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                                 BRB Nos. 92-1087
                                   and 92-1087A

NAPOLEON BARREN (Deceased)              )
          Claimant-Petitioner           )
          Cross-Respondent              )
     v.                                 )
          Employer-Respondent           )
          Cross-Petitioner              )    DATE ISSUED:   02/27/1995
COMPENSATION PROGRAMS,                  )
OF LABOR                                )
          Cross-Respondent              )    DECISION and ORDER

     Appeals of the Decision and Order Awarding Benefits of James W. Kerr,
     Jr., Administrative Law Judge, United States Department of Labor.

     Mitchell G. Lattof, Sr. (Lattof & Lattof, P.C.), Mobile, Alabama, for
     Sandy G. Robinson and Wendy A. Pierce (Helmsing, Lyons, Sims & Leach,
     P.C.), Mobile, Alabama, for employer.

     Samuel J. Oshinsky, Counsel for Longshore (Thomas S. Williamson, Jr.,
     Solicitor of Labor; Carol DeDeo, Associate Solicitor), Washington, D.C.,
     for the Director, Office of Workers' Compensation Programs, United
     States Department of Labor.

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


     Claimant[1]  appeals and employer cross-appeals the Decision and Order Awarding Benefits (90-LHC-2483) of Administrative
Law Judge James W. Kerr, 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).

     Decedent was employed by employer from 1941 until his retirement on June 1,
1975.  On October 10, 1986, decedent underwent an audiometric examination which
revealed a 50.6 percent binaural hearing impairment.  Thereafter, on March 30,
1987, decedent filed a claim for benefits under the Act for a work-related hearing
loss.  On December 17, 1987, decedent died of causes unrelated to his employment. 

     Employer operates a pulp mill on the Chickasobogue Bayou, which is connected
to the Mobile River.  Employer's mill has its own barge slip facility on the bayou,
which is navigable for approximately two to three miles beyond employer's mill,
where employer receives 15 to 20 percent of the raw materials utilized by the mill. 
The wood products delivered to the mill by the barges are unloaded by crane. 
Decedent, during his thirty-four years of employment at employer's facility, worked
at both employer's wood yard and barge facility, where he held positions such as
laborer, recovery fireman, conveyor man, steel, cable and chain man, and, finally,
cable slinging crane man.      

     In his Decision and Order, the administrative law judge found, based upon the
testimony of a co-worker and employer, that decedent's regularly performed duties
of unloading barges on navigable waters was sufficient to confer jurisdiction under
the Act.  Next, the administrative law judge found that causation had been
established based upon decedent's demonstrated hearing loss, the testimony of a co-worker concerning the noisy conditions in the barge unloading area, and the failure
of employer to provide any rebuttal evidence.  Relying on Ingalls Shipbuilding,
Inc. v. Director, OWCP (Fairley), 898 F.2d 1088, 23 BRBS 61 (CRT)(5th Cir.
1990), the administrative law judge, after converting the 50.6 percent binaural
hearing impairment revealed on the October 1986 audiogram to an 18 percent whole
person impairment under the American Medical Association Guides to the
Evaluation of Permanent Impairment (AMA Guides), awarded decedent
compensation pursuant to Section 8(c)(23) of the Act, 33 U.S.C.
§908(c)(23)(1988), commencing November 10, 1986, based upon an average weekly
wage of $302.66.

     On appeal, claimant contends that the administrative law judge erred in
awarding benefits under Section 8(c)(23) rather than Section 8(c)(13), 33 U.S.C.
§908(13)(1988).  In its cross-appeal, employer contends that the
administrative law judge erred in finding that claimant established jurisdiction
under the Act.  The Director, Office of Workers' Compensation Programs (the
Director), has filed a brief in response to employer's cross-appeal, urging that
the Board affirm the administrative law judge's determination that decedent
established jurisdiction under the Act.

                                 I. JURISDICTION

     In order to be covered under the Act, a claimant must satisfy both the status
requirement of Section 2(3) of the Act, 33 U.S.C. §902(3)(1988), and the situs
requirement of Section 3(a) of the Act, 33 U.S.C. §903(a)(1988). See P.C.
Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 11 BRBS 320 (1979); Northwest
Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977).

