd, 463 F.2d 252

(3d Cir. 1972).

This court said in Brown & Root, Inc.

v. Jagner, 607 F.2d 1087, 1090 (4th Cir.

1979), cert. denied, 446 U.S. 981 (1980),

“we are confident that employment held to

be traditionally maritime under the

former Act has not been stripped of its

maritime character by the 1972

amendments. "2

lwe did not indicate in Brown & Root,

Inc., that Congress intended to include

in the section 2(3) definition of mari-

time workers all workers held by pre-1972

judicial decisions to have been covered

by the LHWCA; nor is it now necessary to

decide that issue.

We hold, therefore, that the claimant

working over navigable waters on a bridge

designed in part as an aid to navigation,

is engaged in maritime employment, and

is therefore an employee within the

meaning of the Act. Although bridge

demolition and construction is not

Classically maritime work under the

“ancient craditions of the sea," it has

long been merged with such work by the

exigencies of modern coastal land and

sea traffic. Essential to improving

navigation and possessing many of the

same hazards and working conditions as

more traditional work on navigable waters

such employment carries with it the

fundamental elements of what historically

has been regarded as maritime employment.

REVERSED.

BRB No, 79-640

DECISION and ORDER

HOWARD LeMELLE

Claimant-Petitioner

Vv.

B. F. DIAMOND CONSTRUCTION COMPANY

and

AETNA CASUALTY & SURETY COMPANY

Employer/Carrier-Respondents

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR

Party-in-Interest

Appeal from the Decision and Order of

Peter McC. Giesey, Administrative Law

Judge, United States Department of Labor.

John H. Klein (Breit, Rutter & Montagna),

Norfolk, Virginia, for the claimant.

Ralph E. Lawrence, Virginia Beach,

Virginia, for the employer/carrier.

Mark C. Walters (T. Timothy Ryan, Jr.,

Solicitor of Labor, Laurie M. Streeter,

B 2

Associate Solicitor), Washington, D.C.,

for the Director, Office of Workers'

Compensation Programs, United States

Department of Labor.

Before: SMITH, Chief Administrative

Appeals Judge, MILLER and KALARIS,

Administrative Appeals Judges.

SMITH, Chief Administrative Appeals Judge:

This is an appeal by the claimant

from the Decision and Order (79-LHCA-84)

of Administrative Law Judge Peter McC.

Giesey pursuant to the provisions of the

Longshoremen's and Harbor Workers’ Comp-

ensation Act, as amended, 33 U.S.C. §901

et seg. (hereinafter referred to as the

Act).

In his Decision and Order, the

administrative law judge held that

claimant was not a maritime employee

within the meaning of Section 2(3) of the

Act, 33 U.S.C. §902(3). 1/

Claimant appeals, arguing that his

duties constituted maritime employment

under Section 2(3) of the Act. Upon its

review of the case, the Board is required

to affirm the decision of the administra-

tive law judge if his findings are

supported by substantial evidence in the

record considered as a whole, are not

irrational and are in accordance with

law. 33 U.S.C. §921(b) (3); O'Keeffe v.

Smith Associates, 359 U.S. 380 (1965).

Claimant was employed as a concrete

finisher on the James River Bridge Pro-

ject. He was injured in November 1977,

when 200 to 300 pounds of mixed concrete

fell on him. Claimant was working on a

+ “Section 2(3) provides, "The te~m

‘employee’ means any person engaged in

maritime employment, including any long-

shoremen or other person engaged in long-

shoring operations, and any harbor-worker

including a ship repairman, shipbuilder,

and ship-breaker .. .

piling some eight to 10 feet above the

water. The piling was approximately one

mile from shore and could be reached only

by boat.

Claimant contends that his duties

constituted maritime employment as

defined by the Board in Sedmak v. Perini

North River Associates, 9 BRBS 378, BRB

Nos. 77-896, et al. (1978), aff'd sub nom.

Fusco v. Perini North River Assoc., 622 F.

