Bridge Vacuumer Was Not a Longshoreman

Claimant’s main duty in his employment with employer was to vacuum debris which fell into a containment area on a bridge over the Ohio River.  The vacuum was attached by a hose to a barge that was spudded below the bridge on the river.  Bags of debris were stored on the barge.

In October 2007, the vacuum shut down for repairs.  At that time, Claimant had the temporary duty of loading repair materials for the vacuum onto the barge.  He also cleaned the barge and moved debris bags from the barge to the dumpster.  Claimant worked in this capacity for a total of 18 hours over three consecutive days, and then returned to his usual work on the bridge for two days before becoming severely ill.  Claimant was subsequently diagnosed with histoplasmosis.  He alleged that the illness was a result of his exposure to debris containing dust, lead, and bird droppings, while he worked on the barge.  Claimant’s doctor advised Claimant that he could not return to any type of work that entailed exposure to these same agents, and Claimant filed for benefits under the LHWCA.

To establish coverage under the Act, a claimant must establish that the injury occurred upon the navigable waters of the United States, including any dry dock, or that the injury occurred on a landward area covered by Section 3(a), and that the work is maritime in nature and is not specifically excluded by the act.  Dir., OWCP v. Perini North River Assocs., 459 U.S. 297 (1983).  A bridge is generally considered an extension of the land and is not a covered situs under the Act; therefore, employees working on a bridge or engaged in bridge construction are covered by the Act only if they establish that their duties included working aboard, or loading or unloading materials from, vessels on navigable waters, or that a particular bridge construction project will aid navigation.  Kennedy v. American Bridge Co. 30 BRBS 1 (1996).

The BRB affirmed the decision of the ALJ, who found that Claimant was not entitled to benefits under the LHWCA because Claimant did not meet the status or situs requirements under the Act.  The Board relied on medical evidence that suggested that Claimant’s exposure occurred on the bridge and not the barge.  Specifically, the employer’s expert testified that histoplasmosis is typically seen in people who have been exposed to the fungus in confined spaces, because of the heightened concentration of the fungus in the air.  Employer’s expert suggested that for histoplasmosis to gestate over a period of three days, the concentration of the fungus would need to be high.  Therefore Claimant’s exposure most likely occurred on the containment area of the bridge and not in the open air on the barge.  Further, Claimant’s co-workers testified that debris did not spew from the containment area onto the barge, as the containment area was not positioned directly over the barge.

Because Claimant was not injured on the navigable waters, he would have to satisfy the status and situs requirements of the Act in order to establish coverage.  The BRB found that Claimant’s activities did not satisfy the status requirement because debris being sucked from a vacuum on a bridge, with the vacuum being attached to a barge, did not qualify as “loading” of a barge, and did not enable a barge to engage in maritime commerce.  Herb’s Welding, Inc. v. Gray, 470 U.S. 141 (1985); Fontenot v. AWI, Inc., 923 F.2d 1127, 1131 (5th Cir. 1991).

Hough v. Vimas Painting Co., Inc., BRB No. 10-0534 (2011).