     Employer, in its cross-appeal, initially contends that the administrative law
judge erred in finding that decedent regularly performed maritime duties while
working for employer and that, thus, decedent did not satisfy the status
requirement of Section 2(3) of the Act.[2]   We

     In determining that decedent's work was sufficient to confer jurisdiction
under the Act, the administrative law judge found that decedent regularly unloaded
barges while working for employer.  Section 2(3) defines an "employee" for purposes
of coverage under the Act 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... ." See
33 U.S.C. §902(3)(1988).  Accordingly, while maritime employment is not
limited to the occupations specifically enumerated in Section 2(3), an employee's
employment must bear a relationship to the loading, unloading, building or
repairing of a vessel. See generally Chesapeake & Ohio Ry. Co. v. Schwalb,
493 U.S. 40, 23 BRBS 96 (CRT)(1989).  Moreover, an employee is engaged in maritime
employment so long as some portion of his job activities constitute covered
employment. Caputo, 432 U.S. at 275-76, 6 BRBS at 166.  Whether particular
job skills are uniquely maritime is not dispositive in determining whether the
status test is satisfied; rather, non-maritime skills applied to a maritime project
are maritime for purposes of the maritime employment test of the Act. See
Hullinghorst Industries v. Carroll, 650 F.2d 750, 14 BRBS 373 (5th Cir. 1981),
cert. denied, 454 U.S. 1163 (1982). 

     In the instant case, employer does not challenge the administrative law
judge's finding that decedent unloaded barges while employed by employer,
see Tr. at 51, 54; rather, employer argues that decedent did not routinely
or regularly perform such unloading duties, that it is not and never has been
involved in the maritime industry, and that decedent was hired as a wood laborer,
not as a maritime employee.  Such unloading duties, however, have been found to
constitute longshoring activities pursuant to Section 2(3). See Browning v. B.F.
Diamond Const. Co., 676 F.2d 547, 14 BRBS 803 (11th Cir. 1982), cert.
denied, 459 U.S. 1170 (1983); Gilliam v. Wiley N. Jackson Co., 659 F.2d
54, 13 BRBS 1048 (5th Cir. 1981), cert. denied, 459 U.S. 1169 (1983). 
Moreover, the administrative law judge set forth the testimony of Mr. Meardry, a
co-worker of decedent, who testified that between 1946 and 1961 he and decedent
worked in the wood yard of employer's pulp mill and assisted in the unloading of
barges which were pulled by tugs to a slip near the mill. See Tr. at 17-18,
39.  Mr. Meardry further testified that decedent assisted in unloading barges two
to three times a week, and occasionally as many as five times a week. Id.
at 20-25.  This testimony was corroborated by that of employer's quality
improvement facilitator, Mr. Smallwood, who testified that decedent's work duties
included barge-unloading assignments and that decedent unloaded barges when he was
"cable slinging" from 1968 to 1975. Id. at 54-55, 65-66.  Based upon this
uncontradicted testimony of record, we reject employer's unsupported assertions
that decedent's barge unloading duties were sporadic or episodic; rather, the
testimony set forth by the administrative law judge establishes that decedent's
unloading duties were a regular and usual part of his employment duties. 
Accordingly, we affirm the administrative law judge determination that decedent's
unloading duties were sufficient to confer jurisdiction under the Act, as that
finding is supported by substantial evidence and is in accordance with law. See
Schwalb, 493 U.S. at 47, 23 BRBS at 99 (CRT).

     Employer also contends that the administrative law judge erred in finding that
the decedent was injured on a covered situs; specifically, employer asserts that
decedent's hearing loss did not occur while working in or around its barge facility
but in other areas of its facility where noise levels were higher.  Section 3(a)
of the Act provides coverage for a disability resulting 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)(1988).  Accordingly, coverage under
Section 3(a) is determined by the nature of the place of work at the moment of
injury. See Melerine v. Harbor Construction Co., 26 BRBS 97 (1992);
Alford v. MP Industries of Florida, Inc., 16 BRBS 261 (1984).  

     In the instant case, employer does not contend that its barge facility is not
a covered situs.  Specifically, Mr. Smallwood testified that employer's barge
facility was located on the Chickasobogue Bayou, that barges navigated this
waterway, and that the bayou is navigable for at least two or three miles further
upstream.  Tr. at 44-45.  Moreover, the administrative law judge specifically
credited the testimony of Mr. Meardry that employer's barge facility was very noisy
and that, because of the noise levels, employer's employees utilized signs in order
to communicate with one another, in concluding that the noise to which decedent was
exposed while unloading employer's barges contributed to or aggravated his hearing
loss. See Decision and Order at 3-4; Fulks v. Avondale Shipyards,
Inc., 637 F.2d 1008, 12 BRBS 975 (5th Cir.) cert. denied, 454 U.S. 1080
(1981); Wayland v. Moore Dry Dock, 25 BRBS 53 (1991).  We hold that the
administrative law judge's credibility determinations are neither inherently
incredible or patently unreasonable; accordingly, we affirm the administrative law
judge's finding that decedent, when unloading barges on navigable water, was
exposed to a noisy work environment, and that, thus, decedent had established
jurisdiction under the Act. 