2d 1111, 12 BRBS 328 (2d Cir. 1980) cert.

denied, 101 S. Ct. 953. In Sedmak, we

concluded that ".. . a claimant's

employment must have a realistically

significantly relationship to maritime

activities involving navigation and

commerce over navigable waters in order

for that employment to be deemed maritime

employment under Section 2(3)." 9 BRBS at

386. Claimant contends that his work had

a significant relationship to maritime

activities since he was working on a

B 5

project which would benefit maritime

commerce and improve navigation upon the

James River.

The James River Bridge Project

involved tearing down an old two-lane

bridge and building a new four-lane

replacement bridge. Claimant was engaged

in the construction of the new bridge.

Claimant points out that documents

admitted into evidence, including an

environmental statement and other

documents which relate to the issuance of

permits, indicate that the project was

planned to improve auto travel across the

river and to improve the navigation of

the James River. See Cl. Ex. 1. The

Coast Guard District Commander responsible

for the issuance of construction permits

stated in his findings that the James

River is used by vessels ranging from

ocean-going ships to small pleasure craft.

He found that the new bridge would have

no adverse effects upon any vessels known

to the Coast Guard nor would the bridge

limit the types of vessels now using or

expected to use the James River in the

future. Cl. Ex. 1, Coast Guard Findings

at 2.

According to claimant, the above

evidence indicates that the new bridge

will provide a significant aid to naviga-

tion, and that, therefore, claimant's

work constructing the bridge constituted

maritime employment. 2/ However, in Nold

v. Guy F. Atkinson Co., 9 BRBS 620, BRB

"27 Our dissenting colleague argues

that the presumption contained in Section

20(a) of the Act, 33 U.S.C. §920(a),

should be applied to find coverage in this

case. The dissent takes the position that

the presumption is applicable to factual

issues underlying the threshold issue of

coverage under Section 2(3). Assuming

arguendo, that the presumption may be so

applied, there are no factual issues at

dispute in this case. Claimant was

engaged in bridge construction. The issue

is thus one of legal interpretation, i.e.,

whether bridge builders are maritime

employees within the meaning of Section 2(3).

B7

Nos. 78-36l/a (1979), the Board concluded

that a claimant engaged in bridge con-

struction was not within the Sedmak

definition of maritime employment, not-

withstanding the fact that he was “work-

ing on a portion of the bridge that was

designed to avoid obstruction of naviga-

tion." Nold, 9 BRBS at 624. See also

Gilliam v. Wiley & Jackson Co., 12 BRBS

556, BRB Nos. 79-388/a (1980), holding

that a worker engaged in building bridges

across the Amelia River was not a

maritime employee.

Claimant seeks to distinguish Nold on

the basis that the bridge involved in the

instant case will actually aid and

improve nagivation. However, the James

River Birdge, like all bridges, is a

means of land transportation, not

maritime commerce. As claimant points

out, the bridge was being constructed in

a manner to minimize its actual

obstruction of maritime traffic. Never-

theless, the very presence of a bridge

obstructs navigation, serves no maritime

purpose and in no way benefits navigation

and commerce, 3/ Thus, the construction

work performed by claimant was not

analogous to construction work serving a

maritime purpose which is covered by

Section 2(3). See Martin v. Kaiser Steel

Corp., 9 BRBS 903, BRB No, 78-449 (1979);

Silva v. Massman Construction Co., 9 BRBS

932, BRB No. 78-341 (1979). 4/ Rather,

It is irrelevant that claimant's

work did not involve the actual draw span

of the bridge. Regardless of the part of

the bridge he was working on, claimant was

not covered by Section 2(3).

4/ Also without merit is claimant's

argument that his work was similar to that

of claimants held to be covered employees

who constructed locks and piers. See

Hunter v. Duncanson-Harrelson Co., 8 BRBS

83, BRB No. 77-433 (1978); Hed v. Duncan-

son-Harrelson Co., 7 BRBS 821, BRB No. 77-

; aff'd, F.2d , 13 BRBS 308,

Nos. 78-1873, 79-7572 (9th Cir. May 8,

1981); Wright v. Taylor-Johnson Construct-

ion Co. , 3 ’ . =

(1978) :

Claimant's duties were more similar to

those of claimant in Rhodes v. Healy

Tibbits Construction Co., 9 BRBS 605, BRB

No. 78-423 (1979), wherein we held that

claimant's construction work on a pier

which was to be used only for recreation-

al fishing to carry a sewer pipe to the

ocean was not an activity covered by

Section 2(3) because the pier was not for

any maritime use. Therefore, claimant's

work did not constitute maritime employ-

ment as defined in Sedmak.

