BRB Nos. 99-0206
and 99-0206A
RICHARD KENT )
)
Claimant-Petitioner )
Cross-Respondent )
)
v. )
)
NORFOLK SHIPBUILDING ) DATE ISSUED: 10/29/1999
AND DRY DOCK CORPORATION )
)
Self-Insured )
Employer-Respondent )
Cross-Petitioner ) DECISION and ORDER
Appeals of the Decision and Order of Fletcher E. Campbell, Jr.,
Administrative Law Judge, United States Department of Labor.
John H. Klein (Montagna, Klein & Camden, L.L.P.), Norfolk,
Virginia, for claimant.
Richard E. Garriott, Jr. (Clarke, Dolph, Rapaport, Hardy & Hull,
P.L.C.), Norfolk, Virginia, for self-insured employer.
Before: SMITH and McGRANERY, Administrative Appeals Judges, and
NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals and employer cross-appeals the Decision and Order (97-LHC-1923, 1924) of Administrative Law Judge Fletcher E. Campbell, Jr., rendered on a
claim filed pursuant to the provisions of the Longshore and Harbor Workers'
Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). We
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).
Claimant injured his back on the morning of March 8, 1994, when, while walking
through employer's parking lot on his way to his job at employer's shipyard, he
was struck by a truck driven by another employee. The parking lot in which this
incident occurred is located across a public road from employer's fenced off
shipyard and is owned and maintained by employer for the use of its employees. The
parties stipulated that the parking lot is surrounded on all four sides by public
streets. Tr. at 78; Jt. Ex. 1. Claimant explained that in order to get to the
shipyard gate, it was necessary for him to go back to the main road and walk about
50 meters beyond the shipyard fence. Tr. at 18-20, 23-28; Jt. Ex. 1. In a second
claim for benefits under the Act, claimant alleges that he subsequently hurt his
back while at work on December 18, 1996, when he was sent to the bottom of a ship
to verify fuel levels, and was climbing back out.
In his Decision and Order, the administrative law judge, relying on the
decision in Sidwell v. Express Container Services, Inc., 71 F.3d 1134, 29
BRBS 138 (CRT)(4th Cir. 1995), cert. denied, 116 S.Ct. 2570 (1996), found
that the parking lot in which claimant was injured in 1994 is not a covered situs
under Section 3(a) of the Act, 33 U.S.C. §903(a). Thus, the administrative
law judge denied claimant benefits for this injury. With respect to the December
18, 1996 injury, the administrative law judge, after noting that causation was the
only issue controverted, found that claimant was entitled to invocation of the
Section 20(a), 33 U.S.C. §920(a), presumption, that employer failed to rebut
that presumption, and that claimant is thus entitled to temporary total disability
compensation and medical benefits for the disability resulting from the December
1996 incident.
On appeal, claimant contends that the administrative law judge erred in
finding that employer's parking lot is not a covered situs under the Act.
Employer responds, urging affirmance. On cross-appeal, employer challenges
the administrative law judge's finding that claimant is entitled to
compensation for the December 18, 1996, injury, contending that claimant's
present condition is the natural progression of his prior injury. Claimant
responds to employer's cross-appeal, urging that the administrative law
judge's decision awarding benefits for the December 18,1996, injury be
affirmed.
We will first address the administrative law judge's determination that
the parking lot where claimant was injured on March 8, 1994, is not a
covered situs under the Act. Section 3(a) provides that:
Compensation shall be payable under this chapter . . . only if the
disability or death results from an injury occurring 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)(1994)(emphasis added). In Sidwell, 71 F.3d
at 1134, 29 BRBS at 138 (CRT), the United States Court of Appeals for the
Fourth Circuit, within whose jurisdiction this case arises, held that an
area is "adjoining" navigable waters only if it is contiguous with or
otherwise touches navigable waters. To be included as an "other adjoining
area" under the Act, the court held that the area must be a discrete
shoreside structure or facility which is "customarily used by employer in
loading, unloading, repairing, dismantling, or building a vessel."
Sidwell, 71 F.3d at 1139, 29 BRBS at 143 (CRT); see also Parker
v. Director, OWCP, 75 F.3d 929, 30 BRBS 10 (CRT)(4th Cir.), cert.
denied, 117 S.Ct. 58 (1996).
