Petition for Writ of Certiorari — Seahorse Coastal Assistance & Towing v. Fleischmann

sour,

O fe B:

‘9 7189 4 way 26 1998

No. DESC OF IME CLERK

In The

Supreme Court of the United States

>

October Term, 1997

SEAHORSE COASTAL ASSISTANCE & TOWING and

STATE INSURANCE FUND,

Petitioners,

VS.

THEODORE FLEISCHMANN,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN J. WALSH

JOHN F. KARPOUSIS

Counsel of Record .

FREEHILL, HOGAN & MAHAR

Attorneys for Petitioner

80 Pine Street

New York, New York 10005-1759

(212) 425-1900

46582 utz

;, (800) 274-3321 * (800) 359-6859 B

te

A DIVISION OF COUNSEL PRESS Services, inc.

i

QUESTIONS PRESENTED

1. To be a covered employee under the Longshore and

Harborworkers’ Compensation Act, (“LHWCA”) 33 U.S.C.

§ 901, et seq., a claimant must prove that he was engaged in

“maritime employment” as that term is defined under § 902(3) of

the Act. When a marine construction worker’s injury occurs on

land, must the employment have some connection to loading,

unloading, repairing, building or breaking a vessel or must the

employment have some connection to maritime commerce or

navigation?

2. To be a covered employee under the LHWCA, 33 U.S.C.

§ 901, et seg., (“LHWCA”), a claimant must also prove that he

was injured on “navigable waters” which includes

any adjoining pier, wharf, drydock, terminal, building

way, marine railway or other adjoining area customarily

used by an employer in loading, unloading, repairing,

dismantling or building a vessel.

When a marine construction worker’s injury occurs on land,

must the structure on which a claimant is injured have some

connection to loading, unloading, repairing, building or breaking

a vessel?

ii

INTERESTED PARTIES

The following persons and entities were parties below and

lave an interest in the outcome of the case:

1. Seahorse Coastal Assistance & Towing;

2. New York State Insurance Fund;

3. Director, Office of Worker’s Compensation Programs;

4. United States Department of Labor;

5. Theodore Fleischmann.

ili

STATEMENT OF PARENT, SUBSIDIARY

AND AFFILIATE CORPORATIONS

Petitioner, Seahorse Coastal Assistance & Towing, is not

affiliated with any corporations and is not a parent or subsidiary

of any company.

Petitioner State Insurance Fund is a state agency of the State

of New York, pursuant to the New York Workers’ Compensation

Law, Article 6, Sections 76 through 100.

iv

TABLE OF CONTENTS

Page

COS FOND Boe i Bek i ks BI ee i

SOTO CUMING Eis ie oo Hee cae eae eee 0

Statement of Parent, Subsidiary and Affiliate Corporations 2

PERS UMERLE (OOS PAEEN CEE DORAN a 5a OREN Cobb cet iii

SE NE 3 ck oh eke ees hn Used ieee. IV

Re eS Perea he on Eva ris: Vv

FUME III sas ioc ch ew eek eben l

IE INE a ec ues cs Va dws ke we ches Viens l

UNOS OF POTION oo bo kc be eb cued duee sees |

CE COIN oo on i ee ivac ides l

Longshore and Harborworker’s Act Provisions ....... |

Sg te Be eT Pe ry pe 3

Bo ee hg 3 SEP ee ey me ener rp 4

Reasons for Granting the Writ .. 2... 6.0 c cece cece 5

i. | MA SG ear ees coupe ey 5

Piss ON ok ov bono bce G haere 7

Vv

Contents

Page

Bhs Ei oes Pans £5 a Re ReA ees 9

Ce ee eb visGb eke Paw heh beck chseeneeees 12

NG Oe Nee Eg Ore he ee a eg ee 15

TABLE OF CITATIONS

Cases Cited:

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1988) ..... ll

Brooker v. Durocher Dock & Dredge, 133 F.3d 1390 (11th

Ce TE oi er ea oe a eee 6, 7, 13, 14

Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11th

Cir. 1990), cert. denied, 498 U.S. 1026 (1991)

SES cee e RON 6 bk Ewe ea Miwa eee Teh tees 10

Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962)

pads OES PEC ooo wk Oba eae bien tr ee ee 8

Crapanzano v. Rice Mohawk, 30 BRBS 8 (1996)

Je EC EEG ed wae us woke POS OVEN CR OTES nes 14

Chesapeake and Ohio Railway Co. v. Schwalb, 493 U.S.

I ee ee Pe Ea il

Chevron U.S.A. v. Natural Resources Defense Council,

467 U.S. 837, (1984), reh’g denied, 468 U.S. 1227

Ue Rae iW Duthie era r yarn naeer e (Mecsecean, mpreet a iege ll

vi

Contents

Page

Davis v. Department of Labor and Industries of

Washington, 317 U.S. 249 (1942) ............405: 8

Director, Office of Workers’ Compensation Programs, etc.

v. Perini North River Assoc., 459 U.S. 297 (1983)

i nce 8 CU awh WD cle Ral kere e ae eae se 3, 6, t: 20, 45

Federal Maritime Comm'n y. Seatrain Lines, Inc., 411

ok es RL cS \ py ne Seales Gunn MEIC SS. ll

Fleischmann vy. Director, Office of Workers’ Compensation

Programs, 137 F.3d 131(2d Cir. 1998)

0 May UR EM Ces a be ewe ik eek ees 1, 4,5, 11, 12, 13, 14

Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985)

ie VEC OPCA DAO ees a tear i ak Gare 6,9, 10,11, 12,14

Hurston v. Director, Office of Workers’ Compensation

Programs, 989 F.2d 1547 (9th Cir. 1993) .......... 13

Johnson v. Orfanos Contracting Inc., 25 BRBS 329 (1992)

CRA CASES SG ik ORE DO ts ERA Ewe uae 14

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920)

CaS be We bb Wa bao WED ae RE PL ee 7

Laspragata v. Warren Georges, Inc.,21 BRBS 132 (1988)

it KMe URES Kien be LORS R LAME eee ed ee 14

McGray Construction Co. v. Director, Office of Workers’

Compensation Programs, 112 F.3d 1025 (9th Cir. 1997)

ae ee a a

Seas ae Pa

x ea eee ee a a ee eee ee Le

PE eT Ee TRE Se

vil

Contents

Page

Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969)

BAERS aN Sei, EAN Oy eee Li AUER PD eee PP PME MD ap CoA 8, 14, 15

Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249

CEES SiOx RAKE CKOS ER Ee ho ELT ie Re 6, 7,9, 13

Olson v. Healy Tibbits Construction Co., 22 BRBS 221

SOR Wie hs EU KE RS AW ck New N eau oa uh e 14

Parker v. Motor Boat Sales, Inc., 314 U.S. 244 (1941)

ENGR Rae lee oa ean kD de RO RAGG hy ooE Ree bs 2 8

P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979) ........ 9

Pulkowski v. Hendricksen Bros. Inc., 28 BRBS 298 (1994)

TO UGLS peed CEM CLES CA USEC ERE RMES VEON ER OAD 14

Randall v. Chevron, U.S.A. Inc., 13 F.3d 888 (Sth Cir.

1994), cert. dismissed subnom. ..............4.. 10

Sea Savage v. Chevron, U.S.A., 512 U.S. 1265 (1994)

Rae ea ee aa Sees te tee ied he ais a 10

Silva v. Hydro Dredge Co., 23 BRBS 123 (1989) ..... 14

Southern Pacific Co. v. Jensen, 244 U.S. 205(1917) .. 7

Statutes Cited:

Re CORD Koos s PON Ss OUR RS eke a eee l

eRe Pe Oe. ie Kk baie Soe i ae 0 ee ba Sees hs 1s Ma

vill

Contents

Page

BP UA PEE 2 ei Ra SUR EIS OLA R ce es ee i, 1,4, 9, 10

Oe RP NE cs nh dN uae OR ED a ceases 3, 4, 5, 8, 13

United States Constitution Cited:

Articie If, Section Z, Clawee 1 ois cece cs eees l

Other Authorities Cited:

Gilmore & Black, The Law of Admiralty § 6-50 at 425 (2d

Ng ERGY gion Pantie SHE ie Sovp te oe? Pa RN en ee 8

Larson, Workmen’s Compensation § 89.35(a) at 16-308-

SO a ee vie cd ORC ECER Es Cewek eens 6

Note, Director, Office of Workers’ Compensation Programs

v. Perini North River Assoc.: Judicial Dilution of the

Longshoremen’'s and Harbor Workers’ Compensation

Acts “Status” Requirement, 33 Cath U. L. Rev. 245,

SOC ROEE Sidi cach £60 vad Coieh a owed eb eae FRE 12

S. Rep. No. 92-1125 at 1 (1972), reprinted in 1972

CAL ee, So wae ee bakes hbo ares bores 15

Sunstein, Law and Administration After Chevron, 90

Colum. L. Rev. 2071, 2101 (1990) ............... 1]

C. Tucker, Coverage and Procedure Under the

Longshoremen’'s and Harbor Workers’ Compensation

Act Subsequent to the 1972 Amendments, 55 Tul. L.