Claimant argues that even if he is

not covered under the Sedmak definition

of maritime employment, he was engaged in

employment covered by pre-amendment law.

In support of this contention, claimant

cites several pre-amendment cases holding

that construction workers similar to

claimant were engaged in covered employ-

B 10

ment. 5/ However, we do not find pre-

amendment law controlling in determining

coverage under the Act. See Sedmak, v.

Perini North River Assoc., supra, at 387.

Therefore, we reject claimant's contention

that pre-amendment case law is dispositive

of coverage in this case.

Similarly, we reject claimant's con-

tention that he is covered under the post-

amendment Act because he would have been

covered pre-amendment by cirtue of his

injury having occurred on navigable

waters. See Sedmak, supra. 6/

aimant relies heavily on Peter

v. Arrien, 325 F. Supp. 1371 (E.D. Pa.

1971), aff'd per curiam, 463 F.2d 252 (3d

Cir.1972), a pre-amendment case involving

an employee engaged in the demolition of

a bridge. This case is not applicable

where claimant was engaged in the con-

struction of a bridge. See Nold, supra.

6/ Claimant relies on the decision of

the United States Court of Appeals for

the Second Circuit which reversed our

decision in Sedmak, sub nom. Fusco v.

Perini North River Associates, 601 F.2d

659, 10 BRBS 624 (2d Cir. 1979). Sub-

sequently, Fusco was vacated and remanded

by the Supreme Court. 100 S.Ct. 697 (1980).

B ll

Therefore, we hold that claimant was

not a maritime employee within the mean-

ing of Section 2(3) of the Act. Accord-

ingly, the Decision and Order of the

administrative law judge is affirmed.

SO ORDERED.

SAMUEL J. SMITH, Chief

Administrative Appeals

Judge

(con'd)

Upon reconsideration, the Second Circuit

affirmed our decision in Sedmak, reject-

ing a geographic interpreation of Section

2(3). Fusco v. Perini North River

Associates: 622 F.2d T1l1l, 12 BRBS 328

980), cert. denied, 101 S.Ct.

953 (1981).

Claimant also contends that the U.S.

Court of Appeals for the Fourth Circuit

has held that a claimant who would have

been covered pre-amendment is automatic-

ally covered post-amendment by virtue of

his injury having occurred on navigable

water. However, in Brown and Root, Inc.

v. Joyner, 607 F.2d th

Cir. ), cert. denied, 100 S.Ct. 2960

(1980), the Fourth Circuit specifically

declined to rule on this issue.

B-12

MILLER, Administrative Appeals Judge,

dissenting:

I respectfully dissent from my

colleagues' determination that claimant

was not engaged in employment covered by

Section 2(3) of the Act. In this case,

my colleagues have applied a restrictive

interpretation of Section 2(3) which

denies coverage to a claimant clearly

intended to be within the scope of the

Act. In so doing, the majority once

again ignores the statutory presumption

contained in Section 20(a) of the Act as

well as the long standing policy that

the Act is to be liberally construed to

carry out its beneficent purposes.

I.

Section 20(a) of the Act provides

claimant with a presumption, in the

absence of substantial evidence to the

contrary, "that the claim is within the

B-13)

provisions of the Act." 33 U.S.C.

§920(a). As I pointed out in my dis-

senting opinion in Sedmak, 9 BRBS at

388, this presumption is applicable in

determining whether claimant falls within

the coverage provisions of the Act,

including Section 2(3). However, in

Sedmak, my colleagues held that the

presumption contained in Section 20 (a)

of the Act was inapplicable to "the

threshold issue of coverage such as

status under Section 2(3)." 9 BRBS at

383. On the basis of this holding, my

colleagues now ignore the Section 20 (a)

presumption in all cases involving

coverage under the Act. However, as I

shall make clear below, the majority's

interpretation of Section 20(a) in

Sedmak is not supported by the relevant

case law.

