Vicknair v. Avondale Industries

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 02-60156 Summary Calendar _______________

NORMAN VICKNAIR,

Petitioner,

VERSUS

AVONDALE INDUSTRIES, INC.; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

________________________

Appeal from an Order of the Benefits Review Board (00-0942) _________________________ October 9, 2002

Before HIGGINBOTHAM, SMITH, and JERRY E. SMITH, Circuit Judge:* CLEMENT, Circuit Judges.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be pub- lished and is not precedent except under the limited (continued...)

Norman Vicknair filed a claim under the In 1997, an audiogram revealed that Vick- Longshore and Harbor Workers’ Compensa- nair was suffering from hearing loss. He testi- tion Act, as amended, 33 U.S.C. § 901 (“the fied that he was exposed to loud noises while Act”), against his former employer, Avondale working in fabrication shops at ISI; he denied Industries, Inc. (“Avondale”), alleging that being exposed to loud noises during load-outs. while employed at Avondale from 1969 to Although ISI’s Vice-President of Operations 1991, he suffered hearing impairment as a re- stated that inspectors could be exposed to loud sult of exposure to loud noises. Because we noises during load-outs, there was no evidence agree with the Benefits Review Board that Vicknair was ever so exposed. (“BRB”) that the decision of the administrative law judge (“ALJ”) was supported by substan- II. tial evidence, we affirm. Vicknair initiated a claim against Avondale under the Act. The ALJ determined that ISI, I. not Avondale, was the last causative employer, Vicknair began working at Avondale in and consequently dismissed the claim. The 1969 as a helper and pipefitter. He was ex- BRB affirmed the ALJ’s decision. Vicknair posed to loud noises generated from sledge appeals, contending that the BRB erroneously hammers banging against metal in confined determined that he was a covered employee areas and chipping and grinding from other under the Act at ISI; even if he is, Vicknair craft. Although he was given ear plugs, he did claims that his time spent engaging in maritime not always use them. duties was de minimis. He also argues that ISI cannot be the last causative employer, because In 1991, Vicknair left Avondale for Inspec- he was never exposed to loud noises while tion Services Incorporated (“ISI”), his current performing maritime work there. employer. ISI is a quality assurance company that hires out its employees to oversee work III. being performed by its clients, who are pri- Our review is limited to determining wheth- marily builders of drilling rigs. er the BRB correctly concluded that the ALJ’s order was “supported by substantial evidence Vicknair performs inspections of offshore on the record as a whole and is in accordance drilling platforms during the building process with the law.” Avondale Indus., Inc. v. Direc- and after completion of the project. Most of tor, OWCP, 977 F.2d 186, 189 (5th Cir. 1992) his inspections take place in fabrication shops, (citations omitted). 1 The substan where the offshore production equipment is made, but he also is responsible for ensuring that the products are properly loaded and un- 1 Substantial evidence is defined as “more than loaded onto barges for shipment offshore. a mere scintilla of evidence, which a reasonable Vicknair testified that he spent approximately mind might accept as adequate to support a conclu- three weeks inspecting load-outs during an sion.” Universal Camera Corp. v. NLRB, 340 eight-year period of employment with ISI. U.S. 474, 477 (1951); see also Avignone Freres, Inc. v. Cardillo, 117 F.2d 385, 386 (D.C. Cir. 1940) (stating that substantial evidence is “such * (...continued) relevant evidence that a reasonable mind might circumstances set forth in 5TH CIR. R. 47.5.4. (continued...)

