Petition for Writ of Certiorari — Rizzi v. Underwater Construction Corp.

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Y96 276 AUG 19 19%.

Cee Ob The CLERK

No.

In The

Supremc Court of the United States

October Term, 1995

DALE R. RIZZI,

Petitioner,

Vv.

UNDERWATER CONSTRUCTION CORPORATION,

Respondent.

Petition For Writ Of Certiorari

To The United States Court of Appeals

For the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

David A. Kelly, Esq.

Montstream & May

655 Winding Brook Drive

Glastonbury, CT 96033-6087

(860) 659-1341

Counsel for Petitioner

QUESTION PRESENTED

Did the United States Court of Appeals for the Sixth

Circuit err in deciding that the Longshore and Harbor Workers’

Compensation Act does not apply to an injured worker who is

submerged under water at the time of his injury but that the

waters have become non navigable before flowing through the

site of the injury?

TABLE OF CONTENTS

Page

QUESTION PRESENTED. «0.04 sis cease ide dewaales i

OP TILING BELOW... os vVicsas ctsaun tas l

STATEMENT OF JURISDICTION. ............... l

STATUTORY PROF VAOIOS 5 6a ce kstuetekseune ts 2

STATEMEGNT OF THE CASE occ cccccccavosenenn 3

REASONS FOR GRANTING THE WRIT.......... 5

I. Decision of the Court of Appeals in this

Case Is in Direct Conflict with the Decision

of the Circuit Court of Appeals for the

Ninth Circuit as Expressed in the Morrison

Knudsen Co. V. O'Leary, 288 F. 2nd 542

‘tg oh Me. |) Wry Emer ae 5

Il. The Sixth Circuit’s Decision to Affirm the

Benefits Review Board Endorses the

Benefit Review Board’s Failure to Follow

the Appropriate Standard of Review. ........ 6

COCA «is ks che psakac beware See 8

Pg.) } rrr err pe recy os net 10

TABLE OF AUTHORITIES

Cases Page

LePore vs. Petro Concrete Structures, Inc..,

TEN cea bb a hae ebsva ce’ 4,6

Morrison Knudsen Co. V. O’Leary

se ) ) 5

O’Keefe v. Smith, Hinchman & Grylis Assoc. ........ 6

380 U.S. 359 (1965)

Willow River Power Co. v. U.S. ... 0... 6... ees 6

101 CT. CL 222 (1944)

Other Authorities

S. Rep. 13, H.R. Rep. 10-11, U.S. Code Cong. and

ee a uni y bn 6 ec 5

OPINIONS BELOW

Decision of Administrative Law Judge David W.

DiNardi, dated June 23, 1990: izzi_v. Un r

Construction Corporation.: (Case No. 89-LHC-3118, OWCP

No. 10-27319) .

Decision and Order of the Benefits Review Board,

United States Department of Labor, dated January 31, 1994:

iZZi V. tion ion.; (Case No. 90-

2346A, 27 BRBS 273)

Decision and Order on Reconsideration of the Benefits

Review Board, United States Department of Labor, dated

November 15, 1994: Rizzi_v. Underwater Construction

Corporation.; (28 BRBS 360 (1994), BRB No. 90-2346A.)

Decision of the United States Court of Appeals for the

Sixth Circuit, Rizzi yv rw ion Corporation.:

Case No. 95-3034, decided and filed May 21, 1996.

STATEMENT OF JURISDICTION

This case arose under the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. Section 901 et seq.

Administrative Law Judge of the United States Department of

Labor was authorized under the Longshore Act to hear the

claim and, as specified under said Act, the Benefits Review

Board had jurisdiction to review‘the Administrative Law

Judge’s Award. \

The United States Court of Appeals for the Sixth

Circuit had jurisdiction to hear the appeal from the Benefits

Review Board pursuant to Section 921(c) of the Longshore

Act. Decision of that Court was rendered on May 21, 1996.

This Court has jurisdiction to review the decision of

the Court of Appeals for the Sixth Circuit by way of certiorari

under 28 U.S.C. Section 1254.

STATUTORY PROVISIONS

33 U.S.C. Section 903(a):

Except as otherwise provided in this section,

compensation shall be payable under this Act 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, dismantling, or building a

vessel).

STATEMENT OF\ THE CASE

Mr. Rizzi seeks to be covered under the Longshore and

Harbor Workers’ Compensation Act, 33 U.S.C. Section 901 et

seq. (Longshore Act). Mr. Rizzi suffered a devastating injury

which arose out of and in the course of his employment with

Underwater Construction Corporation. As a result of this

injury, he was in a coma for several months and is left with

serious permanent disability to the brain and lungs. At the

time of the injury, Mr. Rizzi was submerged under water.

Underwater Construction Corporation is in the business of

using divers to make various repairs to power plants, piers and

other facilities.

Mr. Rizzi’s claim was heard by an Administrative Law

Judge, David W. DiNardi, of the United States Department of

Labor. Judge DiNardi issued his decision June 23, 1990

stating, “that although the claimant was not directly in the

Great Miami River, he was within a channel of water which

flowed from the Great Miami River through this Champion

International Reservoir underneath its factory and then back

into the GMR”. He further found that the site of the accident

was immediately adjacent to the navigable waterway. Further,

Judge DiNardi found that Mr. Rizzi should be covered under

the “twilight zone” wherein Longshore jurisdiction will be

more liberally interpreted if the State jurisdiction is not

extended. Further, Judge DiNardi found that the “overall

employment” test led to his holding that Longshore

jurisdiction attached.

Employer requested review before the Benefits Review

Board of the United States Department of Labor. The Board

issued its Decision and Order dated January 31, 1994 reversing

the Administrative Law Judge. The Board held that the

Administrative Law Judge erred in focusing on the

navigability of the Great Miami River. It went on to state that

the waterway area where the accident occurred had lost its

navigability. They substituted their own facts when they

stated “the facts of the instant case are similar to those

addressed by the Board in the LePore vs. Petro Concrete

Structures, Inc., 23 BRBS 403 (1990)” and went on to deny

coverage.

The claimant requested reconsideration of the Benefits

Review Board judgment and on November 5, 1994, the Board

denied reconsideration.

Claimant requested review before the United States

Court of Appeals for the Sixth Circuit. In an opinion written

by Chief Judge Merritt, the decision of the Benefits Review

Board was affirmed.

The Court of Appeals held that “we agree with the

Board that a navigable waterway ends where underground

pipes and vents remove water from a river to a reservoir or

tank for manufacturing or storage purposes. Otherwise, river

water pumped into municipal reservoirs and similar facilities

would continue to be viewed as navigable waters even though

transportation is no longer possible. Like drains and small

creeks, such reservoirs are too far removed from navigation to

be any longer considered ‘navigable waterways’ even under a

liberal construction.” (Quotation marks in original)

Petitioner now seeks the review of this Honorable

Court.

REASONS FOR GRANTING THE WRIT

I, The Decision of the Court of Appeals in this Case Is

in Direct Conflict with the Decision of the Circuit

Court of Appeals for the Ninth Circuit as

Expressed in the Morrison Knudsen Co. V.

O’ Leary, 288 F. 2nd 542 (9th Cir. 1961).

In Morrison-Knudsen it was held that Longshore

jurisdiction attached to an artificial tunnel that had diverted

water during the course of a construction project on the Snake

River. At the time of the accident, the only water in the area

came from leakage around barriers designed to stop the flow.

The Benefits Review Board and the Sixth Circuit in the

instant case seem to feel that the water in this case was

navigable prior to flowing into the site of the accident and

probably navigable upon flowing back into the river but non

navigable at the site of the accident.

No standards were expressed to determine when and at

what point the water loses its navigability. This problem is

left for future claimants to navigate.

The intent of Congress when it expanded jurisdiction

with the 1972 Amendments was to avoid the problem where

Claimants would walk in and out of coverage during the course

of their working day. (S. Rep. 13 H.R. Rep. 10-11, U.S. Code

Cong. & Admin. News 1972) To follow the new approach

outlined in this case is in conflict with the intent of Congress

and the clear direction expressed in the Morrison Knudsen Co.

VY. O’ Leary case.

In light of this conflict, we ask the Supreme Court to

resolve it.

II. The Sixth Circuit's Decision to Affirm the Benefits

Review Board Endorses the Benefit Review Board’s

Failure to Follow the Appropriate Standard of

Review.

The Benefits Review Board must affirm a decision if

the findings of an Administrative Law Judge are supported by

substantial evidence in the record as considered as a whole, if

they are rational and if the decision is in accordance with the

law. O'Keefe v. Smith, Hinchman & Grylis Assoc., 380 U.S.

35° (1965).

Furthermore, whether or not a stream is navigable is a

question of fact. Willow River Power Co. v. ULS., 101 CT.

CL 222 (1944). Reversed on other grounds 324 U.S. 499.

However, even in light of the fact sensitive nature of

the inquiry, Benefits Review Board not only ignores the

factual findings by the trial judge but goes forward and

substitutes its own set of facts when they state “the facts of the

instant case are similar to those addressed by the Board in

LePore vy, Petro Concrete Structures, Inc., 23 BRBS 403

(1990).” They then go on to describe at length the factual

circumstances of the LePore case.

The Board finds that the facts of the LePore case are

similar to that of the Rizzi case (erroneously) and then issue

the holding that the Longshore Act does not apply. Though

the trial judge found that the water rushed in and out of the

area where the accident occurred and that the claimant was

subjected to the hazards of a maritime environment, the

Benefits Review Board analogized the case to a matter in

which the Administrative Law Judge found that the water

“seeped” into the site of the accident.

The Benefits Review Board has clearly substituted

their own new set of facts to the Rizzi case and this is

impermissible and error.

This issue was raised to the Sixth Circuit. The Sixth

Circuit dismisses this argument with the statement “The

Board’s reversal of the ALJ’s decision order rests upon its

finding that the site of the claimant’s injury did not constitute

navigable waters as covered by 33 U.S.C. 902 (3).” (Emphasis

supplied) The Board is not entitled to make findings of fact in

its review. It is error for the Sixth Circuit to not reverse this

impermissible substitution of facts.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully Submitted,

TA 2. Ca2k

—_

David A. Kelly, Esq.

Montstream & May

655 Winding Brook Drive

Glastonbury, CT 06033-6087

(860) 659-1341

Counsel for Petitioner

CERTIFICATION

I hereby certify that a copy of the foregoing was mailed

to all counsel/parties of record this 14th day of August, 1996,

as follows:

Scott Wilson Williams, Esq.

Maher & Williams

P. O. Box 550

Fairfield, CT 06430-0550

Solicitor General of the United States

Department of Justice

10th Street and Constitution Avenue N.W., Room 5614

Washington, DC 20530

Michael Hertzig, Esq.

U. S. Department of Labor

Solicitor’s Office

200 Constitution Avenue, N.W., Suite S-4325

Washington, DC 20210

DAG ek

David A. Kelly, Esq.

Montstream & Ma

Glastonbury, CT 06033-6087

(860) 659-1341

App. |

APPENDIX A

Page

Decision of Administrative Law Judge David W.

DiNardi, dated June 23, 1990: Rizzi _v.

Underwater Construction Corporation.; (Case No.

89-LHC-3118, OWCP No. 10-27319)............ 11

Decision and Order of the Benefits Review Board,

United States Department of Labor, dated

January 31, 1994: Rizzi _v. Underwater

Construction Corporation; (Case No. 90-2346A,

re” es RRR ee ee Pre oe ane 76

Decision and Order on Reconsideration of the

Benefits Review Board, United States Department

of Labor, dated November 15, 1994: Rizzi v.

Underwater Construction Corporation.; (28 BRBS

360 (1994), BRB No. 90-2346A.)..........0005. 90

Decision of the United States Court of Appeals for

the Sixth Circuit, Rizzi v. Underwater

Construction Corporation; Case No. 95-3034,

decided and filed May 21, 1996. ................ 99

Ct oot eae

U.S. Department of Labor

Office of Administrative Law Judges

John W. McCormack Post Office and Courthouse

Boston, Massachusetts 02109

In the Matter of:

DALE R. RIZZI, Claimant

against

UNDERWATER CONSTRUCTION CORP., Employer

and

Liberty Mutual Insurance Company, Carrier

Case No.: 89-LHC-3118

OWCP No.: 10-27319

David A. Kelly, Esq., For the Claimant

Kathleen M. Byrne, Esq.

Scott W. Williams, Esq., for the Employer/Carrier

Before: David W. DiNardi, Administrative Law Judge

DECISION AND ORDER - AWARDING BENEFITS

This is a claim for worker’s compensation benefits

under the Longshore and Harbor Workers’ Compensation

Act as amended (33 U.S.C. § 901, et seq.), herein referred

to as the “Act.” The hearing was held on January 23, 1990

in New London, Connecticut, at which time all parties were

given the opportunity to present evidence and oral

arguments. The following references will be used: TR for

the official hearing transcript, ALJ EX for an exhibit

offered by this Administrative Law Judge, CX for a

Claimant’s exhibit and RX for an Employer’s exhibit. This

decision is being rendered after having given full

consideration to the entire record.

Post hearing evidence has been admitted as:

EXHIBIT ITEM FILING

NO. DATE

CX 25 Attorney Kelly’s letter filing the 2/7/90

CX 26 January 23, 1990 letter of J. 2/7/90

Thomas Wheeler to Attorney

Kelly identifying the Carrier’s

adjuster who visited Claimant in

the hospital on April 10, 1987

RX | Attorney Powers’ letter filing the 3/26/90

RX 2 Deposition of Testimony of 3/26/90

Patrick H. Carigan, and

RX 3 Matthew P. Zerbe 3/26/90

ALJ EX 5 _ This Court’s Notice sending to 3/26/90

Attorney Kelly copies of RX 2

and RX 3 as apparently this Court

was served copies intended for

Attorney Kelly

ALJ EX6

CX 27

CX 28

CX 29

CX 30

CX 31

RX 4

ALJ EX 7

CX 32

CX 33

RX 5

This Court’s Notice sending to

Attorney Kelly and Attorney

Williams copies of CX 23 and

CX 24

Attorney Kelly’s letter filing

Deposition Testimony of J.

Thomas Wheeler and twenty-

three photographs of the Great

Miami River in the vicinity of

Hamilton, Ohio, and

Transcript of the attempted

deposition Dale Gurr (a witness

who as a “no-show”)

Attorney Kelly’s letter filing

Claimant’s brief

Respondents’ brief filed by

Attorney Byrne

This Court’s Notice directing the

filing of additional pleadings

Attorney Kelly’s letter filing

Claimant’s response

Respondents’ Motion for

Extension of Time

4/12/90

4/16/90

4/23/90

4/26/90

5/14/90

5/29/90

RX 6 Copy of Attorney Williams’ letter 6/1/90

to Compensation Commissioner

Arcudi

RX 7 Respondents’ Supplemental 6/6/90

Memorandum of Law

CX 34 Attorney Kelly’s letter timely 6/8/90

objecting to Respondents’ motion

ALJ EX 8 _ This Court’s denial of Claimant’s 6/8/90

objections to Respondents’

motion, and Claimant was given

ten days to days to file a response

to Respondents’ memorandum

RX 8 Respondents’ supplemental 6/18/90

memorandum

CX 35 Claimant’s response to ALJEX 8 6/20/90

The record was closed on June 20, 1990.

Stipulati Bess

The parties stipulate, and I find:

l. Claimant and the Employer were in an

employee-employer relationship at the relevant times.

2. Claimant alleges that he suffered an injury

in the course and scope of his employment on January 20,

1987.

3. The Employer had immediate notice of the

injury.

4. The claim for compensation is dated

December 12, 1987 and the Respondents’ notice of

controversion is dated January 20, 1988.

5. The parties attended an informal conference

on June 15, 1989.

6. No benefits have been paid herein.

The unresolved issues in this proceeding are:

1. Whether Claimant satisfies the

jurisdictional/coverage requirements of the Act.

“e Causality of any injury to employment.

3. Nature and extent of any disability.

4. Average Weekly Wage.

3 Entitlement to medical benefits, interest and

additional compensation pursuant to Section 14(e) of the

Act.

Summary of Evidence

Dale R. Rizzi (“Claimant” herein), twenty-eight

years of age, with a high school education plus several

courses at a community college in Arizona, worked in

Atlanta as a laborer in masonry construction and for a firm

engaged in cleaning restaurant equipment. He entered the

United States Navy on September 8, 1983 and, upon

completion of basic training, immediately started Diving

School in Coronado, California, a course which lasted

sixteen weeks on an eight-hour daily basis. He was taught

SCUBA and diving medicine, first aid, as well as

maintenance and repair of diving equipment. After

completion of the course he was assigned to the Navy

Submarine Base in New London, Connecticut in November

of 1984 and had duties of performing underwater work on

the submarines, Claimant estimating that fifty (50) percent

of his work was performed underwater. Claimant was

honorably discharged on September 1, 1986 and he applied

for underwater work at several firms as he wanted to

continue in that field. However, such work was not

available and, about three weeks after his discharge, he

began to work as a carpenter-laborer for a construction firm

earning $6.00 per hour for a forty (40) hour week. (TR 17-

26)

Claimant left that job the latter part of October of

1986 and on October 25, 1986 he was hired as a diver by

Glen McEwen (CX 1, item 20) of Underwater Construction

Corporation (“Employer”), a firm located in Essex,

Connecticut and which specializes in performing

underwater various tasks utilizing the services of

underwater divers. Claimant’s first job was at a nuclear

power plan in Lancaster, Pennsylvania where he had the

task of “building underwater steel dams in the water

channels underneath the (power) plant,” work which took

about two or three weeks. The power plan was located on

a river more than one hundred yards in width; he could not

remember the name of the river. Claimant was paid $6.00

per hour plus $30.00 per diem for every day spent away

from Connecticut and $10.00 for every day spent working

in Connecticut. After that work was completed Claimant

returned to Essex, Connecticut and performed various

underwater tasks for the Employer at various sites,

including unclogging intake pipes at a nuclear power plant

on the Connecticut River at Haddam, Connecticut.

