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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1177

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0250%3A2. Public record. Not legal advice.