Mov, 1056, FOPOTIGED) oo cos vcwon a cudomabonen ce 9

ix

Contents

APPENDIX

Appendix A — Opinion of the United States Court of

Appeals for the Second Circuit Decided February 23,

SiN ANRC EEN Se ROUT OE DEES ANUS MiReee ee

Appendix B — Notice From the Clerk of the U.S.

Department of Labor, Benefits Review Board Dated

DE SOVEPOU Civ occWacceveWcebeerdennte

Appendix C — Decision and Order of the U.S. Department

of Labor Denying Benefits Dated October 4, 1994

oS £226'97 42.8 € 62 OS 2 CEE OCH PE 6282 2 6 0:6. 4 Oo 0.6. 3.9 2 OO 0.8

Page

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PRELIMINARY STATEMENT

Seahorse Coastal Assistance & Towing and the New York

State Insurance Fund Petition for a Writ of Certiorari to review

the opinion of the United States Court of Appeals for the Second

Circuit entered on February 23, 1998.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 137 F.3d

131. The Benefits Review Board, granting administrative

affirmance, dated September 12, 1996 (App. p. 18a), is

unreported. The Decision and Order denying benefits of

Administrative Law Judge C. Martin Bober (App. p. 20a) is also

unreported.

STATEMENT OF JURISDICTION

Petitioners seek review of an opinion entered on February

23, 1998 by the United States Court of Appeals for the Second

Circuit. This Petition for a Writ of Certiorari is filed within ninety

(90) days of the entry of the February 23, 1998 opinion. The

Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1)

(1998).

CONSTITUTIONAL PROVISION

Article III, Section 2, Clause 1 of the United States

Constitution provides, in relevant part, that “the judicial powers

shall extend to all cases of admiralty and maritime jurisdiction.”

See Const. Art. 3, § 2, cl. 1.

LONGSHORE & HARBORWORKER’S

ACT PROVISIONS

(33 U.S.C. § 901, et seg. (1998))

§ 902(3) of the Longshore & Harborworker’s Compensation

Act states in pertinent part, as follows:

2

The term “employee” means any person engaged in

maritime employment, including any longshoremen or

any other persons engaged in longshoring operations,

and any harborworker, including a ship repairman,

shipbuilder, and ship breaker, but such term does not

include —

(A) individuals employed exclusively to perform

office, clerical, secretarial, security or data processing

work;

(B) individuals employed by a club, camp,

recreational operations, restaurant, museum, or retail

outlet;

(C) individuals employed by a marina and who are

not engaged in the construction, replacement, or

expansion of such marina (except for routine

maintenance);

(D) individuals who are (i) employed by suppliers,

transporters or vendors; (ii) are temporary doing

business on the premises of an employer described

in paragraph 4, and; (iii) are not engaged in work

normally performed by the employees of that employer

under this chapter;

(E) aquacultural workers;

(F) individuals employed to build, repair, or dismantle

any recreational vessel under 65 feet in length;

(G) a master or member of the crew in any vessel;

3

(H) any person engaged by a master to load or unload

or repair any small vessel under eighteen tons net;

if individuals described in clauses “A” through “F”

are subject to coverage under the State Worker’s

Compensation Law.

§ 903(a) of the Longshore & Harborworker’s Compensation

Act, provides in pertinent part as follows:

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 navigable waters of the United States

(including any adjoining pier, wharf, drydock, 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) (1998).

STATEMENT OF THE CASE

Jurisdiction of the Department of Labor, Office of

Administrative Law Judges, was based upon § 33 U.S.C. § 901,

et seq. (1998).

PROCEDURAL HISTORY

On October 28, 1993, a hearing was held pursuant to notice

under the LHWCA for a right knee injury sustained by Theodore

Fleishman (Mr. Fleishman), while in the scope of his employment

4

with Seahorse Coastal Assistance & Towing Company

(“Seahorse” or “Employer” ). Seahorse was insured by the New

York State Insurance Fund (“the Fund”) which had paid workers’

compensation benefits under the New York Workers’

Compensation Law. Seahorse and the Fund attended the hearing

contesting only the issue of whether Mr. Fleischmann met the

situs and status requirements under the LHWCA (App. p. 24a).

Seahorse was hired to repair a retaining wall on a private

property. The retaining wall abutted a canal in Oyster Bay Long

Island, on Cenier Island, New York. See Fleischmann v. Director,

Office of Workers’ Compensation Programs, 137 F.3d 131, 133

(2d Cir. 1998). The retaining wall had collapsed forward into the

water. See id. The purpose of the retaining wall was to prevent

the erosion of the land by the water. Mr. Fleischmann worked

primarily on a floating dock, tied to a barge. Mr. Fleischmann

was injured when he fell landward of the retaining wall into an

area containing dredging materials and water. See Fleischmann,

137 F.3d at 133-4.

ALJ Bober' issued a Decision and Order finding that Mr.

Fleischmann failed to meet both the “status” and “situs” tests

under 33 U.S.C. § 902(3) and § 903(a) of the LHWCA (App. pp.

20a-27a). Mr. Fleischmann filed a Petition for Review to the

Benefits Review Board (“BRB”) seeking a reversal of ALJ

Bober’s decision. Because the case was not heard or ruled on

for more than one (1) year after the Petition for Review was filed,

the BRB refused to rule on the case and ALJ Bober’s decision

was therefore considered administratively affirmed under Public

Law 104-134 (App. pp. 18a-19a).

In December, 1996, Mr. Fleishman appealed to the United

States Court of Appeals for the Second Circuit (“Second Circuit”).

1. The Administrative Law Judge who heard the case retired before

rendering the decision.

ek eee ee ER a hee Hea

5

In January, 1997, the Director, Office of Workers’ Compensation

Programs (“the Director”) filed its Brief seeking reversal of ALJ

Bober’s decision, followed by Seahorse and the Fund’s brief,

also filed in or about January of 1997. On February 23, 1998, the

decision of ALJ Bober was reversed and remanded by the Second

Circuit based on the Second Circuit’s conclusion that Mr.

Fleishman’s “general employment of building piers and docks”

sufficed to “establish the requisite connection to ships to confer

him with status of a harborworker.” Fleishmann, 137 F.3d at

137. Further, the Second Circuit found that the retaining wall was

a “pier” as that term is defined under § 903(a) of the Act. See

Fleischmann 137 F.3d at 139.

REASONS FOR GRANTING THE WRIT

I.

INTRODUCTION

Left open by this Court’s decision in Director, Office of

Workers’ Compensation Programs, etc. v. Perini North River

Assoc., is the question whether a marine construction worker’

who is injured on certain structures adjoining navigable waters is

engaged in “maritime employment” under the LHWCA.’ See

Director, Office of Workers’ Compensation Programs, etc. v.

Perini North River Assoc., 459 U.S. 297, 299 (1983). Perini held

that, regardless of status, if the claimant was covered under the

LHWCA before the 1972 amendments for injuries because they

occurred on navigable waters, then he is covered for injuries on

2. The term “marine construction worker” refers to employees who

engaged in building and repairing facilities, piers and fixed objects in water and

excludes ship repairers and shipbuilders who are covered by the LHWCA.

3. This case presents the “occasion . . . to determine other possible

applications of the status test to activities performed on the expanded landward

situs.” Perini, 499 at 318 n.27.

6

navigable waters after the 1972 amendments. See Perini, 459 U.S.

at 325.

Fleischmann, a marine construction worker, was injured on

land while engaged in building a retaining wall for a private

residence and although he testified he spent 75% of his time on a

barge, his work had no relationship to loading, unloading, building

or repairing a vessel. The Second Circuit Court of Appeals’

reversal of the ALJ’s finding of no coverage conflicts with

Congress’ requirement that covered maritime employees have

some connection to loading or unloading a vessel or building or

repairing it. Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 424

(1985). Moreover, this case conflicts with the Ninth Circuit’s

opinion in McGray Construction Co. v. Director, Office of

Workers’ Compensation Programs, 112 F.3d 1025 (9th Cir. 1997).

McGray held that a pile driver like Mr. Fleischmann was not

engaged in maritime employment but awarded LHWCA benefits,

because his previous employment involved marine diving. /d. at

1033. Exercising jurisdiction in this case will resolve the question

whether marine construction workers have the statutory status

that enables them to carry the LHWCA shoreward.

Also to be answered is the “grammatical point” left open in

Northeast Marine Terminal Co. v. Caputo: must the specific

structures enumerated by the Act under situs have some

connection to the loading, unloading, repairing or building a

vessel? See Northeast Marine Terminal Co. v. Caputo, 432 U.S.

249, 280 (1977). The lower court’s determination in this case

directly conflicts with the Eleventh Circuit Court of Appeals

holding that an identical retaining wall at a private residence is

not a “pier” under the LHWCA. Brooker v. Durocher Dock &

4. “[I]t is not at all clear that the adjectival phrase ‘customarily used. . .’

was intended to modify more than the preceding noun phrase ‘other areas.” ”

Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 280 (1977). See

Larson, Workmen’s Compensation § 89.35(a) at 16-308-309( 1997).

7

Dredge, 133 F.3d 1390, 1393 (11th Cir. 1998). Contrary to

Congressional intent, the Second Circuit has extended the

LHWCA to cover repairs performed on private non-commercial

properties having no connection to loading, unloading, repairing

or building ships.

