Fousseini Tounkara v. Glacier Fish Company

Longshore and Harbor Workers’ Compensation Case

Publication date: Week of 2/20/17
Fousseini Tounkara v. Glacier Fish Company
See: https://www.dol.gov/brb/decisions/lngshore/published/15-0217.htm

The Parties

Mr. Tounkara sued Glacier Fish and also the Seabright Insurance Company. And one of the first and most interesting things about this case is that Mr. Tounkara represented himself pro se.

Glacier Fish, Mr. Tounkara’s employer, is a Seattle-based owner of three factory fishing vessels, which it also operates. This case concerns a vessel called the Pacific Glacier, which is a factory trawler that processes, freezes, and boxes the catch on board for future sale.

The Facts

In July of 2008, Mr. Tounkara signed a contract (a ‘Crew Member Agreement’). At the time, the Pacific Glacier had been in a fire and her living accommodations and wheelhouse had sustained damage. While the vessel had been seaworthy enough to return to an Alaskan port, it was still towed to Seattle shipyards for repairs.

Mr. Tounkara helped to repair the Pacific Glacier and return the vessel to proper working order. He was told he was only being hired to help restore the ship and there was no guarantee that he would be hired to go to sea on a fishing mission. His duties included working as a fire watch for welders employed by outside contractors who were performing electric arc welding. His tasks also included painting and operating a forklift.

Employment Conditions

Mr. Tounkara reportedly was not considered a member of the crew, and he was not put on a waiting list to potentially join the crew of the Pacific Glacier. However, the same evening that his contract ended, Glacier Fish Company offered him a fishing position and told him to report to the vessel the next morning. As a result, after arriving on May 19, 2009, he signed a new employment contract. The contract set his pay at a 1.25 share of the catch. He worked for Glacier Fish Company until February of 2010.

The Injuries

In February of 2010, while waiting for a flight to Alaska for the start of another fishing trip, Mr. Tounkara was detained in Tacoma, Washington. While there, he was confined to a detention center until April 13, 2010. His release date was a sunny day. He says this is how he first realized he was experiencing problems with his vision. He was diagnosed with cataracts in April of 2010. During 2010, he visited Dr. Geggel for an appointment. According to Mr. Tounkara, during that appointment, he first became aware of the existence of a connection between his vision problems and his work for Glacier Fish during the vessel repair project. He told his employer about his injury in September 2010.

The Initial Hearing

Mr. Tounkara brought a claim pro se under the Longshore and Harbor Workers’ Compensation Act, stating that his cataracts resulted from exposure to electric arc welding during his fire watch duties while the Pacific Glacier sat in dry dock. Furthermore, Mr. Tounkara also presented the theory that he was not a member of the crew at the time of his injury, because the Pacific Glacier was out of commission as it needed extensive repairs and reconstruction.

In response, Glacier Fish Company asserted that the Pacific Glacier remained in navigation because the modifications and repairs being performed were all done to prepare for the vessel’s next trip. In addition, these repairs and modifications were underway during claimant’s period of exposure. Glacier Fish also argued that Mr. Tounkara’s cataracts did not come about as a result of his employment.

Results of the Initial Hearing

In the initial hearing, the administrative law judge found that Mr. Tounkara was covered by the Act from July 21, 2008 until May 19, 2009 because during that time he was performing covered work at a shipyard.

The judge also found that the ship had not remained in navigation even though the engine was operable. This was due to the repairs being extensive (they took over a year to be completed) and some of the delays were due to Glacier Fish deciding to make ‘major system upgrades’. This was a lot more than just regular preparations for the Pacific Glacier’s next sea voyage.

The Appeal

Glacier Fish appealed on the basis of coverage under the Longshore and Harbor Workers’ Compensation Act, and not on anything regarding whether Mr. Tounkara’s cataracts had resulted from his employment.

The Ruling on Appeal

On appeal, the Administrative Appeals Judge found that the Pacific Glacier did not remain in navigation and, as a result, Mr. Tounkara was not a member of the crew. Therefore, he was covered under the Longshore and Harbor Workers’ Compensation Act. As a result, the Administrative Appeals Judge determined the finding of benefits was proper, and affirmed the ruling from the initial hearing.

The Takeaway

Possibly the most interesting part about this whole case is the fact that the employer only appealed on the basis of coverage. They did not appeal based on Mr. Tounkara’s injury possibly not being related to his employment. It is possible that, under different circumstances, Glacier Fish would have challenged the finding of a link between the exposure to electric arc welding and the claimant’s cataracts. And maybe the appeal would have gone differently.

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