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                                 BRB No. 97-0693

YVONNE D. PUGH                          )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   01/28/1998
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING AND           )
DRY DOCK COMPANY                        )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order of Fletcher E. Campbell, Jr.,
     Administrative Law Judge, United States Department of Labor.

     Robert E. Walsh and Matthew H. Kraft (Rutter & Montagna, L.L.P.),
     Norfolk, Virginia, for claimant.

     Benjamin M. Mason  (Mason & Mason), Newport News, Virginia, for self-insured employer.

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

     PER CURIAM:

     Claimant appeals the Decision and Order (96-LHC-97 and 96-LHC-98) 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).  

     On March 31, 1993, claimant developed a problem with her right hand while
operating a printing press during the course of her employment as a reproduction
clerk at employer's shipbuilding facility.  Claimant's job duties at that time
required her to work exclusively in an office in Building 86, which was located on
the waterfront on employer's premises.   In that capacity, claimant spent
approximately 85 percent  of her time operating a printing press to print
invitations, cards, crane information, safety booklets, sports schedules for the
apprentice schools, newsletters, and in-house flyers. The remainder of the time,
she would operate various other machinery used to copy blueprints and changes to
blueprints. In addition, she was responsible for burning plates to be put on the
press, matting work, and loading ink into the press.  Furthermore, approximately
two days a  month, she would work on the copier.  Tr. at 21-27. In performing her
work duties at this facility, claimant was not required to wear a hard hat, safety
shoes, or protective eyewear. 

     As a result of her work-related hand injury, claimant underwent several 
surgical procedures, after which Dr. Vonu placed her on numerous restrictions.  In
October 1994, as a result of  these restrictions, claimant was moved to Building
5, employer's sheet metal shop, where she worked in the drawing vault -- a  room
where the microfiche for blueprints is stored.  In this job she received requests
to produce certain copies, pulled the microfiche, and printed it on a large sheet. 
While working in this area, claimant was responsible for enlarging various drawings
in connection with repair and shipbuilding work being done at employer's facility. 
During this time, on almost a daily basis, claimant was required to walk down to
different waterfront offices or to the Navy Department next door  to obtain
drawings which were not located in her particular building. Tr. at 32, 68.  When
claimant left Building 5 to go to other offices she was required  to wear a  hard
hat, steel-toed shoes, goggles, and hearing protection.

      On or about December 21, 1994, claimant was released from all job
restrictions.  Immediately following her release, claimant alleged that she
sustained a second injury to her right wrist while unloading some drawings from a
van.  Tr. at 44. The shipyard then closed for the Christmas holidays. In January
1995, claimant returned to her prior job in Building 86, but was placed on
restrictions.   On April 24, 1995, she was laid off, and she thereafter remained
unemployed until June 25, 1995, when she found alternate employment with the
International Longshoreman's Association.  Employer voluntarily paid claimant
temporary total disability compensation from August 10, 1994 through August 15,
1994, from October 26, 1994 through November 2, 1994, and from March 1, 1995
through March 9, 1995.  In addition,  employer paid claimant permanent partial
disability compensation based on Dr. Vonu's five percent permanent  impairment
rating, although these benefits were subsequently voided and  categorized as paid
under the Virginia Workers' Compensation Act.  Tr. at 9-12.  Claimant sought
additional  temporary total disability benefits from April 25, 1995, through June
24, 1995, as well as continuing medical treatment by Dr. Vonu.  

     Finding the Board's reasoning in Williams v. Newport News Shipbuilding &
Dry Dock Co., 28 BRBS 42 (1994), vacated mem., 47 F.3d 1166, 29 BRBS 75
(CRT) (4th Cir.  1995)(table), persuasive,  the administrative law judge concluded
that because claimant was at all relevant times a reproduction clerk whose work
involved copying blueprints and other documents in an office environment,  she was
excluded from the Act's coverage under the clerical exclusion of Section 2(3)(A),
33 U.S.C. §902(3)(A)(1994).  Claimant appeals that determination.  Employer
responds, urging affirmance. For the reasons that follow, we affirm the
administrative law judge's decision. 


     Claimant first contends that the administrative law judge erred in finding her
to be an excluded clerical employee under Section 2(3)(A), inasmuch as the record
reflects that at the time of her March 30, 1993, injury, the majority of her job
involved mounting and printing documents used directly in ongoing ship repair and
shipbuilding at the yard. Claimant  further asserts that, although the
administrative law judge also erred by failing to independently analyze whether
claimant satisfied the status requirements based on the work she was performing at
the time of her second December 21, 1994, injury, the same holds true with regard
to this injury. Claimant argues that as she was responsible for enlarging various
drawings utilized in the repairing and building of ships, and was required to wear
a hard hat and carry bundles of  drawings which she was required to retrieve  from
various other areas in the shipyard, she does not fall within the clerical
exclusion of Section 2(3)(A) because the work she performed is neither exclusively
clerical nor exclusively performed in an office setting.[1]  

     For a claim to be covered by the Act, a claimant must establish that her
injury occurred within a covered area under Section 3(a) and that she is a maritime
employee under Section 2(3).  33 U.S.C. §§903(a), 902(3)(1994);
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).
Thus, in order to demonstrate that coverage exists, a claimant must satisfy the
"situs" and "status" requirements of the Act.  Id.; see also Riggio v. Maher
Terminals, Inc., 31 BRBS 58 (1997).