The Writ of Certiorari should be granted to answer the

questions left open by Director, Office of Workers’ Compensation

Programs, etc. v. Perini North River Assoc. and Northeast Marine

Terminal Co. v. Caputo which will resolve the conflicts between

the circuits and eliminate the uncertainty and confusion and provide

clear guidelines for the courts and agencies who are required to

decide the benefits available to this class of workers.

A. Background

The federal/state conflict regarding Workers’ Compensation

coverage for injuries to employees who work on both navigable

water and adjacent structures has undergone a tortured history,

commencing with this Court’s decision in Southern Pacific Co.

v. Jensen holding that state compensation acts could not be

constitutionally applied to an injury on navigable waters. See

Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). Attempts

by Congress to extend workers’ compensation laws of states to

injuries on navigable waters were similarly ruled unconstitutional.

See Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920). In

1927, Congress enacted the first Longshoremen and Harbor

Workers Compensation Act (LHWCA) providing for

compensation to an employee for death occurring on the navigable

waters of the United States “if recovery for the disability or death

through workmen’s compensation proceedings may not validly

be provided by State law.” Longshore and Harbor Workers

Compensation Act of 1927, 44 Stat. 1424 (codified as 33 U.S.C.

§ 901, et seq.).

8

At first, the new statute was held to be mutually exclusive

with state compensation acts. See Parker v. Motor Boat Sales,

Inc., 314 U.S. 244, 247-48 (1941). The LHWCA could not apply

to injuries covered by state compensation. See Gilmore & Black,

The Law of Admiralty § 6-50 at 425 (2d ed. 1975). However, the

exclusivity worked hardships on those who having been injured

on navigable waters made the wrong choice in the “maritime but

local” areas where state law applied. Jd. § 6-49 at 419. A more

pragmatic view of the statute allowed for a “twilight zone”,

wherein federal or state law could apply to workers who

continually cross the “Jensen line.” Davis v. Department of Labor

and Industries of Washington, 317 U.S. 249, 256 (1942). If the

injury occurred on navigable waters and the employee chose the

LHWCA remedy, then it applied. See Calbeck v. Travelers Ins.

Co., 370 U.S. 114, 131 (1962). While there was serious uncertainty

as to the application of state law to injuries occurring on navigable

waters, it was quite clear that injuries landward of the “Jensen

line” were not covered by the LHWCA. See Nacirema Operating

Co. v. Johnson, 396 U.S. 212, 216-224 (1969).

The 1972 amendments to the LHWCA moved the Jensen

line landward and covered injuries not only navigable waters of

the United States, but also:

Any adjoining pier, wharf, dry dock, terminal, building

way, marine railway or cther adjoining area customarily

used by an employer in loading, unloading, repairing,

or building a vessel.

Longshore and Harbor Workers’ Compensation Act Amendments

of 1972, 86 Stat. 1251 (1972), (codified as amended at 33 U.S.C.

§ 903(a) (1998)).

The 1972 amendments also created a status requirement by

limiting the definition of employee:

OO EO EO

9

The term “employee” means any person engaged in

maritime employment, including any longshoreman or

other person in longshoring operations, and any

harbor-worker including a ship repairman, shipbuilder

and ship-breaker, but such term does not include a

master or member of a crew of any vessel, or any

person engaged by the master to load or unload or

repair any small vessel under 18 tons net.

Longshore and Harbor Workers’ Compensation Act Amendments

of 1972, 86 Stat. 1251 (1972), (codified as amended at 33 U.S.C.

§ 902(3) (1998)).

B. Status

It was clear that to be covered, an employee needed to meet

both the status and situs requirements. See Northeast Marine

Terminal Co. v. Caputo, 432 U.S. 249 264-265 (1977). The Act

enumerates certain occupations which are covered. See 33 U.S.C.

§ 902(3). However, marine construction workers are not

specifically mentioned in the Act. See C. Tucker, Coverage and

Procedure Under the Longshoremen’s and Harbor Workers’

Compensation Act Subsequent to the 1972 Amendments, 55 Tul.

L. Rev. 1056, 1079 (1981). While Congress had expanded the

situs of coverage landward, that expansion was limited to

employees engaged in longshoring and ship repairing. See Herb’s

Welding, Inc. v. Gray, 470 U.S. 414, 423-424 (1985). As long as

they were engaged in longshoring or ship repairing, it did not

matter that they never spent time on actual navigable waters;

longshoremen who spent their entire day on land were eligible.

See P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979). Moreover, the

restriction on status only applied to the landward extension of

the LHWCA,; in other words, marine construction workers who

were previously covered before the 1972 amendments continue

to be covered for injuries that occur on navigable waters,

10

notwithstanding that they might not have met the status

requirement of 33 U.S.C. § 902(3). See Director, Office of Workers’

Compensation Programs v. Perini North River Assoc., 459 U.S.

297 (1983).

Two questions arise after Perini: first, are marine

construction workers covered for injuries on land? Secondly, are

all injuries on the navigable waters covered no matter what the

status of the worker? The second question has caused a conflict

between the Fifth and Eleventh Circuits: whether all injuries that

occur on navigable waters are covered by the LHWCA. Compare

Randall v. Chevron, U.S.A. Inc., 13 F.3d 888 (Sth Cir. 1994),

cert. dismissed sub nom. Sea Savage v. Chevron, U.S.A., 512

U.S. 1265 (1994) (worker injured while transiently or fortuitously

on navigable waters held covered) with Brockington v. Certified

Electric, Inc., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498

U.S. 1026 (1991) (land based electrician injured in boat not

covered, because there was nothing inherently maritime about his

tasks). The first question — whether a marine construction worker

is covered by the LHWCA for injuries on the adjacent structures

to navigable waters — was expressly left open by Perini. Both

questions can be answered with guidance on the meaning of

“maritime employment.”

In defining status, the LHWCA provides a list of personnel

intended to be covered: “longshoremen ... and any

harborworkers, including the ship repairer, shipbuilder and ship

breaker. . . .” 33 U.S.C. § 902(3).

While “maritime employment” is not limited to the

occupations specifically mentioned in § 2(3), neither

can it be read to eliminate any requirement of a

connection with the loading or construction of ships.

Herb’'s Welding, Inc. v. Gray, 470 U.S. 414, 423-424 (1985).

Some connection to longshoring is sufficient: employees injured

11

while maintaining landside equipment essential to the loading and

unloading process have the required nexus. See Chesapeake and

Ohio Railway Co. v. Schwalb, 493 U.S. 40, 46-47 (1989).

The Second Circuit in this case deviated from this Court’s

holding in Herb’s Welding and its reasoning in Schwalb when

the Second Circuit held that a worker injured on land who had no

connection with loading or unloading of a vessel or repairing or

building a ship met the status requirement under the LHWCA.

Compare Herb’s Welding,'470 U.S. at 423-424, and Schwalb,

493 U.S. at 46-47, with Fleischmann vy. Director, Office of

Workers’ Compensation Programs, 137 F.3d 131, 135-138 (2d

Cir. 1998). Granting undue deference’ to the Director of Office

of Worker’s Compensation Program’s interpretation of the

LHWCA, the Second Circuit distinguished Schwalb and Herb’s

Welding on the basis that a worker who is injured on a pier or a

wharf need not have a connection with the loading or unloading

5. “Although agency determinations within the scope of delegated authority

are entitled to deference, it is fundamental that an agency may not bootstrap

itself into an area in which it has no jurisdiction.” Adams Fruit Co. v. Barrett,

494 U.S. 638, 650 (1988) (quoting Federal Maritime Comm'n v. Seatrain

Lines, Inc., 411 U.S. 726, 745 (1973)). Deference to an agency’s interpretation

of its own jurisdiction is unwarranted as it ignores an agency’s potential bias to

broaden its jurisdiction beyond Congressional intent. See generally Sunstein,

Law and Administration After Chevron, 90 Colum. L. Rev. 2071 , 2101 (1990)

(“The agency might be deciding whether . . . its authority extends to new or

unforeseen areas. . . . It would be peculiar, therefore, to defer to the agency’s

views.”) The Second Circuit felt that the deference accorded to the Director,

Office of Workers’ Compensation as to the meaning of “status” was not clearly

equivalent to deferring to an agency’s interpretation of its own jurisdiction. See

Fleischmann, 137 F.3d at 136 n.2. However, “[t]he judiciary is the final authority

on issues of statutory construction and must reject administrative constructions

which are contrary to clear congressional intent.” Chevron U.S.A. v. Natural

Resources Defense Council, 467 U.S. 837, 843 n.9 (1984), reh 'g denied,

468 U.S. 1227 (1984). Expanding the definition of harbor worker to include

workers not involved in longshoring or shipbuilding or repairing contravenes the

clear intent of Congress. Herb's Welding v. Gray, 470 U.S. at 423-424.

12

of a vessel or the repairing or building of a vessel, because he

could be considered a “harbor worker” which is one of the

enumerated occupations in the statute. See Fleischmann, 137 F.3d

at 135-138.

This disposition of the status issue begs the issue as to who

is a harbor worker and blows a hole in the limitation on the coverage

of the LHWCA intended by Congress. Anyone who performs

some work on the water could be called a “harbor worker” and

to do so would essentially eliminate the requirement that the worker

be a “maritime employee.”*® Moreover, the Ninth Circuit has ruled

that a “harbor worker” must be someone who builds or repairs a

structure used to facilitate maritime commerce or navigation.