Claimant saw various type vessels on the Connecticut

River, such as barges, large ships and pleasure boats.

Claimant also did underwater work at several marinas along

the Connecticut River. At the Employer’s Essex home

office claimant did maintenance, repair and rebuilding work

on diving equipment and underwater machinery not only

used by the Employer but also such equipment sent to the

Employer by other firms for such repair and maintenance.

The Employer also has offices in Wheeling, West Virginia,

Norfolk, Virginia and in Florida. (TR 27-32)

In early January of 1987 Claimant drove a company

vehicle and appropriate diving equipment to Wheeling,

West Virginia, and he was assigned work in Hamilton,

Ohio at a Champion International Company paper making

plan located on the banks of the Great Miami River. A

reservoir or large tank was located underneath the

Champion plant and water from that river was pumped into

the reservoir for use in the paper-making process and the

water so used was thereupon recycled and discharged

through other pipes and returned to the river. Claimant’s

task was to dive underwater and clean out the silt, debris

and mud from the intake pipes. In the performance of that

work he had to use a 9 inch cast iron pump which was so

heavy as to require the use of a chainfall to move it and

push it into the water, Claimant working in depths of four

feet to about twelve feet. Claimant who estimated the

pump weighed over 100 pounds used the pump to remove

the silt from the reservoir’s intake pipes and pumped it back

into the Great Miami River (herein “GMR”), a river which

Claimant estimated was one hundred feet wide (TR 75-76)

and 15 to 20 feet in depth(TR 37) or 20 to 30 feet in depth.

(TR 75-76)

In view of its importance, claimant’s pertinent

testimony on page 37-39 on the nature of his underwater

work will be quoted here to put this matter in proper

perspective:

Q What was your job in relation to that

machine?

A My job was to take the pump, the intake of

that pump and pump the silt out of the reservoir back into

the river.

Q Now, so this was mud that you were

removing?

A Yes. From the river.

Q And it flowed in from the river?

A Yes.

Q Describe for me how deep was the water you

went into?

A Fifteen to 20 feet.

Q How much river mud was in there?

A Twelve to -- from 12 feet to 4 feet.

Q So it was pretty shallow? The water shallow

to begin with?

A Yes.

Q Tell me how the job went?

A We started at the shallowest spot of the mud.

Pumped the silt out of the shallowest spot, and worked

towards the deepest spot, moving the pump towards the

deeps -- towards the mud continuously scooping mud into

the intake of the pump.

Q When you got to -- did you eventually reach

the bottom where the mud stopped?

A Yes.

Q Let me ask you this. So this machine would

such the water and mud out of that particular area?

A Yes.

Q Where would the discharge of that pump be.

A We discharged it back into the Miami River.

Q Back into the Miami River?

A Yes.

Q How long were you in Hamilton, Ohio doing

this task?

A My recollection of that period of time is

vague. I believe | was there several weeks.

Q Would you be in the water eight hours a day.

A I wasn’t in the water eight hours a day.

Eight hours a day would be beyond, I believe, at that depth

go beyond, | believe, at that depth go beyond a diver’s --

they would have to spend time in a decompression tank.

Q How much time did you spend in the water?

A Approximately four hours a day.

Q And would you alternate with another diver?

Yes.

Q What would you do when you were not in

the water?

A When I was not in the water, then my job

was to keep an eye on the other diver, the head compressor,

to make sure he is okay, all the time constantly. Talk to

him every 15 to 20 minutes just to hear his voice. Basically

to keep an eye on the other diver.

Q While you were in the water you would be

using this pump?

A Yes.

In response to questioning by counsel as to whether

he was concerned as to the flow of the GMR, Claimant

testified at Page 81:

A We had absolutely nothing to do with the

continued running of that river. What we were pumping

into the river was -- had little or no effect at all on the river.

It was none of our concern.

Claimant testified that he thought or believed he

saw some docks or wharves on the GMR in the area in

which he was working. He did not see much river traffic as

this was the middle of the winter. There were no large piers

or docks or dry docks for large vessels; he saw no industrial

shipping and could not recall whether or not there were any

buoys or navigational lights on the GMR. He saw no

loading docks at the Champion plant and the river seemed

to be about the same width and depth in the area in which

he was working. Claimant worked only inside that

reservoir or tank or worked on the surface monitoring the

activities of the diver inside that tank. If silt had not been

removed, the paper-making process would have been

inhibited. (TR 68-84)

Two divers usually worked as a team for four hours

each day, each working the four hours separately

underwater (apparently the limit) and then each diver spent

four hours monitoring the underwater work and safety of

his partner. On January 20, 1987 Claimant started his work

day at 7:30 A.M. and some time thereafter developed a

headache. Claimant, suspecting perhaps carbon monoxide

poisoning, asked his diving supervisor to check his air

supply. The supply was approved and Claimant continued

his work. However, the headache worsened and he started

to climb up the ladder to egress the water but started to

regurgitate and as he was wearing an air-tight helmet, he

swallowed some vomit, tried to hold his breath and

“vaguely” remembers reaching the surface. Claimant was

brought to Mercy Hospital and a CT scan “showed a

massive intraventricular hemorrhage.” He finally regained

consciousness as a hospital patient. He was hospitalized

122 days, 80 days of which were spent in intensive care.

(TR 36-46)

Claimant was discharged on May 22, 1987 with

these diagnoses (CX 4 at 1):

DISCHARGE MEDICATIONS: Aldomet, 500 mg.

Theragran Hematinic

Zantac, 150 mg., h.s.

Tylenol, p.r.n.

DISCHARGE DIAGNOSES:

5 Subarachnoid hemorrhage secondary to

arteriovenous malformation.

2. Bilateral empyemas and _bronchopleural

fistulae.

3. Adult respiratory distress syndrome

secondary to aspiration pneumonia.

4. Hypertension.

5. Yeast sepsis, probably Candida.

OPERATIVE PROCEDURES:

Multiple therapeutic lavages.

Ventriculostomy.

CVP lines twice.

Left lung decortication and closure or

bronchopleural fistula. Right lung decortication and

wedge resection and closure of bronchopleural

fistula. Right lung decortication and closure of

bronchopleural fistula also done on 3/21 as well as

on 1/26.

Right tube thoracostomies on five occasions.

Left tube thoracostomies four times.

CONSULTATIONS: Dr. A. Palatchi

Dr. T. Brown

Dr. K. Wehr

Dr. H. Ramadas

Dr. W. Krall

Claimant who was treated and examined by »~umerous

physicians felt “very, very weak” in May of 1987 and could

only walk about thirty (30) feet and lift about five pounds;

he weighed 175 pounds on January 20, 1987 and 117

pounds at time of his discharge. He recuperated at the

family home near Buffalo and was hospitalized twice for

angiograms at Erie County Medical Center. In November

of 1987 he moved to Tempe, Arizona to escape the Buffalo

winter and he started to work as a part-time security guard;

in March of 1988, earning $4.25 or $4.50 per hour; he

became a full-time worker in May or June.

In January of 1989 he left Tempe and went to Albuquerque

where he obtained work as a full-time laborer at a lumber

mill, earning $4.25 per hour operating a radial arm saw. He

spent four months there earning money to have his truck

repaired, Claimant returning to Buffalo in September. He

obtained work as a laborer at a masonry construction firm

earning $6.00 per hour. He had duties of carrying concrete

blocks--weighing 10 to 60 pounds--a distance of from 20 to

100 feet. He tired easily and had to take frequent rest

breaks of short duration, taking an average of 5 to 8 such

breaks each hour. In November of 1989 he began

vocational technical school to learn to become a machinist.

The class will end in March of 1990 and he is passing his

courses although his short-term memory loss causes him

problems in class and in doing his assigned tasks. He also

works part-time at a local supermarket and earns $3.80 per

hour cleaning equipment and the floors in the meat

department. (TR 46-60) Claimant experiences shortness of

breath upon the slightest exertion, dust and fumes are

especially bothersome to his respiratory system and he

catches colds more easily and more frequently. He has to

take frequent rest breaks. (TR 61-63)

Claimant’s October 18, 1989 pulmonary function

tests were interpreted by the physician as showing “severe

restrictive lung disease . . . (and) an insignificant 5%

decrease of TLC (total lung capacity) since 1987.” (CX 3

at 1) Claimant’s medical records reflect that he was

admitted on October 5, 1987 to the Erie County Medical

Center for a cerebral angiogram and Dr. Donald Solonium

states as follows in his October 6, 1987 Discharge

Summary (CX 3 at 2):

DISCHARGE DIAGNOSIS: Possible cerebral

arteriovenous malformation.

PRINCIPAL PROCEDURE: Cerebral angiogram.

HISTORY: Dale Rizzi is a 25-year old while male who was

diving in January of 1987 when he had a subarachnoid

hemorrhage from a left parietal AVM (arteriovenous

malformation). This AVM_ was. demonstrated

angiographically and subsequently by CT on his original

admission at hospital in Ohio. At the time he required

ventriculostomy and multiple thoracotomies. He was seen

in Neurosurgery Clinic in July 1987 in Buffalo for follow

up. At the time his thoracic empyema which had been

present since his original event was still draining through

the thorocostomy tubes. He was followed in the Neuro-

surgery Clinic until this problem has resolved. He is

admitted now for cerebral angiography.

HOSPITAL COURSE: The patient is admitted to the

hospital and on the Sth of October 1987 underwent cerebral

angiography. Initial reading of the cerebral angiogram was

negative; however, continued review of the angiograms will

be required due to the small nature of the arteriovenous

malformation. This review will be finished and a report

will be given to the patient in 2 weeks when he reports to

the Neurosurgery Clinic. Claimant also underwent a

complete cerebral angiogram on October 29, 1987 to rule

out a possible cerebral arteriovenous malformation. (CX 23

at 2)

Dr. Thomas J. Godar, Direction, Section of

Pulmonary Diseases, Saint Francis Hospital and Medical

Center, Hartford, Connecticut, reviewed Claimant’s

medical records and the doctor, in a most detailed report,

dated June 9, 1989, commented and concluded as iollows

(CX 2 at 9 and 10):

“There is no doubt whatsoever from the description of the

event that the patient’s heavy lifting and straining induced

the intracerebral hemorrhage and precipitated a sequence of

events leading to a very complex course and very extensive

respiratory impairment. It is my impression that the

vomiting that occurred while he still had the helmet on and

shortly after the helmet was removed, was in fact

responsible for initiating the insult to the upper and lower

respiratory tract that resulted in the development of the

ARDS (acute respiratory distress syndrome). The lack of

immediate ARDS is not at all unusual in this situation and

it has been known to develop as late as 72 hrs. after a

serious inhalation injury. Since the patient apparently had

excellent exercise tolerance and no evidence for underlying

lung disease, there is no other complicating factor that

would have predisposed him to the devastating disease that

resulted...

“ It appears quit clear that the work activities at the time of

the acute injury represent a substantial factor in causing the

subsequent pulmonary injury resulting from aspiration

pneumonia and a secondary ARDS with the complications

of empyema and bronchopleural fistula leading to

prolonged complex hospitalization and multiple surgical

procedures.”

Respondents’ attorney, by letter of July 8, 1989,

“request(ed) a further clarification” of Dr. Godar’s June 9,

1989 report and the doctor responded (CX 2 at 3 and 4):

“The neurosurgical literature is replete with articles on

intracerebral hemorrhage associated with aneurysms of A-V

Malformation (angiomas) but the precise risk of bleeding

from a pre-existing lesion is still not clear. . .

“In conclusion, I continue to believe that the event that

caused Mr. Rizzi’s admission to the hospital on 1/20/87

resulted from the rapid alterations and elevation of

intracerebral blood pressure associated with straining that

produced a bleed from a pre-existing congenital A-V

malformation . . .”

Dr. Godar responded further to Claimant’s attorney by

letter dated December 23, 1989 and concluded as follows

(CX 2 at 1):

“Based on the American Medical Association Guidelines

for Respiratory Impairment, the patient has a Class III or

moderate impairment, representing approximately a 45%

loss of respiratory function. This would translate into a

35% impairment of function for both lung and for the whole

person. I should note that this is a relatively conservative

interpretation since the pulmonary function test reveals

some striking variations in impairment, MVV being only

43% of predicted while the diffusion capacity is 71% of

predicted. This estimation is based on the balance of these

test abnormalities in which some are greater than the

estimated impairment and some less.

“In my opinion, these findings are not likely to improve

further and therefore the patient should be considered to

have received maximum medical improvement at this time.

It is further my opinion, using reasonable medical judgment

that the patient is permanently and totally disabled for

return to his former job as an underwater diver.”

Dr. Kenneth L. Wehr, one Claimant’s attending physicians

at Mercy Hospital in Hamilton, Ohio, stated as follows in

his May 11, 1987 report (CX 6 at 3)

“Dale Rizzi is a 25 year old man who was admitted to

Mercy Hospital on 1/22/87 having incurred a subarachnal

hemorrhage with collapse. Approximate to that admission

he was involved in diving to presumably clean tanks at a

local industry.

“The subarachnal hemorrhage resolved (sic?) that he

developed probably due to aspiration pneumonia, bilateral

pneumonia with adult respiratory distress syndrome,

bilateral pneumothoraces and bilateral empysemas which

required extensive surgery. His condition now is

etl

stabilizing. It is expected that he will take at least 3-6 more

months for recovery.

“It is my impression that the approximate cause of the

rupture of the malformation is related to his diving and

perhaps the increased venous pressures associated with

breath holding et cetera, all maneuvers associated with

underwater diving. His aspiration pneumonia and adult

respiratory distress syndrome were associated with

aspiration following the altered consciousness state

associated with subarachnoid hemorrhage.” (CX 6 at 3)

The Mercy Hospital bill relating to the Claimants

hospitalization and treatment from January 20, 1987

through May 22, 1987 totals $262,622.43. (CX 5) The

record reflects other bills sent directly to Claimant by the

physicians: (CX 7 $5,740.00; CX 10 $15,365.00; CX 16

$215.00; CX 17 $47.00; CX 18 $100.00(?); CX 19-2

$2,969.10 (apparently a summary submitted by the

collection agency of the individual bills which are a part of

CX 19).

Victor T. Rizzi, Claimant’s father, testified that his son was

in excellent health before January 20, 1987, that at the time

of his discharge from the hospital his son was a “walking

skeleton” and that actually he should not have been released

because he still had inserted chest tubes remaining from his

thoracostomies. A nursing service was required twice

weekly until the removal of the tubes. Claimant’s short-

term memory is poor and that memory deficit has caused

problems at his current vocational retraining and in his

daily living. His son also is bothered by shortness of breath

upon exertion. Claimant’s father has not spoken to anyone

at Champion International but he did talk to a female

representative from the Carrier who told him that

compensation benefits and the medical expenses would be

paid. She gave him her business card, but he could not

recall her name. (TR 88-98)

John T. Wheeler, Director of Business Services, Mercy

Hospital, whose task it is to render proper bills to the proper

parties, presented the hospital bill in question (CX 5) and he

testified that the total balance is fair and accurate and

represents the “largest bill” every submitted by his hospital.

Mr. Wheeler has observed many pleasure boats on the

Great Miami River in the summer. In 1913 a “horrendous

flood” occurred and the Miami Current Conservancy

District which was formed in 1920 has built five dams to

control the waters of the Great Miami River. Mr. Wheeler

estimated that the GMR was 250 to 300 feet wide in the

area of the Champion plant, (2) that the GMR starts about

100 miles north of Hamilton, Ohio and (3) that about

seventeen miles south of Hamilton the GMR flows into the

Ohio River. Dayton, Ohio is the nearest large city. Mercy

Hospital is “very close” to the Champion plant and

Claimant was immediately admitted to the Hospital and his

hospitalization was treated as due to a_ workers’

compensation injury, and such status was indicated on the

hospital bill. (CX 5, item 57; TR 98-107)

About one month after the injury Mr Wheeler spoke to a

female representative of the Carrier who was granted

permission to see Claimant’s medical records and to take

photographs of Claimant. Mr. Wheeler testified that it was

“very unusual” for one month to elapse before such contract

by an insurance representative. He could not remember her

name but he indicated that her name could be obtained from

hospital records. (TR 107-113) He sent a bill to the Carrier

in June of 1987. (CX 24) Mr. Wheeler, by letter dated

January 23, 1990, identified Ms. Marjorie M. Pater as the

Carrier’s representative who visited him on April 10, 1987

and who led him to believe that Claimant’s medical bills

and compensation would be paid. (CX 26) Mr. Wheeler

gave additional testimony by deposition on Mach 19, 1990

(CX 28) and he has offered twenty-three photographs he

took from his office, which are photographs of the GMR,

the Champion plant and other views of the GMR at

Hamilton, Ohio.

The record contains a copy of Public Notice No. 83-LD-

016, issued July 28, 1989, by the U.S. Army Corps of

Engineers, Louisville District, and the notice relates to the

Limits of Jurisdiction exercised by that district. That

eleven page notice (1) requires, inter alia, that permits be

obtained for most work within the navigable waters of the

United States and (2) provides that the U.S. Army Corns of

Engineers exercises jurisdiction over the Great Miami River

for 117 miles about its mouth and that the river’s location

is given as 491.0 Ohio River Mile.

