Kerwinn Temple v. Global Construction, ALJ Avery

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/TEMPLE_KERWINN_v_GLOBAL_CONSTRUCTION__2011LHC01848_(MAY_14_2012)_101514_CADEC_SD.PDF

ALJ Avery denies situs and status in construction case.

The maritime environment that Claimant worked in did not convert Claimant’s activities into maritime employment.

In this instance, Claimant argues that both the status and situs requirements are
satisfied in his case as he was engaged in construction related to maritime activities, and
therefore, coverage under the Act should extend to his injuries. Employer, on the other
hand, contends that Claimant does not meet the occupational criteria of Section 2(3)
because the work in which he was involved was not related to loading, unloading,
building, repairing, or breaking a vessel. Employer also urges that Claimant does not
meet the pre-1972 amendment test because he was on framework and supports of the
wharf and not upon navigable waters at the time of his injury.
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If Claimant had been injured on the barge adjacent to his work area under the
wharf, he may have been able to establish that he was injured “on navigable waters,”
thereby establishing situs and status. Instead, he was injured by hitting the cement slab
after falling on the pick boards, neither of which floats in the water. The cement slab is
attached to the pilings embedded in the river bank, to which the pick board is attached
allowing Claimant to walk above the water to do his work. Neither the pick board nor the
cement slab can be analogized to the floating cargo barge in Perini. The gangplank
injury in Kennedy is also distinguishable from Claimant’s injury as he was not injured on
the pick board attached to the barge. 30 BRBS 1. The facts of Claimant’s case instead
are very similar to those in Trotti where Claimant was injured while working on pilings
embedded in the river bed. The origination of his injury was on a structure attached to
the land, not attached to something floating on navigable waters. Therefore, Claimant
has not established situs according to the pre-1972 amendment test or Perini. He was not
“on navigable waters” at the time of his injury.

Additionally, situs is not established by Claimant as per the requirements in
Section 3(a). While the Mandeville Street Wharf at one time was the site of maritime
commerce activities, this was no longer the case at the time of Claimant’s injury. The
wharf was abandoned. It was no longer used for maritime commerce. (Tr. 87). The
purpose of Claimant’s work was to convert the wharf into a recreational area. It lacked a
functional relationship to maritime work, as did the putative situs in Thibodeaux. 370
F.3d at 494.
Even if the situs test of Section 3(a) was met merely because the Mandeville Street
Wharf had at one time been used as a commercial wharf, Claimant nevertheless failed to
establish that he was engaged in “maritime employment.” Duties such as repairing and
maintaining a wharf fall under the duties of a harborworker. However, as in Silva and
Dickerson, I find Claimant’s job was not maritime work because it was admittedly not
related to the loading, unloading, building, or repairing of vessels, or to building or
repairing a harbor facility used for such activity. Claimant was repairing what was once
used as a harbor facility so that it could be used as a recreational facility. Claimant’s
work in no way would facilitate shipping or commerce at that site. This particular wharf
no longer had a maritime connection, and as a result, Claimant’s employment activities
there did not either.

While Claimant did spend some time on a barge adjacent to his work area, that
time was also insufficient to trigger status under the Act. He stored his tools on the
barge, but the Fifth Circuit has explicitly held that loading and unloading one’s tools does
not constitute “meaningful work responsibilities.” Bienvenu v. Texaco, Inc., 164 F.3d
901 (5th Cir. 1999). Each morning, Claimant attended a short safety meeting on the
barge; on the day of his injury the meeting lasted 10 minutes. (Tr. 23). Claimant testified
that he worked on a project on the barge doing welding on a pipe to be placed in the
water, but his supervisor, Mr. Rink, did not recall anything about such a project. (Tr. 53;
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83-84). Claimant also stated that “a couple of times” he worked on the barge the whole
day, “loading stuff on the barge.” There is not enough evidence in the record to support
the notion that Claimant participated in longshoring activities vis á vis his time on the
barge. Ultimately, the presence of the barge at the worksite and the activities Claimant
did upon the barge were not related to the purpose of furthering any activities related to
shipping, loading, or unloading. As previously discussed, the whole purpose of the work
being done by Claimant at the former Mandeville Street Wharf, whether it was on the
barge or below the wharf, was to create a recreational and tourism area. The maritime
environment that Claimant worked in did not convert Claimant’s activities into maritime
employment.