McGray v. Director, Office of Workers’ Compensation Programs,

112 F.3d 1025, 1030 (9th Cir. 1997). Granting certiorari would

resolve this conflict.

C. Situs

The Second Circuit expanded the definition of the word “pier”

to include a sea wall to a private residence but also decided that

the “pier” need not be “customarily used. . . in loading, unloading,

repairing, dismantling or building a vessel” which has caused a

conflict among the Circuit Courts of Appeal. Fleischmann, 137

F.3d at 138-139. Finding that a retaining wall on a private residence

was a covered “situs” under the LHWCA brought the Second

6. Nowhere does Congress suggest that non-maritime employees

such as construction workers, security guards or even janitors are

intended to either benefit from the expansion of the Act or be

included under the maritime emp!oyment requirement.

Note, Director, Office of Workers’ Compensation Programs v. Perini North

River Assoc.: Judicial Dilution of the Longshoremen’'s and Harbor Workers’

Compensation Acts “Status” Requirement, 33 Cath U. L. Rev. 245, 256

(1983).

De ek.

13

Circuit in direct conflict with the Eleventh Circuit. See Brooker v.

Durocher Dock & Dredge, 133 F.3d 1390, 1393-1394 (1 1th Cir.

1998). Brooker held that a construction worker who was injured

on a retaining wall was not covered by the LHWCA, since the

retaining wall was not a “pier” within the meaning of the LHWCA.

See Brooker, 133 F.3d at 1394.

The conflict arises over the ambiguity in § 903(a) of the Act

which was mentioned but unresolved in Northeast Marine

Terminal Co. v. Caputo: whether the modifying phrase

“customarily used by an employer in loading, unloading, repairing,

dismantling or building a vessel” applied solely to the term

“adjoining area” or also modified the preceding terms “adjoining

pier, wharf, dry dock, terminal, building way, marine railway . . .”

Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 280-

281 (1977). Put another way, if a pier was not customarily used

in longshoring or ship repairing, was it a covered situs under the

Act?

Caputo noted that Congress had “little concern with respect

to how these facilities were used.” Jd. at 280. However, Caputo

did not decide the issue because the employee in that case worked

in an “adjoining. . . terminal . . . customarily used. . . in loading

[and] unloading.” /d. at 281.

Lacking such resolution, the Second Circuit decided to follow

the Ninth Circuit’s Opinion in Hurston v. Director, Office of

Workers’ Compensation Programs, interpreting Congress’ intent

to “leave the geographic areas such as a pier or wharf unlimited

so long as they adjoin navigable waters of the United States.”

Fleischmann, 137 F.3d at 139, (quoting Hurston v. Director,

Office of Workers’ Compensation Programs, 989 F.2d 1547 (9th

Cir. 1993)).

14

By contrast, the Eleventh Circuit held that whether a facility

is a “pier” is a pure factual question in the absence of a definition

in the LHWCA. See Brooker, 133 F.3d at 1393. The court found

factual evidence in the record that the sea wall was not considered

to be a “pier.” See id. Since it was not a “pier”, there was no

nged to decide whether the phrase “customarily used” modified

tht term “pier” in the statute. Jd. at 1394.

Marine construction workers and their employees are thus

left in significant doubt as to their status when they are injured on

land. See generally Laspragata v. Warren Georges, Inc., 21

BRBS 132 (1988); Olson v. Healy Tibbits Construction Co., 22

BRBS 221 (1989); Silva v. Hydro Dredge Co., 23 BRBS 123

(1989); Johnson v. Orfanos Contracting Inc., 25 BRBS 329

(1992); Pulkowski v. Hendricksen Bros. Inc., 28 BRBS 298

(1994); Crapanzano v. Rice Mohawk, 30 BRBS 8 (1996). These

workers spend a great deal of time on land when they build and

repair piers, bridges, docks, fender systems, sea walls, bulkheads,

dolphins, mooring platforms and other fixed objects and the

impact of the conflicts concerning situs is considerable.

It is not clear that Congress ever addressed the Second

Circuit’s concern over whether a marine construction worker

might walk in and out of coverage depending on where the injury

occurred. See Fleischmann, 137 F.3d at 139. Congress definitely

expressed its will to maintain continuous LHWCA coverage for

the specified categories of workers who engage in longshoring,

shipbuilding or ship repairing. While Congress pushed the

boundaries of coverage for those workers back into the terminal,

it did not do so for workers falling outside those categories. As a

result, the boundary for marine construction workers — the Jensen

line — remains the same as it did before 1972. “There will always

be a boundary to coverage, and there will always be people who

cross it during their employment.” Herb 's Welding, Inc. v. Gray,

470 U.S. 414, 426 (1985) (citing Nacirema Operating Co. v.

15

Johnson, 396 U.S. 212, 223-224 (1969)). While good legislative

policy might have dictated that all employees who were covered

before 1972 for injuries on navigable waters now should be

covered, when they go ashore, there is no evidence that Congress

followed that path. Congress has expressly manifested its intent

that the shoreward extension of the Jensen line bear some

connection between the situs of the injury and either longshoring

or shipbuilding/repairing operations. See S. Rep. No. 92-1125 at

1 (1972), reprinted in 1972 U.S.C.C.A.N. 4698.

The status and situs tests of the 1972 amendments to the

LHWCA continue to provide perplexing questions for the marine

construction industry, as did the original 1927 Act with its

“maritime but local” and “twilight zone” interpretations. While

Perini covers those workers when they are injured on navigable

waters, the Circuit Courts of Appeal need guidance, first on

whether those same workers are covered, when they are injured

on land and, secondly, whether the injuries on land must occur

on a structure that has some connection to the loading, unloading,

repairing or building a ship.

CONCLUSION

It is respectfully requested that this Petition for a Writ of

Certiorari be granted and that this Court exercise its jurisdiction.

Respectfully submitted,

JOHN J. WALSH

JOHN F. KARPOUSIS

Counsel of Record

FREEHILL, HOGAN & MAHAR

Attorneys for Petitioner

80 Pine Street

New York, New York 10005-1759

(212) 425-1900

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DECIDED FEBRUARY 23, 1998

Theodore FLEISCHMANN, Petitioner

v.

DIRECTOR, OFFICER OF WORKERS’

COMPENSATION PROGRAMS, Seahorse Coastal

Assistance & Towing and State Insurance Fund,

Respondents.

No. 1401, Docket 96-4146

United States Court of Appeals

For the Second Circuit.

Argued April 1, 1997.

Decided F ebruary 23, 1998

ee. ee

Before OAKES and KEARSE, Circuit Judges, and

MURTHA, Chief District Judge.”

OAKES, Senior Circuit Judge:

Appellant Theodore Fleischmann appeals the judgment

entered October 4, 1994, by G. Marvin Bober, Associate Chief

Administrative Law Judge (“ALJ Bober”), denying his application

” The Honorable J. Garvan Murtha, Chief District Judge of the United

States District Court for the District of Vermont, sitting by designation.

2a

Appendix A

for benefits. Fleischmann was injured while repairing a washed-

out bulkhead in a canal. ALJ Bober held that Fleischmann was

not entitled to coverage under the Longshore and Harbor Workers’

Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950 (1994),

because he was not injured on navigable waters, and because he

did not qualify as an “employee” within the meaning of § 902(3).

We reverse and remand, finding that Fleischmann meets the

LHWCA’s standards both as to his status as an employee and as

to the situs of his injury.

Reversed and remanded.

I.

Facts

The parties do not dispute the following facts. Petitioner

Theodore Fleischmann was employed in 1991 by Respondent

Seahorse Coastal Assistance & Towing (“Seahorse”) as a pile

driver and a laborer. Fleischmann worked on constructing

bulkheads, piers, and floating docks. In October of 1991,

Fleischmann was helping to remove and replace a bulkhead at

Center Island, on a canal off Oyster Bay leading to the northern

shore of Long Island Sound. While ordinarily a bulkhead, which

acts as a retaining wall for land, must border land on one side

and water on the other, a large part of this bulkhead had collapsed

forward into the water when the land behind had washed into the

canal in a series of storms. A private residence abutted the area

where the bulkhead had collapsed. The water contained a floating

dock belonging to the property owner, to which a boat belonging

to the owner’s employee was tied. The completed bulkhead would

prevent erosion of the land into the water.

3a

Appendix A

Seahorse built the new bulkhead by driving piles deep into

the bed of the canal, and attaching a horizontal retaining system

to those piles. At the time of Fleischmann’s accident, twelve to

fifteen feet of water and muck still separated the solid land of this

residence from the bulkhead. The repaired bulkhead was attached

to the land at both ends, but pores in the bulkhead wall permitted

water to seep behind it.

To complete construction of the bulkhead, Fleischmann

helped to move material from the canal bottom to fill in the area

landward of the bulkhead. Seahorse used material from the bottom

of the canal as filler, to save money on material and transportation,

and to deepen the water in the canal. Fleischmann and other

Seahorse workers had nearly completed the process of moving

dredging material behind the bulkhead at the time of Fleischmann’s

accident.

