Petition — Brown v. Thornton
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| eT Court, 8S.
ILED
83-243 ABE 15 1983
ALEXANDER L. STEVAS,
K a
NO.
Supreme Court if the United States
OcTOBER TERM 1983
BROWN & ROOT, INC., WAUKESHA-PEARCE
INDUSTRIES, INC. AND HIGHLANDS INSURANCE
CUMPANY,
Petitioners
v
BILLY THORNTON AND JAMES H. BROUSSARD,
Respondents
PETITION FOR WRIT OF CERTIORARI
ROBERT M. MAHONY
Southwest National Bank Building
Suite 600
102 Versailles Avenue
Lafayette, Louisiana 70502
318/237-2660
Attorneys for Petitioners,
Waukesha-Pearce Industries, Inc. and
Highlands Insurance Company
Of Counsel:
ONEBANE, DONOHOE, BERNARD, TORIAN,
DIAZ, MCNAMARA & ABELL
BEN L. REYNOLDS
2200 Texas Commerce Tower
Houston, Texas 77002
713/224-8380
Attorneys for Petitioners,
Brown & Root and
Highlands Insurance Company
Of Counsel:
ROYSTON, RAYZOR, VICKERY & WILLIAMS
Alpha Law Brief Co., Inc—5606 Parkersburg-—Houston, Texas 77036—223-3003
I
QUESTION PRESENTED FOR REVIEW
Whether a land-based worker employed in a construc-
tion yard which fabricates fixed offshore drilling platforms
(Thornton) or component parts thereof (Broussard) and
who is injured on land as opposed to on navigable waters
is an “employee” engaged in “maritime employment”
under the Longshoremen’s & Harbor Workers’ Compensa-
tion Act, 33 U.S.C. 901 et seq.?
THE LIST OF PARTIES
Pursuant to Rule 21.1(b), Rules of the Supreme Court,
counsel for Petitioners certify that the following is a
complete list of all parties in the proceeding in the Court
whose judgment is sought to be reviewed and, addition-
ally, all parties and persons believed to be interested in
the outcome of this Petition:
1. Billy Thornton, Respondent;
James Broussard, Respondent;
Brown & Root, Inc., Petitioner;
Waukesha-Pearce Industries, Inc., Petitioner;
Highlands Insurance Company, Petitioner; and
Director, Office of Workers’ Compensation Pro-
grams, United States Department of Labor.
yr ee? YP
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW .............
Gs PiUbisdap sencterencccsseeccevese
Eh Hist ss osc ceseteccvenscvensessceeds
SE MEUUMMINIED 5 ond cceccccrccccacvavtsconcses
Conflict with Congressional Intent .................
Conflict with Prior Opinions of this Court ..........
Se TO GMEUIOD oo ce cccsciveccceccerees
APPENDIX A—(Opinion of Fifth Circuit) ............
APPENDIX B—(Opinion of Benefits Review Board, 12
NE adage se elvs 000s verve dope
APPENDIX C—(Opinion of Benefits Review Board, 13
ccna. dU ana diese Cena e aes
APPENDIX D—(Decision and Order of Administrative
SP SAND wiv ccctvobunctoeere
APPENDIX E—(Decision and Order of Administrative
Be eee
Ill
TABLE OF AUTHORITIES
CASES Page
Boudreaux v. American Workover, Inc., 680 F.2d 1034 (Sth
Cir. 1982) (en banc) cert. denied, ie ey
OE nc ks oka eh «ida Bil octet. nipe Reh weeneneie 13, 14,15
Boudreaux v. American Workover, Inc., 664 F.2d 463 (Sth
Cir. 1981), rehearing en banc, 680 F.2d 1034 (Sth Cir.
1982), cert. denied, US. , 103 S.Ct. 815 (1983) 10,15
Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037 (4th
Sly MED <0 K4EAWU Asc Oba bb.06-0n pesewsiocnsanead>ee 19
Chevron Oil Company v. Huson, 404 U.S. 97 (1971) ...: 11,12
Conti v. Norfolk & Western Railway Company, 566 F.2d
ke BR Ny er poe res be 19, 20
Director, Office of Workers’ Compensation Programs, United
States Department of Labor v. Perini North River Asso-
ciates, US. — 3° eeersry 7, 8,9, 14, 16, 17, 20
Dravo Corporation v. Banks, 567 F.2d 593 (3d Cir. 1977) 19
Duncanson-Harrelson Company v. Director, Office of
Workers’ Compensation Programs, United States Depart-
ment of Labor, 686 F.2d 1336 (9th Cir. 1982), appeal
EE es be ais cin eK Aen ae oad ewtk nds oe eeeRCehT eas 18
Fusco v. Perini North River Associates, 622 F.2d 1111 (2d
Cir. 1980), cert. denied, 449 U.S. 1131 (1981) ........ 18
Graziano v. General Dynamics Corporation, 663 F.2d 340
Ce Cee whine. 65s Cadavcheieaneedueabe 19
Herb’s Welding v. Gray, 703 F.2d 176 (Sth Cir. 1983),
application for rehearing pending .................4.. 14, 15, 16
In re Dearborn Marine Service, Inc., 499 F.2d 263 (Sth
Cir. 1974), cert. dismissed, 423 U.S. 886 (1975) ....... 12,13
Lynn v. Heyl and Patterson, Inc., 483 F. Supp. 1247 (W.D.
Pa.), afd, 636 F.2d 1209 (3d Cir. 1980) ............. 19, 20
Northeast Terminal Company v. Caputo, 432 U.S. 249
CRUETE Adee Rneendstetenhendes > basdbondes wexekrxs2 4
P. C. Pfeiffer Company v. Ford, 444 U.S. 69 (1979) ...... 15
Pippen v. Shell Oil Company, 661 F.2d 378 (Sth Cir. 1981) .13, 14, 15
Rodrigue v. Aetna Casualty & Surety Company, 395 US.
SE-GEEEE) Gneatdbobeedeactdbacticvan wea cesdons 11, 12, 13, 16
Schwabenland v. Sanger Boats, 683 F.2d 309 (9th Cir.
1982), cert. denied, US. , 103 S.Ct. 814 (1983) 18
St. Julien v. Diamond M. Drilling Co., 403 F. Supp. 1256
SECM SUPE ru ac. dacs vc davon sce cava tarubene? 15
IV
CASES Page
Terry v. Raymond International, 658 F.2d 398 (Sth Cir.
1981), reh’g en banc denied, 667 F.2d 92, cert. denied,
i ee ee een bc aah abde te eee eee e 12,13
Thornton v. Brown & Root, Inc., 707 F.2d 149 (Sth Cir.
MD Late mtaguknans th vehG ee cbisceoscas obeewies 13, 14, 16, 18
Ward v. Director, Office of Workers’ Compensation Pro-
grams, United States Department of Labor, 684 F.2d 1114
(Sth Cir. 1982), cert. denied, US. , 103 S.Ct.
PENS er od Cis a0 clin to hae RM ia vA bee tke es 17
Weyerhaeuser Company v. Gilmore, 528 F.2d 957 (9th Cir.
1975), cert. denied, 429 U.S. 868 (1976) ............. 16,17, 18
UNITED STATES STATUTES
Be UB SUE eatin ote cak Onbsaeveseevsne 2, 6, 14, 16,17, 21
OTHER AUTHORITIES
Hearings Before the Sub-Committee on Labor of the Senate
Committee on Labor and Public Welfare on S. 2318, S.
525 and S. 1547, 92nd Cong., 2d Sess. 60, 256-58, 393-
GRE Be ED vb cad b OV acape bas Vener siete axes 9,10
Longshoremen’s & Harbor Workers’ Compensation Act, An-
nual Statistical Report, December 1981 .............-: 6
Office of the Comptroller General of the United States,
Longshoremen’s & Harbor Workers’ Compensation Act
Needs Amending, April 1, 1982 ..........sceeeeeeeees
U.S. Congressional & Administrative News, 4698, 4708
ERNOED Vlad Khe Vecureubed ch ens caneuee csawdecs t660 01
U.S. House of Representatives Report No. 92-1125, 92
Ce 20 Bae, FS CIGTRY oo cv scveneiveseccsondeces
U.S. Senate Report No. 92-1441, 92 Cong., 2d Sess., 10-11
SOE tales Wididid «vee cbenes nb ud Cae veeewheesebens
a Fo.
NO.
Supreme Court of the United States
OcTOBER TERM 1983
BROWN & ROOT, INC., WAUKESHA-PEARCE
INDUSTRIES, INC. AND HIGHLANDS INSURANCE
COMPANY,
Petitioners
Wa
BILLY THORNTON AND JAMES H. BROUSSARD,
Respondents
PETITION FOR WRIT OF CERTIORARI
Petitioners pray that a Writ of Certiorari issue for re-
view of the Judgment of the United States Court of
Appeals for the Fifth Circuit entered in the above entitled
cause on June 13, 1983.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Fifth Circuit is reported at 707 F.2d 149 and is
printed in Appendix A to this Petition, infra, p. A-1. The
opinions of the Benefits Review Board are reported at
12 BRBS 883 and 13 BRBS 37, respectively, and are
printed in Appendix B, infra, p. A-13 and Appendix C,
2
infra, p. A-23. The Decision and Orders of the Adminis-
trative Law Judges are printed in Appendix D, infra,
p. A-30 and Appendix E, infra, p. A-40.
JURISDICTION
The Judgment of the United States Court of Appeals
for the Fifth Circuit was entered on June 13, 1983.
Jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
FEDERAL STATUTE INVOLVED
Section 902(3) of Title 33 of the United States Code,
as it appeared at all times material to this litigation, pro-
vided in pertinent part as follows:
(3) The term “employee” means any person en-
gaged in maritime employment, including any long-
shoreman or other person engaged in longshoring
operations, and any harbor worker, including a ship
repairman, shipbuilder and shipbreaker, but such
term does not include a master or member of any
crew of any vessel, or any person engaged by the
master to load or unload or repair any small vessel
under 18 tons net.
STATEMENT OF THE CASE
The Thornton and Broussard cases involve the same
issue, to-wit: whether a land-based worker such as Billy
Thornton or James Broussard, employed in a construc-
tion yard in which fixed offshore platforms are fabricated,
are entitled to recover compensation from their respective
employers, Brown & Root and Waukesha-Pearce Indus-
tries, under the provisions of the Longshoremen’s & Har-
bor Workers’ Compensation Act, 33 U.S.C. § 901, et seq.
3
On January 8, 1977, Thornton was injured in a yard
of the Petitioner Brown & Root’s (reens Bayou fabrica-
tion facility at Houston, Texas. At the time of his injury,
Thornton was engaged in cleaning up trash, wooden rail-
road ties and steel rebar and moving this material to
another area in the fabrication facility. Thornton sus-
tained an injury to his leg when he fell from the back of
a truck while engaged in these duties.
Thornton’s usual job was to hook-up construction ma-
terials to a crane which transported them to the assembly
site. Infrequently and unpredictably, Thornton would
assist other workers assigned to his foreman in the “load-
out” of a completed platform onto barges for transporta-
tion out to sea.
Thornton filed a compensation claim under the pro-
visions of the Longshoremen’s & Harbor Workers’ Com-
pensation Act, 33 U.S.C. § 901 et seq. Petitioners, Brown
& Root, Inc. and Highlands Insurance, controverted the
claim on the basis of jurisdiction under that statute. The
matter proceeded to formal hearing before an Administra-
tive Law Judge. The Administrative Law Judge found
that Thornton lacked the requisite “status” for compensa-
tion under the statute and denied the claim for compensa-
tion. This holding was subsequently affirmed by the Bene-
fits Review Board.
