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Consolidation Coal Company v. Benefits Review Board; Daniel X. Smith; Director Office of Workers

December 22, 2010


ON PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD FROM (Claim No. 08-0287) Administrative Law Judge: Honorable Daniel L. Leland

The opinion of the court was delivered by: Greenaway, Jr., Circuit Judge


Submitted Under Third Circuit LAR 34.1(a)

October 20, 2010

Before: HARDIMAN, GREENAWAY, JR., and NYGAARD, Circuit Judges


Consolidation Coal Company ("Consolidation") appeals from the Benefits Review Board‟s (the "Board") decision affirming an Administrative Law Judge‟s (the "ALJ") decision and order that Consolidation must pay Daniel Smith ("Smith" or "Claimant") benefits under the Longshore and Harbor Workers‟ Compensation Act ("LHWCA" or the "Act"), 33 U.S.C. §§ 901-950, for an injury he suffered while working for Consolidation. Consolidation argues that the Board erred in affirming the ALJ because Smith did not satisfy the two-part test under the Act-the "status" of the injured individual and the "situs" of the injury. Maher Terminals, Inc. v. Dir., Office of Workers‟ Comp. Programs, 330 F.3d 162, 166 (3d Cir. 2003). For the reasons explained below, we find that the LHWCA covers Smith‟s injury. Smith satisfies the two-part test. We shall affirm the Board‟s decision.


Mr. Smith was a diesel mechanic for Consolidation at Robena Preparation Plant Facility ("Robena"), where he worked in a maintenance garage. Robena is located in Greensboro, Pennsylvania, adjacent to the Monongahela River. Consolidation prepares and processes coal at Robena. Also, it receives "raw" coal from barges, moves the coal by conveyor belts through the processing plant, loads the processed coal back onto barges, or stockpiles and ships the coal later. Clean coal is also occasionally stockpiled beside the river rather than loaded directly onto the barges. Coal is then dropped into a machine called a de-stock hopper and goes to the river tipple and into the barges.*fn1 Smith testified that, at Robena, he worked on any equipment that ran on fuel. Relying on documentary and testimonial evidence, the ALJ found that Smith did not work on vessels or components of vessels, and records showed that the "virtual entirety" of his work was as a mechanic performing repairs on Terex machines and other heavy equipment. (App. at 21.)

The Robena facility covers approximately seven hundred acres. The garage where Smith‟s injury occurred is approximately one hundred yards from the edge of the Monongahela River. The garage is adjacent to the stockpiled coal, and to four Quonset huts, where steel cables, used as barge running lines, are stored. The garage is also located approximately one hundred fifty feet from the de-stock hopper.

On June 22, 1998, Smith was injured while repairing a Terex machine that had become disabled while loading coal into the de-stock hopper belt, which was adjacent to the garage. He shoveled coal out of the Terex onto the de-stock belt and brought the Terex to the garage for repairs. While using a sixteen-pound sledgehammer to remove rusted hinge pins from the Terex, Smith injured his back.

As a result of the injury, Smith had back surgery and has not returned to work. He received benefits under Pennsylvania‟s workers‟ compensation law. On May 26, 2004, Smith filed a claim for benefits under § 908(a) of the Act. On March 10, 2006, the parties requested by Joint Motion that the issue of jurisdiction be bifurcated from all other issues in the case. (Id.) The ALJ granted that request on March 13, 2006, and held a formal hearing on the issue of jurisdiction on March 30, 2006, in Pittsburgh, Pennsylvania.

In his Decision and Order, the ALJ determined that Smith was eligible for compensation under the Act. Specifically, the ALJ held that Smith satisfied both the "status" and "situs" aspects of the jurisdictional test.

First, the ALJ decided that Smith was a maritime employee, and thus had "status" under 33 U.S.C. § 902(3), stating: [] I find that the evidence of record establishes that Claimant was responsible for servicing mobile equipment, including Terex machines, which were used to load coal from operations on land to barges. Claimant stated, and Darrell Smith [Smith‟s supervisor] confirmed, that Terexes were used, in part, to load coal into the de-stock hopper, from which coal goes into the river tipple and directly onto barges. The Supreme Court has held that a person engaged in some portion of loading is as much an integral part of the process of loading and unloading as a person who participates in the entire process. [P.C.] Pfeiffer [Co., Inc. v. Ford], 444 U.S. [69,] 83 [(1979)]. The Third Circuit concluded that activities are indeed maritime if they are an integral or essential part of the chain of events leading up to the loading, unloading, or building of any vessel. [Sea-Land Serv., Inc. v.] Rock, 953 F.2d [56,] 67 [(3d Cir. 1992)]. Further, it is reasonable to conclude that a cessation of barge loading of Robena would occur if a mechanic such as Claimant did not service heavy equipment at the facility used, in part, in the loading process. Thus, Claimant‟s work is an integral or essential part of the chain of events ensuring that the loading process proceeds as Employer‟s business requires.

(App. at 21.) The ALJ also determined that Smith was injured on a covered "situs" under the Act. The ALJ reasoned that the garage was essential to the unloading of coal from vessels, was located within and around essential elements that comprise the loading process, and provided a site for repairs on equipment active in the loading process. Additionally, the ALJ noted that the Terex machine broke down in the midst of loading coal onto the de-stock belt, and was squarely within Robena‟s loading or unloading area at the time. As a result of these findings, the ALJ decided that "[t]he geography and function of the garage [were] sufficiently related to navigable waters such that Claimant . . . established he was injured on a covered situs." (Id. at 26.)

Consolidation filed a Notice of Appeal with the Board on December 18, 2007, and submitted a brief in support of its appeal on February 19, 2008. On September 29, 2008, the Board issued a Decision and Order affirming the ALJ.

Before the Board, Consolidation first contended that Smith lacked status "because the Terex is not used primarily to load coal, and [Smith] repairs other equipment as well." (Id. at 8.) The Board found that these uncontested facts were not dispositive, because it read the Supreme Court‟s decision in Chesapeake and Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989), to hold that a claimant‟s contribution to the loading process need not be constant. (Id. (citing Schwalb, 493 U.S. at 48).) Further, the Board held that the ALJ "rationally found that interruption of barge loading at the Robena facility would occur if a mechanic did not service the heavy equipment used in the loading ...

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