While repairing the bulkhead, Fleischmann worked primarily

on a floating dock, which was tied to a barge. The equipment

used to repair the bulkhead was floated to the job site on a barge

belonging to Seahorse, and Fleischmann testified that he had

helped to tie and untie the work boats that moved the barge there.

On October 22, 1991, Fleischmann was cleaning up the barge

and removing lumber from the floating dock. At the time of his

accident, he was on top of the bulkhead and moving the barge by

pulling on a tow line. As Fleischmann reached for a second tow

line, he slipped on the top of the bulkhead and fell over the

landward side. His foot caught on the bulkhead, and he fell into

the dredging material and water. Although Fleischmann got wet

when he fell, his trapped boot kept him from going under the

water completely. At the time Fleischmann fell, the tide was such

that there was enough water behind the bulkhead to cover his

da

Appendix A

body. At the point where he fell, he was approximately fifteen

feet from solid land.

Il.

The ALJ’s Decision

Fleischmann sustained injuries to his right knee from the fall

and applied for benefits under the LHWCA. At his hearing, the

parties stipulated that Fleischmann was “deemed to be temporary

totally disabled from the date of accident.” His petition was heard

by Administrative Law Judge (“ALJ”) Aaron Silverman, who

retired prior to deciding the case. ALJ G. Marvin Bober was

assigned to the matter and rendered a decision solely on the written

record.

Section 920(a) of the LHWCA grants a presumption of

coverage, which applies unless the employer presents substantial

evidence to rebut the presumption. 33 U.S.C. § 920(a) (1994).

ALJ Bober held that the § 920(a) presumption did not apply to

questions of situs or status, and, thus, that Fleischmann had the

burden of proving facts establishing his coverage under the Act.

ALJ Bober noted that to establish coverage under the

LHWCA, Fleischmann had to establish both that he had status

as an “employee” under § 902(3) and that the injury occurred on

a situs covered under § 903(a). ALJ Bober also noted that if

Fleischmann could show that he were injured on “navigable

waters,” as defined before the 1972 amendments to the LHWCA,

he would be covered, without any further showing regarding his

employee status, because the 1972 amendments were designed

to expand, not to limit, coverage. ALJ Bober found that although

the canal itself constituted navigable waters, Fleischmann was

Sa

Appendix A

not injured on actual navigable waters as defined before 1972,

: because water in the area where Fleischmann fell had been

permanently withdrawn from the canal. ALJ Bober went on to

find that Fleischmann lacked status as an “employee” within the

meaning of § 902(3).

The Claimant’s job was not related to the movement

of cargo between ship and land transportation, nor

did it serve to facilitate these functions. Several

Supreme Court decisions addressing Section 2(3) have

“clearly decided that, aside from the specified

occupations, land-based activity occurring within the

§ 903 situs will be deemed maritime only if it is an

integral or essential part of loading or unloading a

vessel.” As the Claimant’s employment did not entail

' such duties, it is not encompassed within the coverage

{ afforded by Section 2(3).

Ae ne) Oe eer var ee

He therefore made no ruling on the question whether

Fleischmann’s accident occurred upon a covered situs, as defined

under the amended LHWCA.

Fleischmann appealed to the Benefits Review Board

(“BRB”), and the Office of the Solicitor filed an amicus letter in

his support. Because the BRB failed to render a decision within

: one year, the ALJ’s decision was deemed affirmed. See Omnibus

: Consolidated Rescission and Appropriations Act of 1996, Pub.

‘ L. No. 104-134, 110 Stat. 1321, 1321-219 (1996). Fleischmann

now brings direct appeal to our court, under § 921(c) of the

LHWCA.

6a

Appendix A

Ill.

Discussion

A. Standard of Review

The BRB hears appeals from decisions made by an ALJ

under the LHWCA. 33 U.S.C. § 921(b)(3) (1994). The BRB must

apply a narrow standard of review to those decisions and is

required to affirm the ALJ’s findings of fact as long as they are

supported by substantial evidence in the record considered as a

whole. /d.; see also King v. Director, Office of Workers’ Comp.

Programs, 904 F.2d 17, 18 (9th Cir. 1990) (per curiam); 20 C.F.R.

§ 802.301 (1997). We review BRB decisions “for errors of law

and for adherence to the statutory standard governing the [BRB’s]

review of the administrative law judge’s factual determinations.”

King, 904 F.2d at 18 (citation omitted).'

Although we agree with Fleischmann that the ALJ erred by

failing to apply the § 920(a) presumption of coverage to questions

of fact and by placing the burden of production of evidence on

Fleischmann, this error does not affect our ruling. Because we

base our ruling on essentially undisputed facts of record,

addressing legal issues only, we would reach the same conclusion

even if we determined that the presumption did not apply.

1. Fleischmann argues that we ought to apply a more stringent standard of

review to ALJ Bober’s Decision and Order because ALJ Bober was not the

actual trier of fact for purposes of the hearings; ALJ Silverman presided during

that stage of the proceedings. However, we do not need to decide whether to

apply a more stringent standard of review to findings of fact in this case, since

we base our decision on facts that are undisputed in all salient respects.

a

7a

Appendix A

B. Coverage Under the LHWCA

Before 1972, the LHWCA covered only employees who were

injured on actual navigable waters; the LHWCA did not cover

employees injured on land, or on structures connected to land,

no matter how close to the water the injury occurred. See

Nacirema Operating Co. v. Johnson, 396 U.S. 212, 223-24, 90

S. Ct. 347, 354, 24 L. Ed. 2d 371 (1969) (holding that the LHWCA

did not extend to injuries sustained on a pier). Recognizing that

“compensation ... should not depend on the fortuitous

circumstance of whether the injury occurred on land or over

water,” Congress amended the LHWCA in 1972. H. Rep. No.

92-1441, at 10 (1972), reprinted in 1972 U.S.C.C.A.N. 4698,

4708. The 1972 amendments extended coverage under § 903(a)

to include injuries that occurred “upon the navigable waters of

the United States (including any adjoining pier, wharf, dry dock,

terminal, building way, marine railway, or other adjoining area

customarily used by an employer in loading, unloading, repairing,

or building a vessel).” 33 U.S.C. § 903(a) (1994). While Congress

expanded the number of locations of injury that would allow an

employee to qualify for coverage, it also added language to

§ 902(3) to restrict the kinds of employees that the LHWCA

covers. Under the 1972 amendments, an injured worker must be

“engaged in maritime employment” to be covered under the

LHWCA. 33 U.S.C. § 902(3). Thus, the LHWCA as amended

requires both (1) that a worker be engaged in “maritime

employment” under § 902(3), and (2) that his or her injury occur

on navigable waters or on one of the listed areas under § 903(a).

Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 265,

97 S. Ct. 2348, 2357, 53 L. Ed. 2d 320 (1977). These two

requirements are respectively referred to as the “status” and “situs”

requirements.

8a

Appendix A

Because Congress intended the 1972 amendments to expand

the scope of coverage, an employee can still establish coverage

by demonstrating that he or she satisfies the situs test as it existed

before it was expanded by the 1972 amendments, without having

to make any further showing regarding status as an employee

under § 902(3). See Director, Office of Workers’ Comp. Programs,

U.S. Dep't of Labor v. Perini N. River Assocs, 459 U.S. 297,

325, 103 S. Ct. 634, 651, 74 L. Ed. 465 (1983); McCarthy v. The

Bark Peking, 716 F.2d 130, 132-33 (2d Cir. 1983) (where a painter

was injured on actual navigable waters in the course of his

employment, “no more is required to qualify . . . as a statutory

‘employee’ ”). Because Fleischmann has established the

requirements for coverage under the LHWCA as amended,

however, we do not need to determine whether the landward side

of the bulkhead constituted actual navigable waters for purposes

of determining whether he satisfies the pre-amendment test of

coverage.

1. Status

ALJ Bober decided that Fleischmann did not qualify as an

employee under § 902(3) because “his job was not related to the

movement of cargo between ship and land transportation, nor

did it serve to facilitate these functions.” He relied on Chesapeake

and Ohio Railway v. Schwalb, which held that “aside from the

specified occupations, land-based activity occurring within the

§ 903 situs will be deemed maritime only if it is an integral or

essential part of loading or unloading a vessel.” Schwalb, 493

U.S. 40, 45, 110 S. Ct. 381, 384, 107 L. Ed. 2d 278 (1989). Even

while quoting Schwalb, however, the ALJ failed to note that

Schwalb’s requirement regarding loading or unloading a vessel

applies only to land-based activity “aside from the specified

occupations.” /d. The Court in Schwalb explicitly exempted

)

)

9a

Appendix A

enumerated occupations from the requirement that the activity be

an integral or essential part of loading or unloading a vessel, and

read the Supreme Court’s precedent as doing so. See id. at 46,

110 S. Ct. at 384 (“We also reiterated in Herb’s Welding, Inc. v.

Gray [470 U.S. 414, 423, 105 S. Ct. 1421, 1427, 84 L. Ed. 2d

406 (1985)], that the maritime employment requirement as applied

to land-based work other than longshoring and the other

occupations named in § 902(3) is an occupational test focusing

on loading and unloading.”) (emphasis added).