In Sedmak, the Board majority relied

on Pittston Stevedoring Corp. v.

B-14

Dellaventura, 4 BRBS 156, 544 F.2d 35

(2a Cir. 1976), aff'd sub nom.

Northeast Marine Terminal Co., Inc. v.

Caputo, 6 BRBS 150, 432 U.S. 249 (1977),

and Stockman v. John T. Clark of Boston,

4 BRBS 304, 539 F.2d 264 (lst Cir. 1976),

cert. denied, 433 U.S. 908 (1977), to

support its holding that Section 20(a) is

not applicable to the coverage provisions

of the Act. However, neither case

supports the proposition that the

Section 20(a) presumption is inapplicable

to the coverage provisions of the Act.

The proper interpretation of these cases

is that, while Section 20(a) applies to

coverage, it does not apply to questions

of statutory interpretation of the

jurisdictional portions of the Act.

Thus, the presumption does not operate to

indicate the proper test in interpreting

and determining the scope of Section 2(3),

but does provide that a claimant is

p-15

presumed to meet any test "in the absence

of substantial evidence to the contrary."

33 U.S.C. §920. This interpretation is

illustrated by the language of the

Second Circuit in Dellaventura:

[Claimants] contend that if the

meaning of the new coverage

provision, 33 U.S.C. §903, is in

any way doubtful, this presump-

tion requires the doubt to be

resolved in favor of coverage.

We do not think this was what

Congress had in mind; the very

fact that the presumption can

be overcome by substantial con-

trary evidence indicates its

inapplicability to an interpre-

tive question of general import

Such as this. See Crowell v.

Benson, 285 U.S. 22, 64-65 (1932).

Even in cases holding that the

accordion-like phrase "arising

out of and in the course of employ-

ment,” 33 U.S.C. §902(2), could

be widely stretched, the Court has

done little more than mention the

presumption, [citations omitted].

- « « The Court's decisions

dealing with questions of coverage

of the sort presented here will be

searched in vain for any mention -

of the presumption [citations

omitted]. The cases in this ee

Michigan Mutual Liability Co.

Arrien, 344 F.2d 640, Tie >

Cir.) cert. denied, 382 U.S. 835

B- 16

(1965), and Overseas African

Construction Corp. v. McMullen,

500 F.2q 1291, LIS (2 Cir. 1974),

likewise treat the presumption

as merely an embodiment of the

"rule .. . that so long as any

reasonable inference from the

facts supports jurisdiction

under the statutory presumption

that jurisdiction may be found."

500 F.2d at 1296. Here the

guestion is not whether a line

established by Congress is

Sufficiently elastic to include

ths Claimant; the main issue is

whether Co: ~congress | placed the line

at the “point of rest” or much

further landward. Only if w

have made the latter ree deci-

Sion might the presumption come

into play in ruling on cases

near the border. See Davis v.

pepartment of Labor, 317 U.S. 249

Je

4 BRBS at 173-74, 544 F.2d at 48.

[Emphasis added. ]

In relying on Dellaventura, my

colleagues have apparently ignored the

latter portion of the court's statement,

which is of primary importance in

delineating the circumstances when the

presumption does and does not apply. The

Second Circuit stated that the

B-17

presumption was inapplicable to issues

of legal interpretation involving where

the line of coverage was to be drawn.

The Court did not deny that, once the

line is established, the presumption is

to be applied to factual questions

concerning whether claimant is within or

outside of that coverage. Thus, the

Court's view in Dellaventura is consis-

tent with its earlier view in McMullen,

which the Second Circuit relied on in

1/

Dellaventura.=

1/ In Sedmak, my colleagues relied

on Dellaventura, but stated that reliance

on McMullen was misplaced. This state-

ment was based on the fact that Della-

ventura was a later case and entitled to

more weight. The majority also noted

in Sedmak that the McMullen court held

that a prima facie showing of juris-

diction had been made and therefore did

not rely totally on the Section 20(a)

presumption. Thus, in Sedmak, my col-

leagues ignored the fact that McMullen

had been relied on by the Second Circuit

in Dellaventura: instead, they took

pains to undermine the authority of

McMullen, apparently reading it as

inconsistent with Dellaventura.