tial evidence standard is less demanding than is employer to expose the employee to injurious the preponderance of the evidence standard, stimuli before the date when he becomes and the ALJ’s decision need not constitute the aware that he is suffering from an occupational sole inference that can be drawn from the disease arising out of his employment. Avon- facts. Diamond M. Drilling Co. v. Marshall, dale, 977 F.2d at 189; Travelers Ins. Co. v. 577 F.2d 1003, 1005 (5th Cir. 1978) (citations Cardillo, 225 F.2d 137, 145 (2d Cir. 1955). omitted). As fact-finder, the ALJ determines Section 20(a) of the Act provides a presump- questions of credibility of witnesses and of tion that claims fall within the provisions of the conflicting evidence. Atl. Marine, Inc. v. Act “in the absence of substantial evidence to Bruce, 661 F.2d 898, 900 (Former 5th Cir. the contrary.” 33 U.S.C. § 920(a). An em- Nov. 1981). ployer may rebut the § 20(a) presumption by showing that the “employee was exposed to IV. injurious stimuli while performing work cov- A two-pronged test determines whether an ered under the [Act] for a subsequent em- injured worker falls under the provisions of the ployer.” Avondale, 977 F.2d at 190 (citation Act and thus is entitled to benefits. A claimant omitted). must satisfy the Act’s status requirement, 33 U.S.C. § 902(3), and its situs requirement, 33 Initially, the ALJ found that Vicknair had U.S.C. § 903(a). The status requirement presented sufficient evidence to create a pre- defines those employees considered to be sumption that his hearing loss was causally re- engaged in maritime employment.2 The situs lated to his employment at Avondale. The requirement requires that an employee’s injury ALJ determined, however, that Avondale had take place upo n the navigable waters of the rebutted the presumption by establishing that United States, which includes in part any Vicknair was exposed to injurious noise while adjoining wharf, dry dock, or terminal. For working at ISI, a subsequent maritime em- purposes of the Act, a maritime employer is an ployer. “employer any of whose employees are em- ployed in maritime employment, in whole or in A. part.” 33 U.S.C. § 902(4). Vicknair first argues that at ISI, he has not engaged in work covered under the Act. A The employer responsible for paying full claimant engages in maritime employment if he benefits in an occupational disease case, in- is engaged in work that is integral to the load- cluding a hearing loss case, is the last maritime ing, unloading, constructing, or repairing of vessels. See 33 U.S.C. § 902(3); Chesapeake & Ohio Ry. v. Schwalb, 493 U.S. 40, 45 1 (1989). An employee need only spend “at (...continued) least some of his time in indisputably covered accept as adequate to support a conclusion”). activities” before he is considered to have en- 2 Section 902(3) defines “employee” as “any gaged in maritime employment. Northwest person engaged in maritime employment, including Marine Terminal Co. v. Caputo, 432 U.S. 249 any longshoreman or other person engaged in (1977). longshoring operations, and any harbor-worker in- cluding a ship repairman, shipbuilder, and ship- In Boudloche v. Howard Trucking Co., 632 breaker . . . .” 33 U.S.C. § 902(3).

F.2d 1346 (5th Cir. Unit A 1980), we decided but not a “substantial portion,” engaging in that a truck driver who unloaded his cargo on- maritime work. Id. Because Vicknair testified to ships was engaged in maritime employment. that he “sometimes” inspected the load-out Id. at 1348. “The fact that his employer also process, his activities undoubtedly fall within assigned him broader duties as a truck driver the scope of § 902(3). cannot override its choice to make [the claimant] a maritime employee under the Act.” Vicknair still contends that coverage is un- Id. warranted, because his participation in load- outs was de minimis. In Boudloche, in finding Vicknair does not dispute that the inspec- that the truck driver claimant engaged in mari- tion of load-outs qualifies as the type of work time employment, we left open the question of contemplated by § 902(3).3 He instead argues when an employee’s longshoring activities that because he spent only three weeks in- might become “so momentary or episodic specting load-outs during an eight-year peri- [that] it will not suffice to confer status.” Id. od,4 his maritime activities are insufficient to Importantly, the truck driver in Boudloche qualify him under the Act. We reject his argu- spent only 2½% to 5% of his working time ment. In Boudloche, we emphasized that an performing longshoring activities. Id. employee need only spend “some” of his time, Nevertheless, we declined to address whether he met a de minimis threshold, because he was “directed to regularly perform” longshoring 3 In arguing that the load-out inspections were activities. Id. Vicknair argues that his de minimis, Vicknair notes that the monitoring was longshoring activities were de minimis because done at a distance and that his purpose was “not to his load-out inspections constituted less than get involved with the actual procedure.” Even if one percent of his overall working time. we were to construe this observation as an argument that load-out inspections do not qualify as maritime work under the Act, it would fail under our “expansive view” of § 902(3). Caputo, 432 This court has never attempted to quantify U.S. at 268. a precise mathematical point at which an em- ployee’s maritime activities become de mini- An employee satisfies the status requirement of mis. Instead, Boudloche indicates that as long § 902(3) where he engages in work that is as an employee is directed regularly to perform “integral” to the loading, unloading, constructing, some portion of what is indisputably maritime or repairing of vessels. Id. at 271. Those work, his activity will not be considered personnel not directly involved in the loading or momentary or episodic.5 unloading of cargo, such as inspectors, have consistently been determined to be covered under § 902(3). E.g., id. (permitting coverage for employ- 5 ee whose job was to check and mark items of See Lennon v. Waterfront Transp., 20 F.3d cargo); Levins v. BRB, 724 F.2d 4, 9 (1st Cir. 658, 661 (5th Cir. 1994) (applying Boudloche for 1984) (permitting coverage of a book clerk who the proposition that claimant’s handling of cargo identified and recorded cargo). was “sufficiently regular so as not to be considered episodic”); see also Levins, 724 F.2d at 9 (noting 4 Based on a forty-hour work week, Vicknair that a “de minimis situation” does not exist, spent less than one percent of his work time because claimant’s maritime activities “were part inspecting load-outs. (continued...)

