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                                  BRB No. 98-988

DAVID R. NIXSON                         )
          Claimant-Respondent           )
       v.                               )
MOBIL MINING AND MINERALS               )    DATE ISSUED:   03/03/1999
       and                              )
STATE OF PENNSYLVANIA                   )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order of Lee J. Romero, Jr., Administrative
     Law Judge, United States Department of Labor.

     Dennis L. Brown, Houston, Texas, for claimant.

     Thomas C. Fitzhugh III and J. Corbin Van Arsdale (Fitzhugh & Elliott,
     P.C.), Houston, Texas, for employer/carrier.

     Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.


     Employer appeals the Decision and Order (97-LHC-238) of Administrative Law
Judge Lee J. Romero, 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 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 is a fertilizer manufacturer whose facilities adjoin the Houston Ship
Channel.  It receives raw materials (sulphur, anhydrous ammonia, phosphate rock,
and sulfuric acid) by truck, railway and barges, and it produces sulfuric acid,
phosphoric acid, ammonium thiosulfate (liquid fertilizer), and two grades of solid
fertilizer called dioammonium phosphate and monoammonium phosphate.  The finished
product is shipped out by trucks, railway, barges and ships.

     Claimant and employer stipulated that claimant was injured on January 16,
1994, during the course of his employment,[1]  and
that employer paid claimant benefits under the Texas workers' compensation statute
for his injuries, but that if the administrative law judge found claimant to be a
covered employee under the Longshore Act, he would be entitled to greater benefits
for the same periods of time.  Further, they stipulated that, during the year
preceding his injury, between 41 and 50 percent of claimant's work involved loading
and unloading vessels.  At the time of his injury, claimant was classified as an
"A" operator.  An "A" operator undertakes various duties including operating the
marine loader to load finished product on to barges, operating the Buhler to unload
phosphate rock from barges, operating the loading units in Buildings 9 and 10, and
driving the diesel locomotive. See Tr. at 31; see also Gavranovic v.
Mobil Mining & Minerals, __ BRBS __, BRB No. 98-741 (February 19, 1999).[2]   On the day of his injury, claimant was assigned
to the locomotive crew to keep the railcars moving and the units supplied with
railcars to load.  Tr. at 103.

     The administrative law judge found that employer's facility adjoins the
Houston Ship Channel and is suited for its purpose of receiving raw materials and
shipping finished product along the waterway.  Based on this proximity to a
navigable waterway and the occurrence of the maritime activities of loading and
unloading barges and ships, the administrative law judge found that employer's
facility has a maritime nexus.  Decision and Order at 14.  Further, in accordance
with Texports Stevedore Co. v. Winchester, 632 F.2d 504, 12 BRBS 719 (5th
Cir. 1980) (en banc), cert. denied, 452 U.S. 905 (1981), the
administrative law judge found that employer's entire facility, including the rail
line on which claimant was injured, is an "adjoining area" customarily used for
maritime activity and, therefore, is a covered situs under Section 3(a) of the Act. 
33 U.S.C. §903(a); Decision and Order at 15.  With regard to claimant's
status, the administrative law judge noted the parties' stipulation regarding the
percentage of claimant's duties which were maritime during the year preceding his
injury, as well as claimant's testimony that he had a daily expectation of being
assigned to maritime work 50 percent of the time, and he found that claimant is
subject to regular maritime work assignments.  Decision and Order at 16-17. 
Consequently, he concluded that claimant fulfilled the status requirement of
Section 2(3) of the Act, 33 U.S.C. §902(3).  Decision and Order at 17.[3]   Employer appeals the administrative law judge's
decision regarding coverage, and claimant responds, urging affirmance.