On June 14, 1977, Broussard sustained an injury to
his back while working on land in the yard of Peti-
tioner Waukesha-Pearce Industries, Inc. More specifi-
cally, James Broussard had been “sheeting the heliport”
that was being constructed on land for Tenneco. In this
regard, a wooden block was preventing the proper posi-
tioning of the sheeting and, consequently, he got off of
4
the heliport in order to move the wooden block. When he
lifted the wooden block, Mr. Broussard experienced back
pain.
Broussard had been working as a fabrication fitter at
Waukesha-Pearce Industries, Inc. in Iberia Parish, Louisi-
ana for approximately 20 months at the time of his ac-
cident and his duties included the construction of build-
ings, heliports and power plants. All of the structures
that were built by Waukesha-Pearce Industries, Inc. at
the yard in Iberia Parish were ultimately placed on a fixed
platform, offshore, in connection with oil drilling opera-
tions, and permanently affixed to the bottom of the ocean.
The only time that fitters, such as James Broussard,
would proceed onto a barge would be during a “load-
out” of a completed platform onto barges for transporta-
tion out to sea. He was only involved in three load-outs
during the 20 months that he worked for Waukesha-
Pearce Industries befure his accident, and he acknowl-
edged that there was no “load-out” taking place at the
time of his accident.
James Broussard filed a claim for benefits under the
Longshoremen’s & Harbor Workers’ Compensation Act,
33 U.S.C. § 901, et seqg., which was then controverted by
Petitioners, Waukesha-Pearce Industries, Inc. and High-
lands Insurance Company. The claim was heard by an Ad-
ministrative Law Judge, who ruled that James Brous-
sard did not meet either the “status” or “situs” test
established by this Court in the decision of Northeast
Marine Terminal Company v. Caputo, 432 U.S. 249, 97
S.Ct. 2348, 53 L.Ed.2d 320 (1977). This ruling was
subsequently affirmed by the Benefits Review Board,
which held that since James Broussard did not meet
5
the “itatus” test, it was not necessary to decide the issue
of situs.
Tte United States Court of Appeals for the Fifth
Circuit consolidated the Thornton and Broussard cases
and considered the Respondents’ appeals of the rulings
by tke Benefits Review Board. On June 13, 1983, the
United States Court of Appeals for the Fifth Circuit
issued its opinion reversing the prior opinions of the
Beneits Review Board and the Administrative Law Judge
on the question of the “status” and remanded the cases
for a determination of the question cf “situs”.
REASONS FOR GRANTING THE WRIT
There are four compelling reasons why a review on
Writ of Certiorari should be granted in this case:
1. The issue presented for review concerns an ex-
tremely important question of the construction and
interpretation of a federal statute and the applica-
tion of federal law.
2. The decision of the United States Court of Ap-
peals for the Fifth Circuit conflicts with the intent
of Congress as expressed in its addition of the
“status” test in the 1972 amendments to the Act.
3. The opinion of the United States Court of Appeals
for the Fifth Circuit conflicts with the prior opin-
ions of this Court regarding whether offshore ex-
ploration for oil and gas is maritime commerce,
4. The decision of the United States Court of Appeals
for the Fifth Circuit conflicts with opinions of
other circuit courts regarding the definition of
“maritime employment” under the Act.
‘a fe
6
The construction and interpretation of the provisions
of § 902(3) of the Longshoremen’s & Harbor Workers’
Compensation Act, as amended in 1972, are vital to the
administration of justice in connection with the ever-in-
creasing multitude of claims for compensation filed under
the Act.’ The opinion of the United States Court of Ap-
peals for the Fifth Circuit in this case is in conflict with
its prior decisions and is an unprecedented expansion of
coverage to employees upon whom Congress did not in-
tend to bestow longshore benefits. This expanded cover-
age is based on a definition of “maritime employment” which
conflicts with the definition given to that term by at least
two other circuit courts, and a determination that off-
shore exploration for oil and gas is maritime commerce
which is in conflict with this Court’s prior authority.
Thus, this Court has a significant interest in determining
the construction and application of this federal statute,
and resolving the conflict which the lower appellate court
has created regarding the issue of “status” under a
(3) of the Act.
1. A report issued by the Employment Standards Administration
of the Office of Workers’ Compensation Programs, U.S. Department
of Labor, indicates that 222,654 injuries were reported under the
Longshoremen’s & Harbor Workers’ Compensation Act for the fiscal
year ending in September 1981, and this number represented an in-
crease of approximately 22% over the number of injuries reported
for the year ending in 1977. Longshoremen’s & Harbor Workers’
Compensation Act, Annual Statistical Report, December 1981. Fur-
ther, the Labor Department estimated t 253,000 injuries would
be reported for the fiscal year ended in 1982. Office of the Comp-
troller General of the United States, Longshoremen’s & Harbor Work-
ers’ Compensation Act Needs Amending, April 1, 1982. The Peti-
tioners note that these statistics indicate that the U.S. Department
of Labor is facing an ever-increasing backlog of claims which is
reaching epidemic proportions, and that a further unprecedented and
unwarranted influx, such as that which will be occasioned after the
appellate court’s opinion in this case, will further slow, if not stop,
the already osmotic administration of claims under the Act.
7
The importance of the question presented is further
established by the language of this Court in the recent
case of Director, Office of Workers’ Compensation Pro-
grams, United States Department of Labor v. Perini
North River Associates, U.S , 103 S.Ct. 634
(1983). In Perini, this Court noted that after the 1972
amendments to the Act, “it became necessary to describe
affirmatively the class of workers Congress desired to
compensate”; 103 S.Ct. at 648; and “[w]e have had
no occasion as yet to determine other possible applica-
tions of the status test to activities performed on the
expanded landward situs”. 103 S.Ct. at 648, n. 27. Thus,
this case presents the Court with an immediate oppor-
tunity to further define and describe the class of workers
to whom Congress intended to extend coverage after the
expansion of the landward situs by the 1972 amend-
ments to the Act, thereby giving the lower appellate and
administrative courts necessary guidance in an area which
has become increasingly unclear after the Fifth Cir-
cuit’s most recent efforts.
CONFLICT WITH CONGRESSIONAL INTENT
The legislative history of the 1972 amendments to the
Longshoremen’s & Harbor Workers’ Compensation Act
clearly indicates that Congress did not intend to extend
the coverage of the Act to each and every employee en-
gaged in occupations on the expanded landward situs.
The joint Committee report published by both houses of
Congress shows that Congress intended only to cover
employees engaged in longshoring and shipbuilding activi-
ties and provided that:
The Committee does not intend to cover employees
who are not engaged in loading, unloading, repairing
or building a vessel, just because they are injured in
an area adjoining navigable waters used for such
activity. Thus, employees whose responsibility is only
to pick up stored cargo for further transshipment
would not be covered, nor would purely clerical
employees whose jobs do not require them to partici-
pate in the loading or unloading of cargo. However,
checkers, for example, who are directly involved in
the loading or unloading function are covered... .
S. Rep. No. 92-1125 p. 13 (1972); H.R. Rep. No. 92-
1441 pp. 10-11 (1972), reprinted in [1972] U.S. Code
Cong. & Adm. News 4698, 4708 (emphasis added).
Thus, Congress intended to afford coverage under the
Act to those employees directly involved in commercial
maritime enterprises and those employees on the peri-
phery, such as inland truck drivers who carried the cargo
from storage warehouses at dockside, were not to be
afforded coverage under the Act.
As was stated by this Court in Director, Office of
Workers’ Compensation Programs, United States Depart-
ment of Labor v. Perini North River Associates, U.S.
____, 103 S.Ct. 634 (1983), the “comment [the joint Com-
mittee report quoted above] indicates that Congress intend-
ed the status requirement to define the scope of the extended
landward coverage”. 103 S.Ct. at 648 (parenthetical ex-
pression added). Furthermore, as was recognized by the
dissent in Perini, under the doctrine of esjusdem generis,
the expansion of coverage to “other persons” should be
limited to the reasonable logical limitations indicated by
the preceding specific examples of covered occupations
cited in the statute and similar maritime situations. 53
S. Ct. at 652-53, n. 2. Surely, the limitless and expansive
coverage afforded by the opinion of the Fifth Circuit in
aa
9
this case conflicts with this recognized rule of statutory
construction.
Further, Justice Stevens’ dissent in Perini supports the
position that the expansion of coverage under the Act pro-
posed by the Fifth Circuit in this case is unwarranted and
unprecedented considering the logical limits of coverage
indicated by the specific subcategories included in the
statute. Justice Stevens noted that not “a single word in
the Committee Hearings, the Committee Reports or the
Legislative Debates” suggested that the scope of coverage
under the Act was to be extended to workers who do not
fall within the reasonable limitations of the two stated sub-
categories—longshoremen and harborworkers. 53 S. Ct.
at 653. Thus, it is clear that the expansive reading which
the Fifth Circuit has given to the Act in this case is in-
consistent with a recognized principle of statutory con-
struction and is totally unsupported by the legislative
history and congressicnal intent in the passage of the
1972 amendments to the Act.
In fact, during the legislative process which culmin-
ated in the 1972 amendments to the Longshoremen’s &
Harbor Workers’ Compensation Act, Congress did con-
sider a proposed amendment which would have included
offshore oil workers within the scope of coverage under
the Act. This proposed amendment was S. 1547, also
known as the “Tower bill”. However, after conducting
substantial hearings on this proposed amendment, Con-
gress elected not to include the “Tower bill” within the
1972 amendments to the Act. See, Hearings Before the
Sub-Committee on Labor of the Senate Committee on
Labor and Public Welfare on S. 2318, §. 525 and S. 1547,
92nd Cong., 2d Sess. 60, 256-58, 393-411, 511-59, 574-
10
614. Thus, during the legislative process which culmin-
ated in the creation of the “status” and “situs” tests
utilized today to determine jurisdiction under the Act,
Congress considered including offshore oil workers within
the coverage of the Act but elected not to include them
after considering substantial testimony from proponents
and opponents of that proposed amendment.
Finally, the dissenting opinion of Judge Gee in the
Fifth Circuit panel decision of Boudreaux v. American
Workover, Inc., 664 F.2d 463 (5th Cir. 1981) notes that
despite numerous congressional attempts to include off-
shore oil workers within the coverage of the Longshore-
men’s & Harbor Workers’ Compensation Act, the repre-
sentatives of offshore oil field personnel, members of the
plaintiff's personal injury bar and union representatives,
have strenuously and successfully argued against coverage
in reliance on their conception that these workers are
better off seeking a remedy under the Jones Act. 664
F.2d at 471-72 n. 8. In reviewing this course of events,
Judge Gee concluded:
“Despite all of this activity from 1971 until the
present and despite its obvious awareness of the issue,
Congress has not seen fit to do what Pippen and the
majority do today—riding to the rescue of workers
who wish to be left where they are.
664 F.2d at 472 n. 8. Thus, there is no question that
Congress is aware of the occupational status of offshore oil
field workers, and those workers’ desire not to be included
within the coverage of the Longshoremen’s & Harbor
Workers’ Compensation Act. Accordingly, Congress has
seen fit not to include them within its scope. Yet, in this
case, the Fifth Circuit has extended coverage to the
11
Respondents in contravention of this clear congressional
policy and intent.