Patrick H. Carigan, a transportation consultant who, inter

alia, “assist(s) people with applications for permit(s) to do

work in navigable waters of the United States” and who

was a Civil Engineer with the U.S. Army Corps of

Engineers from 1951 to 1979 testified herein by deposition

(RX 2). Mr. Carigan is “very much” familiar with the Ohio

River and its tributaries, one of which is the Great Miami

River. Carigan Deposition Exhibit | is a “standard Ohio

River navigation chart which is sold to the public for use in

navigating on the river” and, although not showing

Hamilton, Ohio thereon, was offered by Respondents to

demonstrate the source of the Great Miami River. That

exhibit shows the first seven miles of the river and

Hamilton is an additional twenty-six miles up river on the

Great Miami River (GMR), Miamitown Gage (six?).

According to Mr. Carigan, the GMR had a water depth as

of January 20, 1987 in normal flow periods of about two to

two and one half feet at mile 14.5 upriver. According to

Mr. Carigan, GMR is not navigable in the vicinity around

Hamilton and there is neither ship repair nor longshoring

operations nor cargo transportation on the GMR between

Hamilton and the mouth of the GMR because the GMR is

shallow, and contains as well other obstructions such as the

B & O Railroad Bridge, which has a vertical clearance of

29.2 feet, at the source of the GMR. (RX 2 at 4-19)

Moreover, according to Mr. Carigan, the Corps of

Engineers has jurisdiction over the deposition of refuse,

waste-products or construction projects in and around

navigable waterways or around tributaries of navigable

waterways such as the GMR at Hamilton, Ohio. The Corps

of Engineers would be responsible for issuing permits in the

Hamilton area. The Ohio River is a navigable waterway

and there is much commercia! shipping by barges and two

boats all along the Ohio river. The largest boat Mr. Carigan

has ever seen on the GMR is a sixteen to eighteen foot bass

fishing boat. Mr. Carigan estimated the GMR was about

400 feet wide at mile 33, as represented on Carigan

Deposition Exhibit 2, within Hamilton corporate limits.

The Sewage Disposal Plan apparently is a city-owned

facility. A permit would have to be obtained from the

Corps of <ngineers before a firm could draw water from the

GMR to operate a business “because of the possible impact

of the construction activity on the water quality” and

pursuant to the Clean Waters Act which entrusted such

jurisdiction to the Corps of Engineers. A permit would also

be needed to perform any dredging on the GMR. Mr.

Carigan identified Public Notice 83-LD-016, dated 28 July

1989 (CX 15), as the type of document he had previously

seen and, in response to intense cross-examination by -

Claimant’s counsel, he admitted that 33 U.S.C. §407

prohibits placing or causing to be placed into navigable

waters any materials “in such a manner that it might be

washed into the waterway and become either a pollutant or

a hindrance to the flow of water.”

Mr. Carigan also admitted that the U.S. Army Corps of

Engineers regulates activities in and around navigable

waters and activities in and around the GMR and Hamilton,

Ohio but not because the GMR is a navigable waterway but

because of the Clear Waters Act. A navigable waterway,

according to Mr. Carigan, is one which is “capable of

sustaining a commercial operation of navigation for profit.”

Mr. Carigan also admitted (1) that a permit would be

needed from the Army Corps of Engineers for the removal

of silt and residue from tank water before it is discharged

into the GMR and (2) that the Champion Paper plant,

adjacent to the GMR, was the type of activity or structure

under the permit process of the Army Corps of Engineers.

(RX 2 at 22-41)

i aig

Mr. Carigan estimated that the average depth of the GMR

in the vicinity of Hamilton, Ohio is “between four and five

feet,” Mr. Carigan opining that such depth would not permit

commercial river traffic in that area. (Id. at 41-44) Mr.

Carigan also admitted that the pumped-out silt and debris

after it is discharged into the GMR and after it is washed

downstream for thirty-three miles might end up in the Ohio

River and “could be injurious to (such) navigation.” (Id. at

46-47)

Matthew P. Zerbe, a law clerk/paralegal at the law firm in

Cincinnati providing local legal services for Respondents,

testified that on March 9, 1990 he accompanied a private

investigator in an airplane and took photographs of the

Champion International plant on the GMR and twenty-five

photographs, which he identified and which are numbered

sequentially, were offered on behalf of the Respondents and

they are attached to Mr. Zerbe’s deposition testimony in

evidence of RX 3. The photographs were taken a altitudes

varying from 2000 to 2,500 feet. (RX 3)

On the basis of the totality of this closed record and having

observed the demeanor of and having heard the testimony

of credible witnesses, | make the following:

Findings of Fact and Conclusions of Law

In arriving at a decision in this matter, the fact-finder is

entitled to determine the credibility of the witnesses, to

weigh the evidence and draw his own inference from it, and

he is not bound to accept the opinion or theory of any

particular medical examiner. Banks vy. Chicago Grain

Itimmers Association, Inc. 390 U.S. 459 (1968), reh.

Todd Shipyards v. Donovan,

denied, 391 U.S. 939 (1968);

300 F.2d 741 (Sth Cir. 1962);

Corp., 17 BRBS 153 (1985);

Seaman_v. Jacksonville

Shipyard, lnc., 14 BRBS 148.9 (1981); Brandt v. Avondale

Shipyards, Inc., 8 BRBS 698 (1978); Sargent v. Matson

Terminal, Inc., 8 BRBS 564 (1978). At the outset it further

must be recognized that all factual doubts must be resolved

in favor of the Claimant. Wheatley v. Adler, 407 F.2d 307

(D.C. Cir. 1968); Strachan Shipping Co. v. Shea, 406 F.2d

521 (Sth Cir. 1969), cert. denied, 395 U.S. 921 (1970).

Furthermore, it consistently has been held that the Act must

be construed liberally in favor of the Claimant. Yoris v.

Eikel, 346 U.S. 328 (1953);

377 F.2d 144 (D.C. Cir. 1967). Based upon the

humanitarian nature of the Act, claimants are to be

accorded the benefit of all doubts. Durrah v. WMATA, 760

F.2d 320 (D.C. Cir. 1985);

Champion v. S & M Traylor

Brothers, 690 F.2d 285 (D.C. Cir. 1982). Harrison v.

Potomac Electric Power Company, 8 BRBS 313 (1978).

The Act provides a presumption that a claim comes within

the provisions of the Act. See 33 U.S.C. §920 (a). This

Section 20 presumption “applied as much to the nexus

between an employee’s malady and his employment

activities as it does to any other aspect of a claim.”

Swinton v, J. Frank Keily, Inc,, 554 F.2d 1075 (D.C. Cir.

1976), cert. denied, 429 U.S. 820 (1976). Claimant's

uncontradicted credible testimony alone may constitute

sufficient proof of physical i injury. Golden v. Eller & Co..

8 BRBS 846 (1978), aff'd, 620 F. 2d 71 (Sth Cir. 1980).

The threshold issue in this case is whether or not Claimant

is covered maritime employee under the Act. At the outset

it is well to keep in mind that the Benefits Review Board

has consistently held that the Section 20(a) presumption

that a claim comes within the provisions of the Act is

inapplicable to the threshold issue of jurisdiction. Sedmak

y. Perini North River Associates, 9 BRBS 378 (1978); aff'd

sub nom. Fusco v. Perini North River Associates, 601 F.2d

659 (2d Cir. 1979), rev’d on other grounds, 444 U.S. 1028

(1980); 622 F.2d 659 (2d Cir. 1980) (decision on remand).

W N N Shipbuildi 1 Dev Dood

Company, 16 BRBS 31 (1983); Boughman v. Boise

Cascade Corporation, 14 BRBS 173 (1981); Holmes v.

Seafood Specialists, Boat Works, et al, 14 BRBS 141

(1981). However, the United States Court of Appeals for

the Fifth Circuit has held that “(t)he judicial policy has long

been to resolve all doubts in favor of the employee and his

family and to construe the Act in favor of the employee for

whose benefits it is primarily intended”, Army Air Force

Exchange v. Greenwood, 585 F.2d 791 (Sth Cir. 1978), and

that the policy of the Act has been to “resolve doubtful

questions of coverage in the Claimant’s favor.” Tampa

Ship Repair v. Director, 535 F.2d 936, 938 (Sth Cir. 1976).

While the Longshore Act does not define “Navigable

Waters,” the United States Code Annotated (herein

“USCA”), in Chapter 26 of its section on Navigation and

Navigable Waters and the Clean Water Act, defines

“Navigable Waters” as “the waters of the United States,

including the territorial seas.” 33 USCA §1362 (7). The

Supreme Court has defined it in The Daniel Ball, 77 U.S.

557, 563 (1871) as “. . . navigable waters of the United

States within the meaning of the Acts of Congress .

when they form a continued highway over which commerce

is or may_be carried on with other States or foreign

countries...” (Emphasis added) In resolving the threshold

issue as to whether or not the Great Miami River (““GMR”)

is “Navigable Waters” of the United States, it is well to

keep in mind certain well-settled principles of law gleaned

from Admirality and Maritime Law, due to the paucity of

cases under the Longshore Act dealing with this particular

issue, keeping in mind the humanitarian and beneficent

purposes of the Longshore Act.

In determining whether a waterway is navigable, the factual

inquiry is whether the water has the capability of use by the

public for the purpose of transportation and commerce, U.S,

vy. Kaiser Aetna, 584 F.2d 378 (9th Cir. 1978). This

includes the personal use of a waterway by private boats.

U.S. v. Appalachian Power Co., 311 377, 61. Ct. 291

(1940)

The United States Supreme Court has held many times that

In determining whether waters within state

are navigable so that title to lands

underlying them passed from United States

to state on state’s admission to Union,

question of navigability is federal question

determinable according to law and usages

recognized in federal courts, regardless of

whether waters are capable of use for

navigation in interstate or foreign

commerce. U.S. v. State of Oregon, 295

U.S. 1,55 S. Ct. 610 (1935); 295 U.S. 701,

55 S. Ct. 879 (1935) (decree pursuant to

decision).

Moreover, whether or not a body of water is navigable is to

be determined by federal law. Puyallup Tribe of Indiana v.

Port of Tacoma, 525 F. Supp. 65 (D.C. Wash. 1981), aff'd

717 F.2d 1251, cert. denied, 465 U.S. 1049, 104S. Ct. 1324

(1981) reh. denied, 466 U.S. 954, 104 S. Ct. 2162 (1984).

The constitutional authority of the United States to regulate

commerce and navigation includes the power to control

erection of structures in navigable waters. State of

Washington Department of Game _v. Federal Power

Commission, 207 F.2d. 391(9th Cir. 1953), cert. denied,

347 U.S. 936, 74 S.Ct. 626 (1954). While this Court may

take judicial notice of the navigable character of large and

well-known bodies of water within its jurisdiction, see, e.g.,

State of Arizona v. State of California, 283 U.S. 423, 51

S.Ct. 522 (1931), the navigability of those waters of a more

insignificant character must be established by evidence, and

the burden of proof rests upon the party who asserts the

navigability of a particular waterway. See e.g., Goose

Creek Hunting Club, Inc. v, ULS., 518 F.2d 579, 207 Ct.

C1. 323 (1975); lowa- Wisconsin Bridge Co. v. US., 84 F.

Supp. 852, 114 Ct. Cl. 464 (1949), cert. denied, 339 U.S.

982, 70 S.Ct. 1020 (1950); Mintzer v. North American

Dredging Co., 242 F. 553 (D.C. Calif. 1916), aff'd 245 F.

297, 157 C.C.A. 489 (1917); Harrison v. Fite, 148 F. 781,

78 C.C.A. 447 (Ark. 1906). In determining questions of

navigability, official reports and public notices of the War

Department (now Secretary of the Army), expressing

opinions as to navigability, may be admitted into evidence

for consideration with all other evidence. U.S. vy.

Appalachian Electric Power co., 23 F. Supp. 83 (D.C. Va.

1938), aff'd, 107 F.2d 769 (4th Cir. 1939), rev’d on other

grounds, 311 U.S. 377, 61 S.Ct. 291 (1940), reh. denied

312 U.S. 712, 61 S.Ct. 548 (1941), petition denied, 317

U.S. 594, 63 S.Ct. 67 (1942).

The capability of use by the public for purposes of

transportation and commerce is the true criterion of the

navigability of a waterway, rather than the extent and

manner of its current or past use. Alabama Power Co. v.

Gulf Power Co., 283 F. 606 (D.C.) Ala. 1922) (Emphasis

added). Moreover, a waterway is a “navigable waterway”

if it is suitable for use as a highway for commerce, and a

waterway meets this requirement if it presently is being

used or is suitable for use, or if it has been used or was

suitable for such use in the he ae RY

im, (D.C. Wash, 1970)

(Emphasis added); Coates v. U.S., 110 F. Supp. 471, 124

Ct. Cl. 806 (1953); lowa-Wisconsin Bridge Co., v. U.S.,

supra. To be “navigable” a water course in its natural state

should be useful for commerce or transportation. U.S. v.

Ladley, 4 F. Supp. 580, (D.C. Idaho 1933). Streams

capable of being used for the purpose of carrying boats,

passengers, freight, floating logs, timber, wood or any other

product to market are navigable. The Montello, 87 U.S.

430 (1874); (Emphasis added); The Montello, 78 U.S. 411

(1871); The Daniel Ball, 77 U.S. 557 (1871); Chisolm v.

Caines, 67 F. 285 (C.C.S.C. 1894); Spokane Mill Co., v.

Post, 50 F. 429 (C.C. Idaho 1892). A Navigable river is

one which in its natural state is capable of floating logs,

boats and rafts. Ne-Bo-Shore Ass’n, Inc. v. Hogarth 7 F.

Supp 885 (D.C. Mich. 1934), aff'd 81 F.2d (70) (1936)

(Emphasis added).

It is also well to keep in mind that the tact that portions of

a river are no longer used for commerce does not dilute the

power of Congress over them. State of Oklahoma ex rel.

Philips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S. Ct.

1050 (Okla. 1941). Moreover, disuse attributable to

improved highways and changed methods of distribution

for commerce does not affect the navigability of a river.

Rochester Gas and Electric Corp. v. Federal Power

Commission, 344 F.2d 594 (C.A. N.Y. 1965), cert. denied,

382 U.S. 832, 86 S.Ct. 72 (1965). <A stream once

established as navigable does not lose this characteristic by

subsequent disuse. Allen Gun Club v. U.S., 180 Ct. Cl. 423

(1967). In order to be a navigable stream it is not necessary

that the waters be deep enough to admit the passage of

boats at all portions of the stream. St. Anthony Falls

of St. Paul, Minn., 168 U.S. 349, 18 S.Ct 157 (Minn. 1897).

While mere depth does not, ipso facto, make a stream

navigable, want of depth or capacity in part of its course

does not make it unnavigable. Mintzer, supra.

Furthermore, in determining whether a particular river is

navigable the Court may consider evidence that the U.S.

Congress has made expenditures for improvement of the

river, although such evidence is not necessarily conclusive

on the issue. U.S. v. Appalachian Electric Power Co.,

supra. Moreover, a river is a “navigable waterway” of the

United States when, by improvements with reasonable

regard to cost and need, it may be available for navigation

in interstate commerce, even though such improvements

have neither been made nor authorized. Pennsylvania

Water & Power Co. v. Federal Power Commission, 123

F.2d 155, 74 App. D.C. 351 (D.C. Cir. 1941), cert. denied

315 U.S. 806, 62 S. Ct. 640 (1942) (Emphasis added).

Navigability does not depend on the amount of tonnage,

depth of water, width of the stream, nor the use at some

time for commerce; navigability is determined by natural

conditions. Economy Light & Power Company v. U.S.,

256 F. 792 (C.C.A. Ill. 1919), aff'd. 356 U.S. 113, 41 S.Ct.

409 (1921) (Emphasis added). Rivers may be “navigable”

despite obstruction by falls, rapids, sand bars or shifting

currents. Wisconsin Public Service Corp. v. Federal Power

Commission, 147 F.2d 743 (7th Cir. 1945), cert. denied,

325 U.S. 880, 65 S. Ct.1574 (1945); U.S. Appalachian

Electric Power Co., supra.

The Courts have consistently recognized that the concept of

“navigable waters” should be given the broadest possible

constitutional interpretation. U.S. v. Byrd, 609 F.2d 1204

(7th Cir. 1979); Leslie Salt Co. v. Froehike, 578 F.2d 742

(9th Cir. 1978); U.S. v. Saint Bernard Parish, 589 F. Supp.

617 (D.C. La. 1984); U.S. v. Robinson, 570 F. Supp.1157

(D.C. Fla. 1983), and that the terms “navigable waters” and

“waters of the United States” are not void for vagueness.

U.S. v. Oxford Royal Mushroom Products, Inc., 487 F.