The Director urges that Fleischmann, a marine construction

worker, qualifies as a “harbor worker,” one of the occupations

specifically listed in § 902(3). While we owe no deference to the

BRB, we do grant deference to the views of the Director of the

Office of Workers’ Compensation Programs, a Respondent in

this case, with regard to questions of interpretation of the

LHWCA. See Director, Office of Workers’ Comp. Programs, U.S.

Dep't of Labor v. General Dynamics Corp., 982 F.2d 790, 795

(2d Cir. 1992); Mallott & Peterson v. Director, Office of Workers’

Comp. Programs, Dep't of Labor, 98 F.3d 1170, 1172 (9th Cir.

1996) (“ ‘[C]onsiderable weight’ is accorded to the statutory

construction of the LHWCA urged by the Director.” (quoting

Hunt v. Director, Office of Workers’ Comp. Programs, U.S. Dep’t

of Labor, 999 F.2d 419, 421 (9th Cir. 1993))), cert. denied, _

U.S. __, 117 S. Ct. 1842, 137 L. Ed. 2d 1046 (1997). If the

Director’s interpretations and administrative policies are reasonable

and consistent with the purposes of the LHWCA and with clearly

expressed legislative intent, those interpretations control. See

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842-45 & nn.9 & 11, 1048S. Ct. 2778, 2781-83 &

nn.9 & 11, 81 L. Ed. 2d 694 (1984); Chemical Mfrs. Ass'n v.

10a

Appendix A

Natural Resources Defense Council, Inc., 470 U.S. 116, 125-26,

105 S. Ct. 1102, 1107-08, 84 L. Ed. 2d 90 (1985).?

The Director’s interpretation of the term “harbor worker” to

include marine construction workers should be accorded

deference because the term “harbor worker” is undefined and

ambiguous, and because including marine construction workers

within the meaning of “harbor worker” is reasonable and preserves

the purposes of the statute. Generally, the Court has adjudged

that “[t]he language of the 1972 Amendments is broad and

suggests that we should take an expansive view of the extended

coverage.” Caputo, 432 U.S. at 268, 97 S. Ct. at 2359. Although

we do not decide whether Fleischmann fell into actual navigable

waters, it is undisputed that had he been injured while working on

the floating dock rather than on the bulkhead itself, he would

2. Seahorse argues that we should not accord deference in this case

because the Director’s interpretation tends to expand the scope of coverage of

the LHWCA. Because deference to administrative agencies is based on a

congressional delegation of interpretive authority, Seahorse argues it is unlikely

that Congress would delegate authority to an agency to determine its own

jurisdictional reach. See Cass A. Sunstein, Law and Administration After

Chevron, 90 Colum. L. Rev. 2071, 2097-2100 (1990). However, the Supreme

Court has deferred to agency interpretations that arguably determine jurisdiction,

and there appears to be no clear test for whether an interpretation should be

considered “jurisdictional.” See id. at 2098-2099 & nn.126 & 132-133. The

issue here, the meaning of “harbor worker” within § 902(3), while arguably

jurisdictional, does not evoke the concerns that would make it unlikely that

Congress delegated authority to the agency for its determination. The agency

does not seek to extend its authority to a large category of cases, nor to abdicate

its enforcement power, and the expertise of the Director is relevant to the

determination. See id. at 2100 (“[A] general rule of deference would be preferable

even on jurisdictional questions, . . . [where] the agency's competence bears on

the resolution of jurisdictional ambiguities. . . . [T]he question is whether the

agency is seeking to extend its legal power to an entire category of cases, rather

than disposing of certain cases in a certain way or acting in one or a few cases.”’).

lla

Appendix A

have been covered under Perini. One of Congress’s purposes in

amending the LHWCA was to “ensure that a worker who could

have been covered part of the time by the pre-1972 Act would be

completely covered by the 1972 Act.” P.C. Pfeiffer Co. v. Ford,

444 U.S. 69, 75, 100 S. Ct. 328, 333, 62 L. Ed. 2d 225 (1979).

See also Caputo, 432 U.S. at 272, 97 S. Ct. at 2361.

Our finding that Fleischmann qualifies as a harbor worker

also comports with the Supreme Court’s and this circuit’s reading

of the requirements of § 902(3). ALJ Bober made a factual finding

that Fleischmann’s general employment responsibilities included

“building bulkheads, piers, and floating docks.” An employee

can establish coverage under § 902(3) either by referring to his

or her overall duties or to the particular project the employee was

engaged in at the time of injury. See Caputo, 432 U.S. at 273, 97

S. Ct. at 2362 (“Both the text and the history [of the LHWCA]

demonstrate a desire to provide continuous coverage throughout

their employment to these amphibious workers who, without the

1972 Amendments, would be covered only for part of their

activity.”); Browning v. B.F. Diamond Constr. Co., 676 F.2d

547, 548 (11th Cir. 1982) (“[E]mployee status can be based upon

the maritime nature of the employment as a whole or upon the

maritime nature of the claimant’s activity at the time of the injury.”’);

Hullinghorst Indus. v. Carroll, 650 F.2d 750, 754 (Sth Cir. 1981).

The Second Circuit has determined that the category of

“harbor worker” under § 902(3) requires some connection to

ships. See Fusco v. Perini N. River Assocs., 622 F.2d 1111, 1113

(2d Cir. 1980) (“To come within § 2(3) a harborworker’s activity

must relate to ships... .”). Although ALJ Bober did not make

findings of fact with respect to whether the bulkhead was capable

of mooring ships, Fleischmann’s general employment of building

piers and docks suffices to establish the requisite connection to

12a

Appendix A

ships to confer him with status as a harbor worker.’ Cf, Fusco,

622 F.2d at 1113 (finding that employee injured m construction

of sewage disposal plant did not establish the required connection

to ships or navigation to qualify as a “harbor worker’).

The reasonableness of categorizing Fleischmann as a harbor

worker is supported by consistent decisions of the BRB involving

marine construction workers. While the BRB, as opposed to the

Director, does not merit deference, see General Dynamics Corp.,

982 F.2d at 795, the BRB’s consistent decisions bear upon the

reasonableness of the Director’s interpretation. See Morrison-

Knudsen Constr. Co. v. Director, Office of Workers’ Comp.

Programs, U.S. Dep't of Labor, 461 U.S. 624, 635, 103 S. Ct.

2045, 2051, 76 L. Ed. 2d 194 (1983) (considering the consistent

practice of the BRB relevant in interpreting the LHWCA). The

BRB has held workers on various shore-side structures to be

harbor workers within § 902(3). See Olson v. Healy Tibbitts

Constr. Co., 22 Ben. Rev. Bd. Serv. (MB) 221, 224 (May 24,

1989) (finding a worker engaged in repairing a breakwater, whose

duties included driving piling, loading and unloading barges, and

light maintenance, to be covered as a harbor worker); Bakke v.

3. Furthermore, it is not disputed that at the time of his mjury Fleischmann

had been assisting Seahorse in the process of filling in the area behind the bulkhead

with material dredged from the bottom of the canal; Seahorse’s president testified

that, aside from financial considerations, the reason Seahorse dredged the bottom

of the canal was to deepen the water, which would have theeffect of increasing

navigability. In addition, Seahorse did not dispute Fleischmann’s testimony that

when transporting Seahorse’s equipment to the site of the bulkhead, Fleischmann

rode upon a barge and engaged in the process of tying and untying the vessels

used to transport it. See Silva v. Hydro-Dredge Corp., 23 Ben. Rev. Bd. Serv.

(MB) 123, 127 (Nov. 30, 1989) (per curiam) (considering whether any “ships

or barges were used” in the construction project at issue, and whether “the

harbor was dredged as part of the project” in determining whether an employee

had status under § 902(3)).

BEST AVAILABLE COPY |

COL oh MN ORS

13a

Appendix A

Duncanson-Harrelson Co., 8 Ben. Rev. Bd. Serv. (MB) 36, 39

(Feb. 24, 1978) (holding that a pile driver involved in the

construction and repair of piers was a harbor worker); Stewart v.

Brown & Root, Inc., 7 Ben. Rev. Bd. Serv. (MB) 356, 366 (Jan.

12, 1978) (holding that a painter-sandblaster working on the

construction site of a dry deck was a harbor worker), aff'd sub

nom. Brown & Root v. Joyner, 607 F.2d 1087, 1090 n.5 (4th Cir.