We affirm the administrative law judge's finding that the parking lot
at issue in the case at bar is not a covered situs under the Fourth
Circuit's decision in Sidwell. In Griffin v. Newport News
Shipbuilding & Dry Dock Co., 32 BRBS 87 (1998), a case almost identical
factually to the instant case, the Board held that the employer's parking
lot, where the claimant sustained his injury, is a separate and distinct
parcel of land and thus, cannot be considered an "adjoining area" under
Section 3(a) of the Act. Specifically, the Board held that the parking lot
in question was not located on the same parcel as the shipyard, inasmuch as
it was physically separated from the employer's shipyard by a public street
as well as by a security fence.
Similarly, in the instant case, it is uncontroverted that the parking
lot where claimant was injured, while owned and operated by employer, is
separated from employer's shipyard by public roads which do not adjoin
navigable water. See Stip. 7; Jt. Ex. 1. Moreover, the main shipyard
is fenced off from the public, and an employee must show his badge to enter
the premises. Tr. at 35. Thus, as the parking lot is physically separated
from employer's shipyard by public streets as well as a security fence, it
must be deemed a separate and distinct piece of property rather than part
of the overall shipyard facility. See Griffin, 32 BRBS at 89; see
also McCormick v. Newport News Shipbuilding & Dry Dock Co., 32 BRBS 207
(1998); Kerby v. Southeastern Public Service Authority, 31 BRBS 6
(1997), aff'd mem, 135 F.2d 770 (4th Cir. 1998)(table). Moreover,
as in Griffin, since the parking lot is a separate and distinct
parcel of land, it cannot be considered an "adjoining area" under Section
3(a) of the Act. See also Jonathan Corp. v. Brickhouse, 142 F.3d 217, 32
BRBS 86 (CRT) (4th Cir. 1998), cert. denied, 119 S.Ct. 590 (1998).
Consequently, as it is uncontroverted that the parking lot in this case is
not contiguous with navigable water, under the decision of the Fourth
Circuit in Sidwell, it is not a covered site under Section 3(a).[1]
Claimant's reliance on the fact that the parking lot is owned and
maintained by employer, and is thus part of the shipyard premises, is
misplaced, as the fact that an injury occurs in the course of employment does not
necessarily mean that it occurred on a covered situs. See Griffin, 32 BRBS
at 89.[2] Although claimant correctly asserts
that the court in Sidwell stated that "it is the parcel of land that must
adjoin navigable waters, not the particular square foot on which a claimant is
injured," Sidwell, 71 F.3d at 1140 n.11, 29 BRBS at 144 n.11 (CRT), the
parking lot in this case was not located on the same parcel as the shipyard.
Griffin, 32 BRBS at 89. Since employer's parking lot is a separate and
distinct parcel of land, it cannot be considered an "adjoining area" under Section
3(a) of the Act. See Jonathan Corp., 142 F.3d at 217, 32 BRBS at 86 (CRT).
Lastly, claimant's arguments based on the law of other circuits lack merit,
as the Fourth Circuit specifically declined to follow the opinions of other
circuits and held that an "adjoining area" under Section 3(a) must actually be
contiguous to navigable waters in order to meet the situs test. Sidwell, 71
F.3d at 1139, 29 BRBS at 142 (CRT); see also Parker, 75 F.3d at 929,
30 BRBS at 10 (CRT).[3] Accordingly, as it is
uncontroverted that the parking lot is not contiguous with navigable water, we
affirm the administrative law judge's determination that claimant was not injured
on a covered situs under Section 3(a), as it is consistent with Sidwell.
We next address employer's assertions of error regarding claimant's claim for
benefits resulting from his December 18, 1996, work injury. Specifically, employer
challenges the administrative law judge's determination that claimant sustained a new
injury on December 18, 1996, arguing that any disability thereafter is the result
of the natural progression of the 1994 injury in the parking lot.
In order to be entitled to the Section 20(a) presumption, claimant must
establish a prima facie case by showing that he suffered a harm and that
either a work-related accident occurred or that working conditions existed which
could have caused or aggravated the harm. See Konno v. Young Bros., Ltd.,
28 BRBS 57 (1994); Perry v. Carolina Shipping Co., 20 BRBS 90 (1987). Once
claimant has established his prima facie case, he is entitled to invocation
of the Section 20(a) presumption linking his harm to his employment. See Stevens
v. Tacoma Boatbuilding Co., 23 BRBS 191 (1990). Upon invocation of the
presumption, the burden shifts to employer to rebut the presumption with
substantial evidence that claimant's condition was not caused or aggravated by his
employment. See Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466
(D.C. Cir.), cert. denied, 429 U.S. 820 (1976); Universal Maritime Corp.
v. Moore, 126 F.3d 256, 31 BRBS 119 (CRT)(4th Cir. 1997); Merrill v. Todd
Pacific Shipyards Corp., 25 BRBS 140 (1991).