Unquestionably, the Fifth Circuit’s unprecedented ex-
tension of coverage to the Respondents in this case is in
conflict with the stated congressional intent of the Act
and violates a well-recognized principle of statutory con-
struction. As stated previously, the Respondents were pri-
marily engaged in the transport of construction materials
to the assembly site and the fabrication of component
parts for fixed offshore platforms. They had no direct
function whatsoever in the actual drilling process offshore,
which the Fifth Circuit has previously held is maritime
commerce. Their functions are on the periphery in rela-
tion to the offshore drilling process and are analogous to
the inland carrier who transports cargo from a shoreside
warehouse, a function which Congress specifically stated
was not to be covered under the Act. Finally, the breadth
of coverage afforded under the Fifth Circuit’s opinion
seemingly has no bounds and could result in the further
slowing of the wheels of a system of administrative justice
which is at best years behind.
CONFLICT WITH PRIOR OPINIONS
OF THIS COURT
The Fifth Circuit’s ruling that these landside accidents
in the offshore oil industry are covered by the Act is in
direct conflict with this Court’s holdings in Rodrigue
v. Aetna Casualty & Surety Company, 395 U.S. 352
(1969), and Chevron Oil Co. v. Huson, 404 U.S. 97
(1971), for the following reasons.
This Court in Rodrigue held that oilfield workers were
not maritime workers and that oilfield work was landside
12
work. In the Rodrigue case, this Court considered two
cases involving fatal accidents on fixed platforms off the
Coast of Louisiana. Since the platforms were permanently
affixed to the Outer Continental Shelf, this Court ruled
that such fixed platforms were not vessels but were in-
stead artificial islands which did not come within admiralty
jurisdiction. Likewise, this Court in Huson reiterated the
principle adopted in Rodrigue and found that admiralty
law was not applicable to artificial islands and fixed
structures.
The Longshoremen’s & Harbor Workers’ Compensation
Act makes reference to maritime workers (apart from
those specifically described therein, such as shiploaders,
ship-builders, etc.). There is nothing in the jurisprudence
which makes a distinction between “maritimeness” for
purposes of coverage under the Longshoremen’s & Harbor
Workers’ Compensation Act and “maritimeness” for other
purposes. A worker is either “maritime” or he is not.
This was a basis of the Fifth Circuit’s reasoning in Jn
re Dearborn Marine Service, Inc., 499 F.2d 263 (Sth Cir.
1974) cert. dismissed, 423 U.S. 886 (1975). In Dearborn,
the Fifth Circuit observed that Rodrigue made clear that
“under traditional jurisdictional principles, maritime law
is inapplicable to platform based accidents”. 499 F.2d
at 272. Dearborn involved an offshore oil platform ex-
plosion and fire off the Coast of Texas which extended
to a vessel moored to the platform. The Fifth Circuit
held that the wrongful death action against the plat-
form owner and subcontractor was not governed by ad-
miralty law but by the land law of Texas.
In Terry v. Raymond International, Inc., 658 F.2d
398 (Sth Cir. 1981), reh’g en banc denied, 667 F.2d 92
13
cert. denied, 456 U.S. 928 (1982), the Fifth Cir-
cuit reaffirmed its holding in Dearborn and held that
accidents on petroleum platforms were not under mari-
time jurisdiction. The Terry Court stated that “the cases
make clear that federal maritime law does not apply to
accidents which occur on offshore petroleum platforms”.
658 F.2d at 404. The Fifth Circuit further found that
the recent developments in admiralty law confirmed that
premise. Finally, the Fifth Circuit recognized that Terry
was engaged in duties, conversion of an offshore drilling
platform to a production platform, “having little to do
with traditional maritime activities”. 658 F.2d at 405.”
Oilfield service work is not now and never has been
“traditional maritime activity”. Oilfield service work did
not bear a “significant relationship” to maritime naviga-
tion and commerce in Rodrigue or in the jurisprudence
decided thereafter and there has been no change in the
nature of oilfield work since the Rodrigue decision. How-
ever, the Fifth Circuit stated the contrary in their de-
cision in the Thornton case. 707 F.2d at 153. The Fifth
Circuit’s decision and reasoning is directly in contraven-
tion with the principles espoused in Rodrigue, In re Dear-
born, and Terry.
The Fifth Circuit cites the cases of Pippen v. Shell
Oil Co., 661 F.2d 378 (Sth Cir. 1981), Boudreaux v.
American Workover, Inc., 680 F.2d 1034 (Sth Cir.
2. The Petitioners note that this holding of the Fifth Circuit was
related to a question of applying the comparative negligence scheme
under admiralty law as opposed to a state contribution scheme.
Of course, it would be incongruous for an employee to be considered
a “maritime employee” for purposes of recovery of compensation from
his employer and to be a “nonmaritime”’ employee for purposes of
third-party actions.
14
1982) (en banc), cert. denied, U.S , 103 S.Ct.
815 (1983), and Herb’s Welding v. Gray, 703 F.2d 176
(Sth Cir. 1983) application for rehearing pending, as
authority for its decision in Thornton; however, each of
these cases can readily be distinguished from the present
situation.
The plaintiff in Pippen was a wireline operator working
aboard a vessel when he slipped and injured himself as
opposed to the Respondents who were working on land.
The Fifth Circuit concluded that Pippen was covered
under the Longshoremen’s & Harbor Workers’ Compen-
sation Act because his “work was essential to the func-
tion of the vessel” and therefore bore a “realistically
significant relationship to maritime navigation or com-
merce”. 661 F.2d at 383. There is no doubt that the
proper functioning of a vessel upon navigable waters is
maritime in nature. In addition, the injury occurred on
the actual navigable waters, which this Court in Director,
Office of Workers’ Compensation Programs, United
States Department of Labor v. Perini North River As-
sociates, U.S , 103 S.Ct. 634 (1983), has held
sufficient to meet the status requirements under § 902(3)
of the Longshoremen’s & Harbor Workers’ Compensation
Act, because it would have been covered prior to the
1972 amendments and Congress did not intend to restrict
coverage.
Likewise, the plaintiff in Boudreaux was injured while
performing work aboard a drilling vessel located offshore
but in state territorial waters. The Fifth Circuit based
its decision in part on the fact that the 1972 amendments
to the Act did not disturb the previous test that the Act
covers all injuries on navigable waters. Thus, the facts
15
of the Pippen and Boudreaux cases are inapposite to
our situation and the reasoning in those cases should not
control the outcome of this case.*
Although Mr. Gray in the Herb’s Welding case was
working on a fixed platform when he was injured, the
Fifth Circuit’s rationale in that case should not be al-
lowed to stand because it goes far beyond the purpose
and intent of Congress in enacting the 1972 amendments
to the Longshoremen’s & Harbor Workers’ Compensation
Act. Simply because oilfield work deals with oil and gas
under navigable waters, one cannot conclude that such
work is maritime because this rationale will ultimately
result in a wholly land-based employee, doing land-based
work, being categorized as a “maritime worker”.
Finally, even assuming arguendo that the Fifth Cir-
cuit was correct in its determination that the offshore oil
industry is maritime commerce, the scope of coverage
based on that determination has its limits. Clearly, the
injured parties in Pippen, Boudreaux and Herb’s Welding
were all persons involved in the actual offshore drilling
and production process. Whereas, the Respondents were
involved in land-based construction activities similar
to those which the Fifth Circuit had previously deter-
mined were not maritime in nature.*
3. Additionally, it should be noted that Judge Gee’s dissent in
the panel opinion filed in Boudreaux indicates that there is some
question regarding the precedential support for the Fifth Circuit’s
conclusion in Pippen that the offshore oil industry is maritime com-
merce. Specifically, Judge Gee recounts that the only authority cited
which actually supports the Pippen conclusion is St. Julien v. Dia-
mond M. Drilling Co., 403 F. Supp. 1256 (E.D. La. 1975), a district
court opinion “whose ‘general extension’ rationale was . . . rejected” by
this Court in P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S.Ct. 328,
62 L.Ed.2d 225 (1979). 664 F.2d at 479.
4. See footnote 2, infra, and accompanying text.
16
The Fifth Circuit has extended the rationale of the
Herb’s Welding case to the present case under considera-
tion and ultimately concluded that Thornton and Brous-
sard, landbased construction workers participating in the
fabrication of offshore platforms which are “artificial
islands”, were engaged in maritime employment. It is
the legislative branch of the government which is re-
sponsible for enacting the laws of the United States as
they deem fit and the judicial branch should refrain from
engaging in the legislative function by extending laws
beyond their statutory language and intent. The Herb’s
Welding decision is wrong for the same reasons that
the Fifth Circuit’s decision in Thornton is wrong, i.¢.,
the Fifth Circuit ignores the principle established in
Rodrigue, which has been uniformly followed by the
United States appellate courts and district courts, that
fixed offshore platforms as artificial islands do not come
within admiralty jurisdiction and have no maritime nexus.
CONFLICT WITH OTHER CIRCUITS
To date, this Court has determined “status” questions
under § 902(3) of the Longshoremen’s & Harbor Work-
ers’ Compensation Act by referring to the explicit lan-
guage of the statute. Although this Court in Perini re-
ferred to the “significant relationship” test as developed
in Weyerhaeuser Company v. Gilmore, 528 F.2d 957
(9th Cir. 1975), cert. denied, 429 U.S. 868 (1976), a
precise test was not adopted. As stated in Perini:
We have had no occasion as yet to determine other
possible applications of the status test to activities
performed on the expanded landward situs, Although
we do not maintain that landward coverage could
never be determined by reference to anything but
17
the explicitly enumerated categories of activities in
the section 2(3) definition of “employee”, we note
that our cases to date have focused on these ex-
plicit categories because the legislative history indi-
cates that Congress intended to extend landward
coverage to those specifically included occupations.
See S. Rep., at 13; H. Rep., at 10-11. See also
Northeast Marine Terminal Co., supra, at 273, 53
L.Ed.2d 320, 97 S.Ct. 2348.
103 S.Ct. at 648 n. 27. The instant case affords this
Court the perfect opportunity to clarify and define the
test which should be utilized to determine “status” under
§ 902(3) of the Act. In making such a clarification, this
Court will establish the proper guidelines for the lower
appellate courts, some of which are in disagreement con-
cerning the appropriate test which should be utilized.
In this regard this Court in Perini recognized that the
Ninth Circuit and the Second Circuit were in agreement
as to the definition of “maritime employment”, whereas
the Fifth Circuit has taken a contrary position. 103 S. Ct.
at 639, n. 8. Although this Court’s recognition of the
split between the circuit courts was actually directed to
coverage of employees injured “over navigable waters”,
the discussion by the Court of that point indicates that
the Ninth Circuit’s definition of “maritime employment”
includes a relationship to navigation or commerce on
navigable waters, an element of the Weyerhaeuser test
which is not utilized by the Fifth Circuit. In fact, the
Fifth Circuit has recognized that the Weyerhaeuser defini-
tion is more stringent in its application than the definition
of “maritime employment” which it utilizes. Ward v.
Director, Office of Workers’ Compensation Programs,
684 F.2d 1114, 1117 (Sth Cir. 1982), cert. denied, ___
US.__., 103 S. Ct. 815 (1983).
18
In its opinion in this case, the United States Court of
Appeals for the Fifth Circuit defined “maritime employ-
ment” as an occupation which has a “realistically signi-
ficant relationship with traditional maritime activity”.
Thornton, 707 F.2d at 152. On its face, this definition
would seemingly equate with the definition adopted by
the Ninth and Second Circuits for “maritime employ-
ment”.
On close inspection, however, the conflict in the defini-
tion becomes readily apparent. Both the Ninth Circuit
and the Second Circuit have defined “maritime employ-
ment” as occupations which “must have a realistically
significant relationship “to traditional maritime activity
involving navigation and commerce on navigable waters”.
Weyerhaeuser Company v. Gilmore, 528 F.2d 957, 961
(9th Cir. 1975), cert. denied, 429 U.S. 868 (1976);
Fusco v. Perini North River Associates, 622 F.2d 1111,
1113 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981)
(emphasis added).
