Stanley v. Western Maryland Railway Co.

WEANT, Judge. The appellant, James W. Stanley, had been employed by the Western Maryland Railway Company (Western Maryland) since 1942. Beginning in 1955 or 1956 and continuing through 1980, Stanley operated a crane known as the “Number 1 crane” at the Curtis Bay Ore Pier. It was used to unload ore from ships docked there.

According to Stanley, the crane produced “. . . a loud roar. It’s a hydraulic pump that pumps pressure and it’s a real high pitched roar, a humming, like a humming roar . . . . ” After operating the crane, Stanley claims to have experienced a ringing in his ears for approximately one hour. He first noticed difficulty in hearing at home and at work in 1977. Stanley sought testing and treatment for this problem in 1978; he currently wears a hearing aid in both ears.

On 14 November 1979 Stanley filed his declaration in what was then the Superior Court of Baltimore City seeking damages under the Federal Employer’s Liability Act (FELA), 45 U.S.C. §§ 51 et seq. (1981), alleging negligence on the part of Western Maryland. That company filed a Motion for Summary Judgment, claiming that Stanley’s exclusive remedy was pursuant to the Longshoremen’s and Harbor Worker’s Compensation Act (LHWCA or the Act), 33 U.S.C. §§ 901 et seq. (1980), as amended, 26 November 1972.

The trial court granted the motion and entered judgment for Western Maryland, from which Stanley now ap ²³⁸ peals. This action carries with it the novel issue of whether the remedy for an occupational disease lies exclusively within the LHWCA when the employee was covered under that Act only after its amendment but was exposed to the injurious stimuli both before and after he was covered. The appellant requests this Court to address two questions: I. Was the lower court in error in holding that Stanley’s exclusive remedy was pursuant to the provisions of the LHWCA and not the FELA?

II

Was the lower court’s action in granting the Motion for Summary Judgment erroneous as there were no facts in the record to demonstrate that Stanley’s binaural hearing loss was due solely to his post-1972 exposure? The Longshoremen’s and Harbor Worker’s Compensation Act Prior to 26 November 1972, the Longshoremen’s and Harbor Worker’s Compensation Act applied only to maritime workers injured “upon the navigable waters of the United States.” In 1972, Congress amended the LHWCA, broadening the definition of “navigable waters” to include “... any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining areas customarily used by an employer in loading, unloading, repairing or building a vessel.” 33 U.S.C. § 903 (a). Congress also amended the definition of persons covered by the LHWCA. In order to receive benefits under the Act, the injured employee must be “engaged in maritime employment, including any longshoreman or other person engaged in long-shoring operations, and any harborworker .... ” 33 U.S.C. § 902 (3).

The purpose of the 1972 amendments was to remedy the disparity in benefits between state and federal worker’s compensation coverage depending on which side of the water’s edge the accident occurred. See Northeast Marine ²³⁹ Terminal Co., Inc. v. Caputo, 432 U.S. 249, 262-64 , 97 S.Ct. 2348, 2356-57 , 53 L.Ed.2d 320 (1977), citing to H.R.Rep. No. 1441, 92d Cong., 2d Sess. 10-11 (1972), U.S.Code Cong. & Admin.News 1971, p. 4698. Under the amended Act, courts and agencies now look to the “status” of the injured worker as well as to the “situs” of the injury to determine coverage.

The LHWCA, both before and after the 1972 amendments, had also provided that if an employee is within its coverage, the LHWCA furnishes his exclusive remedy against his employer. See 33 U.S.C. § 905 (a); Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037, 1048-49 (4th Cir.1980). Both parties agree that prior to the 1972 amendments to the LHWCA, the LHWCA did not cover pier-based exposure to injurious stimuli, such as Stanley’s, but that such pier-based exposure is within the LHWCA after 1972. The parties also agree that Stanley was subjected to the noise of the Number 1 crane from 1955 or 1956 until after his hearing problems appeared in 1977.

We turn now to the questions posed by the appellant. Stanley claims that the trial court erred in holding that his remedy is exclusively within the LHWCA. Because any injury resulting from pier-based exposure to harmful stimuli prior to 26 November 1972 was not covered by the LHWCA, Stanley argues that recovery under the FELA should be available for injury received before that date. Stanley’s argument centers around Verderane v. Jacksonville Shipyards, Inc., 6 Ben.Rev.Bd.Serv. 642, BRB No. 76-244 (31 Aug. 1977).

See also Verderane v. Jacksonville Shipyards, Inc., 14 Ben.Rev.Bd.Serv. 220.15 (13 Aug. 1981) (appeal from the recommended decision on remand). The claimant, Verderane, was employed at the Jacksonville Shipyards from 1965 to 1974. 6 Ben.Rev.Bd.Serv. at 643-44. Throughout his employment at Jacksonville Shipyards, he was exposed to injurious noise. The claimant had experienced hearing problems and vertigo in the early 1960’s, and suffered