In awarding benefits for disability ensuing after the December 18, 1996
incident at work, the administrative law judge invoked the Section 20(a)
presumption that a new injury or an aggravation of the prior injury occurred that
day, based on claimant's credible testimony and the medical records of Dr. Morales.
Employer contends that claimant failed to establish that an injury occurred on
December 18, 1996, because claimant admitted he has experienced consistent pain
since his 1994 injury. This argument fails to address the crux of the administrative
law judge's conclusion, i.e., that employer failed to rebut the Section
20(a) presumption by producing evidence that claimant's condition was not
aggravated by the work event. It also does not demonstrate error in the
administrative law judge's invocation of the presumption, as it is supported
by substantial evidence and accords with law. Claimant's testimony that
after he went down into ship's hull, "[he] couldn't get up, and got a pain
in [his] back," Tr. at 22, and then he proceeded to first aid, is
uncontroverted. Moreover, Dr. Morales's office note of December 18, 1996,
states that claimant "reinjured his back," and that he is "[n]on-fit for two
days and then fit for light-duty with restrictions." Cl. Ex. 5. Lastly,
the parties stipulated that claimant was disabled from work from the date
of this incident through December 22, 1996. Tr. at 11. As employer cites to
no evidence in the record that claimant did not reinjured himself at work on the
day in question, and did not offer any evidence that the disability thereafter is
the result of the natural progression of the 1994 injury, we affirm the
administrative law judge's finding that claimant sustained a new injury or
aggravation and his consequent award of disability compensation for the 1996
injury. See generally Buchanan v. Int'l Transportation
Services, 31 BRBS 81 (1997).
Accordingly, the Decision and Order of the administrative law judge is
affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON
Acting Administrative Appeals Judge
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Footnotes.
1)Claimant argues that one of the primary purposes of the 1972 Amendments to the Act
was to prevent workers from passing in and out of coverage during the course of the day, and thus, he should be
covered under the Act. This inquiry is relevant to a determination of a claimant's status under Section 2(3), 33
U.S.C. §902(3). See Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 6 BRBS
150 (1977). Coverage under Section 3(a) is determined by the nature of the
place of work at the moment of injury. See Melerine v. Harbor Const.
Co., 26 BRBS 97 (1992); Alford v. MP Industries of Florida, 16
BRBS 261 (1984). As claimant's injury in the instant case occurred in
employer's parking lot which is not contiguous with navigable water, and
thus cannot be considered an "adjoining area" under Section 3(a) of the Act,
the fact that claimant was about to enter employer's main facility where he
was to begin his shift is not dispositive. See generally Griffin, 32
BRBS at 87.
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2)Claimant argues that the Board's decision in Griffin v.
Newport News Shipbuilding & Dry Dock Co., 32 BRBS 87 (1998), is in conflict
with the Fourth Circuit's opinion in Newport News Shipbuilding & Dry Dock Co.
v. Graham, 573 F.2d 167, 8 BRBS 241 (4th Cir.), cert. denied, 439 U.S.
979 (1978). In Sidwell, the Fourth Circuit cited Graham as a case
in which it had previously considered this issue in a one-paragraph discussion
"without purporting to offer a comprehensive test." 71 F.3d at 1137, 29 BRBS at
141 (CRT). The Fourth Circuit's decision in Sidwell was issued subsequent
to that in Graham, and thus constitutes controlling caselaw within that
circuit regarding the issue of situs. Hence, the Board's decision in
Griffin was correct.
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3)Cf. Texports Stevedore Co. v. Winchester, 632 F.2d
504, 12 BRBS 719 (5th Cir.1980), cert. denied, 452 U.S. 905 (1981)
(concluding that a determination of whether an "adjoining area" is covered
by the Act should focus on the functional relationship or nexus between the
"adjoining area" and marine activity on navigable waters, court held a gear
locker used to store equipment used in loading, located five blocks from the
nearest dock, covered under Section 3(a)).
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NOTE: This is an UNPUBLISHED LHCA Document.
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