Thus, the definition which these circuit courts utilize
for the term “maritime employment” clearly limits its
effective scope to maritime activities performed in rela-
tion to navigation and commerce on navigable waters. In
fact, the Ninth Circuit has limited its expansion of the
Weyerhaeuser definition. to operations which are clearly
related to maritime activity, such as building dock facil-
ities and inspecting recreational vessels. Schwabenland v.
Sanger Boats, 683 F.2d 309 (9th Cir. 1982), cert denied,
U.S , 103 S. Ct. 814, (1983); Duncanson-Har-
relson Company v. Director, Office of Workers’ Compan-
sation Programs, 686 F.2d 1336 (9th Cir. 1982), appeal
pending.
19
Finally, although the other major maritime circuit
courts which have dealt with the question of “maritime
employment” have not carefully delineated a definition
for that term, it appears that those courts apparently
ascribe to the definition advanced by the Second Circuit
and Ninth Circuit. Graziano v. General Dynamics Cor-
portation, 663 F.2d 340 (list Cir. 1981); Caldwell v.
Ogden Sea Transport, Inc., 618 F.2d 1037 (4th Cir.
1980); Dravo Corporation v. Banks, 567 F.2d 593 (3d
Cir. 1977). As is indicated by their opinions, these cir-
cuit courts have limited the scope of the term “maritime
employment” to occupations which facilitate traditional
shipping and shipbuilding operations. Unfortunately, the
Fifth Circuit has not exercised such restraint.
Other examples of proper restraint in this area have
been demonstrated by the Third Circuit and the Fourth
Circuit in Lynn v. Heyl and Patterson, Inc., 483 F.Supp.
1247 (W.D. Pa.), aff'd, 636 F.2d 1209 (3d Cir. 1980)
and Conti v. Norfolk & Western Railway Company, 566
F.2d 890 (4th Cir. 1977). In Lynn, an ironworker par-
ticipating in the construction of a barge haul system at a
site located on the edge of the Ohio River was injured
onland during construction activities. Although a crane
barge was utilized in the construction operations and the
Plaintiff had often boarded it, the court found that his
construction duties did “not require him to load, repair
or build navigable vessels. [and] . . . such work [construc-
tion] has no significant relationship to traditional mari-
time employment.” 483 F.Supp. at 1255.
In Conti, three railroad brakemen who were injured in
the course of operations relating to the emptying of coal-
hopper cars onto a conveyor to be transported to a pier
20
and then to a ship, were found not to be engaged in “mari-
time en. ployment”. The Court stated that the occupations
of the plaintiffs “were not of a traditionally maritime nature,
but on the contrary were those traditionally associated
with railroading”. 566 F.2d at 895. The Lynn and Conti
cases demonstrate the proper restraint in the determina-
tion of “status” questions on the expanded landward situs.
Identical restraint should have been exercised by the Fifth
Circuit in the instant situation.
The cases cited hereinabove clearly reveal that the Fifth
Circuit’s definition of “maritime employment” in the in-
stant case represents a vast expansion and departure from
the definition of that term currently utilized by the Second,
Third, Fourth and Ninth Circuits. Moreover, this Court
in its recent decision in Perini noted that it had not yet
had an opportunity to consider the other possible applica-
tions of the “status” test on the expanding landward situs.
This case presents the Court with such an opportunity.
Thus, this Court should grant this Petition for Cer-
tiorari in order to affirmatively delineate the definition of
the term “maritime employment” which is to be used in
jurisdictional determinations of coverage under the Long-
shoremen’s & Harbor Workers’ Compensation Act, a
federal statute. Such clarification is greatly needed, so that
the courts of all circuits in the United States can attain
uniformity and consistency in their decisions as regards
coverage under the Act, a federal statute, which affects
employees throughout the country.
21
CONCLUSION
Therefore, congressional intent and prior authority of
this Court and the United States Courts of Appeals for the
Second, Third, Fourth and Ninth Circuits mandate the
conclusion that Respondents Thornton and Broussard are
not entitled to coverage under the provisions of § 902(3)
of the Longshoremen’s & Harbor Workers’ Compansation
Act. The opinion of the United States Court of Appeals
for the Fifth Circuit in this case is in conflict with this
congressional intent and the prior authority of this Court,
the Second, Third, Fourth and Ninth Circuits and its own
prior holdings. Accordingly, this Petition should be
granted and the opinion of the United States Court of
Appeals for the Fifth Circuit should be reversed and the
previous opinions of the Benefits Review Board and the
Administrative Law Judge affirmed.
22
For the foregoing reasons, Petitioners respectfully sub-
mit that the Court should grant this Petition for Writ of
Pyniyites
ROBERT M. MAHONY
Southwest National Bank ing
Suite 600
102 Versailles Avenue
Lafayette, Louisiana 70502
318/237-2660
Attorney for Petitioners,
Waukesha-Pearce Industries
Inc. and Highlands Insurance
Company
Of Counsel:
ONEBANE, DONOHOE, BERNARD, TORIAN,
Diaz, MCNAMARA & ABELL
2200 Texas Commerce Tower
Houston, Texas 77002
713/224-8380
Attorney for Petitioners,
Brown & Root and
Highlands Insurance Company
Of Counsel:
RoysTon, RAYzor, VICKERY & WILLIAMS
i>
23
CERTIFICATE OF SERVICE
I hereby certify that three copies of this Petition for
Writ of Certiorari have been served upon each of the
parties required to be served, i.e., on Respondent Thornton
by placing the same in an envelope and depositing in the
United States Mail, ‘with first-class postage pre-paid, ad-
dressed to the counsel of record as follows: Atreus M.
Clay, Esq., 5643 Turtlecreek Road, Houston, Texas
77017; on the Respondent Broussard, by placing the
same in an envelope and depositing in the United
States Mail, with first-class postage pre-paid, addressed
to the counsel of record as follows: William P. Rutledge,
Esq., Domengeaux & Wright, P. O. Box 3668, 201 West
Ninth Street, Lafayette, Louisiana 70501; on the Director
by placing the same in an envelope and depositing in the
United States Mail, with first-class postage pre-paid, ad-
dressed to the counsel of record as follows: Joshua T.
Gillelan, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Suite N-2620, 200 Constitution Avenue, Washington, D.C.
20210; and on the Solicitor General of the United States
by placing the same in an envelope and depositing in
the United States Mail, with first-class postage pre-paid,
addressed as follows: Solicitor General of the United
States, Department of Justice, Washington, D.C. 20530,
this 11th day of August, 1983.
BEN L. REYNOLD
A-l
APPENDIX A
Billy THORTON, Petitioner
v.
BROWN & ROOT, INC., Highlands Insurance Company,
and Director, Office of Workers’ Compensation Pro-
grams, United States Department of Labor,
Respondents,
and
James H. BROUSSARD, Petitioner,
Vv.
WAUKESHA-PEARCE INDUSTRIES, INC., Highlands
Insurance Company, and Director, Office of Workers’
Compensation Programs, United States Department
of Labor, Respondents.
Nos. 80-2343, 81-4032.
United States Court of Appeals, Fifth Circuit.
June 13, 1983.
Petitions were filed seeking review of orders of the
Benefits Review Board which denied petitioners’ recovery
under the Longshoremen’s and Harbor Workers’ Com-
pensation Act. The Court of Appeals, Brown, Circuit
Judge, held that worker, whose land-based job was help-
ing to construct offshore stationary platforms for produc-
tion of oil, and another worker, whose land-based job was
helping to build the living quarters and heliports indis-
pensable to successful functioning of the fixed production
A-2
platforms, were employees for purposes of the Longshore-
men’s and Harbor Workers’ Compensation Act.
Reversed and remanded in part.
Atreus M. Clay, Houston, Tex., for Thornton.
Bradley Jackson, Ben L. Reynolds, Houston, Tex., for
Brown & Root, Inc. and Highlands Ins. Co.
Joshua T. Gillelan, II, Dept. of Labor, Washington,
D.C., for U.S. Dept. of Labor.
William P. Rutledge, Lafayette, La., for Broussard.
Robert Mahoney, Lafayette, La., for Waukesha, et al.
Petitions for Review of Orders of the Benefits Review
Board.
Before BROWN, GOLDBERG and POLITZ, Circuit
Judges.
JOHN R. BROWN, Circuit Judge:
Petitioner Billy C. Thornton was employed on land by
Brown & Root, Inc., constructing offshore stationary plat-
forms for the production of oil. Petitioner James Brous-
sard worked on land for Waukesha-Pearce Industries in
the construction of housing modules and heliports for off-
shore stationary platforms.’
On occasion, ‘as-part-of his job, each man helped load
finished platforms or platform modules onto ocean-going
barges. Each petitioner was injured on the job, and ap-
1. Highlands Insurance Co. is the compensation insurance carrier
for both employers.
A-3
plied for benefits under the Longshoremen’s and Harbor
Workers’ Compensation Act, 33 U.S.C. § 901 ef seq.
(LHWCA). Neither was injured while engaged in loading
operations. In each case the ALJ denied LHWCA benefits,
holding that the injured worker neither had employee
status nor received his injury on a covered situs as defined
by the Act. The Benefits Review Board upheld each de-
cision, agreeing that neither Thornton nor Broussard was
a covered employee, but declining to reach the question of
whether either was injured on the navigable waters. We
hold, however, that both Thornton and Broussard had
employee status under § 902(3) of the LHWCA. Accord-
ingly, in each case we reverse the decision below and
remand for reconsideration of whether the petitioner was
injured on a covered situs.
Thornton's Tumble
Thornton was employed as a rigger at Brown & Root’s
Greens Bayou Fabrication Facility alongside the ship
channel in Houston, Texas. This facility was used for the
construction of stationary offshore drilling platforms.
Thornton’s usual job as a rigger was to hook construction
materials up to a crane, which would then move them into
position for assembly. At times, as part of his employ-
ment, he would help to “load-out” a completed platform
from the facility onto barges, to be taken out to sea and
fixed to the ocean floor.’
2. Because of the size of the platforms and because the barges
often had to be modified to receive them, each load-out took from
one to seven days to complete. Seven to ten load-outs occurred every
year. As found by the ALJ, a rigger spent an average of 21 work-
days per year helping to load-out a platform. Using that 21 work-
days average, one can calculate that a rigger who worked 260 days
per year (five days a week for 52 weeks) would spend approximately
8% of his working time engaged in loading-out operations.
A-4
On the day of his injury, Thornton was not engaged in
a load-out. On the contrary he was moving trash, wooden
railroad ties and rebar® from D-yard of the facility, di-
rectly adjacent to the ship channel, to C-yard, approxim-
ately one quarter mile away, in order to clear room for
platform construction in D-yard. He injured his leg when
he fell from the back of a truck in C-yard.* No load-out
was underway at the facility at the time.
The ALJ found that Thornton was not an “employee”
under 33 U.S.C. § 902(3)—the so-called “status” test
for coverage under the LHWCA—and that he was not
injured upon the “navigable waters” as defined by 33
U.S.C. § 903(a)—the “situs” test." The Benefits Review
Board reached only the question of Thornton’s employee
status under § 902(3), and affirmed the ALJ’s decision
on that issue. Thornton v. Brown & Root, Inc., BRB 79-
126 (Nov. 28, 1980). Thornton was thus denied any
relief under the LHWCA.