     Employer contends the administrative law judge erred in concluding that its
entire facility, including the rail line where claimant was injured, is a covered
situs under the Act.  Employer also challenges the administrative law judge's
determination that claimant is a covered employee, as he is a land-based worker who
was injured while performing land-based work on the railway.  The issues raised
herein by employer are the same issues raised by employer in Gavranovic.
See Gavranovic, slip op. at 5.  In Gavranovic, the Board rejected
employer's various arguments and held that, under the controlling law of the United
States Court of Appeals for the Fifth Circuit, Winchester, 632 F.2d at 504,
12 BRBS at 719, employer's entire facility constitutes a covered situs under the
Act.  Specifically, in light of its location adjacent to the Houston Ship Channel,
a navigable waterway, and in light of the occurrence of significant maritime
activity on the docks at employer's facility, loading and unloading barges and
ships, the Board affirmed the administrative law judge's conclusion that the entire
facility is an "adjoining area" which is "customarily used" for maritime purposes.
Gavranovic, slip op. at 7-8; see Sisson v. Davis & Sons, Inc., 131
F.3d 555, 31 BRBS 199 (CRT) (5th Cir. 1998); Winchester, 632 F.2d at 504,
12 BRBS at 719; Stroup v. Bayou Steel Corp., 32 BRBS 151 (1998); Melerine
v. Harbor Const. Co., 26 BRBS 97 (1992).  Further, the Board affirmed the
administrative law judge's determination that claimants met the status requirement,
rejecting employer's argument that the "moment of injury" test prevents coverage. 
The Board held that the Fifth Circuit's "moment of injury" test is used to broaden,
not narrow, coverage under the Act. Gavranovic, slip op. at 8; Universal
Fabricators, Inc. v. Smith, 878 F.2d 843, 22 BRBS 104 (CRT) (5th Cir. 1989),
cert. denied, 493 U.S. 1070 (1990); Thibodaux v. Atlantic Richfield
Co., 580 F.2d 841, 8 BRBS 787 (5th Cir. 1978), cert. denied, 442 U.S.
909 (1979); McGoey v. Chiquita Brands Int'l, 30 BRBS 237 (1997); Scott
v. Tug Mate, Inc., 22 BRBS 164 (1989).  Finally, in light of the occupational
nature of claimants' work as "A" and "C" operators, and their regular involvement
in loading and unloading barges, the Board held that the administrative law judge
correctly determined they were covered under Section 2(3) of the Act.
Gavranovic, slip op. at 8-9; see 33 U.S.C. §902(3);
Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 46, 23 BRBS 96 (CRT)
(1989); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 273, 6 BRBS
150, 165 (1977); Boudloche v. Howard Trucking Co., 632 F.2d 1346, 12 BRBS
732 (5th Cir. 1980), cert. denied, 452 U.S. 915 (1981).

     Because the present case involves the same facility and the same employee
classification and duties as the Board addressed in Gavranovic, we reject
employer's contentions on appeal for the reasons set forth in Gavranovic. 
We affirm the administrative law judge's findings that employer's entire facility
is a covered situs and that claimant is a covered employee pursuant to Sections
2(3) and 3(a) of the Act.  Consequently, we affirm the award of benefits to
claimant. Gavranovic, slip op. at 8-9; see also Schwalb, 493 U.S. at
40, 23 BRBS at 96 (CRT); Caputo, 432 U.S. at 249, 6 BRBS at 150;
Winchester, 632 F.2d at 504, 12 BRBS at 719.

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


                         ROY P.  SMITH
                         Administrative Appeals Judge

                         REGINA C.  McGRANERY
                         Administrative Appeals Judge

                         MALCOLM D.  NELSON, Acting
                         Administrative Appeals Judge

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1)Claimant's left arm was crushed between two railcars during the switching procedure. He filed a claim for compensation for the left arm injury as well as for a psychological injury. Emp. Ex. 2. Back to Text
2)Gavranovic is a consolidated appeal involving two employees who worked at employer's facility. One employee was classified as an "A" operator, and one was a "C" operator. Gavranovic, slip op. at 2-3. Back to Text
3)The administrative law judge also determined that employer is liable for a Section 14(e), 33 U.S.C. §914(e), penalty and interest. Decision and Order at 17-18. These findings have not been challenged on appeal. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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