                              II. AWARD OF BENEFITS

     Claimant, on appeal, contends that the administrative law judge erred in
awarding permanent partial disability compensation pursuant to Section 8(c)(23) of
the Act.  We agree. The United States Supreme Court's recent decision in Bath
Iron Works Corp. v. Director, OWCP,    U.S.   , 113 S.Ct. 692, 26 BRBS 151
(CRT)(1993), is dispositive of the issue presented by claimant in this case.  In
Bath Iron Works, the Court held that claims for hearing loss under the Act,
whether filed by current employees or retirees, are claims for a scheduled injury
and must be compensated pursuant to Section 8(c)(13), 33 U.S.C. §908(c)(13). 
Specifically, the Court stated that a worker who sustains a work-related hearing
loss suffers disability simultaneously with his or her exposure to excessive noise
and, thus, the hearing loss cannot be considered "an occupational disease which
does not immediately result in disability."  See 33 U.S.C. §910(i). 
Since Section 8(c)(23), 33 U.S.C. §908(c)(23), only applies to retirees with
such occupational diseases, Section 8(c)(23) is inapplicable to hearing loss

     Accordingly, pursuant to the Supreme Court's holding in Bath Iron
Works, we vacate the administrative law judge's award of hearing loss benefits
under Section 8(c)(23).  Since the administrative law judge's findings that
decedent suffered a 50.6 percent binaural hearing loss under the AMA Guides
based on the October 10, 1986, audiogram, and that decedent's applicable average
weekly wage is $302.66, are unchallenged, we modify the award to reflect that
claimant is entitled to receive permanent partial disability benefits in the amount
of $201.77 per week for 101.2 weeks (50.6 percent of 200 weeks) pursuant to Section
8(c)(13) of the Act, commencing on June 1, 1975, the date of decedent's
retirement.[3]   Bath Iron Works, 113 S.Ct
at 699-700, 26 BRBS at 154 (CRT); Moore v. Ingalls Shipbuilding, Inc., 27
BRBS 76 (1993).  

     Accordingly, the administrative law judge's Decision and Order Awarding
Benefits under Section 8(c)(23) is vacated, and the decision is modified to award
decedent compensation for a 50.6 percent binaural hearing loss pursuant to Section
8(c)(13).  In all other respects, the administrative law judge's Decision and Order
is affirmed.



                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge  


                         ROY P. SMITH
                         Administrative Appeals Judge


                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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1)We note that the claimant in this case died before the adjudication of his claim which was then pursued by his widow, Hannah L. Roberts, who died on February 6, 1992. The claim is now being carried forward by the Executrix of her estate, claimant's daughter, Mary Barren Colston. Back to Text
2)In 1972, Congress amended the Act to add the status requirements of Section 2(3), 33 U.S.C. §902(3), and to expand the sites covered under Section 3(a) landward. In Director, OWCP v. Perini North River Associates, 459 U.S. 297, 15 BRBS 62 (CRT)(1983), the United States Supreme Court held that in making these changes to expand coverage, Congress did not intend to withdraw coverage of the Act from workers injured on navigable waters who would have been covered by the Act before 1972. Perini, 459 U.S. at 315-16, 15 BRBS at 76-77 (CRT). Accordingly, the Court held that when a worker is injured on actual navigable waters while in the course of his employment on those waters, he is a maritime employee under Section 2(3) and, as such, satisfies both the situs and status requirements and is covered under the Act, unless he is specifically excluded from coverage by another statutory provision. Perini, 459 U.S. at 323-324, 15 BRBS at 80-81 (CRT). See also Johnsen v. Orfanos Contractors, Inc., 25 BRBS 329 (1992). Although the Director in the instant case responds that decedent, who worked aboard the barges while unloading them, was injured upon "the navigable waters of the United States," and is thus is covered under the Act pursuant to Perini, she as well as all of the other parties to this appeal base their arguments upon the administrative law judge's implicit application of Sections 3(a) and 2(3) to this claim. Back to Text
3)We note that as all benefits due decedent pursuant to Section 8(c)(13) accrued prior to his death, decedent's estate is entitled to the accrued benefits. See Wood v. Ingalls Shipbuilding, Inc., 28 BRBS 27, modified on recon., 28 BRBS 156 (1994). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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