Broussard’s Bad Back
Broussard was one of approximately 10-11 fitters em-
ployed at Waukesha-Pearce’s construction yard adjacent
to navigable waters at the Port of Iberia, Louisiana. At
this facility, Waukesha-Pearce built housing modules,
some of which included heliports on top, for fixed off-
3. Rebar is steel reinforcing bar used in construction.
4. Both Thornton and Brown & Root agree that Thornton was
temporarily and totally disabled from January 8, 1977, the date of
the accident, to March 30, 1977. Thornton claims that he retains
a 25% permanent disability, while Brown & Root claims that Thorn-
ton’s disability is only 15%.
5. She also held that Thornton had only a 15% permanent
disability.
A-5
shore platforms. After completion, these platform modules
were loaded onto barges and taken to their permanent
locations.°
Broussard injured his back on land, while moving a
wooden block out of the path of a tire of a mobile cherry
picker, which was being used in the construction of a
heliport. No load-out was in progress at the facility at
the time.
As in Thornton, the ALJ held that Broussard was not
an “employee” under § 902(3), and that he was not
injured “upon the navigable waters of the United States,”
as required by § 903(a). Also as in Thornton, the Bene-
fits Review Board affirmed the ALJ’s ruling that Thorn-
ton was not an “employee” under § 902(3), but did not
reach the § 903(a) situs issue. Broussard v. Waukesha-
Pearce Industries, Inc., BRB 79-422 (Dec. 22, 1980).
Oil upon the Waters-——“Maritime
Employment” Under § 902(3)
In Northeast Marine Terminal Co. v. Caputo, 432 U.S.
249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977) the Supreme
Court for the first time considered the effect of the 1972
amendments to the LHWCA. The Court concluded,
among other things, that the amended Act required an
injured claimant both to have been an “employee,” as
6. As in Brown & Root’s case, the loading-out process often
involved the modification of the barges. The ALJ found that 19
load-outs took place during the twenty and one-half months that
Broussard was employed with Waukesha-Pearce, and that Broussard
took part in three of these. He also found that an average of two
fitters were required on every load-out. Broussard contends that in
fact he participated in more load-outs than shown by the evidence
produced by Waukesha-Pearce at the administrative hearing.
A-6
defined by § 902(3)' and to have been injured “upon the
navigable waters of the United States,” as defined by
§ 903(a).* See also P. C. Pfeiffer v. Ford, 444 U.S. 69,
100 S.Ct. 328, 62 L.Ed.2d 225 (1979). These two juris-
dictional requirements are commonly referred to as the
“status” (§ 902(3)) and the “situs” (§ 903(a)) tests.
If either status or situs is missing, a claimant’s injury
ordinarily is not covered by the Act. The Benefits Review
Board did not consider the situs question in either of these
cases, but instead decided against the claimants on the
basis of status. We conclude that both Thornton and
Broussard meet the status test of § 902(3).
7. §902. Definitions
When used in this chapter—
* * * © * *
(3) The term “employee” means any person engaged in mari-
time employment, including any longshoreman or other person
engaged in longshoring operations, and any harborworker includ-
ing a ship repairman, shipbuilder, and shipbreaker, but such
term does not include a master or member of a crew of any
vessel, or any person engaged by the master to load or unload
or repair any small vessel under eighteen tons net.
8. §903. Coverage
(a) Compensation shall be payable under this chapter in re-
spect of disability or death of an employee, but only if the
disability or death results from an injury occurring upon the
navigable waters of the United States (including any adjoining
pier, wharf, dry dock, terminal, building way, marine railway,
or other adjoining area customarily used by an employer in
loading, unloading, repairing, or building a vessel.) No compen-
sation shall be payable in respect of the disability or death of—
(1) A master or member of a crew of any vessel, or any
person engaged by the master to load or unload or repair any
small vessel under eighteen tons net; or
(2) An officer or employee of the United States or any agency
thereof or of any State or foreign government, or of any political
subdivision thereof.
(b) No compensation shall be payable if the injury was occa-
sioned solely by the intoxication of the employee or by the will-
ful intention of the employee to injure or kill himself or another.
A-7
[1,2] In deciding whether a worker is an employee
under § 902(3), our underlying concern is whether he
or she was “engaged in maritime employment.” Maritime
employment is not limited to the occupations specifically
listed in § 902(3). See Miller v. Central Dispatch, Inc.,
673 F.2d 773 (Sth Cir. 1982); Hullinghorst Industries,
Inc. v. Carroll, 650 F.2d 750 (5th Cir. 1981); Mississippi
Coast Marine, Inc. v. Bosarge, 637 F.2d 994 (5th Cir.
1981); Trotti & Thompson v. Crawford, 631 F.2d 1214
(Sth Cir. 1980); Odom Construction Co., Inc. v. United
States Department of Labor, 622 F.2d 110 (Sth Cir.
1980). Moreover, when considering the question of
whether a worker is engaged in maritime employment,
“we must look to the purpose of the work, not solely to
the particular skills used.” Trotti & Thompson, 631 F.2d
at 1221, n. 16. As we pointed out in Pippen v. Shell Oil
Co., 661 F.2d 378 (Sth Cir. 1981), “The relevant inquiry
in determining whether an employee was engaged in mari-
time employment is whether his activities had a ‘realistic-
ally significant relationship to traditional maritime ac-
tivity’”. 661 F.2d at 382, quoting Bosarge, 637 F.2d at
998 and Weyerhaeuser Co. v. Gilmore, 528 F.2d 957,
961 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct.
179, 50 L.Ed.2d 148 (1976).
Pippen was a wireline operator who was injured on a
drilling barge while employed to perforate and set packers
on the drilling rig. The defendants in the case claimed
that Pippen was not engaged in maritime employment as
required by § 902(3) and thus not entitled to compensa-
tion under the LHWCA. Citing Bosarge, supra, the Court
employed the “significant relationship” test and deter-
mined that Pippen was indeed engaged in maritime em-
ployment. The Pippen court concluded,
A-8
The “significant relationship” requirement can be
met when the purpose of the employee’s activities is
to facilitate maritime commerce. Since offshore drill-
ing—the discovery, recovery and sale of oil and
natural gas from the sea bottom—is maritime com-
merce, it follows that the purpose of Pippen’s work
was to facilitate maritime commerce.
661 F.2d at 383-84.
The Court went on to observe,
Indeed, the performance of a function that is essen-
tial to the effectuation of the offshore drilling process
is work that certainly has a realistically significant
connection to traditional maritime activity.
661 F.2d at 385.
In Director, Office of Workers’ Compensation Programs
v. Perini North River Associates, U.S , 103
S.Ct. 634, 74 L.Ed.2d 465 (1983) the Supreme Court
held that it is neither necessary nor correct to apply the
“substantial relationship” test to workers injured on the
actual navigable waters. “[W]hen a worker is injured on
the actual navigable waters in the course of his employ-
ment on those waters, he satisfies the status requirement
in § 2(3) [§ 902(3)]...” ___U S. at___, 103 S.Ct. at
651, 74 L.Ed.2d at 485. This Court had earlier reached
the same conclusion in Boudreaux v. American Workover,
Inc., 680 F.2d 1034 (5th Cir. 1982) (en banc). There-
fore, the “significant relationship” test need no longer be
used in a case like Pippen, in which the plaintiff was in
fact injured upon the actual navigable waters.
Neither Perini North River nor Boudreaux decided the
question of whether the substantial relationship test should
A-9
be applied to determine the status of workers injured on
land, within the LHWCA’s expanded version of the navi-
gable waters. Boudreaux stated that such a test may be
appropriate, however. “To delineate only those shoreside
employees who were legislatively intended to be included
within the coverage of the Act, the Weyerhaeuser or an
equivalent maritime-relationship test may indeed be appro-
priate.” 680 F.2d at 1049.
Since Boudreaux, the Court has in fact adopted and
applied that test. “The ‘realistically significant relation-
ship’ test remains viable for workers injured upon land,
be it natural or artificial.” Herb’s Welding v. Gray, 5th
Cir., 1983, 703 F.2d 176.
For our purposes, in this case, Boudreaux’s greatest
importance lies in its endorsement of Pippen’s holding
that offshore drilling for and production of oil and gas
is maritime commerce. Boudreaux quotes those sections of
Pippen which so hold, and approves Pippen’s result and
rationale. Herb’s Welding, moreover, expressly follows
Pippen.
[3] It is firmly established in this Circuit, then, that
“(o]ffshore drilling—the discovery, recovery, and sale of
oil and natural gas from the sea bottom—is maritime
commerce.” Pippen, 661 F.2d at 384. A worker whose
job directly facilitates that process is engaged in employ-
ment which has a substantial relationship to maritime
commerce. This is true of production from fixed offshore
platforms as well as of recovery and exploration from
mobile drilling barges.
[4] It is clear, therefore, that both Thornton and
Broussard satisfy the status requirement of § 902(3).
A-10
Thornton’s job was helping to construct the platforms
themselves, while Broussard’s was helping to build the
living quarters and heliports indispensable to the success-
ful functioning of the fixed production platforms. We
conclude, therefore, that both were engaged in maritime
employment and had employee status under § 902(3) of
the LHWCA.°
Employee status alone does not suffice to afford Thorn-
ton and Broussard LHWCA coverage, however. As we
have already pointed out, a successful LHWCA claimant
must prove not only that he was an employee, but also
that he was injured on a covered situs—the navigable
waters as defined by the Act. In each of these cases, the
ALJ concluded that the place of injury was not a covered
situs. The Benefits Review Board did not consider the
question.
We are convinced that in each of these cases there should
be a factual reexamination of the record and an initial deter-
mination by the factfinder of the situs issue. In each, the
ALJ’s determination that the situs requirement was not
met was founded upon two incorrect assumptions: that
the construction taking place at the facility was not a
“maritime enterprise” and that the platforms or modules
even when loaded onto barges, could not properly be
considered “cargo in maritime commerce.” In light of our
decisions in Boudreaux, Pippen and Herb’s Welding, those
9. In rejecting Thornton’s and Broussard’s claims to employee
status, the Benefits Review Board looked at the amount of time each
man spent in load-out operations, and concluded that neither had
employee status because neither spent a “substantial portion” of his
time in longshoring activities. The “substantial portion” test has been
emphatically rejected by this Court. Boudloche v. Howard Trucking
Co., Inc., 632 F.2d 1346 (Sth Cir. 1980); Howard v. Rebel Well
Service, 632 F.2d 1348 (Sth Cir. 1980).
A-11
propositions are no longer tenable. Consequently, we
remand each case to the Board for separate consideration
of whether Thornton and Broussard satisfy the situs re-
quirement of § 903(a). If so, the Board must decide the
proper amount of benefits to be awarded each claimant.
The Director's Role
[5] These cases also present the procedural question of
whether the Director of the Office of Workers’ Compensa-
tion Programs is entitled to appear in these proceedings
as a party respondent. The motion by Brown & Root and
Highlands to strike the Director as a party respondent
was carried with the case. The issue was recently settled
in the Director’s favor in Ingalls Shipbuilding Division,
Litton Systems, Inc. v. White, 681 F.2d 275 (Sth Cir.
1982). In White, the Court considered the applicability
of F.R.A.P. 15(a) to this very question. Rule 15(a) sets
forth a method for obtaining review of the order of an
administrative agency in the courts of appeal. It states,
in pertinent part, “The petition shall specify the parties
seeking review and shall designate the respondent and the
order or part thereof to be reviewed. . . . In each case the
agency shall be named respondent.” The Court, “reading
Rule 15(a) together with the LHWCA and the regula-
tions promulgated thereunder,” concluded “that the
Director is the agency respondent within the contempla-
tion of Rule 15(a). . . .” 681 F.2d at 284.
Brown & Root, Highlands, and Waukesha-Pearce argue
that White applies only when the Director is seeking
affirmance of the Benefits Review Board’s holding, not
when the Director is seeking reversal of that holding as
here.