Supp. 852 (D.C. Pa. 1980). Finally, a river which is

navigable in fact is navigable in law. The Montello, 87

U.S. (20 Wall.) 430 (1874); The Montello, “’8 U.S. (11

Wall.) 411 (1870); The Daniel Ball, 77 U.S. (10 Wall.) 557

(1871); Hubbard v. Fort, 188 F. 987 (C.C.N.J. 1911); State

of Maryland v. Miller, 180 F. 796 (D.C.) Md. 1910, mod.

on other grounds, 194 F. 775, 114 C.C.A. 495, cert. denied,

225 U.S. 703 (1912); Harrison v. Fite, supra.

It has also been a long-standing principle of law that the

navigability of a stream for the purpose of bringing it

within the concept of “navigable waters of the United

States” does not depend upon the mode by which

commerce is conducted upon it, as whether by steamers or

sailing vessels, or Durham boats; nor upon the difficulties

attending navigation, such as those made by falls, rapids,

and sandbars, even though these be so great they while they

last they prevent the use of the best means, such as

steamboats, for a on commerce; Fg area easy

for nal baiananth: The Montello, 20 Wall 430, 22 E

Ed. 391 (1874) (Emphasis Added). The expression

“navigable waters” effectively excludes from consideration

any concept of navigability in law or in fact. U.S. v. GAF

Corp., 389 F. Supp 1379 (D.C. Tex. 1975).

It has long been recognized that the right of the United

States in navigable waters within the several states is

limited to control thereof for purpose of navigation. U.S. v.

eee ie Geen eee +n land in City of B Hud C New

Jersey, 377 F.2d 956 (CANJ 1964).

Congress has entrusted jurisdiction over the navigable

waters of the United States to the Department of War and

the Secretary of War (titles changed to Department of the

Army and Secretary of the Army, respectively, by Section

205(a) of Act July 26, 1947, C.343, Title II, 61 Stat. 501)

and 33 U.S.C.A. §1 states:

§1. Regulations by Secretary of Army for navigation of

waters generally

It shall be the duty of the Secretary of the Army to prescribe

such regulations for the use, administration, and navigation

of the navigable waters of the United States as in his

judgment the public necessity may require for the

protection of life and property, or of operations of the

United States in channel improvement, covering all matters

not specifically delegated by law to some other executive

department . . . (Aug 18, 1894, C. 299 §4, 28 Stat. 362;

June 13, 1902, C. 1079, §§ 6, 11, 32 Stat. 374; August 8,

1917, C. 49, § 7, 40 Stat. 266.)

With these well-settled principles in mind, I shall now

proceed to determine whether or not the Great Miami River

(GMR) is “navigable waters” of the United States under the

Longshore Act.

First of all, the United States Army Corp of Engineers

exercises jurisdiction over the entire 117 miles of the GMR

and on July 20, 1989 issued public Notice 83-LD-016. (CX

15) page three of that notice contains notification of such

exercise of jurisdiction for 117 miles of the GMR above its

mouth and that is notice to all concerned that necessary

permits and authorizations must be obtained in appropriate

situations so that navigation on the GMR will not be

affected adversely.

The record contains forty-eight photographs of the GMR

and the Champion International Paper Plant at Hamilton,

Ohio. (Deposition exhibits to RX 3 and CX 28.) The GMR

is 117 miles in length and has as its source the Ohio River,

clearly a navigable waterway. See Dye v. U.S., 210 F.2d

123 (Ky. 1954); BB & W Ferry v. Interstate, 40 F.2d 323

(C.C. W.Va. 1930). The GMR at Hamilton is at mile 33

(Deposition Exhibit 2 to RX 2) above its source at the Ohio

River and at that point the GMR is at least 300 feet wide,

according to Mr. Thomas Wheeler, Claimant’s witness, or

400 feet wide, according to Mr. Carigan, Respondent’s

witness, and at least 2 1/2 feet deep, according to Mr.

Carigan, or perhaps as deep as twenty feet, according to

Claimant’s testimony. (TR 75)

Claimant testified that he saw small pleasure boats on the

GMR but, as he was at Hamilton in the dead of winter, this

injury taking place on January 20, 1987, he did not see that

many boats. No commercial traffic or tow-line barges were

observed in the Hamilton area by anyone who has testified

herein. The record contains no evidence as to what

activities take place at any other section of the GMR as it

meanders along its 177 mile course. Claimant could not

walk along the side of the Champion plant which was

parallel to the GMR “because it was right on the river.”

(TR 74) Claimant could not see the river bed of the GMR;

he did see docks for pleasure crafts. He saw “no large piers

there.” (TR 68-86)

I find most persuasive the fact that the U.S. Army Corps of

Engineers exercises jurisdiction over the entire 117 miles of

the GMR, that funds have been appropriated by Congress

and entrusted to the Corps of Engineers relative thereto and

that, unlike some other waterways, the GMR has not been

declared by Congress to be non-navigable as the GMR is

not included in the list of other rivers so identified therein.

See, e.g., Subchapter II, 33 U.S. C.A. §§ 21-59t.

Accordingly, I find an conclude that the GMR is a

“navigable waterway” of the United States and that suc!

status is not defeated by the lack of commercial activities

on the GMR at the time of Claimant’s injury. The legal

principles relevant to the concept of “navigable waters”

have been extensively summarized above, in view of the

novel issue before this Administrative Law Judge, and |

will simply reiterate that the GMR is a navigable waterway

as (1) it is “susceptible of use in its ordinary condition as a

highway of trade and travel in customary modes on water,”

U.S. Brewer-Elliott Oil & Gas Co., 249 F. 609 (D.C. Okla.

1918), aff'd 270 F. 100 (1920), (2) it is “useful for

commerce or transportation,” U.S. V. Ladley, 4 F. Supp.

580 (D.C. Idaho 1933), (3) it is capable of floating logs,

boats and rafts (Ne-Bo-Shone Ass’n, Inc., supra, and lowa-

Wisconsin Bridge Co. v. U.S., 84 F. Supp. 852, 114 Ct., Cl.

464 (1949), cert. denied, 339 U.S. 982, 70 S.Ct. 1020

(1950), (4) is used as waterway transportation by private

boats, U.S. v. Appalachian Power Co., 311 U.S. 377

(1940), and (5) any subsequent disuse of the GMR, due to

changed geographical conditions and, most important,

improved highways, especially the Interstate Highway

System, does not change the navigable character of the

waterway without specific declaration by Congress, as

Congress has done with so many other waterways.

The question of situs in this case is a complex and a novel

issue. While Claimant was injured in the reservoir or tank

of Champion International Company he was clearly not

only upon the navigable waterway but he was also within

it, as shall now be discussed.

The record extensively summarized above reflects that

although Claimant was not directly in the Great Miami

River, he was within a channel of water which flowed from

the Great Miami River through this Champion International

reservoir underneath its factory and then back into the

GMR. Waters running through diversion tunnels have been

held to be still navigable waterways for purposes of the

Longshore and Harbor Workers’ Act. See Morrison-

Knudson Company v. O’Leary, 288 f.2d 542 (9th Cir.

1961) (an artificial tunnel used solely to divert the Snake

River during construction of a dam was held to be

navigable waters). Waterways which involved diversion

from river channels into factories and back to the main river

have also been considered navigable waters under the Act.

See C.J. Montag and Sons, Inc. v. O’Leary, 304 F.Supp.

1881 (D.C. Or. 1969) (A “tailrace” or “stream” formed by

water returning to the Willamette River after it had been

diverted for use in the manufacturing plant was held to be

a navigable river).

In view of the foregoing, I further find and conclude, for

purposes of this litigation, that the GMR has been diverted

by Champion into its approximately 100' X 100° X 15'

reservoir or tank, that such tank is immediately adjacent to

the navigable waterway, that the tank water is used by

Champion as part of its manufacturing process, that such

water, after its use by Champion, is then piped back into

the reservoir or tank and then pumped back into the GMR,

and that such uninterrupted flow of the GMR into and out

of the reservoir or tank constitutes, again for purposes of

this litigation, a continuation of the navigable waters of the

United States.

Thus I further find and conclude (1) that Claimant’s injury

has taken place in and upon the navigable waters of the

United States, (2) that Claimant’s underwater work

subjected him to the hazards and dangers of maritime

employment, (3) that, prior to his injury, Claimant made it

a practice to avoid the onrushing flow of water at both the

intake and outtake pipes because of the tidal wave effect of

such waters and (4) that such water hazards and dangers

form the very foundation for the passage in 1927 of the

Longshore Act, Le., a recognition by Congress that

traditional maritime employment in and around navigable

waters is a very dangerous occupation.

Moreover, it is well-settled that an employee performing

traditional maritime work and who is injured in performing

such duties in and upon navigable waters and who was

covered by the Longshore Act prior to 1972 is also covered

by the Act after the 1972 Amendments as Congress

extended the status test only to land-based injuries after the

effective date of such Amendments. Director, OWCP v

Perini North River Associates, 454 U.S. 1080, 103 S.Ct

634, 651 (N. 34) (1983). Most of Claimant’s work as an

underwater diver for the Employer constitutes maritime

employment and it can scarcei, be argued that Claimant, at

the moment of injury, was fortuitously and transiently upon

the navigable waters of the United States. Moreover, it is

well-settled that Claimant's overall duties for the Employer

have to be considered, rather than isolating upon his

specific duties at the moment of injury. Northeast Marine

Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348

(1977).

Claimant's activities on January 20, 1987 concerned

removing silt and mud from the reservoir or tank, which silt

and mud could have an adverse and deleterious effect upon

the GMR, as well as upon the Ohio River, some 33 miles

down river south of Hamilton. Thus, Claimant’s work at

the reservoir or tank of Champion can be likened to those

of harbor workers dredging and improving navigable

waters. See, ¢.g., Thompson v. Potashnik Construction, 21

BRBS 59 (1988), Decision and Order on Recon., 21 BRBS

63 (1988). Claimant's testimony on that point is not

conclusive on this legal issue. (TR 8)

I am also persuaded by the following case in which an

airplane pilot who was engaged in spotting schools of fish

and directing fishing vessels to same and who was killed

when his plane crashed into the Gulf of Mexico. The

employer in that case contended that the decedent was not

covered by the Longshore Act since his “status” was not

that of a longshoreman, harborworker or other employee

listed in Section 2(3) of the Act. However, the Court stated

that the list of occupations in Section 2(3) was not

exclusive, and that any employee injured on navigable

waters meets the jurisdictional requirements of the Act.

Ward v. Director, OWCP, 684 F.2d 1114 (Sth Cir. 1982),

cert. denied, sub nom. Zapata-Haynie Corp. v. Ward, 459

U.S. 1170, 103 S.Ct. 815 (1983).

It is apparent that Congress, in passing the original

Longshore Act in 1927, including the subsequent

Amendments, intended to create liability where the

Employer had a real or constructive notice of the likelihood

of coverage, but notice to the Employer was sufficient here

because of the nature and situs of the underwater work.

Once the maritime employment status of the employee has

been determined, there is no question that the employer is

a Statutory employer under the Act. Blundo v. International

Terminal Operating Co., 432 U.S. 249 (1977), aff'g, 544

R.2d 35 (2 Cir. 1976); Hullinghorst Industries v. Carroll,

650 F.2d 750 (Sth Cir. 1981), cert. denied 454 U.S. 1163,

102 S. Ct. 1037 (1982); op ea TY

Molee, 710 F.2d 992 (3rd Cir. 1983) cert. denied, 465 U.S

1012, 104 S.Ct. 1014 (1983).

Congress, in the 1984 Amendments, has specifically

excluded from coverage under the Act certain

classifications of workers. However, for the exclusions to

apply, the claimant must be eligible for state workers’

compensation benefits. The exclusions point out

Congressional intent to exclude workers who do not face

the dangers or hazards of maritime employment. While

Congress excluded those engaged in certain recreational

activities, | note that the implementing Regulations exclude

only “recreational scuba diving.” I find the omission of

“commercial” scuba diving as most significant as the

regulations do specifically exclude “commercial rafting.”

In view of its importance herein, the regulation will be

quoted.

20 CFR §701.301(a)(12)(iii)(B) provides as follows:

(B) Individuals employed by a club (meaning a social or

fraternal organization whether profit or nonprofit), camp,

recreational operation (meaning any recreational activity

including but not limited to scuba diving, commercial

rafting, canoeing or boating activities operated for pleasure

of owners, members of a club or organization or renting,

leasing or chartering equipment to another for the latter’s

pleasure), restaurant, museum or retail outlet.

Thus, I conclude the Claimant’s work as an underwater

diver is not excluded by the 1984 Amendments. Moreover,

the Benefits Review Board has had the opportunity to

review the activities of an underwater diver in Sharp v.

Pacific Gas & Electricn, 2 BRBS 381 (1975). In Sharp, the

decedent was an engineer participating in a special scuba

diving training program sponsored by his employer. The

purpose of the training was to qualify decedent as a diver

competent to inspect the employer’s underwater facilities

and structures. The Board held that decedent was a covered

maritime employee, the Board stating:

“Although ‘maritime employment’ includes.

. any longshoreman or other person

engaged in longshoring operations, and any

harbor-worker including a ship repairman,

shipbuilder, and ship-breaker. . .,” it is not

limited to persons engaged in_ those

activities. 33 U.S.C. §902(3). In this case,

in the furtherance of his employer’s

business purpose, the decedent was being

trained to make underwater inspections of

various structures and facilities, an activity

for which the employer had previously hired

only professional scuba divers.”

I also note that the State of Ohio considers the GMR as one

of its three principal rivers, the Scioto River and the Ohio

River being the others. (CX 22)

Assuming, arguendo, that reviewing authorities might

subsequently hold that Champion’s reservoir or tank is not

a navigable waterway, an alternative basis for concluding

that Claimant is a maritime employee is the fact that this

claim comes within the so-called twilight zone between

coverage under the act for injuries or deaths upon t he

navigable waters of the United States or an adjoining area

and the state’s concurrent jurisdiction over land-based

injuries.

Congress, in passing the 1984 Amendments to the Act and

in excluding certain categories of employees, e.g., Sections

2(3) and 3(a) of the Act, has premised such exclusion upon

such workers being covered under state workers’

compensation acts. The United States Supreme Court has

recognized concurrent jurisdiction, in appropriate

situations, relating to claims prosecuted under the Act and

under a state’s workers’ compensation act. Sun Ship, Inc.

y. Pennsylvania, 447 U.S. 715, 100 S. Ct. 2432 (1980).

Claimant was injured in the course and scope of his

employment with this Employer and he has been advised

that the claim cannot be brought under the Ohio statute

because he was only in Ohio temporarily. (CX 33)

Congress, in passing the 1984 Amendments to the Act and

in excluding certain categories of employees, ¢.g., Sections

2(3) and 3(a) of the Act, has premised such exclusion upon

such workers being covered under state workers’

compensation acts. The United States Supreme Court has

recognized concurrent jurisdiction, in appropriate

situations, relating to claims prosecuted under the Act and

under a state’s workers’ compensation act. Sun Ship, Inc.

yv. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432 (1980).

Claimant was injured in the course and scope of his

employment with this employer and he had been advised

that the claim cannot be brought under the Ohio statute

because he was only in Ohio temporarily. (CX 33)

As Respondents’ attorney points out, there is a very serious

legal issue as to which state forum, if any, applies as there

is an important issue as to the Claimant’s state of residence.

(RX 7) Moreover, Claimant has also been advised that he

may not successfully proceed under the Connecticut statute,

the Employer’s state of incorporation, as the injury took

place in Ohio, and as there seems to be a question as to

Claimant’s state of residence. White there apparently has

been no final decision in Connecticut on the state claim and

while Respondents have now withdrawn their appeal in that

forum (RX 7), Claimant’s advice on this likelihood is

persuasive, again only as an alternative holding, because

this humanitarian and beneficent Act should not be

interpreted in such manner as to result in a harsh and

incongruous result. Claimant as severely injured on

January 20, 1987, was in intensive care for 80 days, was

hospitalized for 122 days and is making a very slow

recovery therefrom. Thus, there must be a remedy available

for Claimant. The Act, in my judgment, is the appropriate

remedy.

Respondents cite Herb’s Welding, Inc. v. Gray, 470 U.S.

414, 105 S.Ct. 1421, 17 BRBS 78 (CRT) (1985), as support

for their position that Claimant is not a maritime employee..

However, Herb’s Welding is, in my judgment,

distinguishable as that case deals with the work of a welder

who “spent roughly three quarters of his ‘working time on

platforms in state (territorial) waters” and who was

voluntarily paid benefits by his employer pursuant to the

Louisiana workers’ compensation statute. Herb’s Welding,

supra, 17 BRBS at 79 (CRT). The Supreme Court noted, at

Page 81, that early in the legislative history of the 1972

Amendments to the Longshore Act “a bill was introduced

to extend the Act to all offshore oil workers. The bill died

in committee.” Thus, the Supreme Court concluded that the

welding of an oil pipeline did not constitute maritime

employment, the Court noting that “drilling platforms were

not even suggestive of traditional maritime affairs.” (Id.)

I find most persuasive footnote 10, on page 63 (CRT),

wherein the Supreme Court noted:

10. This view of “maritime

employment” does not preclude benefits for

those whose injury would have been

covered before 1972 because it occurred “on

navigable waters.” Director, OWCP v.

Perini North River Associates, 459 U.S.

297, 103 S. Ct. 634, 74 L.Ed.2d 465 (1983).

No claim is made that Gray was injured “on

navigable waters.” Indeed, it was agreed by

all counsel at oral argument that prior to

1972 Gray would not have been covered,

except arguably by operation of the Lands

Act. See Tr. of Oral Arg. 11, 46, 52-54. See

also 703 F.2d, at 179.

In light of the dissent’s reliance on Perini,

post, at 1437, we point out that that decision

was carefully limited to coverage of an

employee “injured while performing his job

on actual navigable waters.” 459 U.S., at

299, 103 S.Ct., at 641, 655-645, 646, 651.

