Graziano v. General Dynamics Corp.

Graziano v. General Dynamics Corp.

Opinion

 [*340]  This appeal involves the combined claims of Charles Graziano, deceased, for workmen's compensation benefits and Mary Graziano, his widow, for death benefits under the Longshoremen's and Harbor Workers' Compensation Act (Act). 33 U.S.C. § 901 et seq.  Mary Graziano appeals from the Decision and Order of the Benefits Review Board of the Department of Labor [**2]  (Board) reversing the unpublished Decision and Order of the Administrative Law Judge (ALJ) who awarded the claimants benefits on the  [*341]  basis that the decedent's occupation constituted "maritime employment" within the meaning of § 2(3) of the Act, 33 U.S.C. § 902(3). It having been stipulated between the parties that the decedent met the jurisdictional situs requirement of the Act, 33 U.S.C. § 903(a), the only issue for review is whether the decedent meets the status requirement of ] 33 U.S.C. § 902(3), which provides:

The term "employee" means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.

The decedent, Charles Graziano, was employed from June 3, 1964, to January 30, 1974, as a maintenance-mason at General Dynamics, a corporation engaged in the building and repairing of ships. As one of only two men classified in the Maintenance Department [**3]  as a mason-laborer, Graziano's duties primarily involved the repair of masonry in shipyard buildings, but also included digging ditches, breaking up concrete with a jackhammer, laying cement, grouting, removing asbestos from pipes, repairing boilers and manholes, and cleaning acid tanks. This work was conducted throughout the shipyard, including the steel mill, turret, metal, and pipe shops, and warehouses, areas which exposed the decedent to high levels of dust and noxious fumes.

In 1972, while Graziano was hospitalized for bladder, prostate, and kidney infections, a pulmonary disease was diagnosed and linked to the poor air conditions of his employment. After his release from the hospital, Graziano returned to work on December 18, 1972. Despite the lighter workload given to him, his condition continued to deteriorate, and on January 30, 1974, he was forced to leave his job permanently. After two more hospitalizations, Graziano died in the hospital on February 12, 1976. The cause of death was given as "pneumonia" due to "chronic obstructive lung disease" of some years' duration. ALJ Decision and Order at 4. During his lifetime, Graziano filed for compensation for permanent [**4]  total disability and upon his death his widow filed for death benefits.

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