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Ceres Marine Terminals, Inc. v. Director

United States Court of Appeals, Fourth Circuit

March 24, 2016


          Argued: December 8, 2015

          Amended: January 27, 2017

         On Petition for Review of an Order of the Benefits Review Board. (14-0071)


          Lawrence Philip Postol, SEYFARTH SHAW LLP, Washington, D.C., for Petitioner.

          Ira Michael Steingold, STEINGOLD & MENDELSON, Suffolk, Virginia; Sarah Marie Hurley, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

         ON BRIEF:

          M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Mark A. Reinhalter, Counsel for Longshore, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs, United States Department of Labor.

          Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.

         Petition for review denied by published opinion. Judge Gregory wrote the opinion, in which Judge Duncan and Judge Floyd joined.

          GREGORY, Circuit Judge:

         This case arises from a horribly tragic work-related accident. Samuel P. Jackson, an employee of Ceres Marine Terminals, Inc. ("CMT"), was operating a forklift when he accidently struck and killed his coworker, Paula Bellamy. After this event, Jackson, who was diagnosed with posttraumatic stress disorder ("PTSD"), filed a claim with the Director of the Office of Workers' Compensation Programs (the "Director") for disability benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA" or the "Act"), 33 U.S.C. § 901. The Administrative Law Judge ("ALJ") reviewing the claim determined that Jackson was entitled to benefits and the Benefits Review Board (the "Board") affirmed.

         CMT now petitions for review of the Board's decision, arguing that a person bringing a claim under the LHWCA is required to satisfy the "zone of danger" test outlined by the Supreme Court's decision in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994). "Under this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not." 512 U.S. at 556. Had the Board adopted such a test, CMT asserts, Jackson would have been precluded from any recovery under the LHWCA because he was not in the zone of danger and thus did not suffer a compensable injury. In addition, CMT contends that the ALJ erred in failing to give the report of an independent medical examiner, appointed pursuant to 33 U.S.C. § 907(e), dispositive weight. We disagree on both points and therefore deny the petition.



         On March 28, 2011, Jackson, employed by CMT as a longshoreman, was operating a forklift on a pier in Portsmouth, Virginia, when he accidently struck and killed Bellamy. At the time, Jackson was transporting barrels of container pins when he veered the forklift to his left to avoid being struck by a hustler truck that was backing up and carrying a forty foot container. When he veered, he hit Bellamy, a spotter, who had her back towards him. Jackson did not see Bellamy, and did not realize he had hit her until another spotter "hollered at [him] to let [him] know that [he] had just ran over . . . somebody." J.A. 61. Jackson immediately got off his forklift to help extricate Bellamy who was almost completely pinned underneath the forklift. Another forklift driver drove over and, with his machine, raised the back end of Jackson's forklift. Jackson and others worked to free Bellamy from under his forklift.

         Once they were able to lift the forklift, it was apparent that Bellamy's condition was dire: Jackson testified that "[Bellamy] was bleeding from her mouth. Her arm was burned and pretty mangled, hanging off." J.A. 63. Jackson further testified that Bellamy's leg was wrapped around the axle of the forklift. For about ten minutes, Bellamy's condition was in full view until emergency vehicles arrived. By this time, approximately one hundred people gathered at the scene, including ambulance and fire truck personnel and CMT employees. During the entire time that the first responders worked to save Bellamy, Jackson stood ten to fifteen feet away, with a clear view of her.

         After the ambulance left for the hospital, Jackson spent the rest of the day reporting the accident to the Portsmouth Police Department, Virginia International Terminals Police Department, the Occupational Safety and Health Administration, and CMT officials. Jackson testified that after his ...

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