B-18

The First Circuit opinion in

Stockman, which was also cited as support

in Sedmak, is consistent with this

approach. In Stockman, the court found

that it need not give weight to the

Section 20(a) presumption in that case,

stating

[this] provision relieves an

injured employee from a perhaps

bothersome burden in cases

where coverage is uncontested,

and it may well denote a policy

favoring coverage in close cases;

but we do not think it bears on

the decision before us calling

for a general construction of

“whether Congress placed the line

at the ‘point of rest’ or much

further landward." Pittston,

supra, at 4703-04. This basic

interpretative decision must pre-

cede any application of the

presumption.

4 BRBS at 310-11, 539 F.2d at 269. The

Stockman court thus also denied applica-

bility of the presumption to basic

interpretative issues. The court does

not say that the presumption is wholly

inapplicable. Rather, Stockman supports

B-19

the proposition that legal questions of

interpretation must be settled before the

presumption is applied to the underlying

facts. In both Dellaventura and

Stockman, the basic question did not

involve the nature of an employee's

employment, where the injury occurred, or

any other question of fact. The courts’

concern in both cases was with statutory

interpretation involving the reach of

the coverage provisions of the Act. In

the context of this issue, the presump-

tion was held inapplicable.

As I will demonstrate more fully

below, application of the presumption to

the facts of the instant case provides

coverage for claimant under any inter-

pretation of Section 2(3). The burden

was on employer to show that claimant's

employment did not involve activity

within Section 2(3). However, claimant

is nonetheless entitled to coverage in

B-20

this case even if the presumption is not

applied, because the facts in the record

can lead to no other conclusion.

Claimant was employed as a concrete

finisher on the James River Bridge

project. At the time of the injury, he

was working in a concrete form on a

piling, standing some eight to 10 feet

above the water of the river. His work

area was approximately one mile from

shore and could be reached only by boat.

Thus, claimant's injury occurred upon

the “navigable waters” of the United

States as defined prior to the 1972

amendments to the Act, and claimant

would have been covered under the Act

prior to the 1972 amendments. In my

view, this fact is dispositive of

coverage subsequent to the 1972 amend-

ments to the Act. See my dissents in

Gilliam v. Wiley N. Jackson Co., 12 BRBS

556, BRB Nos. 79-388/A (1980); Churchill

B-21

v. Perini North River Assoc., 12 BRBS 9239,

BRB Nos. 79-113/A et al. (1980); Sedmak.

Thus, claimant was engaged in maritime

employment within Section 2(3) of the

Act on this basis alone.

Moreover, in my dissent in Gilliam, I

fully discussed preamendment case law

holding that employees engaged in bridge

construction were engaged in maritime

employment and thus were covered by the

Act. See, e.g., Davis v. Department of

Labor & Industries, 317 U.S. 249 (1942);

Dixon v. Oosting, 238 F.Supp. 25 (E.D.

Va. 1965); Peter v. Arrien, 325 F.Supp.

1361 (E.D. Pa. 1971) aff'd per curiam,

463 F.2d 252 (3d Cir. 1972). This case

law is controlling authority for holding

claimant in the instant case covered

under the 1972 amendments to the Act.

My colleagues, however, have stated

their view that preamendment law is not

controlling, but serves only as a "useful

B-22

framework" for ascertaining coverage

under the amended Act. However, it is

disconcerting to realize the the “useful

framework" language is cited primarily

as a basis for refusing to apply pre-

amendment law. See Miller v. Central

Dispatch, Inc., 12 BRBS 793, BRB Nos.

78-467/A & 79-655/A (1980); Cunningham

v. Sweco Inc.,ll BRBS 792, BRB No.

78-552 (1980); Holcomb v. Robert W. Kirk

& Assoc., Inc., 11 BRBS 835, BRB No.

78-566 (1980). It is a rare case indeed

where my colleagues would actually find

pre-amendment precedent “useful." The

Fourth Circuit in Brown & Root, Inc., v.