A-12
In White, however, the Court discussed Shahady v.
Atlas Tile & Marble Co., 673 F.2d 479 (D.C. Cir. 1982),
and considered the argument that Rule 15(a) applies
only where the Director is appearing to defend the Com-
mission’s or Board’s decision as a legal representative of
the agency. This is the argument rade by Brown & Root
and Waukesha-Pearce. The White court expressly rejected
that interpretation of Rule 15(a).
Brown & Root and Waukesha-Pearce argue that Direc-
tor, Office of Workers’ Compensation Programs v. Donzi
Marine, Inc., 586 F.2d 377 (Sth Cir. 1978) is controlling
precedent in this case. Donzi Marine, however, dealt with
the Director’s standing as a petitioner under 33 U.S.C.
§ 921(c) (1976). It does not control the question of
when the Director is a proper party respondent under
F.R.A.P. 15(a). The Director is a proper party respond-
ent before this Court.
REVERSED AND REMANDED IN PART.
A-13
APPENDIX B
BILLY THORNTON
Claimant-Petitioner
v.
BROWN & ROOT, INC.
and
HIGHLANDS INSURANCE COMPANY
Employer/Carrier - Respondents
NO. 79-126
DECISION and ORDER
Appeal from the Decision and Order of Joyce Capps,
Administrative Law Judge, United States Department of
Labor.
Atreus M. Clay, Houston, Texas, for the claimant.
Bradley A. Jackson (Royston, Rayzor, Vickery & Wil-
liams), Houston, Texas, for the employer/carrier.
Before: SMITH, Chief Administrative Appeals Judge,
MILLER and KALARIS, Administrative Appeals Judges.
KALARIS, Administrative Appeals Judge:
This is an appeal by claimant, Billy Thornton, from a
Decision and Order (78-LHCA-477) of Administrative
Law Judge Joyce Capps pursuant to the provisions of the
Longshoremen’s and Harbor Workers’ Compensation Act,
as amended, 33 U.S.C. § 901 et seg. (hereinafter referred
to as the Act).
A-14
At the hearing below, the administrative law judge
found that claimant had incurred an injury arising out
of and in the course of his employment as a crane rigger
at employer’s Greens Bayou fabrication facility. Although
claimant was held to have sustained a 15 percent per-
manent partial loss of use of his left leg as a result of the
injury, the claim was denied on the ground that jurisdic-
tion had not been established under Sections 2(3) and
3(a) of the Act. 33 U.S.C. § 902(3) and 903(a).
The sole issue on appeal is whether the jurisdictional
determination was rendered in accordance with law.
Operations at employer’s Greens Bayou facility are
exclusively directed towards the fabrication of “jackets”
and platforms used in offshore oil drilling. The fabricated
parts of the platform are assembled directly onto “skids.”
Upon completion, the platforms are “skidded” from land
onto barges by Brown & Root riggers for transportation
to offshore locations where they are permanently affixed
to the ocean floor.
Claimant’s job as a crane rigger involved attaching the
hook of a crane onto whatever had to be moved and set
in place during construction. In addition, he occasionally
participated in load-outs. On the day of the injury, claim-
ant was assigned to the task of clearing one of the yards
of construction materials. While dumping cross-ties from
a truck, claimant fell off the vehicle and sustained a frac-
ture of the left tibial plateau.
The Supreme Court has twice expressed its conclusion
that the amended Act contains a two-pronged jurisdic-
1. “Jackets” are steel pipe structures, resting under platforms
that are immersed in offshore waters.
A-15
tional test, one which requires a demonstration of both
status and situs. Northeast Marine Terminal Co., Inc. v.
Caputo, 432 U.S. 249 (1977); P. C. Pfeiffer Co., Inc.
v. Ford, 444 U.S. 69 (1979).
Contrary to claimant’s contention, the section 20 pre-
sumption that a claim comes within the provisions of the
Act does not apply to the threshold issue of jurisdiction.
Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35,
4 BRBS 156 (2d Cir. 1976), aff'd sub nom. Northeast
Marine Terminal Co., Inc., v. Caputo, supra. Thus, to
establish jurisdiction, the claimant must demonstrate both
situs and status without the aid of the presumption.
With respect to status, Section 2(3) defines “employee”
under the Act:
The term “employee” means any person engaged in
maritime employment, including any longshoreman
or other person engaged in longshoring operations,
and any harbor worker including a ship repairman,
ship-builder, and ship-breaker. . . .
33 U.S.C. § 902(3). Thus, to demonstrate status as a
maritime employee, a claimant must be engaged in one
of the specific occupations enumerated in Section 2(3)
or fall within the general category of “person(s) engaged
in maritime employment.” We conclude that claimant
herein has not demonstrated that he falls within the cover-
age of Section 2(3).
First, we affirm the administrative law judge’s finding
that claimant is not a shipbuilder, ship repairman or ship-
breaker. Since fixed offshore platforms are not ships or
vessels, Rodrigue v. Aetna Casualty and Surety Co., 395
U.S. 352 (1969); Longmire v. Sea-Drilling Corp., 610
A-16
F.2d 1342 (Sth Cir. 1980); Thompson v. Crown Petro-
leum Corp., 418 F.2d 239 (Sth Cir. 1969), claimant’s
construction work in conjunction therewith cannot estab-
lish status.
We further hold that claimant was not a longshoreman,
nor was he engaged in longshoring operations. The ad-
ministrative law judge noted that platform load-outs at
employer’s facility occur seven to ten times a year; each
load-out took from one to five days, or an average of 21
workdays a year for a rigger. The fact that an insubstan-
tial portion of claimant’s work-time was spent on such
operations is not sufficient to bestow upon him the status
of a maritime employee as a person engaged in longshor-
ing or as a longshoreman. See Boudloche v. Howard
Trucking Co., 11 BRBS 687, BRB No. 78-383 (1979).?
Moreover, claimant fails to fall within the harbor
worker definition set forth in Stewart v. Brown & Root,
Inc., 7 BRBS 356, 365, BRB No. 76-451 (1978), aff'd
sub nom. Brown & Root, Inc. v. Stewart, 607 F.2d 1087
(4th Cir. 1979).*
Finally, claimant’s primary or overall duties of assisting
in the construction of offshore platforms lack a significant
maritime connection, thus excluding claimant from the
general category of maritime employees to whom the Act
2. Furthermore, claimant’s work at the moment of injury =
cleanup) is similar to support services of employees who have
held not to be covered. See Dravo Corp. v. Banks, 567 F.2d 593, 7
BRBS 197 (3d Cir. 1977).
3. In Stewart, the Board defined “harbor worker” as a person
“directly involved in the construction, repair, alteration or mainten-
ance of harbor facilities (which include docks, piers, wharves and
adjacent areas used in the loading, unloading, repair or construction
of ships)... .” 7 BRBS at 365.
A-17
extends coverage. Sedmak y. Perini North River Associ-
ates, 9 BRBS 378, BRB Nos. 77-897 et al. (1978), aff'd,
622 F.2d 1111, 12 BRBS 328 (2d Cir. 1980). See also
Anderson v. McBroom Rig Building Service, Inc., supra;
Toups v. Chevron Oil Co., 7 BRBS 261, BRB No. 76-453
(1977). Therefore, we conclude that claimant has not
met the status test of Section 2(3).
Insofar as we hold that claimant has not met the status
test, we need not address the situs issue, since the Act
requires a demonstration of both aspects of jurisdiction to
establish coverage. Accordingly, we affirm the Decision
and Order Below.
SO ORDERED.
MILLER, Administrative Appeals Judge, dissenting:
I respectfully dissent from the majority’s affirmance of
the denial of benefits to the claimaut in this case.
My colleagues and the administrative law judge have
failed to heed the admonition of the Supreme Court in
Caputo, supra, that the language of the 1972 Amend-
ments is broad and that an expansive view should be
taken of the extended coverage. 432 U.S. at 268. The
Court also reiterated the longstanding doctrine that “[t]he
Act ‘must be liberally construed in conformance with its
purpose, and in a way which avoids harsh and incon-
gruous results.’ Voris v. Eikel, 346 U.S. 328, 333, 74
S.Ct. 88, 92, 98 L.Ed. 5 (1953).” 432 U.S. at 268.
The record is clear that claimant spent at least a part
of his time in load-out operations. However, the adminis-
trative law judge and the majority find the fact that only a
A-18
“small” amount of time “was spent on the load-outs [which
consist of the loading of a completed offshore drilling plat-
form onto barges] is not sufficient to bestow upon him
the status of a maritime employee as a person engaged in
longshoring or as a longshoreman.” Decision and Order
at 5.
The administrative law judge went on to hold that
“(t]he platforms never entered the stream of maritime
commerce and as such were not the type of cargo included
in the provisions of the Act dealing with the activity of
loading.” Decision and Order at 5. However, the adminis-
trative law judge based this finding on her own opinion
which she apparently believed indisputable.
The administrative law judge overlooked the fact that
a longshoreman is not concerned with the destination of
the cargo, the use to which it is to be put, or the identity
of the consignor or consignee. His only concern is moving
cargo between a vessel and land, the size, shape, and
nature of the cargo being important only as to the method
employed in loading and the risks involved in handling
such cargo.
Cargo is defined as: “In mercantile law. The load or
lading of a vessel; the goods, merchandise, or whatever
is conveyed in a ship or other merchant vessel.” Black’s
Law Dictionary, 268 (rev. 4th ed. 1968) (emphasis
added). See also Webster's New International Dictionary,
406 (2d ed. unabridged 1958). The platforms that claim-
ant participated in Joading are clearly within the defini-
tion, and all those engaged in moving them between ship
and shore are engaged in longshoring operations.’
1. The nature of cargo does not affect the maritime nature of its
loading since maritime contracts include
A-19
In Ford, supra, the Supreme Court reiterated its prior
holdings in Caputo, supra that “[p]ersons moving cargo
directly from ship to land transportation are engaged in
maritime employment,” 444 U.S. at, 100 S.Ct. at 337,
and that Congress had counted as longshoremen “persons
who spent ‘at least some of their time in indisputably
longshoring operations.’” 44 U.S. at, 100 S.Ct. at 333.
In Ford the Court concluded that:
[A] definition of maritime employment that reaches
any worker who moves cargo between ship and land
transportation will enable both workers and em-
ployers to predict with reasonable assurance who on
the situs is protected by the 1972 Act.
444 US. at , 100 S.Ct. at 338 (emphasis added).
In spite of the clear mandates in the Act, Caputo, and
Ford requiring only that a part or some of an employee’s
duties need be maritime, my colleagues continue to apply
the test which they have promulgated restricting maritime
employment by requiring that “a substantial portion of an
employee’s duties should be maritime in order for him to
meet the status test.” Boudloche, supra, 11 BRBS at 691
(emphasis added). I have consistently maintained that
my colleagues’ test contravenes the Act, Caputo, and
Ford. See my dissents in Boudloche, supra; Howard vy.
Rebel Weill Service, 11 BRBS 568, BRB No. 78-502
all contracts, (wheresoever they may be made or executed or
whatsoever may be the form of the stipulations) which related
to the navigation, business or commerce of the sea.
De Lovio v. Boit, 7 Fed. Cas. 418, 444, No. 3,776 (C.C.D. Mass.
1815) (Story, J.). In the instant case, it would be ludricrous to con-
clude that the loading of an offshore oil rig is somehow rendered
non-maritime because the cargo itself is intended for a maritime
purpose.
A-20
(1979); Gilliam v. Wiley N. Jackson Co., 12 BRBS 556,
BRB Nos, 79-388/A (1980); and Miller v. Central Dis-
patch, Inc., BRBS___, BRB Nos. 78-467/A and 79-655/A
(Sept. 26, 1980).