There is substantial evidence that Vicknair covered employee while performing load-out was so directed. Michael Foret, ISI’s office inspections, but not non-maritime activities. manager, deposed that Vicknair’s duties were essentially to oversee projects from beginning Vicknair is correct that the record is void of to completion. Foret stated that an inspector evidence that he was exposed to loud noises goes “wherever he would be required to while inspecting load-outs at ISI. No perform his duties.” He stated that an witnesses disputed his testimony that the inspector’s duties include making sure that crane’s used during these load-outs produced products manufactured in fabrication yards are only moderate amounts of noise. Although properly loaded and tied down on barges for William Downey stated that inspectors might shipment offshore. The fact that Vicknair’s be exposed to loud noises during load-outs if inspection of load-outs was a regular part of welders or gougers are present, there was no his duty of seeing projects completed from evidence that Vicknair participated in these beginning to end directs the conclusion that his load-outs. Instead, the evidence shows that maritime activities were not de minimis.6 his exposure to loud noises occurred only while he performed non-maritime work in B. fabrication shops. Vicknair also contends that he does not sat- isfy the Act’s status requirement because there Nevertheless, the fact that Vicknair’s expo- is no evidence that he was exposed to injurious sure t o injurious stimuli came only while he noises while engaging in maritime activities at performed non-maritime work does not defeat ISI.7 In effect, Vicknair argues that he was a his status as a maritime employee under § 902(3). In Hullinghorst Indus., Inc. v. Car- roll, 650 F.2d 750 (5th Cir. Unit A July 1981), 5 we held that maritime employee status can be (...continued) of his regularly assigned duties as a whole”); based “either upon the maritime nature of the Graziano v. Gen. Dynamics Corp., 663 F.2d 340, claimant’s activity at the time of his injury or 343 (1st Cir. 1981) (“Although only 2.5 to 5 upon the maritime nature of his employment as percent of Boudloche’s overall employment was a whole.” Id. at 754 (emphasis added). maritime in character, the Fifth Circuit extended coverage because ‘he was directed to regularly Permitting coverage based on the overall perform some portion of what was indisputably longshoring work.’”). 6 7 See Levins, 724 F.2d at 9 (“These do not (...continued) appear to have been discretionary or extraordinary As the BRB points out, however, this argument is occurrences, but rather a regular portion of the irrelevant, because the last-employer rule does not overall tasks to which petitioner could have been require a causal relationship between the assigned as a matter of course.”) (citations subsequent employment and hearing loss. Rather, omitted). the exposure to injurious stimuli need only have the potential to cause hearing impairment. See 7 Vicknair also argues that his hearing did not Avondale, 977 F.2d at 190 (stating that “regardless get worse after he left Avondale, implying perhaps of the brevity of exposure, if it has the potential to that he was not exposed to injurious stimuli at ISI. cause disease, it is considered injurious”) (citation (continued...) omitted).

maritime nature of employment is consistent Because we agree that there was substantial with Congress’s intent to prevent evidence supporting the ALJ’s decision, the longshoremen from walking in and out of order of the BRB is AFFIRMED. coverage.8 Because we already have established the overall maritime nature of Vicknair’s employment, we reject his argument that a lack of exposure to noise while performing maritime work defeats coverage under § 902(3).9

8 Caputo, 432 U.S. at 273 (“[T]o exclude [an employee] from the Act’s coverage in the morning but include him in the afternoon would be to re- vitalize the shifting and fortuitous coverage that Congress intended to eliminate.”). In Caputo, the Court specifically rejected the “point of rest” the- ory that would have assigned coverage based on whether the employee was engaged in a maritime activity at the time of injury. Caputo, 432 U.S. at 275-76. 9 Notably, Vicknair does not invoke the Act’s situs requirement, § 903(a), in his attempt to argue that ISI is not the last causative employer. Section 903(a) requires that a compensable injury occur “upon the navigable waterways of the United States,” including a dry dock or wharf.

Even if Vicknair had made this argument, we are doubtful that the situs requirement applies to subsequent employers in cases applying the last- employer rule. As a “rule of liability assessment, not of jurisdiction,” Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1012 (5th Cir. 1981), the last- employer rule requires only that the claimant be ex- posed “to injurious stimuli while performing work covered under the [Act] for a subsequent em- ployer.” Avondale, 977 F.2d at 190 (citation omitted).

9 Whether work is covered under the Act is an (...continued) issue independent of the situs requirement, which “makes it exceedingly difficult, if not practically deals only with the location of injury. Moreover, impossible, to correlate the progression of the the nature of occupational diseases, unlike injury, disease with specific points in time or specific (continued...) industrial experiences.” Cardillo, 225 F.2d at 144.