Joyner, 11 BRBS 86, 607 F.2d 1087 (1979),

cert. denied, 100 S.Ct. 2960 (1980),

found it unnecessary to consider whether

Congress intended the 1972 amendments to

the Act to exclude employees of maritime

businesses who would have been covered

before 1972 because their injuries

B- 23

occurred on navigable waters regardless

of the nature of their work. However,

the court stated “we are confident that

employment held to be traditionally

maritime under the former Act has not

been stripped of its maritime character

by the 1972 amendments." ll BRBS at 97,

607 F.2d at 1090 (emphasis added). In

the instant case, as discussed above,

there is ample precedent under the pre-

amendment Act supportive of a finding

that claimant was engaged in work which

is maritime in nature.

Case law decided prior to the 1972

amendments to the Act contains analysis

supportive of coverage which is certainly

"useful". While I cannot agree with my

colleague's Sedmak definition of

maritime employment, claimant in this

case was clearly engaged in "maritime

activities involving navigation and

commerce." Although I do not agree with

B- 24

my colleagues’ focus on the purpose a

structure is built to serve in ascertain-

ing whether a claimant engaged in its

construction is within this definition, I

will highlight the case law and evidence

which requires coverage of claimant in

this case even under my colleagues’

restrictive view.

In Peter v. Arrien, the court

reversed a denial of benefits which was

based on a finding that the construction

or demolition of bridges was within

state jurisdiction and was not maritime

employment. The court stated that

"[iJnjuries to employees engaged in the

construction or demolition of bridges

are compensable under the Longshoremen's

Act." 325 F. Supp. at 1365. The court

therefore found that decedent, engaged in

the demolition of a bridge by operating

a crane from a cross way extending 300

feet into the river, was covered by the

B-25

Act. The court concluded that this

worker was engaged in maritime employ-

ment and noted that his duties were

directly concerned with a maritime

purpose. In Morrison-Knudsen Co. v.

O'Leary, 288 F.2d 542 (9th Cir. 1961),

the court found an employee engaged in

the construction of a dam covered by the

Act. Analyzing the maritime nature of

the employee's work, the Court found that

the dam was being built "in aid of

navigation." Thus, an employee killed

during its construction was engaged in

maritime employment. Construction of

an offshore lighthouse was held to involve

maritime employment in yet another pre-

amendment case, Merritt-Chapman & Scott

Corp. v. Bassett, 580 F.Supp. 488

(W.D. Mich. 1943). Even under the

majority's view of the limited use of

pre-amendment law, these cases provide a

“useful framework" for holding claimant

B- 26

covered under my colleagues’ Sedmak

definition.

My colleagues further ignore the

clear facts in the record, which show

that the James River Bridge Project will

actually aid navigation on the James

River. Instead, they characterize the

bridge as an instrument of land trans-

portation and find it is an obstruction

to navigation, thus dismissing claimant's

arguments. The clear and uncontroverted

evidence is that the construction project

was planned from the beginning with an

intention to improve and increase navi-

gation of the James River. Thus, this

construction project, like those dis-

cussed above, actually aided navigation

and was thus maritime in nature under

even my colleagues’ Sedmak definition.

The evidence on this point could not

be clearer. A negative declaration of

the Virginia Department of Highways

B- 27

states “fhe construction of a new bridge

is intended to provide a safer crossing

for the anticipated increase in traffic

and greater clearance for waterborne

traffic, than the existing bridge." Cl.

Ex. 1, Negative Declaration, July 15,

1974, at 2. The negative declaration

also states that "(t]he clearance between

the main channel piers of the existing

bridge provides too narrow a margin of

safety for present day navigation. It

poses particular difficulties for a

series of barges being towed which have

to negotiate the sharp turn from Hampton

Roads just before passing under the

bridge. The fender system has been hit

by passing boats on many occasions."

Cl. Ex. 1, Negative Declaration, July 15,

1974, at 3. An October 30, 1974, letter

to the Commandant from the Commander,

Fifth Coast Guard District, points out

the following advantages of the new

B-28

bridge:

The proposed bridge provides

100 feet more horizontal clear-

ance than the existing bridge.

The additional horizontal clear-

ance allows more space for use

by vessels passing each other

beneath the bridge and reduces

the chances of a vessel colli-

sion with the bridge. The pro-

posed bridge provides 10 feet

more vertical clearance than the

existing bridge, which is expected

to eliminate most draw openings

except for ocean going ships.