1979). In Trotti & Thompson v. Crawford, 631 F.2d 1214, 1222

(5th Cir. 1980), the court based its affirmance of coverage ofa

pier construction worker on the traditional maritime nature of the

employment.‘ While the case did not present the issue of deference

4. Wewish to emphasize that we do not base our holding that Fleischmann

has occupational status on any version of the test first articulated by the Ninth Circuit

in Weverhaeuser Co. v. Gilmore, 528 F 24957, 961 (9th Cir. 1982), and followed

in many of the cases cited by Fleischmann, which framed its inquiry upon whether

the employment bore “a realistically significant relationship to ‘traditional maritime

activity involving navigation and commerce on navigable waters.’ ” /d. This test tended

to focus attention on the amount of time an employee spent working over navigable

waters. See, e.g., Odom Constr. Co. v. United States Dep't of Labor, 622 F.2d

110, 113 (Sth Cir. 1980); Boudloche v. Howard Trucking Co., 632 F.2d 1346,

1347 (Sth Cir. 1980). The Second Circuit has rejected an inquiry based upon time

in the water. See Fusco, 622 F.2d at 1113 (“It is not significant that . . . the claimants

performed part or all of their work while upon floating stages or upon barges [located

in navigable waters}.”) Furthermore, Herb 's Welding v. Gray has been read to have

rejected the Weyerhaeuser test in determining whether non-enumerated occupations

qualified as maritime employment. See Coloma v. Director, Office of Workers

Comp. Programs, 897 F.2d 394, 398-99 (9th Cir. 1990) (reading Herb’s Welding

and Schwalb to require that land-based activity be covered only if an essential part

of loading or unloading a vessel, and implicitly to overrule cases that found land-

based activity other than enumerated occupations covered only on the basis of a

significant relationship with maritime commerce); Sea-Land Service, Inc. v. Rock,

953 F.2d 56, 66 (3rd Cir. 1992). Because we defer to the Director’s definition of

“harbor worker” to include marine construction workers such as Fleischmann, and

because Schwalb clearly excepted enumerated occupations from the requirement

of a connection to loading and unloading a vessel, we need not decide whether

Fleischmann’s work would qualify for coverage under the status test for non-

enumerated maritime employees as articulated in Herb 's Welding and Schwalb.

l4a

Appendix A

to the Director’s definition of “harbor worker,” the court indicated

that it would consider defining “harbor worker” to include marine

construction workers to be reasonable: “Our examination of the

common usage and pre-1972 judicial construction of the term

‘harbor worker’ leaves us open as to what Congress intended

the term to include.” /d. at 1222 n.19. We have concluded that

Congress intended that we defer to reasonable definitions of the

terms of the LHWCA put forward by the Department of Labor

through the Director; including construction workers such as

Fleischmann within the term “harbor worker” is reasonable and

therefore comports with Congress’s intent.

2. Situs

Under the 1972 amendments, a situs covered by the LHWCA

includes navigable waters and “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 reading this section, the Supreme Court has noted that “it is

not at all clear that the phrase ‘customarily used’ was intended to

modify more than the immediately preceding phrase ‘other

areas.’ ” Caputo, 432 U.S. at 280, 97 S. Ct. at 2365. In finding

that a pier that was not customarily used by the employer for

loading or unloading a vessel nevertheless constituted a covered

situs, the Court read the legislative history of the LHWCA as

evidencing “little concern with respect to how [the enumerated]

facilities were used.” /d. The Ninth Circuit has squarely held that

the language “customarily used by an employer in loading,

unloading, repairing, dismantling, or building a vessel,” does not

modify any of the enumerated structures. Hurston v. Director,

Office of Workers Comp. Programs, 989 F.2d 1547, 1552 (9th

Cir. 1993).

15a

Appendix A

The Ninth Circuit in Hurston articulated a strictly structural

definition of the term “pier”: “a structure built on pilings extending

from land to navigable water is an ‘adjoining pier’ within the

meaning of 33 U.S.C. § 903(a).” Jd. at 1553. It employed this

definition to determine that a structure used only for storing and

processing oil did constitute a pier for the purposes of § 903(a).

Although the dissent in Hurston characterized the definition as

“a literal interpretation,” id. at 1554, and although the structure at

issue in that case was called “Elwood Pier No. 1,” the decision

did not depend solely on the structure’s nomenclature. Instead,

the court focused primarily on the intent of Congress in amending

the LHWCA. /d. at 1550-1553. The court noted that Congress’s

failure to define “pier” suggests that Congress intended to “leave

the geographic areas such as a pier or wharf unlimited so long as

they adjoin navigable waters of the United States.” /d. at 1551.

The court guided itself by the ameliorative purpose of the 1972

amendments: “the 1972 amendments were intended to ‘provide[ ]

continuous coverage to a worker who would otherwise be covered

for only a part of his activity’ and . . . [to] alleviate[ ] the anomaly

of a longshoreman’s walking in and out of coverage depending

on which side of the gang plank an injury occurred.” /d. at 1552

(quoting Williams v. Director, Office of Workers Comp. Programs,

825 F.2d 246, 247 (9th Cir. 1987)).

We adopt the majority’s reasoning in Hurston. The bulkhead

at issue, built on pilings and extcading into navigable water,

constitutes a pier within the meaning of § 903(a). That the bulkhead

is not called a pier does not affect our determination. This case

exemplifies the concerns that fueled the 1972 amendments;

Fleischmann would clearly have been covered had he been injured

while working on a work platform only several feet away, where

he spent a substantial portion of his work hours. Although the

line demarking a covered situs has to be drawn somewhere,

16a

Appendix A

Congress made it clear in enacting the 1972 amendments that it

considered the water’s edge an arbitrary place to draw it. Congress

did not want a system in which coverage depend[ed] on the

“fortuitous circumstance of whether the injury . . . occurred on

land or over water.” Caputo, 432 U.S. at 272, 97 S. Ct. at 2361

(quoting H.R. Rep. 1441, at 10 (1972), reprinted in 1972

U.S.C.C.A.N. 4698, 4708).

The BRB has also focused on the physical composition of

shore-side structures and has allowed a range of structures to

qualify as piers within the meaning of § 903(a). In doing so the

BRB has found structures not ordinarily referred to as “piers”

nevertheless to qualify as such under the statute. In Olson, the

BRB found that a breakwater, located in an area containing a

dock, constituted a “pier,” considering that it helped to form and

protect a harbor. Olson, 22 Ben. Rev. Bd. Serv. (MB) at 224.

See also Pulkoski v. Hendrickson Bros., 28 Ben. Rev. Bd. Serv.

(MB) 298, 302 (Oct. 28, 1994) (analogizing a bulkhead designed

to prevent land erosion to the breakwater in Olson and to the pier

in Hurston, but declining to decide whether the bulkhead

constituted an enumerated situs because the injury did not occur

on the bulkhead). Here, the bulkhead would prevent erosion of

the adjacent property into the water; the water contained a dock

belonging to the property owner, to which a boat was tied, as

well as other docks. That the area was residential does not affect

our analysis. See Eckhoff v. Dog River Marina, 28 Ben. Rev.

Bd. Serv. (MB) 51, 55 (Mar. 29, 1994) (per curiam) (finding a

pier connected to employer’s president’s home and used only

for non-commercial purposes nevertheless to be a covered situs

under § 903(a)); Ries v. Harry Kane, Inc., 13 Ben. Rev. Bd.

Serv. (MB) 617, 620 (June 30, 1981) (“The fact that a facility is

used exclusively by private pleasure craft is an insufficient reason

for holding that it is not a harbor facility or that a claimant working

on this facility is not a harbor-worker.”).

17a

Appendix A

Thus, we follow the direction of the Supreme Court and

adopt the analysis of the Ninth Circuit in focusing on the structure

of the bulkhead to find it to constitute a pier within the meaning

of § 903(a).

Conclusion

For the above reasons, we reverse and remand to the Benefits

Review Board for determination of benefits.

18a

APPENDIX B — NOTICE FROM THE CLERK OF THE U.S.

DEPARTMENT OF LABOR, BENEFITS REVIEW BOARD

DATED SEPTEMBER 12, 1996

U.S. Department of Labor Benefits Review Board

800 K Street N.W.

Washington, D.C. 20001-8001

Re: Theodore Fleischmann v. Seahorse Coastal Assistance,

State Insurance Fund Director, Office of Workers’

Compensation Programs (Case No. 93-LHCA-0268)

(OWCP No. 02-108757) (BRB No. 95-0567)

NOTICE FROM THE CLERK OF THE BENEFITS

REVIEW BOARD

Pursuant to the provisions of Public Law 104-134

(Omnibus Appropriations for Fiscal Year 1996), enacted on April

26, 1996, appeals from decisions under the Longshore and

Harbor Workers Compensation Act, 33 U.S.C. 901, et seq. which

have been pending before the Benefits Review Board for more

than one year, shall, if not acted upon before September 12,

1996, be considered affirmed by the Board and shall be

considered the final order of the Board for purposes of obtaining

a review in the United States courts of appeal.

According to our records, the appeal in the instant case has

now been pending at the Benefits Review Board for more than

one year. Therefore, consistent with Public Law 104-134, this

decision pending review by the Benefits Review Board is

considered affirmed and shall be considered the final order of

the Board for purposes of obtaining review in the United States

19a

Appendix B

courts of appeal. Attached please find an outline of the

procedures for appealing to the courts of appeal.

DATE: SEP 12 1998

Sincerely

s/ Thomas O. Sherperd Jr. P.F.

Thomas O. Shepherd, Jr.

Clerk of the Board

20a

APPENDIX C — DECISION AND ORDER OF THE U.S.

DEPARTMENT OF LABOR DENYING BENEFITS

DATED OCTOBER 4, 1994

U.S. Department of Labor Office of Administrative Law

Judge

800 K Street N.W.

Washington, D.C. 20001-8002

Case No. 93-LHC-268

OWCP No. 2-108757

In the Matter of

THEODORE FLEISCHMANN,

Claimant,

v.

SEAHORSE COASTAL ASSISTANCE & TOWING, LTD.