The Court’s rationale was that, first, any

employee injured on navigable waters

would have been covered prior to 1972, and,

second, Congress did not intend to restrict

coverage in adopting its “maritime

employment” test. The holding was, “of

course, limited to workers covered prior to

1972, id., at 324, n.34, 103 S.Ct., at 651, n.

34, a group to which Gray does not belong.

The opinion says nothing about the contours

of the status requirement as applied to a

workers, like Gray, who was not injured on

navigable waters. To hold that enactment of

the status requirement did not constrict prior

coverage is wholly different from refusing

to view that requirement as a meaningful

limit on the Act’s extended coverage.

The U.S. Supreme Court has held that a maritime employee

is one who spends at least some of his/her time in

longshoring operations. Northeast Marine Terminal

Company, Inc. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348

(1977); Brady-Hamilton v. Herron, 568 F.2d 137 (9th Cir.

1978). The Fifth Circuit Court of Appeals held that only 2

1/2 to 5 percent of a claimant’s work spent in maritime

work was sufficient to meet the “status” requirement in

Boudloche v. Howard Trucking Co., 632 F.2d 1346, 12

BRBS 732 (Sth Cir. 1980), cert. denied, 452 U.S. 915

(1981), rev’g, 11 BRBS 687. In Howard y. Rebel Well

Service, 632 F.2d 1348, 12 BRBS 734 (Sth Cir. 1980), cert.

denied, 452 U.S. 915 (1981), rev’g, 11 BRBS 568 (1979),

the Court found ten percent was sufficient to bring that

claimant within the definition of maritime employment.

The “overall employment” test mandates the examination

of the claimant’s entire job to determine if some part of it

is maritime. Brown v. Reynolds Shipyard, 9 BRBS 614

(1979).

Thus, as an alternative holding, I conclude that the majority

of Claimant’s work for the Employer was performed under

navigable waters and that he is a maritime employee.

Injury

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 unavoidably results

from such accidental injury. See 33 U.S.C. §902(2); U.S.

Office of Workers Compensation Programs, U.S.

Department of Labor, 455 U.S. 608, 102 S.Ct. 1312 (1982),

rev’g Riley v. U.S. Industries/Federal Sheet Metal, Inc. 627

F.2d 455 (D.C. Cir. 1980). A work-related aggravation of

a pre-existing condition is an injury pursuant to Section

2(2) of the Act. Gardner v. Bath Iron Works Corporation,

11 BRBS 556 (1979), aff'd sub nom. Garner v. Director,

OWCP, 640 F.2d 1385 (ist Cir. 1981).

Moreover, the employment-related injury need not be the

sole cause, or primary factor, in a disability for

compensation purposes. Rather, if an employment-related

injury contributes to, combines with or aggravates a pre-

existing disease or underlying condition, the entire resultant

disability is compensable. Strachan Shipping v. Nash, 782

F.2d 513 (Sth Cir. 1986); Independent Stevedore Co. v.

O’Leary, 357 F.2d 812 (9th Cir. 1966); Mijangos v.

Avondale Shipyards, Inc., 19 BRBS 15 (1986); Rajotte v.

General Dynamics Corp., 18 BRBS 85 (1986). Also, when

claimant sustains an injury at work which is followed by

the occurrence of a subsequent or aggravation outside work,

employer is liable for the entire disability if that subsequent

injury is the natural and unavoidable consequence or result

of the initial work injury. Bludworth Shipyard, Inc. v. Lira,

700 F. 2d 1046 (Sth Cir. 1983); Mijangos, supra; Hicks v.

Pacific Marine & Supply Co., 14 BRBS 549 (1981).

In the case at bar, Dr. Godar and Dr. Wehr have opined that

Claimant’s work activities on January 20, 1987 and his

underwater diving accident have caused his intracerebral

hemorrhage, requiring immediate hospitalization for 122

days. which injury resulted in a subsequent pulmonary

Pirie RS nays le Sine ell i hla at i” PIG AR eae Rs! Leib wt ate

injury resulting from aspiration pneumonia and a secondary

ARDS with complications of empyema and bronchopleural

fistula leading to prolonged complex hospitalization and

multiple surgical procedures. Claimant’s pre-existing,

congenital and apparently asymptomatic A-V Malformation

was triggered by his work activities and the intracerebral

hemorrhage on January 20, 1987. The resulting injury and

disability therefrom constitute a compensable work-related

injury, and I so find and conclude. Strachan Shipping,

supra.

This closed record conclusively establishes that Claimant

was severely injured on January 20, 1987 in the course and

scope of his maritime employment for the Employer joined

herein, that the employer had immediate notice of the

injury, that Claimant was immediately hospitalized for 122

days and that he timely filed a claim for benefits as neither

the Employer nor Liberty Mutual Insurance Company, the

Employer’s Carrier under the Act, accepted the claim under

either the Act or a state workers’ compensation statute.

The remaining issue is the nature and extent of the

Claimant’s disability.

N LE + Disabil

It is axiomatic that disability under the Act is an economic

concept based upon a medical foundation. Quick v. Martin,

397 F.2d 644 (D.C. Cir. 1968); Owens v. Traynor, 274 F.

Supp. 770 (D.Md. 1967), aff'd 396 F.2d 783 (4th Cir.

1968), cert. denied, 393 U.S. 962 (1968). Thus, the extent

of disability cannot be measured by physical or medical

condition alone. Nardella v. Campbell Machine, Inc., 525

F.2d 46 (9th Cir. 1975). Consideration must be given to

claimant’s age, education, industrial history and the

availability of work he can perform after the injury.

American Mutual Insurance Company of Boston v. Jones,

426 F.2d 1263 (D.C. Cir. 1970). Even a relatively minor

injury may lead to a finding of total disability if it prevents

the employee from engaging in the only type of gainful

employment for which he is qualified. Id, At 1266.

Claimant has the burden of proving the nature and extent of

his disability without the benefit of the Section 20

presumption. Carroll v. Hanover Bridge Marina, 17 BRBS

176 (1985); Hunigman v. Sun Shipbuilding & Dry Dock

Co., 8 BRBS 141 (1978). However, once claimant has

established that he is unable to return to his former

employment because of a _ work-related injury or

occupational disease, the burden shifts to the employer to

demonstrate the availability of suitable alternative

employment which claimant is capable of performing and

which he could secure if he diligently tried. New Orleans

(Gulfwide) Stevedores v. Turner, 661 F.2d 1031 (Sth Cir.

1981); Air America v. Director, 597 F.2d 773 (Ist Cir.

1979); American Stevedores, Inc. V. Salzano, 538 F.2d 933

(2d Cir. 1976); Elliot v. C & P Telephone Co., 16 BRBS 89

(1984). While Claimant generally need not show that he

has tried to obtain employment, Shell v. Teledyne Movible

Offshore, Inc., 14 BRBS 585 (1981), he bears the burden of

demonstrating his willingness to work, Trans-State

Dredging v. Benefits Review Board, 731 F.2d 199 (4th Cir.

1984), once suitable alternative employment is shown.

Royce v. Elrich Construction Company, 17 BRBS 156

(1985).

Claimant has established he cannot return to work as an

underwater diver. The burden thus rests upon the Employer

to demonstrate the existence of suitable alternative

employment in the area. If the Employer does not carry this

burden, Claimant is entitled to a finding of total disability.

American Stevedores, Inc. V. Salzano, 538 F.2d 933 (2d

Cir. 1976). Southern v. Farmers Export Company, 17

BRBS 64 (1985). In the case at bar, the Employer did not

submit any evidence as to the availability of alternative

employment. See Pilkington v. Sun Shipbuilding and Dry

Dock Company, 9 BRBS 473 (1978), aff'd on

reconsideration after remand, 14 BRBS 119 (1981). See

also Bumble Bee Seafoods v. Director, OWCP, 629 F.2d

1327 (9th Cir. 1980). However, I find Claimant has a

partial disability as Claimant is presently working part-

time.

N LE | disabili

Claimant’s injury has become permanent. A permanent

disability is one which has continued for a lengthy period

and is of lasting or indefinite duration, as distinguished

from one in which recovery merely awaits a normal healing

period. General Dynamics Corporation v. Benefits Review

Board, 565 F.2d 208 (2d Cir. 1977); Watson v. Gulf

Stevedore Corp., 400 F.2d 649 (Sth Cir. 1968), cert.

Denied, 394 U.S. 976 (1969); Trask v. Lockheed

Shipbuilding and Construction Company, 17 BRBS 56

(1985) The traditional approach for determining whether an

injury is permanent or temporary is to ascertain the date of

“maximum medical improvement.” McCray v. Ceco Steel

Co., 5 BRBS 537 (1977). The determination of when

maximum medical improvement is reached so that

claimant’s disability may be said to be permanent is

primarily a question of fact based on medical evidence.

Williams _v. General Dynamics Corp., 10 BRBS 915

(1979).

The Benefits Review Board has held that a determination

that claimant’s disability is temporary or permanent may

not be based on a prognosis that claimant’s condition may

-improve and become stationary at some future time.

_ Meecke v. L.S.O. Personnel Support Department, 10 BRBS

670 (1979). The Board has also held that a disability need

not be “eternal or everlasting” to be permanent and the

possibility of a favorable change does not foreclose a

finding of permanent disability. Exxon Corporation v.

White, 617 F.2d 292 (Sth Cir. 1980), affg 9 BRBS 138

(1978). Such future changes may be considered in a

Section 22 modification proceeding when and if they occur.

Company, 16 BRBS 282 (1984), aff'd 776 F.2d 1225, 18

BRBS 12 (CRT) 94th Cir. 1985).

On the basics of the totality of the record, I find and

conclude that Claimant reached maximum medical

improvement on June 9, 1989 and that he has been

permanently and partially disabled from June 10, 1989,

according to the well-reasoned opinion of Dr. Thomas J.

Godar.

Claimant’s recovery was slow and gradual and he is now

I i a asc i etc

being retained for an alternative career as a machinist.

However, even that re-training has been delayed by

Claimant’s significant memory loss. The Benefits Review

Board has held that maximum medical improvement can be

attained even though vocational rehabilitation has not been

completed. Vv e

Construction, 17 BRBS 56, 60, 61 (1985).

Claimant apparently has worked on and off between March

of 1988 and June 9, 1989. However, this record does not

reflect the wages earned. Respondents are entitled to a

credit for those earnings to prevent a double recovery.

Those wages should be submitted to and the amount of the

credit computed by the Deputy Commissioner as I believe

this to be the most expeditious procedure in a matter which

has been pending so long.

Average Weekly Wage

For the purposes of Section 10 and the determination of the

employee’s average weekly wage with respect to a claim _

for compensation for death or disability due to an

occupational disease which does not immediately result in

death or disability, the time of injury is the date on which

the Employee or Claimant becomes aware, or in the

exercise of reasonable diligence or by reason of medical

advice should have been aware, of the relationship between

the employment, the disease, and the death or disability.

Todd Shipyards Corp. V. Black, 717 F.2d 1280 (9th Cir.

1983); Dolowich v. West Side Iron Works, 17 BRBS 197

(1985); Hoey v. General Dynamics Corporation, 17 BRBS

229 (1985); Pitts v. Bethlehem Steel Corp., 17 BRBS 17

(1985); Yalowchuck v. General Dynamics Corporation, 17

BRBS 13 (1985).

The Act provides three methods for computing average

weekly wage. The first method, found in Section 10(a) of

the Aci, applies to an employee who shall have worked in

the employment in which he was working at the time of the

injury, whether for the same or another employer, during

substantially the whole of the year immediately preceding

his injury. Mulcare v, E.C, Ernst, Inc., 18 BRBS 158

(1986). “Substantially the whole of the year” refers to the

nature of Claimant’s employment. Eleazar v. General

Dynamics Corporation, 7 BRBS 75 (1977). A substantial

part of the year may be composed of work for two different

employers where the skills used in the two jobs are highly

comparable. Hole v, Miami Shipyards Corp., 12 BRBS 38

(1980), rev'd on other grounds, 640 F.2d 769 (Sth Cir.

1981); see Waters v. Farmers Export Company, 14 BRBS

102 (1981) aff'd per curiam, 710 F.2d 836 (Sth Cir. 1983).

Claimant worked for the Employer only from October

, 1987 to January , 1988. Therefore Section 10(a) is

inapplicable. The second method for computing average

weekly wage, found in Section 10(b), cannot be applied

because of the paucity of evidence as to the wages earned

by a comparable employee. Cf, Newpark Shipbuilding &

Repair, Inc. v. Roundtree, 698 F.2d 745 (Sth Cir. 1983),

rev'g on other grounds, 13 BRBS 862 (1981), rehearing

granted en banc, 706 F.2d 502 (Sth Cir. 1983), petition for

review dismissed, 723 F.2d 399 (Sth Cir. 1984),

cert.denied, 469 U.S. 818, 105 S. Ct. 88 (1984).

Whenever Sections 10(a) and (b) cannot “reasonably and

fairly be applied,” Section 10(c) is applied. See National

Steel & Shipbuilding Co. v. Bonner, 600 F.2d 1288 (9th

Cir. 1979). The use of Section 10(c) is appropriate when

Section 10(a) is inapplicable and the evidence is insufficient

to apply Section 10(b). See generally Tumey v. Bethlehem

Steel Corporation, 17 BRBS 232, 237 (1985); Cioffi v.

Bethlehem Stee! Corp,, 15 BRBS 201 (1982); Holmes v.

Tampa Ship Repair and Dry Dock Co., 8 BRBS 455

(1978); McDonough v. General Dynamics Corp., 8 BRBS

303 (1978). The primary concern when applying Section

10(c) is to determine a sum which “shall reasonable

represent . . . earning capacity of the injured employee.”

The federal courts and the Benefits Review Board have

consistently held that Section 10(c) is the proper provision

for calculating average weekly wage when the employee

received an increase in salary shortly before his injury.

Hastings v. Earth Satellite Corp., 628 F.2d 85 (D.C. Cir.

1980), cert.denied, 449 U.S. 905 (1980); Miranda vy.

Excavation Construction, Inc., 13 BRBS 882 (1981).

Section 10(c) is the appropriate provision where Claimant

was unable to work in the year prior to the compensable

injury due to a non-work-related injury. Klubnikin vy.

Crescent Wharf and Warehouse Company, 16 BRBS 182

(1984). The 52 week divisor of Section 10(d) must be used

where earnings’ records for a full year are available.

Roundtree, supra, 13 BRBS 862 (1981); compare Brown v.

General Dynamics Corporation, 7 BRBS 561 (1978).

Claimant alleges that he earned $3,888.44 for the 49 days

he worked for Underwater Construction Company

(Employer) and that these wages produce an average

weekly wage of $396.80, pursuant to Section 10(a), because

the additional amounts he received for being out of the state

of Connecticut should be included in his average weekly

wage. The Respondents have submitted no wage data

contradicting claimant’s position on his average weekly

wage. (CX 31 at 33) As wage records were not produced

herein, I shall invoke the Board’s holding in Brown v.

General Dynamics Corporation, supra, and conclude that it

would be most unjust to utilize a division of 52. See

Bonner vy, National Steel & Shipbuilding, 5 BRBS 290

(1977), aff'd in pertinent part, 600 F.2d1288 (9th Cir.

1979).

Claimant worked for the Employer from October 18, 1986

to January 20, 1987, a total of 49 days, during eleven pay

periods, according to the Carrier’s report. (CX13) Thus, I

find and conclude that claimant’s average weekly wage is

$353.50 ($3,888.44 - 11), pursuant to Sections 10(c) and

(d). Contrary to Claimant’s position, Section 10(a) cannot

be used as Claimant did not work substantially the whole of

the year prior to January 20, 1987 for this Employer or in

the same or similar work.

Section 8(h)

Section 8(h) provides that the wage-earning capacity of an

injured employee shall be his actual post-injury wages if

they fairly and reasonably represent his wage-earning

capacity-—Moreover, Section 8(h) mandates a two part

analysis of the employee’s wage-earning capacity. The first

inquiry is whether actual post-hearing wages reasonably

represent wage-earning capacity. Only if there are no actual

wages, or if actual wages are found not to reasonably

represent wage-earning capacity, does the second inquiry

take place into what dollar amount reasonably represents

wage-earning capacity. It is well-settled that the party who

contends that the claimant’s post-injury earnings (or lack of

earnings) are not truly representative of his 9 st-injury

wage-earning capacity has the burden of establishing a

different figure for post-injury wage-earning capacity.

Spinner _v. Safeway Stores, Inc., 18 BRBS 155 (1986);

Sheek _v. General Dynamics Corporation, 18 BRBS |

(1985); Misho v. Dillingham Marine & Manufacturing, 17

BRBS 188, 190 (1985); Spencer v. Baker Agricultural

Company, 16 BRBS 205, 208 (1984); Bethard vy. Sun

Shipbuilding & Dry Dock Co., 12 BRBS 691, 693 (1980);

Bolduc vy. General Dynamics Corporation, 9 BRBS 851

(1979); Palmore v. Washington Metropolitan Area Transit

Authority, 9 BRBS 388.22 (1978).