Cl. Ex. 1, Letter of October 30, 1974,

at 1. An April 4, 1978, negative declar-

ation of the Virginia Department of

Highways, Environmental Quality Division,

states "the increased vertical and hori-

zontal clearances of the proposed

bridge will have a long term beneficial

impact on the movement of waterborne

traffic." Cl. Ex. 1, Environmental

Assessment for James River Bridge, at

IV. In addition, the Coast Guard

District Commander stated that the James

River is used by vessels ranging from

B-29

ocean going ships to small pleasure

craft. The Commander continues: "No

vessel known to the Coast Guard will be

adversely affected by the proposed

bridge. The proposed bridge would not

limit any craft now using or expected to

use the waterway." Cl. Ex. 1, Coast

Guard Findings of Fact, at 2. These

facts show that this project will, in

fact, improve navigation on the James

Ri-er. Therefore, construction of the

bridge involves a maritime act..vity

within my colleagues’ understanding of

the term.

It is irrelevant that claimant was

engaged solely in work constructing the

new bridge and not in demolishing the

old one. To view claimant's work in the

construction of the bridge without taking

into account the purpose of the entire

project is to ignore the evidence in the

record. The evidence clearly establishes

B-30

that the new bridge would not have been

permitted without the obligation to tear

down the old one. See Cl. Ex. 1, Letter

of May 12, 1972 (denying application for

construction permit). Thus, one part of

the project could not proceed without the

other. To exclude any claimant from

coverage solely on the basis that a

construction project is non-maritime, as

my colleagues would, is error. To

exclude him because of the nature of a

portion of the project compounds this

error. Such a limited focus further

narrows an already unduly restrictive

view of coverage.

Not only does the test used by my

colleagues restrict the scope of

Section 2(3) in an unsupported manner,

but it is applied in such a manner as to

further narrow the test. My colleagues

apply their Sedmak language as the sole

means for an employee to qualify for

coverage as a maritime employee. The

majority assumes that, since the Supreme

Court has referred to a two-part test

which is occupational, see P. C. Pfeiffer

Co. v. Ford, 444U.S. 69 (1979), it need

not consider arguments relating to the

requirements of working on navigable

waters which are unigue to that form of

employment. Rather, the majority focuses

narrowly on the nature of the project

alone in order to determine coverage.

However, the fact that a structure is

being built over water dictates special

conditions of employment. Work performed

over water is not like working on land.

As the Ninth Circuit noted in Duncanson-

Harrelson Co. v. Director, OWCP, 13 BRBS

308, F.2d, Nos. 78-1873, 79-7572 (9th

Cir. May 8, 1981), an important factor

in determining whether claimant is

engaged in maritime employment is whether

his”"work exposed him to many of the

B-32

‘perils of the sea’ associated with

traditional maritime activity." 13 BRBS

at 310. In this case, it is undisputed

that claimant had to wear a life jacket

and could move only a few feet in either

direction without falling into the water.

Moreover, his work site could be reached

only by boat, and it was by boat that he

was conveyed to shore after his injury.

Such occupational factors clearly illus-

trate that the fact a claimant was

required to perform his work on navigable

water should control the outcome.

The majority here narrowly applies an

already restrictive test to exclude

claimant from coverage. They also

narrow the scope of the Act by refusing to

apply the presumption in Section 20(a),

which requires that employer submit sub-

stantial evidence indicating claimant was

not covered. Not only is there a total

absence of such evidence, all evidence

B-33

admitted is supportive of coverage.

My colleagues’ restrictive view of

Section 2(3) requires that the facts in

the instant case be ignored and the law

twisted so that claimant might be held

outside the jurisdiction of the Act.

