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                         BRB No. 01-0445

EDMOND GUIDRY                           )
                                        )
          Claimant-Respondent           )
                                        )
       v.                               )
                                        )
E. J. FIELDS MACHINE WORKS,             )    DATE ISSUED:   02/04/2002
                                             2002
INCORPORATED                            )    )
                                        )
       and                              )
                                        )
LOUISIANA WORKERS'                      )
COMPENSATION CORPORATION                )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order Awarding Benefits of Clement J. Kennington, Administrative Law
     Judge, United States Department of Labor.

     J. Paul Demarest and Seth H. Schaumburg (Favret, Demarest, Russo & Lutkewitte), New Orleans,
     Louisiana, for claimant.

     Patricia H. Wilton (Egan, Johnson & Stiltner), Baton Rouge, Louisiana, for employer/carrier.

     Before:    DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative
     Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order Awarding Benefits (2000-LHC-1578) of Administrative Law Judge
Clement J. Kennington  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
administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are
rational, and are in accordance with law.  33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965).
     Employer operates a facility in Morgan City, Louisiana, specializing in the
repair, construction, and fabrication of marine parts such as rudders and shafts. 
Employer's Shop #2 is located on Front Street  in Morgan City and is approximately
100 to 175 feet from the Atchafalaya River.  Between Front Street and the river is
a flood wall and a public park and wharf.  The area to the sides of and behind
employer's facility is comprised of a combination of marine and non-marine
businesses and residential homes.       

     On August 24, 1999, claimant, who was employed by employer as a welder-fitter,
sustained an injury to his back when, while working in employer's Shop #2, he
caught a large propulsion bearing before it fell into a cleaning vat.  Claimant
immediately  sought medical treatment and has undergone a surgical fusion as a
result of this work incident.

     Before the administrative law judge, the issues contested by the parties were
three: whether claimant was injured on a covered situs, claimant's entitlement to
interest and the amount of attorney's fees.  In his Decision and Order, the
administrative law determined that employer's Shop #2 is customarily used to repair
and construct marine parts, that this facility is as close as is feasible to the
Atchafalaya River, and that the area surrounding employer's facility houses a
mixture of maritime and non-maritime businesses and residences.  The administrative
law judge thereafter  concluded that claimant satisfied the situs requirement for
jurisdiction under the Act.  Accordingly, the administrative law judge awarded
claimant disability compensation, medicals,  and interest, payable by employer.

     On appeal, employer challenges the administrative law judge's determination
that claimant satisfied the situs requirement for jurisdiction under the Act. 
Claimant responds, urging affirmance of the administrative law judge's decision.

     For a claim to be covered by the Act, a claimant must establish that his
injury occurred upon the navigable waters of the United States, including any dry
dock, or that his injury occurred on a landward area covered by Section 3(a) and
that his work is maritime in nature and is not specifically precluded by a
provision of the Act.  33 U.S.C. §§902(3), 903(a); Director, OWCP v.
Perini North River Associates, 459 U.S. 297, 15 BRBS 62 (CRT)(1983); P.C.
Pfeiffer Co. v. Ford, 444 U.S. 69, 11 BRBS 320 (1979); Northeast Marine
Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977); Stratton v. Weedon
Engineering Co., 35 BRBS 1 (2001).  Thus, in order to demonstrate that coverage
exists, a claimant must satisfy the "situs" and "status" requirements of the Act.
Id.  In the instant case, there is no dispute that claimant has met the
status requirement.  Thus, the only issue is whether claimant's injury occurred on
a covered situs.

     Section 3(a) states:

     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, 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).  Coverage under Section 3(a) is determined by the nature
of the place of work at the moment of injury. Stroup v. Bayou Steel Corp.,
32 BRBS 151 (1998); Melerine v. Harbor Constr. Co., 26 BRBS 97 (1992). To
be considered a covered situs, a landward site must be either one of the sites
specifically enumerated in Section 3(a) or an "adjoining area customarily used by
an employer in loading, unloading, repairing, dismantling, or building a vessel." 
33 U.S.C. §903(a).  Therefore, to be a covered situs, a site must have a
maritime nexus, but it need not be used exclusively or primarily for maritime
purposes. See  Texports Stevedore Co. v. Winchester, 632 F.2d 504,
12 BRBS 719 (5th Cir. 1980) (en banc), cert. denied, 452 U.S. 905
(1981); Melerine, 26 BRBS  97.  The case at bar arises within the
jurisdiction of the Fifth Circuit, which has adopted a broad view of the situs
test, refusing to restrict a covered situs to areas contiguous to water or to limit
an area by fence lines or other boundaries. See Winchester, 632 F.2d at 514-515, 12 BRBS at 726-727; see also Sisson v. Davis & Sons, Inc., 131 F.3d
555, 31 BRBS 199 (CRT) (5th Cir. 1998).  Specifically, the court in
Winchester stated that the perimeter of an "area" is to be defined by
function, and that the character of surrounding properties is but one factor to be
considered. See 632 F.2d at 513, 12 BRBS at 726; Gavranovic v. Mobil
Mining & Minerals, 33 BRBS 1 (1999).  Thus, an area can be considered an
"adjoining area" within the meaning of the Act if it is in the vicinity of
navigable waters, or in a neighboring area, and it is customarily used for maritime
activity. Winchester, 632 F.2d at 514-516, 12 BRBS at 726-729; see also
Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 7 BRBS 409 (9th Cir.
1978).  Using these guidelines, the Fifth Circuit held that an administrative law
judge properly found that a gear room located five blocks from the nearest dock
constituted a covered situs because it was in the vicinity of the navigable
waterway, it was as close to the docks as feasible, and it had a nexus to maritime
activity in that it was used to store gear which was used in loading process.
Winchester, 632 F.2d at 514-516, 12 BRBS at 726-729.  
     We hold that the administrative law judge's finding that claimant satisfied
the situs requirement under Section 3(a) is rational and supported by substantial
evidence.  In the instant case, employer's Shop #2 is not a site specifically
enumerated in Section 3(a); thus, in order for claimant's injury to be covered
under the Act, employer's Shop #2 must constitute an other "adjoining area."
See 33 U.S.C. §903(a).  Pursuant to the Fifth Circuit's  decision in
Winchester, an area is an "adjoining area" which is covered under the Act
if it is "close to or in the vicinity of navigable waters" and is customary used
for maritime purposes.   In this case, Mr. Richard Romaire, employer's president,
testified that employer specializes in, but is not limited to, marine work, that
a majority of employer's business with shipyards and boat companies is maritime in
nature, and that employer recognizes that the location of its facility provides
employer with an advantage by being near its customers. See Tr. at 73-74,
87.  Thus, the maritime function criterion is met since, contrary to employer's
assertion on appeal, a facility's use need not be exclusively or primarily maritime
in nature in order to be covered under the Act.  See Winchester, 632
F.2d at 515, 12 BRBS at 727.    Employer's Shop #2 also meets the liberal
geographic criterion developed by the Fifth Circuit, as the administrative law
judge found that this facility is located approximately 100 to 175 feet from the
Atchafalaya River.  Although, as employer avers on appeal, there are non-maritime
businesses and residences in the area of employer's facility, the Fifth Circuit has
stated that this fact does not conclusively establish that a site is not an
"adjoining area." See Winchester, 632 F.2d at 513, 12 BRBS at 726.  In this
regard, employer concedes  that multiple maritime businesses are located in the
vicinity of Shop #2. See Tr. at 75-76, 82-85;  Cl. Ex. 1.  Thus, as the
record establishes that employer's Shop #2, along with other marine businesses, is
"within the vicinity" of the Atchafalaya River, a navigable waterway, and that this
facility is used to repair, fabricate and construct marine parts, substantial
evidence supports that administrative law judge's finding that the situs
requirement has been satisfied. See Winchester, 632 F.2d at 514-516, 12 BRBS
at 726-729; Stratton, 35 BRBS 1; Gavranovic, 33 BRBS 1.  We therefore
affirm the administrative law judge's finding that claimant's injury occurred on
a covered situs, and his consequent award of disability benefits to claimant.

     Claimant's counsel has filed a petition for an attorney's fee for work
performed before the Board; specifically, claimant's counsel requests a total fee
of $3,188.98, representing 17.05 hours of work by Attorney Schaumburg at $150 per
hour, .75 hours of work by Attorney Demarest at $175 per hour, and $500.23 in
costs.  Employer objects to counsel's fee petition, arguing that it is premature. 
As claimant has successfully defended his award of benefits on appeal, he is
entitled to a fee reasonably commensurate with the work performed before the Board.
See Love v. Owens-Corning Fiberglas Co., 27 BRBS 148 (1993); Canty v.
S.E.L. Maduro, 26 BRBS 147 (1996); 33 U.S.C. §928; 20 C.F.R.
§802.203.  We consider the hourly rates of $175 and $150 to be reasonable and
customary for the geographic area in which this case arises. See Doucet v. 
Avondale Industries, Inc., 34 BRBS 62 (2000).  Moreover, the number the hours
requested by Attorney Schaumburg are not unreasonable under the circumstances of
this case.  We reduce, however, the number of hours sought by Attorney Demarest by
one-quarter, the amount of time requested on March 7, 2001, for correspondence
regarding claimant's medical reports, since that service cannot be deemed to have
been related to counsel's defense of the situs issue appealed to the Board. 
Similarly, we decline to award counsel the $32 sought for the copying of claimant's
medical records on March 20, 2001, as this service is unrelated to claimant's work
before the Board.  Accordingly, as we affirm the administrative law judge's finding
that claimant's injury occurred on a covered situs and his consequent award of
benefits to claimant, we award claimant's counsel a fee of $3,113.23, representing
one-half hour of services performed at $175 per hour, 17.05 hours of services
performed at $150 per hour, and $468.23 in costs, payable directly to counsel by
employer.  

     Accordingly, the Decision and Order Awarding Benefits of the administrative
law judge is affirmed.  Employer is liable for an attorney's fee for work performed
before the Board in an amount of $3,113.23, payable directly to claimant's counsel.

     SO ORDERED. 





                                                                   
                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

NOTE: This is an UNPUBLISHED LHCA Document.

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