In Devillier v. National Steel and Shipbuilding Co., 10

BRBS 649 (1979) the Benefits Review Board set forth in

extensive detail the factors this Administrative Law Judge

should consider in determining whether claimant’s post-

injury earnings are representative of his post-injury wage-

earning capacity, and, if they are not, how to determine

claimant’s post-injury wage-earning capacity. See also

Drake v. General Dynamics Corporation, 11 BRBS 288

(1979). It is also well-settled that higher post-injury wages,

which may be due in part to increased general wage levels,

are not necessarily determinative of the amount of

claimant’s wage-earning capacity. Long vy. Director,

OWCP, 767 F.2d 1578 (9th Cir. 1985); Todd Shipyards

Corp. V. Allan, 666 F.2d 399, 402 (9th Cir. 1982), cert.

denied, 459 U.S. 1034 103 S.Ct 444 (1982). Travelers

Insurance Company v. Mc Lellan, 288 F.2d 250 (2d Cir.

1961); Harris v. Atlantic and Gulf Stevedores, Inc., 9 BRBS

7 (1978) (J. Smith, dissenting). In Devillier, supra, the

Board emphasized that lost wage-earning capacity should

be determined based upon a comparison of Claimant’s

average weekly wage at the time of the injury and his wage-

earning capacity immediately after the injury. See also

Drake v. General Dynamics Corporation, supra. Moreover,

the Board has consistently interpreted Section 8(h) to

require that Claimant's post-injury wage-earning capacity

be based on the wage rate of his post-injury job at the time

of his injury. Turner v. Bethlehem Corp., 17 BRBS 232,

238 (1985); Bethard, supra, 12 BRBS 695 (1980).

The concept of a loss of wage-earning capacity

encompasses such factors as the beneficence of a

sympathetic employer, the claimant’s earning capacity on

the open market, whether the claimant is required to expend

more time, effort or expertise to achieve pre-injury

production, and whether the claimant can perform his pre-

injury physical work activities. Phelps v. Newport News

Shipbuilding & Dry Dock Co., 16 BRBS 325 (1984);

Hughes v. Litton Systems, Inc., 6 BRBS 301 (1977); See

Travelers Insurance Co. V. McLellan, 288 F.2d 250 (2d Cir.

1961).

The doctors are in agreement that claimant will never return

to work as an underwater diver and the record reflects that

claimant is earning about seventy-seven dollars per week,

$3.80 per hour, doing part-time work for a local

supermarket, work where he basically cleans the floor and

meat-cutting equipment. He is able to that work as “there

is no extreme physical exertion” and he does not “need to

take a break.” (TR 58-59) Thus, I find and conclude that

claimant is able to preform his part-time work of 22 hours

per week and, thus is partially disabled. This claim, in my

judgment, does not warrant that claimant be declared totally

disabled, even though working, as such status is clearly

limited to situations involving a sympathetic and

benevolent employer who allows the employee to rest as

often as needed. Thus, an award of total disability benefits

is not appropriate. Proffitt v. E.J. Bartells, Co., 10 BRBS

435 (1979). See also Patterson v. Savannah Shipyard &

Machine, 15 BRBS 28 (1982).

Claimant’s post-injury wages must be adjusted for inflation

and, as the parties have not furnished the wages for his

post-injury job as of January 20, 1987, I shall adopt the

minimum wage as of that date, or $3.35. Thus, I find that

Claimant’s post-injury wage-earning capacity to be $73.70

($3.35 x 22=) and that he is entitled to an award of

permanent partial benefits, as of June 10, 1989, based upon

two-thirds of the difference between $353.50, his average

weekly wage, and $73.70, his post-injury wage-earning

capacity.

Interest

Although not specifically authorized in the Act, it has been

an accepted practice that interest at the rate of six (6)

percent per annum is assessed on all past due compensation

payments. Avallone v. Todd shipyards Corp., 10 BRBS

724 (1978). The Benefits Review Board and the Federal

Courts have previously upheld interest awards on past due

benefits to insure that the employee receives the full

amount of compensation due. Watkins v.. Newport

Shipbuilding & Dry Dock Co.. aff'd i ae

rev'd on other grounds sub nom. Newport News v.

Director, OWCP, 594 F.2d 986 (4th ir. 1979). The Board

concluded that inflationary trends in our economy have

rendered a fixed six percent rate no longer appropriate to

further the purpose of making claimant whole, and held that

“... the fixed six percent rate should be replaced by the rate

employed by the United States District Courts under 28

U.S.C. Section 1961 (1982). This rate is periodically

changed to reflect the yield on United States Treasury

Bills...” Grant v. Portland Stevedoring Company, et al., 16

BRBS 267 270 (1984), modified on reconsideration, 17

BRBS 20 (1985). Section 2(m) of Pub. L. 97-258 provided

that the above provision would become effective October 1,

1982. This Order incorporates by reference this statute and

provides for its specific administrative application by the

Deputy Commissioner. The appropriate rate shall be

determined as of the filing of this Decision and Order with

the Deputy Commissioner.

Medical E

An Employer found liable for the payment of compensation

is, pursuant to Section 7(a) of the Act, responsible for those

medical expenses reasonably and necessarily incurred as a

result of a work-related injury. Perez v. Sea-Land Services,

Inc., 8 BRBS 130 (1978). The test is whether or not the

treatment is recognized as appropriate by the medical

profession for the care and treatment of the injury. Barbour

v. Woodward & Lothrop, Inc., 16 BRBS 300 (1984).

Entitlement to medical services is never time-barred where

a disability is related to a compensable injury. Mayfield v.

Atlantic & Gulf Stevedores, 16 BRBS 228 (1984); Dear v.

Marine Terminals Corp, 7 BRBS 234 (1977).

Furthermore, an employee’s right to select his own

physician, pursuant to Section 7(b), is well settled. Bulone

v. Universal terminal and Stevedore Corp., 8 BRBS 515

(1978). Claimant is also entitled to reimbursement for

reasonable travel expenses in seeking medical care and

treatment for his work-related injury. Gilliam v. The

Western Union Telegraph Co., 8 BRBS 278 (1978).

In Shahady v. Atlas Tire & Marble, 13 BRBS 1007 (1981),

aff'd, 682 F.2d 968 (D.C. Cir. 1982), cert denied, 459 U.S.

1146, 103 S.Ct. 786 (1983), the Benefits Review Board

held that a claimant’s entitlement to an initial free choice of

a physician under Section 7(b) does not negate the

requirement under Section 7(d) that claimant obtain

employer’s authorization prior to obtaining medical

services. Jackson v. Ingalls Shipbuilding Division, Litton

Systems, Inc., 15 BRBS 299 (1983); Beynum_v.

Washington Metropolitan Area Transit Authority, 14 BRBS

956 (1982). However, where a claimant has been refused

treatment by the employer, he need only establish that the

treatment he subsequently procures on his own initiative

was necessary in order to be entitled to such treatment at

the employer’s expense. Atlantic & Gulf Stevedores, Inc.

V. Neuman, 440 F.2d 908 (Sth Cir. 1971); Matthews v.

Jeffboat, Inc., 18 BRBS at 189 (1986). All necessary

medical expenses subsequent to employer’s refusal to

authorize needed care, including surgical costs and the

physician’s fee, are recoverable. Roger’s Terminal and

Shipping Corporation v. Director, OWCP, 784 F.2d 687

(Sth Cir. 1986).

Section 7(d) requires that an attending physician file the

appropriate report within ten days of the examination.

Unless such failure is excused by the fact-finder for good

cause shown in accordance with Section 7(d), Claimant

may not recover medical costs incurred. Betz v. Arthur

Snowden Company. 14 BRBS 805 (1981). See also 20

C.F.R. Section 702.422. However, the employer must

demonstrate actual prejudice by late delivery of the

physician’s report. Roger's Terminal, supra.

In the case sub judice, Claimant in a comatose state was

brought to Mercy Hospital, Hamilton, Ohio, within one-half

mile of the accident scene, was immediately hospitalized

for 122 days and the Employer and its Carrier have

steadfastly refused to authorize appropriate medical care

and treatment. Mr. Wheeler, Mercy Hospital’s General

Manager, has testified that Claimant required extensive

treatment for his numerous medical problems, that the

treatment rendered Claimant was reasonable and proper,

according to local medical standards, and that the Mercy

Hospital bill for the entire hospitalization totaled

$262,522.43. (TR 98-111; CX5)

In view of the foregoing, I find and conclude (1) that the

medical care and treatment rendered Claimant for this

work-related injury was reasonable, necessary and

appropriate (See, e.g., Loxley v. Newport News

Shipbuilding & Dry Dock Co., 23 BRBS 215 (1990), and

(2) that any failure by Claimant or his doctors to send the

attending physicians’ reports to the Employer or its Carrier

is hereby excused for good cause and in the interests of

justice as a futile action in view of Respondent’s failure to

accept the claim and authorize appropriate medical care and

treatment.

Section 14{e)

Claimant is entitled to an award of additional

compensation, pursuant to the provisions of Section 14(e),

for the following reasons:

Failure to begin compensation payments or to file a notice

of controversion with twenty-eight (28) days of knowledge

of the injury or the date the employer should have been

aware of a potential controversy or dispute renders the

employer liable for an assessment equal to ten percent

(10%) of the overdue compensation. The first installment

of compensation to which the Section 14(e) assessment may

attach is that installment which becomes due on the

fourteenth day after the employer gained knowledge of the

injury or the potential dispute. Universal terminal and

Stevedoring Corp. V. Parker, 587 F.2d 608 (3rd Cir. 1978);

Rucker v. Lawrence Mangum & Sons, Inc., 18 BRBS 76

(1986); White v. Rock Creek Ginger Ale Co., 17 BRBS 75,

78 (1985); Frisco v. Perini Corp., 14 BRBS 798 (1981).

Liability for this additional compensation ceases on the date

a Notice of Controversion is filed or on the date of the

informal conference, whichever is earlier. National Steel &

Shipbuilding Co. V. U.S. Department of Labor, 606 F.2d

875 (9th Cir. 1979); National Steel & Shipbuilding Co. V.

Bonner, 600 F.2d 1288 (9th Cir. 1978); Spencer v. Baker

Agricultural Company, 16 BRBS 205 (1984); Reynolds v.

Marine Stevedoring Corporation, 11 BRBS 801 (1980).

The Benefits Review Board has held that an employer’s

liability under Section 14(e) is not excused because the

employer believed that the claim came under a state

compensation act. Jones v. Newport News Shipbuilding

and Dry Dock Co., 5 BRBS 323 (1977), aff'd sub nom.

N News Shinbuildine & Drv Dock Co. V. Gesham.

573 F.2d 167 (4th Cir. 1978), cert. denied, 439 U.S. 979

(1978).

The Benefits Review Board has held that “a notice of

suspension of termination of payments which gives the

reason(s) for such suspension of termination is the

functional equivalent of a Notice of Controversion.” White

y. Rock Creak Ginger Ale Company, 17 BRBS 75, 79

(1985); Rose v. George A. Fuller Company, 15 BRBS 194,

197 (1982) (Chief Judge Ramsey, concurring).

The Employer immediately learned of Claimant’s injury on

January 20, 1987 but paid no compensation and did not file

a notice of controversion until on or about January 20,

1988. Thus, the Respondents are liable for a Section 14(e)

assessment for the installments due between January 20,

1987 and January 20, 1988, or the actual filing of the

Notice of Controversion.

Attorney’s fee

Claimant’s attorney, having successfully prosecuted this

claim, is entitled to a fee to be assessed against the

Employer/Carrier (Respondents). Claimant’s attorney has

not submitted his fee application. Within thirty (30) days

of the receipt of this Decision and Order, he shall submit a

fully supported and fully itemized fee application, sending

a copy thereof to the Respondent’s counsel who shall then

have fourteen (14) days to comment thereon. A certificate

of service shall be affixed to the fee petition and the

postmark shall determine the timeliness of any filing. This

Court will consider only those legal services rendered and

costs incurred after the informal conference on June 15,

1989. Services performed prior to that date should be

submitted to the Deputy Commissioner for her

consideration.

ORDER

Based upon the foregoing Findings of Fact, Conclusions of

Law and upon the entire record, I issue the following

compensation order. The specific dollar computations of

the compensation award shall be administratively

performed by the Deputy Commissioner.

It is therefore ORDERED that:

l. The Employer and Liberty Mutual Insurance

Company (herein Respondents) shall pay to the claimant

compensation for temporary total disability from January

20, 1987 through June 9, 1989, based upon an average

weekly wage of $353.50, such compensation to be

computed in accordance with Section 8(b) of the Act.

2. Commencing on June 10, 1989, the Respondents

shall pay to claimant compensation for permanent partial

disability, based upon the difference between his average

weekly wage at the time of the injury, $353.50, and his

wage-earning capacity after the injury, $73.50, as provided

by Sections 8(c)(21) and 8(h) of the Act.

a The Respondents are entitled to a credit for

Claimant’s part-time earnings between March of 1988 and

June 9, 1989, and such credit shall be computed by the

Deputy Commissioner.

4. Interest shall be paid on all accrued benefits at the

T-bill rate applicable under 28 U.S.C. Section 1961 (1982),

computed from the date each payment was originally due

until paid. The appropriate rate shall be determined as of

the filing date of this Decision and Order with the Deputy

Commissioner. :

5. The Respondents shall pay to claimant an additional

ten (10) percent payment, pursuant to Section 1 4(e) of the

Act, based upon installments due between January 20, 1987

and January 20, 1988, or the actual filing date of the Form

LS-207.

6. The Respondents shall furnish such reasonable,

appropriate and necessary medical care and treatment as the

Claimant’s work-related injury referenced herein may

require, subject to the provisions of Section 7 of the Act,

including payment of the Mercy Hospital bill in evidence as

CX 5.

a Claimant’s attorney shall file, within thirty (30)

RB laid pA Ree Se | NE AER ANE TE an OS ay

days of receipt of this Decision and Order, a fully supported

and fully itemized fee petition, sending a copy thereof to

Respondent’s counsel who shall then have fourteen (14)

days to comment thereon. This Court has jurisdiction over

the legal services rendered and costs incurred after June 15,

1989, the date of the informal conference.

DAVID W. DI NARDI

Administrative Law Judge

Dated: Jun 23 1990

Boston, Massachusetts

DWD/las

U.S. DEPARTMENT OF LABOR

BENEFITS REVIEW BOARD

800 K STREET N.W.

WASHINGTON, D.C. 20001-8001

In the Matter of:

DALE R. RIZZI, Claimant-Petitioner

against

UNDERWATER CONSTRUCTION CORP., Employer

and

Liberty Mutual Insurance Company, Carrier

BRB No. 90-2346A

BRB No. 93-0918

David A. Kelly, Esq. For the Claimant

Scott Wilson Williams, Esq.

James D. Moran, Jr., Esq for the Employer/Carrier

Before Dolder, Acting Chief Administrative Appeals

Judge,

Smith and McGranery, Administrative Appeals

Judge

DECISION AND ORDER

PER CURIAM:

Employer appeals the Decision and Order and

Decision on Motion for Reconsideration (89-LHC-3118) of

Administrative Law Judge David W. Dinardi awarding

benefits and claimant appeals the Compensation Order-

Award of Attorney’s Fees (Case No. 10-27319) of District

Director Richard V. Robilotti rendered on a claim filed

pursuant to the provisions of the Longshore and Harbor

Workers’ Compensation Act as amended, 33 U.S.C. Section

901 et seg. (the Act).' We inust affirm the findings of fact

and conclusions of law of the administrative law judge which

are rational, supported by substantial evidence, and in

accordance with law. O'Keeffe v. Smith, Hinchman & Grylls

Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. Section

921(b)(3). The amount of an attorney’s fee award is

discretionary, and the award may be set aside only if the

challenging party shows it to be arbitrary, capricious, an

abuse of discretion, or not in accordance with law. See, e.g.,

Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS

272 (1980).

Claimant was injured on January 20, 1987 while

employed as a diver for Underwater Construction

Corporation (employer). Employer has its headquarters in

Connecticut, and claimant was dispatched to diving jobs in

various states. As a diver on this particular job, claimant was

responsible for pumping the silt and mud from the

underground tank of the Champion International Paper

Company which is located adjacent to the Great Miami River

in Hamilton, Ohio. The water from the river was pumped

1 Employer's appeal of the attorney's fee award (BRB No. 90-2346) was

dismissed by Board Order dated April 28, 1993 pursuant to employer's

request for withdrawal dated March 23, 1993.

into the reservoir tank through an intake pipe for use in the

paper-making process and, after being used, was discharged

through other pipes and returned to the river. In the

performance of his work, claimant used a pump which

weighed over 100 pounds to remove the silt from the

reservoir’s intake pipes and pump it back into the river. The

tank was approximately 100 feet by 100 feet by 15 feet.

Claimant estimated that the depth of the water in the

reservoir was about four to twelve feet and characterized the

tank as essentially a basement with water. H. Tr. at 68.

On the morning of the accident, claimant started work

at 7:30 a.m. and some time thereafter developed a headache.

The headache worsened and he started to climb up the ladder

to egress the water but started to regurgitate and, as he was

wearing an air-tight helmet, he swallowed some vomit,

unsuccessfully tried to hold his breath and “vaguely

remembers reaching the surface.” Claimant was taken to

Mercy Hospital and a CT scan showed a massive

intraventricular hemorrhage. He eventually regained

consciousness and was hospitalized for 122 days, 80 of

which were spent in intensive care.

Following a period of recovery, claimant worked on

and off in non-diving employment between March 1988 and

June 9, 1989 and at the time of the hearing was being re-

trained for an alternative career as a machinist. However, the

retraining had been delayed by claimant’s significant

memory loss. Claimant sought temporary total and

permanent partial disability benefits under the Act.