That my colleagues’ “substantial portion of an em-
ployee’s duties” test is inapplicable to the Act was recently
underscored by a Fifth Circuit decision which found
coverage for a land-based employee. Odom Construction
Co., Inc. v. U.S. Department of Labor, 622 F.2d 110
(Sth Cir. 1980).
In Odom the court stated:
The appellants urge that even if Maze was doing
maritime work at the time of his injury, he is not
a covered employee because he spent the great ma-
jority of his time doing indisputably land-based jobs.
They assert that the 1972 amendments extended
coverage only to workers who do primarily maritime
employment. Arguably, our decision that Maze is a
covered employee could be based solely upon the
foregoing conclusion that he was engaged in mari-
time work at the time of his injury. We need not
rest on this narrow ground, however, but can look
at all the circumstances of Maze’s employment.
Where, as here, the claimant was doing maritime
work that required him to go into the water and
where a significant part of the employer's overall
work, 20%, was maritime, the policy of the Act
strongly favors coverage.
* * *
Denying recovery to Maze here would allow em-
ployers like Odom, who do substantial amounts of
both maritime and nonmaritime work, to avoid
liability under the Act to workers injured while en-
gaged in maritime activity simply by allowing each
A-21
employee to do only a limited amount of maritime
work, Under the Supreme Court's analysis in Caputo
and Pfeiffer, such a result would be contrary to con-
gressional intent.
622 F.2d at 113 (citations omitted) (emphasis added).
My colleagues have promulgated a test with misplaced
emphasis on the amount of time that the employee spends
in maritime employment. In Odom, the claimant Maze
was not normally assigned to perform any maritime work,
but rather was engaged in a temporary two day maritime
assignment. 622 F.2d at 112. The Fifth Circuit noted
that, if claimant Maze had been a member of the em-
ployer’s work-crew which normally was assigned to per-
form employer's maritime work, “there would be no doubt
about his status as a covered employee.” 622 F.2d at
113 (emphasis added).
In the case at bar claimant was a member of the work-
crew which performed the maritime aspects of em-
ployer’s operations, i.e., load-outs. Thus, the claimant
satisfies the status test regardless of how much of the
claimant’s duties were maritime and whether the claimant
was engaged in maritime employment at the time of in-
jury. Odom, supra;* Caputo, supra, at 273-74.
2. The conflict between my colleagues’ “substantial portion of an
employee’s duties” test and Odom is highlighted by the fact that the
court in Odom was only concerned that “where a significant part of
employer's overall work, 20%, was maritime, the policy of the Act
strongly favors coverage.” 622 F.2d at 113 (emphasis added), I note
that in the instant case the administrative law judge found that a
rigger like the claimant would participate in employer’s load-outs
about “seven to ten times a year and each load-out took from one
to five days, or an average of 21 work days a year for a rigger (234
days time 8% occurrences).” Decision and Order at 4-5. Of course,
the correct average would be 25% work days per year (3 days times
8% occurrences), In any event, it can not be questioned that a
A-22
Furthermore, a denial of coverage here would open a
significant loophole in the Act. For if a stevedore had
contracted to perform the load-outs, its employees would
be covered as longshoremen. See Odom, supra, at 114-
15. The fact that the employer performed the work with
its own employees does not alter the nature of the em-
ployment from maritime to non-maritime.
Since the claimant satisfies the status test and the ad-
ministrative law judge based her finding that the situs test
was not satisfied on the mistaken impression that the year
where claimant was injured was not an “adjoining area
customarily used by an employer in loading . . . a vessel,”
Decision and Order at 7, I would reverse that finding,
Odom, supra, at 114-15, and remand this case for entry
of an award holding that claimant has satisfied both the
status and situs requirements of the Act.
See on 8 De enya’) ome we, an eae
resolving all factual doubts in the claimant's favor as required under
the Act by Wheatley v. Adler, 407 F.2d 307 (D.C. Cir, 1968), the
load-out operations can be assumed to have involved 50 work days
per (5S days times 10 occurrences), This would ap-
y 20 of a 260 work day year percent-
age which the Fifth Circuit found “significant” in ’
A-23
APPENDIX C
JAMES H. BROUSSARD
Claimant-Petitioner
v.
WAUKESHA PEARLE INDUSTRIES
and
HIGHLANDS INSURANCE COMPANY
Employer/Carrier-Respondents
NO. 79-422
DECISION and ORDER
Appeal from the Decision and Order of David W.
DiNardi, Administrative Law Judge, United States De-
partment of Labor.
William P, Rutledge (Domengeaux & Wright), La-
fayette, Louisiana, for the claimant.
Robert M. Mahony (Onebane, Donohoe, Bernard,
Torian, Diaz, McNamara & Abell), Lafayette, Louisiana,
for the employer/carrier.
Before: SMITH, Chief Administrative Appeals Judge,
MILLER and KALARIS, Administrative Appeals Judges.
KALARIS, Administrative Appeals Judge:
This is an appeal by claimant, James H. Broussard,
from a Decision and Order (79-LHCA-413N) of Ad-
ministrative Law Judge David W. DiNardi pursuant to
the provisions of the Longshoremen’s and Harbor Work-
A-24
ers’ Compensation Act, as amended, 33 U.S.C. § 901
et seq. (hereinafter referred to as the Act).
A consolidated hearing was held on February 16, 1979,
in New Orleans, Louisiana, following which a decision
was rendered in favor of the employer and carrier, and
from which another claimant, Murphy J. Landry, took
no appeal. With regard to claimant Broussard, the ad-
ministrative law judge held that claimant was not injured
on a covered situs, nor did he fulfill the status require-
ment under the Act.
The sole issue on appeal is whether the claim for bene-
fits comes within the jurisdiction of the Act.
On June 14, 1977, claimant sustained an injury arising
out of and in the course of his employment as a fabrica-
tion fitter at employer’s fabrication facility. The facility
is used by employer exclusively for the fabrication of
buildings for use by oil companies in offshore drilling
operations.
The buildings are assembled into a large structure
known as a platform. The parts of the platform are as-
sembled on land; upon completion, they are hoisted onto
barges by a subcontractor for transportation to offshore
locations where they are permanently affixed to the ocean
floor. The loading of a completed offshore drilling plat-
form onto a barge is described as a “load-out,” an opera-
tion that occurs approximately 10 to 12 times a year.
Claimant has occasionally participated in loading-out op-
erations, although the exact number of times that he has
done so was disputed by both parties.’
1. Claimant alleged participation in 10 load-outs during 1976;
the administrative law judge credited records which employer main-
A-25
Claimant’s duties included the construction of various
parts for steel structures built by employer that serve as
living quarters, heliports, and power plants. On June 14,
1977, claimant sustained a back injury while sheeting a
heliport being constructed on land. The injury occurred
as claimant stepped down from the heliport to pick up
and remove a wooden block in the way of a cherry
picker.
It is undisputed that no ships, vessels or barges are
built, repaired, or broken at the fabrication facility, and
no ocean-going vessels put in at the facility for the pur-
pose of loading or unloading cargo in maritime commerce.
As the administrative law judge correctly noted, the
Section 20(a) presumption that a claim comes within
the provisions of the Act is inapplicable to the threshold
issue of jurisdiction. Pittston Stevedoring Corp. v. Della-
ventura, 544 F.2d 35, 4 BRBS 156 (2d Cir. 1976),
aff'd sub nom. Northeast Marine Terminal Co., Inc. v.
Caputo, 432 U.S. 249 (1977).
Regarding jurisdiction, the Supreme Court has twice
expressed its conclusion that the amended Act contains
a two-pronged jurisdictional test, one which requires a
demonstration of both status and situs. Northeast Marine
Terminal Co., Inc. v. Caputo, 432 U.S. 249 (1977);
P. C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69 (1979).
With regard to the status requirement, we hold that
claimant was not a longshoreman, nor was he engaged
tained in the ordinary course of business that revealed claimant’s
involvement in three load-outs during the 2014 months of nis employ-
ment with employer. A witness for employer testified that 17 load-
outs were conducted by employer during the same time span. Decision
and Order at 7, 9.
A-26
in longshoring operations. Although claimant on occasion
helped to secure platforms on barges, the amount of time
he spent on load-out operations, even if load-out opera-
tions can be considered a longshoring activity,’ is insuf-
ficient to bestow upon claimant the status of an employee
engaged in longshoring operations, or a longshoreman."
See Boudloche v. Howard Trucking Co., Inc., 11 BRBS
687, BRB No. 78-383 (1979).
Furthermore, claimant was not a harbor worker. The
term “harbor worker” includes the occupations of ship-
builder, ship breaker, and ship repairman,* but is not
limited thereto. In Stewart v. Brown & Root, Inc., 7 BRBS
356, BRB No. 76-451 (1978), aff'd on other grounds
sub nom. Brown & Root, Inc. v. Stewart, 607 F.2d 1087
(4th Cir. 1979), the term was defined to include “at
least those persons directly involved in construction, re-
pair, alteration or maintenance of harbor facilities (which
include docks, piers, wharves and adjacent areas used
in loading, unloadin:, repair or construction of ships).”
Claimant was invo]ved in the construction of platforms
for use in offshore oi! operations. Accordingly, his em-
ployment was not related to the “construction, repair,
alteration or maintenance of harbor facilities.”
2. We decline to rule whether “load-outs” constitute longshoring
activity.
3. The parties disagree as to the frequency of claimant’s participa-
tion in load-outs (see discussion, supra, note 1). However, in accord-
ance with our standard of review, we rule that the administrative law
judge’s finding that claimant was involved in three load-outs during
his employment is supported by substantial evidence in the record
considered as a whole and is therefore affirmed.
4. Clearly, claimant was not a shipbuilder, ship breaker or ship
repairman.
A-27
Moreover, claimant was not engaged in maritime em-
ployment, since his activity lacked any realistically sig-
nificant relationship to activities involving navigation and
commerce over navigable waters. Sedmak vy. Perini North
River Associates, 9 BRBS 378, BRB Nos. 77-896 et al.
(1978), aff'd sub nom. Fusco v. Perini North River As-
sociates, 622 F.2d 1111, 12 BRBS 328 (2d Cir. 1980).
Viewing claimant’s overall activities, which has been the
standard consistently applied by the Board, we conclude
that he was a construction worker whose task of securing
the paltforms to barges was a function incidental to his
job of constructing the platforms. See Howard v. Rebel
Well Service, 11 BRBS 568, BRB No. 78-502 (1979);
Cappelluti v. Sea-Land Service, Inc., 10 BRBS 1024,
BRB Nos. 78-580 & 78-580A (1979); Boudloche v.
Howard Trucking Company, Inc., supra. Claimant’s pri-
mary or overall duties of assisting in the construction of
offshore oil platforms lack the requisite maritime nexus.
See Anderson v. McBroom Rig Building Service, Inc.,
5 BRBS 713, 718-719, BRB No. 75-198 (1977); Toups
v. Chevron Oil Co., 7 BRBS 261, BRB No. 76-453
(1977).
Finally, claimant’s work as a “fabrication fitter” has
an even more tenuous connection to maritime employment
than that of oil platform workers who perform their duties
over navigable waters and who are not covered by the
Act. See Anderson, supra; Toups, supra. In light of the
Supreme Court’s recent emphasis upon an occupational
test of maritime employment, the status test has not been
met in the instant case. P. C. Pfeiffer Co., Inc. v. Ford,
supra.
Insofar as we hold that claimant has not met the status
test of jurisdiction, we decline to address the situs issue.