     Generally, a claimant satisfies the "status" requirement if she is an employee
engaged in work which is integral to the loading, unloading, constructing, or
repairing of vessels. See 33 U.S.C. §902(3); Chesapeake & Ohio Ry.
Co. v. Schwalb, 493 U.S. 40, 46, 23 BRBS 96 (CRT) (1989).  To satisfy
this requirement, she must spend "at least some of [her] time"' in indisputedly
maritime activities. Caputo, 432 U.S. at 273, 6 BRBS at 165.  Although an
employee is covered if some portion of her activities constitute covered
employment, those activities must be more than episodic, momentary, or incidental
to non-maritime work.  Levins v. Benefits Review Board, 724 F.2d 4,
16 BRBS 24 (CRT) (1st Cir. 1984); Boudloche v. Howard Trucking Co., 632 F.2d
1345, 12 BRBS 732 (5th Cir. 1980), cert. denied, 452 U.S. 915 (1981);
Ripley v. Century Concrete Services, 23 BRBS 336 (1990). In 1984, Congress
amended Section 2(3) to specifically exclude certain employees from coverage. 
Section 2(3)(A) provides:

          (3) The term "employee" means 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, but such term does not include --
          
          (A) individuals employed exclusively to
          perform office, clerical, secretarial,
          security or data processing work;
          
                    *  *  *
          if such  [individuals] are subject to coverage
          under a State Workers' compensation law.
          
           33 U.S.C. §902(3)(A) (1994)(emphasis added).  The relevant
legislative history reflects that the amendments to Section 2(3)
are intended to exclude certain employees whose "activities and
occupations either lack a substantial nexus to maritime navigation
and commerce or do not expose employees to the types of hazards
normally associated with longshoring, shipbuilding, and harbor
work."  Cong. Rec. S11622-23 (September 20, 1984)(statement of
Senator Hatch); Powell v. International Transportation
Services, 18 BRBS 82, 84 n.5 (1986).  Thus, the Board has held
that while a claimant's duties may be covered under the general
definition of maritime employment in Section 2(3), a claimant may
nonetheless be excluded from coverage by the specific exceptions to
coverage in Section 2(3)(A)-(H).[2] 
 Bergquist v. Newport News Shipbuilding & Dry Dock Co., 23
BRBS 131 (1989).

     Contrary to claimant's assertions in this case, the
administrative law judge's decision that claimant is not covered by
the Act is supported by substantial evidence and in accordance with
law. The facts in the present case are virtually identical to those
in Williams, upon which the administrative law judge relied. 
In Williams, the Board held that claimant, a reproduction
clerk employed by the same employer performing the same duties as
the claimant in the present case, was an excluded clerical employee
despite the fact that her work may have been an integral part of
the shipyard's mission of shipbuilding and repair.[3]   Claimant attempts to distinguish
this case from Williams based on the fact that she was
required to leave her office to retrieve documents located in other
buildings at employer's facility and thus did not perform her
duties exclusively in a business office.  A similar argument was
rejected by the Board in Stone v. Ingalls Shipbuilding,
Inc., 30 BRBS 209 (1996). In the present case, moreover, the
administrative law judge explicitly discussed this distinction and
rejected it, characterizing claimant's performance of these duties
as momentary and episodic.[4]  
While the administrative law judge's characterization of claimant's
trips outside her office as "momentary and episodic" is not
consistent with the record, as claimant testified that these trips
were part of her regular duties and performed on a daily basis, 
any error he may have made in this regard is harmless inasmuch as 
he also found that when claimant left her office it was only for
reasons incidental to her clerical duties.   An employee performing
exclusively clerical work who occasionally leaves the office in
performing such work, such as retrieving documents as claimant did
here, is nonetheless excluded under Section 2(3)(A). Stone,
30 BRBS at 213 (1996).  Thus,  for the reasons previously
stated in our decisions in Williams and Stone, we
reject claimant's arguments and affirm the administrative law
judge's determination that claimant is excluded from coverage under
Section 2(3)(A).

     Accordingly, the Decision and Order of the administrative law
judge is affirmed.  

     SO ORDERED.

                                                            
             
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                                                            
             
                         NANCY S. DOLDER
                         Administrative Appeals Judge

                                                            
             
                         REGINA C. McGRANERY
                         Administrative Appeals Judge


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Footnotes.


1)Claimant cites several decisions issued by various administrative law judges in support of her arguments. Such decisions, however, are not binding precedent on the Board. Back to Text
2)The exclusion of clerical workers is not a new concept added in 1984. In Caputo, addressing the 1972 Amendments, the Supreme Court stated that "purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo" are not covered under the Act, 432 U.S. at 273, 6 BRBS at 165, relying on the legislative history of the 1972 Amendments. Back to Text
3)In Williams, the Board held that under the facts presented, claimant was excluded by Section 2(3)(A) as a matter of law, reversing the administrative law judge's decision that she was covered because her work reproducing documents was integral to shipbuilding. On appeal, the United States Court of Appeals for the Fourth Circuit agreed with the Board that the issue was whether claimant's duties were exclusively clerical and performed exclusively in a business office, but vacated the Board's decision because the administrative law judge did not make the necessary factual findings. In the present case, however, the administrative law judge did make the relevant factual findings. Back to Text
4)As it is undisputed that at the time of her first injury claimant's duties were performed exclusively in an office, in recognizing that the present claimant differed from the claimant in Williams in that she would have to leave the office occasionally, the administrative law judge was obviously referring to claimant's duties at the time of her second injury. Thus, claimant's argument that the administrative law judge erred by failing to make an independent determination of status based on her duties at the time of the second December 1994 injury is rejected. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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