Employer,

and

STATE INSURANCE FUND,

Carrier,

and

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS,

Party-in-Interest.

2la

Appendix C

Appearances:

Jacob Shisha, Esq.

For the Claimant

Richard A. Cooper, Esq.

For the Employer

Before: G. Marvin Bober

Associate Chief Judge

DECISION AND ORDER DENYING BENEFITS

This is a claim for compensation under the Longshore and

Harbor Workers’ Compensation Act (the Act), as amended, 33

U.S.C. § 901 et seq., filed by Theodore Fleischmann (Claimant)

against Seahorse Coastal Assistance & Towing (Employer) and

State Insurance Fund (Carrier). Since the issues raised could

not be resolved, the matter was referred to the Office of

Administrative Law Judges (OALJ) for resolution.

On October 29, 1993, a hearing was held before Judge

Aaron Silverman’ in New York, New York. All the parties were

given full opportunity to adduce testimony, offer documentary

evidence, and present oral argument pursuant to the Act and

the regulations promulgated thereunder.

In evaluating the evidence to reach a decision in this case, I

am guided by the principle that disability is an economic concept

which is dependent upon such factors as Claimant’s age,

1. As Judge Silverman has retired, the undersigned is overseeing and

deciding this matter on the record pursuant to his order dated August 24,

1994.

22a

Appendix C

industrial history, physical condition, and the availability of

work which he is capable of performing. See American Mutual

Insurance Co. v. Jones, 426 F.2d 1263, 1265 (D.C. Cir. 1970).

While the Claimant is entitled to the statutory presumptions set

forth at 33 U.S.C. § 920, the burden of persuasion on all issues

with respect to entitlement to benefits remains with the Claimant

under Section 7(c) of the Administrative Procedure Act. See

Director, OWCP v. Greenwich Collieries, No. 93-744, 1994

WL 266575, at *13-14 (S. Ct. June 20, 1994).

STIPULATIONS

The parties have stipulated, and I find:

1. Claimant was injured during and in the course of

employment.

2. The date of injury was October 22, 1991.

3. An employer/employee relationship existed at the time

of injury.

4. The average weekly wage at the time of the injury was

$361.65, yielding a compensation rate of $241.10.

5. All notices were timely filed.

STATEMENT OF FACTS

In December 1990, the Claimant, Theodore Fleischmann,

began working for the Employer, Seahorse Coastal Assistance

& Towing, as a pile driver and laborer. The Claimant’s

responsibilities entailed building bulkheads, piers, and floating

23a

Appendix C

docks. While working in this capacity on October 22, 1991,

the Claimant sustained an injury to his right knee.

At that time, the Claimant was working at a job on Center

Island, an area located off the Long Island Sound in a tributary

of Oyster Bay Harbor. At this worksite, the Employer was

removing and replacing sixty feet of bulkhead? (Trans. at 24).’

At the time of the Claimants accident, the new bulkhead had

already been set, and almost all the backfilling had been

completed. The only remaining jobs were installing the cap*

and adding dredging material behind the bulkhead (Trans. at

38-39). At approximately 2:00 p.m., the Claimant, who was

standing on the bulkhead, slipped and fell, injuring himself

(Trans. at 42, 44). His boot caught on top of the bulkhead, and

he fell into the dredging material and water on the land side of

the bulkhead (Trans. at 44). Although the Claimant got wet

when he fell, he was kept from going under by his foot, which

was caught on the bulkhead (Trans. at 45). As a result of the

accident, the Claimant suffered an injury requiring surgery to

his right knee.

Discussing the incident, the Claimant testified that he could

not walk on the dredging material as a few feet of topsoil had

2. The term bulkhead is being used in this case to refer to a wall

separating private property and a canal. The bulkhead was designed to

maintain the integrity of the property.

3. The following abbreviations will be used herein Administrative Law

Judges Exhibit — “ALJ;” Employer’s Exhibit — “EX;” Claimant’s Exhibit

— “CX”; and the hearing transcript — “Trans.”

4. Peter F. Stefemann, the owner of the Employer, Seahorse Coastal

Assistance & Towing testified that he observed that the cap had already been

installed on the bulkhead at the time the Claimant was injured.

24a

Appendix C

to be added to make it functional land (Trans. at 46). At the

spot where the Claimant was injured, the bulkhead and firm

land were separated by fifteen feet (Trans. at 48). The owner of

Seahorse, Peter F. Stefemann, testified at the hearing that the

backfill was topped off to a final grade after it had dried out for

two weeks (Trans. at 89). He further stated that this was done

through the addition of four or five inches of top soil over

some sand which was put in below (Trans. at 89). He also

testified that the type of land adjacent to the bulkhead never

dries out completely, as it constantly absorbs water with tidal

variations (Trans. at 93). The area where the work was done is

strictly a residential area, and large vessels cannot actually pass

through the area of Oyster Bay adjacent to this canal due to a

lack of sufficient water depth (Trans. at 92-93).

DISCUSSION AND CONCLUSIONS

The only issue raised in this proceeding is coverage under

the Act. It is the Employer’s position that the Claimant has

neither status under Section 2(3), nor situs under Section 3(a)

of the Act. The Employer requests that this matter be referred

back to the District Director for further proceedings if the

Claimant is found to have properly satisfied these requirements.

I find, however, that the Claimant has not satisfied the status

requirement set forth in Section 2(3). Accordingly, as both the

status and situs requirements must be satisfied, I additionally

find that this claim is not subject to coverage under the Act.

Section 2(3) of the Act defines an “employee” as “any

person engaged in maritime employment, including any

longshoreman or other person engaged in longshoring

operations, and any harbor worker including a ship repairman,

shipbuilder and ship-breaker.” While “maritime employment”

25a

Appendix C

is not limited to the occupational examples used in the statute,

the case law and legislative history demonstrate that the term

was designed to extend coverage to “any worker who moves

cargo between ship and land transportation. ...” P.C. Pfeiffer

Co. v. Ford, 444 U.S. 69, 84-85 (1979); see Herbs Welding,

Inc. v. Gray, 470 U.S. 14, 423-24 (1985); H.R. Rep. No. 1441,

92d Cong., 2d Sess. 11 (*972), reprinted in 1972 U.S.C.C.A.N.

4698, 4708 (“The Committee does not intend to cover

employees who are not engaged in loading, unloading,

repairing, or building a vessel, just because they are injured in

an area adjoining navigable waters used for such activities”);

S. REP No. 1125, 92d Cong., 2d Sess. 13 (1972).

The status requirement was added to the Act in 1972, and

employees who would have been covered prior to 1972 because

their injuries took place on navigable waters (as then defined)

remain covered by virtue of such prior coverage. See Director,

OWCP v. Perini North River Associates, 459 U.S. 297, 325

(1983). Therefore, to satisfy the status requirement in Section

2(3), the Claimant must show either that he was injured upon

“actual navigable waters,” or that he satisfies the occupational

status test set forth in the statute.

Because the Section 20(a) presumption does not apply to

questions of situs or status, the Claimant has the burden of

proving the facts to establish coverage under the Act. See Pittson

Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 48 (2d Cir.

1976). In the present case, the evidence shows that the Claimant

sustained his injury upon the bulkhead itself and the areas

landward of the bulkhead. Because any water in this area had

been permanently withdrawn from the canal, it was no longer

part of a navigable body. See LePore v. Petro Concrete

Structures, Inc., 23 BRBS 403, 406-07 (1990) (citing Jeffers v.

26a

Appendix C

Foundation Co., 85 F.2d 24 (2d Cir. 1936)). In LePore, supra,

the Benefits Review Board has stated that

. water can only be deemed navigable when it

forms a highway over which commerce is or may

be carried on with other states or foreign countries.

A threshold requirement under this test is the

presence of an “interstate nexus” in order for the

body of water in question to function as continuous

highway for commerce between ports. 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.

LePore, supra at 406-07 (emphasis added). As such, I find that

the Claimant has failed to establish that he was injured upon

actual navigable waters.

I also find that Claimant failed to satisfy the occupational

status test of Section 2(3). The Claimant’s job was not related

to the movement of cargo between ship and land transportation,

nor did it serve to facilitate these functions. See Chesapeake

and Ohio Railway Co. v. Schwalb, 493 U.S. 40, 46 (4989).

Several Supreme Court decisions addressing Section 2(3) have

“clearly decided that, aside from the specified occupations,

land-based activity occurring within the § 903 situs will be

deemed maritime only if it is an integral or essential part of

loading or unloading a vessel.’’ See /d. at 45. As the Claimants

employment did not entail such duties, it is not encompassed

within the coverage afforded by Section 2(3).

27a

Appendix C

Based upon the foregoing, I find that the Claimant has

failed to establish status coverage pursuant to the Act, and

therefore, the Claimant is not eligible for benefits thereunder.

ORDER

Accordingly, it is ORDERED that:

The claim for benefits under the Act as filed by the

Claimant, Theodore Fleischmann, against the Employer,

Seahorse Coastal Assistance & Towing, and the Carrier, State

Insurance Fund, should be, and is, hereby DENIED.

s/ G. Marvin Bober

G. MARVIN BOBER

Associate Chief Judge

Dated OCT 4 1994

Washington, D.C.

GMB/mc