33 BRBS 9; 1999 DOLBRB LEXIS 4

33 BRBS 9; 1999 DOLBRB LEXIS 4

Opinion

Employer appeals the Decision and Order (96-LHC-1148) of Administrative Law Judge J. Michael O'Neill 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).

    Employer, a trucking company wholly owned by Mr. Tom Hatfield,  [*2]  is in the business of hauling metal scrap from a dock location known as South Point.  Scrap metal is unloaded at South Point from barges by means of a cable with an attached magnet; the metal is then  loaded onto trucks at which time claimant, a truck driver for employer, would deliver the loaded metal to either nearby steel companies or to a field located 500 feet from the dock for storage.  In performing his employment duties, claimant, to ensure against a possible flat tire, would often pick up pieces of scrap that had fallen on either side of his truck and pitch them onto the truck.  The company which operated the loading and unloading facility at South Point is named Barge & Rail Terminals (Barge & Rail), and is 50 percent owned by Mr. Hatfield.

   Claimant suffered a work-related injury on March 27, 1995, while his truck was being loaded with metal from the scrap field, when he bent down to pick up a piece of scrap metal and the counterweight of the crane struck him in the back.  Claimant was diagnosed  as suffering from a herniated disc and a hyperreflexic neurogenic bladder.  Claimant, who has not worked since the date of the work accident, filed a claim under the Act seeking [*3]  temporary total and permanent total disability compensation.

   In his Decision and Order, the administrative law judge found that claimant satisfied the situs and status requirements for jurisdiction under the Act.  Specifically, the administrative law judge determined that claimant's injury occurred on an "adjoining area" under Section 3(a) of the Act, 33 U.S.C. § 903(a)(1994).  With regard to status, the administrative law judge, relying on the decision of the United States Court of Appeals for the Sixth Circuit in Warren Brothers v. Nelson, 635 F.2d 552, 12 BRBS 714 (6th Cir. 1980), found that claimant's activities as a truck driver were an integral part of the unloading process.  In addition, the administrative law judge credited claimant's testimony and the testimony of Robert McKee and Don Tackett, truck drivers who also worked for employer, and found that claimant regularly boarded barges to assist in the unloading process by performing various tasks such as spotting for the crane operator, taking the covers off  barges, moving barges, hooking the magnet on the crane, and splicing or untangling [*4]  the cable on the magnet.  Although claimant assisted in the unloading process at the request of employees of Barge & Rail, the administrative law judge determined that claimant performed these tasks with employer's awareness, never received disciplinary action for performing such work, and received his usual wages from employer for those periods of time; accordingly, the administrative law judge rejected employer's argument that claimant was a gratuitous worker.   Thus, the administrative law judge found that claimant established the status element under Section 2(3) of the Act, 33 U.S.C. § 902(3)(1994).  Having found that claimant established causation, the administrative law judge determined that claimant reached maximum medical improvement on March 7, 1997, and awarded claimant temporary total disability compensation from March 27, 1995 through March 6, 1997, see 33 U.S.C. § 908(b), and permanent total disability compensation commencing on March 7, 1997 and continuing.  33 U.S.C. § 908(a).

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