Initially, the administrative law judge found that

claimant’s work for employer was covered under the Act as

it was performed under navigable waters and as claimant's

work is maritime employment. The administrative law judge

also found that claimant was injured on January 20, 1987 in

the course and scope of his maritime employment for

employer and that claimant established that he cannot return

to work as an underwater diver. However, the administrative

law judge found that as claimant was working part-time, he

is partially disabled and that his disability became permanent

as of June 10, 1989.

The administrative law judge calculated claimant's

average weekly wage pursuant to Section 10(c ) of the Act,

33 U.S.C. Section 910(c), and found that claimant had an

average weekly wage of $353.50 at the time of injury. The

administrative law judge also found that claimant's post-

injury wages at a part-time job at a supermarket fairly

represents his wage earning capacity, and thus, after an

adjustment for inflation, found that claimant’s post-injury

wage-earning capacity is $73.70 per week. The

administrative law judge awarded claimant temporary total

disability benefits from January 20, 1987 to June 6, 1989,

and permanent partial disability benefits, as of June 10, 1989,

based upon two-thirds of the difference between $353.50, his

average weekly wage, and $73.70, his post-injury wage-

earning capacity. 33 U.S.C. Section 908(b),(c)(21). The

administrative law judge also awarded claimant interest,

medical expenses, a penalty pursuant to Section 14(e), 33

U.S.C. Section 914(e), and ordered employer to pay

claimant’s attorney’s fee. In a Decision on Motion for

Reconsideration, the administrative law judge reviewed

employer’s contentions regarding the findings of average

weekly wage, post-injury wage-earning capacity, and

coverage under the Act and concluded that the original

Decision and Order would not be modified, except for a

typographical error. Decision on Motion for Reconsideration

at 4.

Subsequently, the district director awarded claimant’s

counsel an attorney’s fee in the amount of $10,500 to be paid

by employer. In a letter dated October 29, 1990, the district

director noted that the fee was reduced from the requested

amount of $19,987.63 because it contained work unrelated to

the Longshore Act claim.

On appeal, employer contends that the administrative

law judge erred in finding that claimant's employment was

covered by the Act as the tank where claimant was working

should not be considered navigable waters, nor was the tank

used for loading, unloading, repairing, dismantling or

building vessels. In addition, employer contends that the

administrative law judge erred in finding that claimant

satisfied the status test as claimant’s duties were not related

to maritime activities. Employer also contends that the

administrative law judge erred in calculating claimant’s

average weekly wage and in determining claimant’s post-

injury wage-earning capacity. BRB No. 95-918. Claimant

responds, urging affirmance of the administrative law

judge’s Decision and Order.

On appeal of the district director’s award of an

attorney’s fee, claimant contends that the director reduced

the fee without sufficient explanation and did not specifically

apply the regulations governing the award of an attorney’s

fee. BRB No. 90-2346A. Employer responds, urging

affirmance as the district director unequivocally stated that

he considered the value of the attorney’s services to

claimant, the complexity of the case, the amount of time

involved, the results achieved and other facts including the

professional expertise of the attorney.

Initially, we agree with employer’s contention

that the administrative law judge erred in finding that

claimant was injured on navigable waters. Before the

enactment of the 1972 Amendments to the Act, in order to be

covered by the Act, claimant had to establish that his injury

occurred “upon the navigable waters of the United States

(including any dry dock)....” See U.S.C. Section

903(a)(1970)(amended 1972 and 1984). In 1972, Congress

amended the Act to add the status requirement of Section

2(3), 33 U.S.C. Section 902(3), and to expand the sites

covered under Section 3(a) landward. In Director, OWCP v.

Perini North River Associates, 459 U.S. 97, 103 S.Ct. 634,

15 BRBS 62 (CRT)(1983), the Supreme Court held that in

making these changes to expand coverage, Congress did not

intend to withdraw coverage of the Act from workers injured

on navigable waters who would have been covered by the

Act before 1972. Perini, 459 U.S. at 315-316, 103 S.Ct. at

646, 15 BRBS at 76-77 (CRT). Accordingly, the Court held

that when a worker is injured on actual navigable waters in

the course of his employment on those waters, he is a

maritime employee under Section 2(3). Regardless of the

nature of the work performed, such a claimant satisfies both

the situs and status requirements and is covered under the

Act, unless he is specifically excluded from coverage by

another statutory provision. Perini, 459 U.S. at 323-324, 103

S.Ct. at 650-651 BRBS at 80-81 (CRT); Center v. R & D

Watson, Inc., 25 BRBS 137 (1991): 33 U.S.C. Section

902(3)(A)-(H)(1 988).

In his Decision and Order, the administrative law

judge found that claimant was injured in a channel of water

which flowed from the Great Miami River (GMR) through

the Champion International reservoir underneath its factory

and then back into the GMR. The administrative law judge

found that the GMR is a “navigable waterway” of the United

States as it is “susceptible of use in its ordinary condition as

a highway of trade and travel in customary modes on water,”

and it is “useful for commerce or transportation.” Decision

and Order at 21. The administrative law judge also noted

that the GMR is capable of floating logs, boats and rafts, is

used as waterway transportation by private boats, and any

subsequent disuse of the GMR, due to changed geographical

conditions and improved roadways does not change the

navigable character of the waterway without a specific

declaration by Congress. /d. Moreover, citing Morrison-

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

C.J. Montag and Sons, Inc. V. O'Leary, 304 F.Supp. 188

(D.Or. 1969), the administrative law judge found that the

water in the reservoir was an “uninterrupted flow” of the

GMR that was merely diverted and thus constituted a

continuation of the navigable waters of the United States.’

Decision and Order at 22.

2 The administrative law judge also found that inasmuch as claimant had to

avoid the onrushing flow of water at the intake and outflow pipes in the

tank, claimant’s work subjected him to hazards for which the Act was

enacted. Decision and Order at 22.

We first hold that the administrative law judge erred

in focusing on the navigability of the GMR, as the record

establishes that claimant’s injury occurred in the reservoir of

the paper factory, and not in the actual river on in a channel

thereof. We also reject the administrative law judge’s

reliance on the aforementioned cases, as both involved the

navigability of artificial waterways that could be navigated

by boats or barges.’ The facts of the instant case are similar

to those addressed by the Board in LePore v. Petro Concrete

Structures, Inc., BRBS 403 (1990). In LePore, the claimant

was injured on a pontoon in a flume removing a temporary

support structure from below the concrete base laid for the

construction of the Winter Garden building of the World

Financial Center at Battery Park, New York. The flume is 60

by 30 feet channel with sides, a concrete slab on ton, landfill

on the bottom, earth at one end and a seawall at the other

end. The water in the flume was 20 to 25 feet deep, and

seeped in through the gravel and rock base. The Board held

that a threshold requirement of navigability is the presence of

an “interstate nexus” in order for the body of water in

3 In Morrison-Knudson Co. V. O'Leary, 288 F.2d 542 (9th Cir.

1961), four workers were killed in a diversion tunnel of the Snake River.

The court held that the water in the tunnel, constructed to carry the main

stream of the river during dam construction, remained navigable within the

meaning of the Act. In C.J. Montag and Sons, Inc. V. O'Leary, 304

F.Supp. 188 (D.Or.1969), a worker was killed in the tailrace of the

Willimantic River, which was a stream formed by water returning to the

river after diversion to two manufacturing plants. The court held that the

tailrace was navigable as barges up to 130 feet long and 28 feet wide

operated in the tailrace See also Ransom v. Coast Marine Construction,

Inc., 16 BRBS 69 (1984)(Board holds that it takes a permanent withdrawal

of water from bed of river to divest jurisdiction under the Act).

question to function as a continuous highway for commerce

between ports. LePore, 23 BRBS at 405 citing the Montello,

78 U.S. (11 Wall.) 411 (1871). Thus, a natural or artificial

waterway which is not susceptible of being used as an

interstate artery of commerce because of either manmade or

natural conditions is not navigable waters for purposes of

coverage under the Act. See Chapman v. United States, 575

F.2d 147 (7th Cir. 1978) cert. denied, 439 U.S. 893 (1978);

LePore, 23 BRBS at 406; Williams v Pan Marine

construction, 18 BRBS 98 (1986), aff'd sub nom. Williams v.

Director, OWCP, 825 F.2d 246, 20 BRBS 25 (CRT) (9th

Cir. 1987) (diver injured in land-locked lake entirely within

state of California is not injured on navigable waters of the

United States).

The Board noted in LePore that water from the

Hudson River was permitted to seep into and out of the

flume for the sole purpose of facilitating heating and cooling,

not navigation, and that the flume could not support

commerce. Similarly, in the instant case, the tank in which

claimant was injured was a depository for heating and

cooling system water and was tantamount to being land-

locked because no vessel could gain access to it due to the

walls surrounding it. See Lepore, 23 BRBS at 406; Williams,

18 BRBS at 100. Entry to the tank could only be gained by a

door in the first floor of the factory, and claimant testified

that it had the characteristics of a basement. H. Tr. At 68.

Therefore, as the reservoir is surrounded by walls, was not

designed to support commerce by water and could not be

navigated through by any craft on the Great Miami River, we

reverse the administrative law judge’s finding that the

reservoir constitutes “navigable waters” for the purposes of

determining coverage under the Act.‘ See Lepore, 23 BRBS

at 406-407.

While injury on actual navigable waters is sufficient

to establish coverage under both Sections 2(3) and 3(a),

claimant may also establish coverage if his injury occurs in a

landward area covered by Section 3(a) and his work is

maritime in nature, bringing him within the definition of

maritime employee in Section 2(3). See 33 U.S.C. Sections

902(3), 903(a)(1988); Melerine v. Harbor Construction Co.,

26 BRBS 97 (1992). Section 3(a) provides that the injury

must occur on 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, dismantling, or building a vessel.” 33 U.S.C.

a4 In Lepore, the Board also affirmed the finding that the situs

requirement was not satisfied because the water in the flume was

permanently withdrawn from the Hudson River. See also Ransom v. Coast

Marine Construction, Inc., 16 BRBS 69 (1984). In this case, there appears

to be a continous flow between the river and the plant reservoir through the

intake and outflow pipes; nonetheless, the reservoir itself is not navigable,

and the distinction between the two cases is immaterial.

Section 903(a)(1988).

In the present case, as the administrative law judge

found that claimant was injured on navigable waters, he did

not make any further findings under Section 3(a). However,

in addition to not constituting “navigable waters,” the site at

the paper factor where claimant was injured is not one of the

enumerated sites in Section 3(a), and there is no contention

that it is an adjoining area used for the maritime activity of

loading, unloading, building, dismantling or repairing

vessels. Therefore, we hold that claimant’s injury did not

occur on a situs covered under Section 3(a) of the Act. See

Melerine, 26 BRBS at 102. Accordingly, as the situs

requirement is not satisfied in this case, we reverse the

administrative law judge’s finding that claimant’s injury on

January 20, 1987 is covered under the Act as the resultant

award of benefits.* See generally Cabaliero v. Bay

Refractory Co., Inc.,27 BRBS 72 ( 1993). We need not

address employer’s contentions with regard to the status

requirement of Section 2(3), or the administrative law

judge’s findings regarding claimant’s average weekly wage

and post-injury wage-earning capacity.

In his appeal, BRB No. 90-2346A, claimant contends

that the district director arbitrarily the size of the attorney’s

fee awarded without sufficient explanation. However,

inasmuch as we reverse the award of benefits, we also

reverse the award of an attorney’s fee to be paid by employer

5 In its brief to the Board, employer states that claimant received an award

of benefits under Connecticut’s workers’ compensation law, which

employer ultimately did not challenge. Emp. Brief at 22.

as there has been no successful prosection of the claim. See

33 U.S.C. Section 928(a), (b); see generally Bluhm v. Cooper

Stevedoring Co., 13 BRBS 427 (1981).

Accordingly, the Decision and Order of the

- administrative law judge awarding benefits and the

Compensation Order-Award of Attorney’s Fees of the

district are reversed.

SO ORDERED.

NANCY S. DODLER, Acting Chief

Administrative Appeals Judge

ROY P. SMITH

Administrative Appeals Judge

REGINA C. McGRANERY

Administrative Appeals Judge

CERTIFICATE OF SERVICE

BRB No. 90-2346-A:

BRB No. 93-0918:

Dale R. Rizzi v. Underwater

Construction Company and

Liberty Mutual Insurance

Company (Case No. 89-

LHCA-3118) (OWCP No. 02-

0027319)

Dale R. Rizzi v. Underwater

Construction Company and

Liberty Mutual insurance

Company (Case No. 89-

LHCA-3118) (OWCP No. 10-

0027319)

I certify that this Decsion and Order was sent this day to:

Paul E. Travers, Executive Counsel

Clerk of the Board

David A. Kelly, Esq.

Montstream & May

Attorneys at Law

P.O. Box 1087

Salmon Brook Corporate Park

Glastonbury, CT 06033

Mr. Dale R. Rizzi

12 Brook Road

Lancaster, NY 81702

Scott Wilson Williams, Esq.

P.O. Box 269

Bridgeport, CT 06601

Ms. Carol A. DeDeo, Esq.

Associate Solicitor

U. S. Department of Labor

Suite S-4325

200 Constitution Avenue, N.W.

Washington, DC 20210

Mr. Richard V. Robilotti

District Director

OWCP-Longshore Division

201 Varick Street

New York, NY 10014

Mr. Thomas C. Hunter, District Director

OWCP-Longshore Division

Room 804

230 South Dearborn Street

Chicago, IL 60604

Judge David DiNardi

US Department of Labor

Room 507

John W. McCormack Post Office and Courthouse

Boston, MA 02109

U.S. Department of Labor

Benefits Review Board

800 K Street

Washington, DC 20001-8001

DALE R. RIZZI, Claimant-Petitioner

UNDERWATER CONSTRUCTION CORP.

and

Liberty Mutual Insurance Company,

Employer/Carrier-Respoadents

DECISION AND ORDER - on RECONSIDERATION

Appeals of the Decision and Order and Decision on Motion

Reconsideration of David W. DiNardi, Administrative Law

Judge, United States Department of Labor, and the

Compensation Order - Award of Attorney’s fees of Richard V.

Robilotti, District Director, United States Department of Labor.

David A. Kelly (Montstream & May), Glastonbury,

Connecticut, for claimant.

Before: DOLDER, Acting Chief Administrative Appeals

Judge, SMITH and MCGRANERY, Administrative Appeals

Judges.

PER CURIAM:

Claimant has filed a timely Motion for Reconsideration

of the Board’s Decision and Order in the above captioned case,

Rizzi v. Underwater Construction Corp., 27 BRBS 273 (1994).

33 U.S.C. §921(b)(5); 20 C.F.R. §802.407.

Claimant sustained a brain hemorrhage on January 20,

1987 while employed as a diver for Underwater Construction

Corporation (employer). As a diver, claimant was responsible

for pumping the silt and mud from the underground reservoir

tank of the Champion Paper Factory which is located adjacent

to the Great Miami River in Hamilton, Ohio. In the

performance of his work, claimant used a pump to remove the

silt from the reservoir tank’s intake pipes and pump it back into

the river. Claimant’s retraining has been delayed by his

significant memory loss, and claimant seeks permanent partial

disability benefits under the Act.

Employer appealed the administrative law judge's

award of benefits, contending that the administrative law judge

erred in finding that claimant’s employment was covered under

the Act as the tank where claimant was working should not be

considered navigable waters, nor was the tank used for loading,

unloading, repairing, dismantling or building vessels. 33

U.S.C. §903(a). The Board reversed the administrative law

judge’s finding that the reservoir tank constitutes “navigable

water” for the purposes of determining coverage under the Act

and further held that the site of the injury was not an “adjoining

area” under the Act. Therefore, the Board held that claimant’s

injury did not occur on a situs covered under Section 3(a) of the

Act and reversed the award of benefits.’

1 Employer also contended that the administrative law judge erred in

finding that claimant satisfied the status test as claimant's duties were not

related to maritime activities and that the administrative law judge erred in

calculating claimant's average weekly wage and in determining claimant’s

post-injury wage-earning capacity. The Board declined to address these

contentions in light of the holding that claimant was not injured on a

In his motion for reconsideration, claimant contends

that the Board erred in reversing the administrative law judge’s

finding that the site of the injury was a covered location under

the Act. Employer has not responded to the motion for

reconsideration.

Initially, we reaffirm ti Board’s holding that the

administrative law judge erred in focusing on the navigability

of the Great Miami River as the record establishes that

claimant’s injury occurred in the reservoir tank of the paper

factory. It is not relevant that the issue of the navigability of

the river was the subject of large amounts of evidence at the

hearing, inasmuch as claimant was indisputably injured within

the confines of the reservoir tank. Moreover, it is not relevant

in the instant case that claimant’s duties dredging silt from the

tank back into the river might affect the navigability of the river

or be subject to regulations of the Army Corps of Engineers.

For purposes of a claim brought under the Act, an injury must

occur at a covered location pursuant to Section 3(a) of the Act,

33 U.S.C. §903(a), which focuses on the actual site of the

injury. The effect of claimant’s duties at the time of the injury

on the surrounding location has no relevance to whether the

reservoir tank is navigable waters. See generally George v.

Lucas Marine Construction, BRBS , BRB No. 93-1612

(Sept. 28, 1994).