This is contrary to the established

principle that the Act is to be con-

strued in conformance with its beneficent

purpose. As the Supreme Court stated in

Northeast Maine Terminal Co. v. Caputo,

6 BRBS 150, 161, 432 U.S. 249, 268 (1977),

"[t]he language of the [1972] Amendments

is broad and suggests that we should take

an expansive view of the extended cover-

age. Indeed, such a construction is

appropriate for this remedial legisla-

tion.” My colleagues in this case deny

coverage to a claimant who would have

been covered prior to the 1972 Amend-

ments. Such a result is clearly incon-

sistent with the intention of Congress:

Section 2(a) amends section 2(3)

of the Act to define an “employee”

as any person engaged in maritime

employment. The definition

specifically includes any long-

shoreman or other person engaged

in longshoring operations, and

any harborworker, including a

ship repairman, shipbuilder and

shipbreaker. It does not exclude

other employees traditionall

covered 3 retains that part of

2(3) which excludes from the defini-

tion of “employee” masters, crew

members or persons engaged by the

master to unload, load or repair

vessels of less than eighteen tons

net. [Emphasis added. ]

S. Rep. No. 1125, 92d. Cong., 2d Sess.

16 (1972); H. Rep. No. 1441, 92d Cong.,

2d Sess. 14 (1972). Claimant herein is

deprived of coverage to which he is

fully entitled. I dissent.

/s/ Julius Miller

JULIUS MILLER

Administrative Appeals

Judge.

Dated this llth day

of June 1981

cl

U.S. DEPARTMENT OF LABOR

Office of Administrative Law Judges

Suite 700 - 111l 20th Street, N.W.

In the Matter of

HOWARD E. LEMELLE

Cla.mant

Vv.

B. F. DIAMOND CONSTRUCTION COMPANY

INCORPORATED

Employer

and

THE AETNA CASUALTY AND SURETY COMPANY

Carrier

Case No. 79-LHCA-84

OWCP No. 5-19771

John H. Klein, Esquire

Breit, Rutter and Montagna

720 Atlantic National Bank Building

415 St. Paul's Boulevard

Norfolk, Virginia 23510

For the Claimant

Ralph E. Lawrence, Esquire

Suite 103, Fairfield Office Building

5241 Princess Anne Road

Virginia Beach, Virginia 23462

For the Employer and Carrier

Cc 2

BEFORE:

PETER MCC. GIESEY

Administrative Law Judge

DECISION AND ORDER

This is a claim for compensation for

permanent total disability under the

Longshoremen's and Harbor Workers' Comp-

ensation Act, as amended, 33 U.S.C. §901,

et seg. (hereafter, "the Act").

A hearing was held in Norfolk,

Virginia, on April 3, 1979.

Having considered the entire record,

including the testimony, exhibits 1/ and

briefs of the parties and having observed

the demeanor of the witness, I make the

following findings of fact, conclusions

of law and decision and order based

thereon.

17 Following the hearing, claimant's

counsel submitted medical reports of

three physicians. These have been marked

Claimant's Exhibits #5 and #6 and entered

in evidence.

Cc 3

Statement of the Case

Claimant was injured in the course of

his employment with respondent employer

on November 23, 1977. Notice and claim

were timely given and filed. Contro-

version was filed some weeks later. 2/

At the time of injury, claimant was

working as a cement finisher on the new

James River Bridge.

Findings of Fact and Conclusions of Law

The facts are as stated.

The statement is brief because the

claim must be dismissed for lack of

coverage by the Act.

Counsel for respondents has relied in

substantial part upon the decision of my

colleague in Broome v. B. F. Diamond

Construction Co., 5 BRBS 69 (ALJ) where

another of respondent's employees working

27 Though opportunity was given

counsel for the submission of the contro-

version form, it is not in the record.

c 4

on the James River bridge was found not

to be engaged in maritime employment.

Ordinarily, the decisions of administra-

tive law judges constituting no precedent,

it would be with considerable caution

that such a decision could be regarded as

authority. In this case, although the

Benefits Review Board did not review the

Broome case, it has cited and dis-

tinguished it with apparent approval in

its decision in Dantes v. Western Found-

ation Corporation Association BRBS

____, BRB No. 78-517, May 21, 1979, p. 5

n. 2.

Accordingly, I find that claimant

herein was not engaged in maritime

employment and that his claim is not

within the coverage of the Act.

Order

The claim of Howard E. LeMelle is

denied, |

c 5

PETER McC. GIESEY

Administrative Law Judge

Dated: August 2, 1979

Washington, D.C.