We also reject claimant’s contention on reconsideration

that the Board erred in holding that the cooling tank was not a

covered situs. Moreover, the Board reversed the award of an attorney’s fee

to be paid by employer as there had been no successful prosecution of the

claim.

covered situs under the Act. The act itself does not define the

phrase “navigable waters,” but the basic test of navigability

which has been applied for purposes of determining jurisdiction

under the Act is that rivers are navigable in fact when they are

used, or are susceptible of being used, in their ordinary

condition as highways for commerce, over which trade and

travel are or may be conducted in the customary modes of trade

and travel on water. George, slip op. At 5; see also The Daniel

Ball, 77 U.S. (19 Wall.) 557, 563 (1871); The Montello, 78

U.S. (11 Wall) 411 (1871). Thus, a natural or artificial

waterway which is not susceptible of being used as an interstate

artery of commerce because of either manmade or natural

conditions is not navigable waters for purposes of jurisdiction.

Chapman y. United States, 575 F.2d 147 (7th Cir. 1978). The

conditions inside the tank in the instant case, i.e. whether the

water was moving swiftly or merely seeping in, do not affect its

accessibility to interstate commerce. Rizzi, 27 BRBS at 278

N.4; Lepore v. Petro Concrete Structures, Inc., 23 BRBS 403

(1990). Thus, it is irrelevant to a determination of navigability

that water rushed in and out of the tank and that claimant thus

was subject to “maritime hazards.” See Williams v. Pan

Marine Construction, 18 BRBS 98 (1986), aff'd sub nom.

Williams v. Director, OWCP, 825 F.2d 246, 20 BRBS 25

(CRT) (9th Cir. 1987). As noted in the Board’s decision, entry

to the tank could only be gained by a door in the first floor of

the factory, and claimant testified that it had the characteristics

of a basement.’ Rizzi, 27 BRBS at 278; Tr. At 68; see also

2 We donot address claimant's contention that a commercial diver is a

“vessel” under the Act as it was not raised before the administrative law

judge and cannot be raised for the first time before the Board. Clophus v.

Amoco Production Co., 21 BRBS 261 (1988). However, we note that in the

Lepore, 23 BRBS at 403. Therefore, we reaffirm the Board’s

holding that the reservoir was not designed to support

commerce by water and could not be navigated through by any

craft on the Great Miami River, and thus reverse the

administrative law judge’s finding that the reservoir constitutes

“navigable waters” for the purposes of determining coverage

under the Act.

Claimant also contends that the Board erred in stating

that there was no contention that this injury occurred in an

“adjoining area,” pursuant to Section 3(a). Section 3(a)

provides that the injury must occur on 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,

repairing, dismantling, or building a vessel.” 33 U.S.C.

§903(a) (1988); Melerine v. Harbor Construction Co., 26

BRBS 97 (1992). Although the factory in this case is

indisputably located on the edge of a river, there is no evidence,

and the parties do not contend, that the reservoir tank, or the

factory, was used to load, unload, repair, dismantle or build a

vessel. Thus, the site of the injury is not an “adjoining area”

pursuant to Section 3(a). 33 U.S.C. §903(a). The situs test is

case cited in support of this contention by claimant, Wallace v. Oceaneering

International, 727 F.2d (Sth Cir. 1987), the United States Court of Appeals

for the Fifth Circuit held that the Jones Act, 46 U.S.C. §688, was applicable

to an oilfield diver who spent 96 percent of his working time at sea, who ate

and slept aboard a vessel in navigation and who was exposed to maritime

perils with regularity and continuity. Wallace, 727 F.2d at 436. The court

does not hold that the diver himself was a vessel for purposes of determining

jurisdiction under either the Jones Act or the Longshore Act.

not merely because the injury occurred adjacent to water.

Melerine, 26 BRBS at 101.

Finally, we reject claimant’s contention that the

administrative law judge properly found that the claim comes

within the so-called “twilight zone” between coverage under

the Act for injuries or deaths on the “navigable water” of the

United States and under a state’s concurrent jurisdiction of

land-based injuries. Although the United States Supreme Court

has recognized concurrent jurisdiction, in appropriate

situations, relating to claims prosecuted under the Act and

under a state’s workers’ compensation act, see Sun Ship, Inc. V.

Pennsylvania, 447 U.S. 715, 12 BRBS 890 (1980), in this case

the coverage provisions of the Act have not been met and no

independent doctrine exists to provide concurrent jurisdiction.’

Accordingly, we grant the Motion for Reconsideration,

but deny the relief requested. 20 C.F.R. §802.409. The

Board’s decision is reaffirmed.

SO ORDERED.

NANCY S. DOLDER, Acting Chief

Administrative Appeals Judge

3 Weneed not address claimant’s contentions regarding his status under

the Act inasmuch as a claimant must meet both the status requirement of

Section 2(3) and the situs requirement of Section 3(a), 33 U.S.C. §§902(3),

903(a), and we reaffirm the holding that the situs requirement has not been

met. See Cabaliero v. Bay Refractory Co., Inc., 27 BRBS 72 (1993).

ROY P. SMITH

Administrative Appeals Judge

REGINA C. McGRANERY

Administrative Appeals Judge

CERTIFICATE OF SERVICE

BRB No. 90-2346-A:

Dale R. Rizzi v. Underwater Construction Company

and Liberty Mutual Insurance Company

BRB No. 93-0918:

Dale R. Rizzi v. Underwater Construction Company

and Liberty Mutual Insurance Company (Case No. 89-

LHCA-3118) (OWCP No. 10-0027319)

I certify that this Decision and Order was sent this day to:

(Date) Paul E. Trayers

Clerk of the Board

David A. Kelly, Esq. Certified

Montstream & May

Attorneys at Law

P.O. Box 1087

Salmon Brook Corporate Park

Glastonbury, CT 06033

Mr. Dale R. Rizzi Certified

12 Brook Road

Lancaster, NY 81702

ii iin,

CERTIFICATE OF SERVICE (Con’t)

Scott Wilson Williams, Esq. Certified

P.O. Box 269

Bridgeport, CT 06601

Ms. Carol A. DeDeo, Esq. Certified

Associate Solicitor

U.S. Department of Labor

Suite S-4325

200 Constitution Avenue, N.W.

Washington, DC 20210

Mr. Richard V. Robilotti

District Director

OWCP-Longshore Division

201 Varick Street

New York, NY 10014

Mr. Thomas C. Hunter, District Director

OWCP-Longshore Division

Room 578

230 South Dearborn Street

Chicago, IL 60604

Judge David DiNardi

US Department of Labor

Room 507

John W. McCormack

Post Office and Courthouse

Boston, MA 02109

No. 95-3034

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Dale R. Rizzi,

Petitioner,

v. : On Appeal from an

: Order of the United

Underwater Construction : States Department of

Corporation, et al., : Labor Benefits Review

Respondents. : Board

Decided and Filed May 21, 1996

Before: MERRITT, Chief Judge; CONTIE and

BOGGS, Circuit Judges.

MERRITT, Chief Judge. This case raises the

question whether a reservoir fed by a navigable waterway is

itself part of the waterway under the Longshoremen’s and

Harbor Workers’ Compensation Act, 33 U.S.C. §§901-950.

Claimant, Mr. Rizzi, appeals the Benefits Review Board’s

reversal of the Administrative Law Judge’s grant of benefits

under the Act. He is an underwater diver who was on

assignment in Ohio as an employee of the Underwater

Construction Corporation. While in Ohio working at the

Champion Paper Factory, Mr. Rizzi was severely injured on

the job. He suffered a stroke which his doctors attributed to

his diving.

The Administrative Law Judge granted benefits under

the Act, holding that the reservoir or tank in which the

defendant was working, which was located underneath the

Champion Factory adjacent to the Great Miami River, was a

navigable waterway so as to fulfill the jurisdictional

requirement of the Act that the injury occur on a navigable

waterway. The Administrative Law Judge also held that the

claimant’s work was maritime employment.

The ALJ held alternatively that even if the reservoir

under the Champion Paper Factory did not qualify as

navigable, the claimant could still be found to be a maritime

employee within the so-called “twilight zone” between

coverage under the Act for injuries or deaths upon the

navigable waters of the United States (or an adjoining area)

and the states’ concurrent jurisdiction over land-based

injuries.

The Benefits Review Board reversed the ALJ, and

held that claimant’s injury did not occur on a navigable

waterway. Mr. Rizzi appeals from that reversal. We affirm

the Benefits Review Board.

FACTS

Mr. Dale Rizzi, 33, is a Navy trained SCUBA diver

who, upon his honorable discharge from the Navy in

100

September, 1986, was hired as a diver for the Underwater

Construction Company located in Essex, Connecticut. The

employer specializes in construction and repair of power

plants, marinas, and other facilities located on the water,

which require underwater access and the services of

underwater divers. The claimant first worked in

Connecticut, building steel drums in channels that ran

underneath a power plant situated on the banks of a river. He

was then assigned to work in Hamilton, Ohio at a Champion

International plant which manufactured paper.

The Champion Plant was located on the banks of the

Great Miami River, and water from the Great Miami was

used in the paper making process. There was a 100° x 100°

x 15’ reservoir or tank underneath the plant which was used

in the paper making process. Water flowed into this

reservoir through underwater intake and out take pipes from

the Great Miami River. The claimant’s job was to dive

underwater and clear the silt and other debris which

accumulated in the tank or reservoir using a cast iron pump.

He spent an average of four hours a day in the water, and

when not in the water, he monitored the other diver.

On the morning of the injury, the claimant began

work at 7:30 a.m. Shortly after that, he developed a

headache. He suspected carbon monoxide poisoning, but a

check of his air supply revealed no problems. The headache

worsened and he started to climb up the ladder to get out of

the water but started to regurgitate while still wearing his air

helmet, causing himself to inhale his own vomit.

He was transported to the hospital where he remained

101

until May 1987. He was diagnosed with having suffered a

stroke, caused by his work as a diver.

ANALYSIS

Navigable Waterway

The benefits Review Board must affirm the findings

of fact and conclusions of law of the Administrative Law

Judge which are rational, supported by substantial evidence,

and in accordance with law. O'Keeffe v. Smith, Hinchman &

Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §

921(b)(3). In order to establish that he is entitled to benefits

under the Act, the claimant must establish that he was

injured while in a place covered by the Act, and while in

maritime employment as defined in the Act. Williams v.

Director, Office of Workers’ Compensation Programs, 825

F.2d 246 (9th Cir. 1987). To meet this so-called “situs” test,

claimant could have shown either (1) that the tank or

reservoir that he was in at the time of his injury was a

navigable waterway of the United States, or (2) that the tank

or reservoir was used for loading, unloading, repairing, or

building a vessel. Williams, supra; 33 U.S.C. § 903(a).'

1 Section 903(a) provides:

Except as otherwise provided in this section, 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

102

A threshold requirement of navigability under the

cases is the presence of an “interstate nexus” in order for a

body of water to function as a continuous highway for

commerce between ports. Lepore v. Petro Concrete

Structures, Inc., 22 BRBS 403 (1990) (citing The Monletto,

78 U.S. 411 (11 Wall.) (1871)). In addition, the waterway

must be capable of floating logs, boats and rafts. Ne-Bo-

Shone Ass'n, Inc. v. Hogarth, 7 F. Supp. 885 (W.D. Mich.

1934), aff'd 81 F.2d 70 (6th Cir. 1936).

The Administrative Law Judge correctly found that

the Great Miami River, on which the paper plant in this case

was located, was a navigable waterway. He went on to find

that

. . although Claimant was not directly in the Great

Miami River, he was within a channel of water which

flowed from the Great Miami River through this

Champion International reservoir underneath its factory

and then back into the [Great Miami River]. Waters

running through diversion tunnels have long been held

to be still navigable waterways for purposes of the

Longshore and Harbor Workers’ Act. See Morrison-

Knudson Company v. O'Leary, 288 F.2d 542 (9th Cir.

1961) (an artificial tunnel used solely to divert the

Snake River during construction of a dam was held to

be navigable waters.) Waterways which involved

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,

dismantling, or building a vessel).

103

diversion from river channels into factories and back to

the main river have also been considered navigable

waterways under the Act. See C.J. Montag and Sons,

Inc., v. O'Leary, 304 F. Supp. 188 (D.C. Or. 1969) (A

“tailrace” or “stream” formed by water returning to the

Willamette River after it had been diverted for use in

the manufacturing plant was held to be a navigable

river).

J.A. at 24.

The Board rejected the ALJ’s reliance on the

Morrison-Knudson and C.J. Montag and Sons cases, noting

that both cases involved the navigability of artificial

waterways that could be navigated by boats or barges. In

Morrison-Knudson Co. v. O'Leary, 288 F.2d 542 (9th Cir.

1961), four workers were killed in a diversion tunnel of the

Snake River. The court held that the water in the tunnel,

constructed to carry the main stream of the river during

construction of the dam, remained a navigable waterway that

could float boats or barges. In C.J. Montag and Sons, Inc.,

304 F. Supp. 188 (D. Or. 1969), a worker was killed in the

tailrace of the Willamette River, which was a stream formed

by water returning to the river after it had been diverted to

two manufacturing plants. The court in that case held that

the tailrace was navigable by barges up to 130 feet long and

28 feet wide operated in the tailrace.

The Board also based its reversal of the ALJ’s

decision on Lepore v. Petro Concrete Structures, Inc., 23

BRBS 403 (1990). That case involved a claimant who was

injured in a pontoon boat in a flume while removing a

104

temporary support structure from below the concrete base

laid for the construction of the Winter Garden building of the

World Financial Center at Battery Park in New York City.

The flume was a 60° x 30° channel with landfill on the

bottom, a concrete slab on top, earth at one end and seawall

at the other end. The water in the flume was 20° to 25” deep,

and it seeped in through the gravel and rock base. In Lepore,

the Board held that since water seeped into the flume solely

for the purpose of facilitating heating and cooling, and not

for navigation, it was not a navigable waterway since it could

not support commerce. Lepore at 406.

According to the Board, the facts of Mr. Rizzi’s claim

are similar to those in Lepore. As in Lepore, the area which

held water where the injury occurred was intended primarily

for storage of the water for the heating and cooling system.

Just as in Lepore, the reservoir or tank at issue in this case

was tantamount to being land-locked since no vessel could

gain access to it due to the walls surrounding it. We agree

with the Board that a navigable waterway ends where

underground pipes and vents remove water from a river to a

reservoir or tank for manufacturing or storage purposes.

Otherwise, river water pumped into municipal reservoirs and

similar facilities would continue to be viewed as navigable

waters even though transportation is no longer possible.

Like drains and small creeks, such reservoirs are too far

removed from navigation to be any longer considered

“navigable waterways”, even under a liberal construction.

The claimant argues that the decision of the Benefits

Review Board inappropriately substituted its own factual

findings for those made by the Administrative Law Judge,

105

but we conclude that the Benefits Review Board’s decision

was not premised upon the substitution of factual findings

made by the ALJ, but rather was premised upon the fact

finder’s misapplication of the law to the facts. The Board’s

reversal of the ALJ’s decision and order rests upon its

finding that the site of the claimant’s injury did not constitute

navigable waters as covered by 33 U.S.C. §902(3). There

was no retrial of facts by the Board, nor was there any

substitution of facts for the finding of the Administrative

Law Judge.

Maritime Employee

In addition to establishing injury on actual navigable

waters, a claimant may also establish coverage if his injury

occurs in a landward area covered by Section 3(a) and his

work is maritime in nature, bringing him within the

definition of maritime employee in Section 2(3). See 33

U.S.C. §§ 902(3), 903(a). Section 3(a) provides that the

injury must occur on 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, dismantling or building a vessel.” 33 U.S.C.

§903(a).

In its decision reversing the ALJ, the Board stated:

. in addition to not constituting “navigable

waters”, the site at the paper factory where claimant

was injured is not one of the enumerated sites in

Section 3(a), and there is not contention that it is an

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adjoining area used for the maritime activity of

loading, unloading, building, dismantling or repairing

vessels. Therefore, we hold that claimant's injury did

not occur on a situs covered under Section 3(a) of the

Act. . . . Accordingly, as the situs requirement is

not satisfied in this case, we reverse the

Administrative Law Judge’s finding that claimant’s

injury on January 20, 1987 is covered under the Act

and the resultant award of benefits.

J.A. at 46.

We agree that the claimant’s injuries did not occur

upon a navigable waterway, pier, wharf, dry dock, terminal,

building way, marine railway, or other adjoining area

customarily used by an employer in loading, unloading,

repairing, dismantling or building a vessel as specified in 33

U.S.C. § 903(a). The Board was therefore correct in finding

as a matter of law that the claimant’s injuries failed to meet

the jurisdictional requirements of the Act.

Twilight Zone

Mr. Rizzi also argued that his injury occurred in the

“twilight zone” between state workers’ compensation and the

Federal Act. He claimed that where an injured claimant is

not eligible for state compensation benefits, he may be

afforded LHWCA coverage despite not meeting all of the

technical requirements under the Act. See Hetzel v.

Bethlehem Steel Corp., 50 F.3d 360 (Sth Cir. 1995).

The Board did not address the claimant's “twilight

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zone” argument, except in a footnote stating: “[i}n its brief

to the Board, employer states that claimant received an

award of benefits under Connecticut workers’ compensation

law, which employer ultimately did not challenge.” J.A. at

46. Because the petitioner qualified for and secured workers’

compensation benefits under the Connecticut Workers’

Compensation Act, band because the petitioner has failed to

meet the situs requirement for longshore jurisdiction, there is

not justification for extending the Act's jurisdicticn beyond

that mandated by the statute.

CONCLUSION

For the reasons discussed above, the Board was

correct in reversing the judgment of the Administrative Law

Judge awarding benefits to Mr. Rizzi under the

Longshoremen’s and Harbor Workers’ Compensation Act.

We therefore AFFIRM.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.