A-28
Accordingly, we affirm the denial of coverage below.
SO ORDERED.
MILLER, Administrative Appeals Judge, dissenting:
For all of the reasons expressed in my dissent in Thorn-
ton v. Brown & Root, Inc., BRBS_ , BRB No. 79-126
(Nov. 28, 1980) I must dissent from the majority deci-
sion denying benefits to the claimant.
The load-out operations do constitute longshoring op-
erations; claimant spent at least some of his time in in-
disputably longshoring operations; and a significant part
of the employer’s overall work was maritime. Under these
circumstances, “the policy of the Act strongly favors
coverage,” and if claimant is not found covered, “[u]nder
Caputo and Pfeiffer, such a result would be contrary to
Congressional intent.” Odom Construction Co., Inc. v.
U.S. Dept. of Labor, 622 F.2d 110, 113 (Sth Cir. 1980).
Therefore, claimant does satisfy the status test of the Act.
The administrative law judge based his finding that the
situs test was not satisfied on the incorrect conclusion
that the facility where claimant was injured was not an
“adjoining area customarily used by an employer in load-
ing . . . a vessel.” Decision and Order at 10. However,
the administrative law judge found that the facility was
“used an average of twenty days a year for load-outs.
.. .”" Decision and Order at 10.
1. The maritime work performed on the situs was apparently
slightly more than that performed on the situs in Thornton, supra.
The administrative law judge found that about ten to twelve load-
out operations lasting from one to five days each were conducted
A-29
The facility is thus customarily used in maritime em-
ployment and claimant also satisfies the situs requirement
of the Act.’
Accordingly, I would remand this case for entry of an
award holding that claimant has satisfied both the status
and situs requirements of the Act.
Dated this 22nd day
of December 1980
each year. Decision and Order at 9. In Thornton the administrative
law judge found that seven to ten operations of similar duration
were conducted each year. Thornton, supra, slip op. at 4.
2. The fact that employer contracted another company to per-
form the actual of platforms from land to barges does not
affect the result that t was injured on a covered situs. See
Odom, supra, 622 F.2d at 114-15,
A-30
APPENDIX D
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
Suite 700-1111 20th Street, N.W.
Washington, D.C. 20036
Case No. 78-LHCA-477
OWCP No. 8-37576
In the Matter of BILLY THORNTON
Claimant
V.
BROWN & ROOT, INC.
Employer
and
HIGHLANDS INSURANCE COMPANY
Carrier
Atreus M. Clay, Esquire
5643 Turtle Creek
Houston, Texas 77017
For the Claimant
Ben L. Reynolds, Esquire
Bradley A. Jackson, Esquire
Royston, Rayzor, Vickery & Williams
Suite 3710
One Shell Plaza
Houston, Texas 77002
For the Employer and Carrier
Before: JOYCE CAPPS
Adminitrative Law Judge
A-31
DECISION AND ORDER
This proceeding involves a claim for compensation
arising under the Longshoremen’s and Harbor Workers’
Compensation Act, as amended, 33 U.S.C. § 901 ef seq.
(hereinafter referred to as the Act).
It is conceded that as a result of an accidential injury
arising out of and in the course of his employment on
January 8, 1977, Claimant was temporarily and totally
disabled from January 9 through March 30, 1977.
The issues presented for determination are (1) whether
Claimant’s employment falls within the status and situs
requirements of Secs. 2(3) and 3(a) of the Act, and
(2) whether Claimant has sustained a 25% permanent
partial disability to his left leg as he claims or 15% as
Respondents contend.
Findings of Fact
On January 8, 1977, Claimant sustained an injury
arising out of and in the course of his employment as a
rigger for Brown & Root, Inc. at its Greens Bayou Fabri-
cation Facility. That facility is used by Brown & Root
exclusively for the fabrication of jackets and platforms
(which are placed atop of jackets) for use in offshore
drilling operations by oil companies for whom they are
constructed. The jackets and platforms are assembled
together into a gigantic structure which shall hereinafter
be referred to simply as a platform. It takes three-to-four
months to assemble and build one of these structures and
Brown & Root builds seven to ten of them in a year’s time.
The fabricated parts of a platform are assembled directly
onto skids. Upon completion they are “skidded” from
land onto barges by Brown & Root riggers for transporta-
A-32
tion to offshore locations where they are permanently
fixed in the ocean floor. The loading of a completed off-
shore drilling platform onto a barge is described as a
“load-out.” A load-out occurs seven to ten times a year
and takes anywhere from one day to a week.
Claimant’s job as a crane rigger involved attaching the
hook of the crane onto pipe or whatever had to be moved
and set in place during the process of building the plat-
forms. He also participated in load-out operations which
sometimes involved his having to reposition skids on the
barges so they could accommodate the particular plat-
form being skidded onto the barge.
It is undisputed that no ships, vessels, or barges are
built, repaired, or broken at the Greens Bayou Fabrica-
tion Facility, and no ocean-going vessels put in at the
facility for the purpose of loading or unloading cargo in
maritime commerce.
The platforms were built in an area of the Greens
Bayou Fabrication Facility known as “D” Yard. On date
of injury Claimant was one of six men assigned the task
of clearing “D” Yard of rebar (reinforced steel used in
concrete), timbers, and crossties. A winch truck was used
to haul said materials from “D” Yard about one-fourth
mile to “C” Yard. While dumping some crossties off the
back of the truck, Claimant fell off the truck and sus-
tained a fracture of the left tibial plateau.
After wearing a long leg cast for seven weeks Claimant
was started on soaks and range of motion exercises. Since
returning to his regular employment as a rigger on April
1, 1977, he has lost no time from work because of his
knee, although he has some intermittent pain when walk-
A-33
ing and there is occasional swelling. An arthogram of the
left knee taken on May 18, 1977, revealed a small Baker’s
cyst. Based on the opinion expressed by Claimant's treat-
ing physician, Dr. Miguel L. Jocson (orthopedic surgeon)
and on Claimant’s testimony, I find that Claimant has a
15% permanent impairment of the left knee as of March
31, 1977.
It is established by stipulation of the parties that Claim-
ant’s average weekly wage at time of injury was $297.83
and that he has received from the Carrier a total of
$2,024.00 under the Texas Workers’ Compensation Act
—$880.00 for temporary total disability for 11-3/7 weeks
at $77.00 per week and an advance of $1,144.00 in con-
templation of a permanent partial disability.
Conclusions of Law
It is concluded that the injury to Claimant’s left knee
has left him with a 15% permanent partial loss of use of
his left leg. However, before he may prevail in his claim
for compensation for said injury the status and situs re-
quirements of Secs. 2(3) and 3(a) must be met.
The term “employee” is defined in Sec. 2(3) to mean
“any person engaged in maritime employment, including
any longshoreman or other person engaged in longshoring
operations, and any harbor worker including a ship repair-
man, shipbuilder, and ship-breaker.
Sec. 3(a) provides that compensation is payable under
the Act for disability resulting “from an injury occurring
upon the navigable waters of the United States” which
includes “any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area cus-
A-34
tomarily used by an employer in loading, unloading, re-
pairing, or building a vessel.”
The only business conducted by Brown & Root at its
Greens Bayou Fabrication Facility is the fabrication, as-
sembly, and construction of platforms for use in offshore
drilling operations by oil companies for whom they are
constructed and by whom they are permanetly imbedded
in the ocean floor. At the time he was injured Claimant
was cleaning up an area to make room for further fabrica-
tion activities, i.e., the raising of the fourth bent (side) of
a jacket. Thus, he was engaged in the furtherance of his
employer’s business of fabricating fixed offshore drilling
platforms. Such structures have been held not to be ships
or vessels. Rodrigue v. Aetna Casualty & Surety Co., 395
U.S. 352, 89 S.Ct. 1835 (1969); Thompson v. Crown
Petroleum Corp., 418 F.2d 239 (Sth Cir. 1969). Sec.
2(3) of the Act speaks of occupations and it would ap-
pear that Claimant’s occupation is more accurately that
of a fixed platform builder since by no stretch of the
imagination or of theory can he be deemed to be a ship-
builder as he contends. It is equally clear that he cannot
be deemed to be a ship repairman, or a ship-breaker.
The Board has consistently held that an “adjoining
area” as defined in Sec. 3(a) of the Act “is bounded only
by the limits of its use as a maritime enterprise.” Murphy
v. General Dynamics Corp., 7 BRBS 960, 965 (1978)
and cases cited therein. In view of the fact that the entire
facility at which Claimant worked was used exclusively
for fabrication, assembly, and construction of offshore
drilling platforms I am satisfied that his injury did not
occur upon navigable waters or any adjoining pier, wharf,
dry dock, terminal, building way, or marine railway.
A-35
In view of the foregoing, consideration will hereinafter
be focused on whether Claimant was a longshoreman, a
person engaged in longshoring operations, or a harbor
worker and whether his injury occurred in an adjoining
area customarily used by his employer in loading a vessel.
Claimant’s primary duty as a rigger was participation
in the construction of platforms to be used in offshore
drilling operations and to occasionally help in the “skid-
ding” of said platforms onto barges. The load-out of a
platform occurred seven to ten times a year and each load-
out took from one to five days, or an average of 21 work
days a year for a rigger (24 days times 8% occur-
rences),
At the time Claimant was injured there was not a load-
out in progress at the Greens Bayou Fabrication Facility.
Therefore, he was not involved actually or directly in a
loading or longshoring activity. He was at the time of
injury performing his primary duty which was an essential
role in the construction of fixed drilling platforms. The
fact that a relatively small amount of his work time was
spent in load-out operations is not sufficient to bestow
upon him the status of an employee engaged in maritime
employment as a person engaged in longshoring opera-
tions or as a longshoreman. The job of a longshoreman
since the memory of man runneth not to the contrary is
to load and unload cargo that has been or is destined to
become a part of maritime commerce, Claimant never
handled commercial goods and commodities which had
been or was destined to be transported in vessels used in
trade or commerce. The only item he ever loaded was a
platform onto a barge for transportation to an offshore
location where it was permanently affixed to the ocean
A-36
floor. The platforms never entered the stream of maritime
commerce and as such were not the type of cargo included
in the provisions of the Act dealing with the activity of
loading.
Since Claimant never loaded cargo in maritime com-
merce, his occasional load-out activities cannot give him
the status of a longshoreman or person engaged in long-
shoring operations even under the “continuous coverage”
rationale of Northeast Marine Terminal Co., Inc. v.
Caputo, 432 U.S. 249, 97 S.Ct. 2348 (1977), which was
followed by the Board in Brady-Hamilton v. Herron, 7
BRBS 409, aff'd 568 F.2d 137 (9th Cir. 1978), where
the claimant was engaged in longshoring activity during
at least a portion of his working day.
It has been stated that in order to be covered under the
Act an injured worker must have “a realistically signifi-
cant relationship to traditional maritime activity involving
navigation and commerce on navigable waters * * *,”
Weyerhauser Company v. Gilmore, 528 F.2d 957, 961
(9th Cir, 1975), cert. denied, 429 U.S. 868 (1976). In
Anderson v. McBroom Rig Building Service, Inc., 5
BRBS 713 (1977) the Board held that a roustabout who
was injured on a fixed oil well platform on navigable
waters 60 feet offshore was not an employee under the
Act because his duties lacked any significant maritime
connection. The Board applied the general rule that
“unless the activity bears a significant relationship to the
1, The Supreme Court held that one whose geo is such
that he spends at least some of his time in indisputably longshor
operations is a statutory employee and that the text and history
the 1972 amendments “demonstrate a desire to provide continuous
coverage throughout their “yp omapheres to these amphibious workers
pap who, without the amendments, would be covered only
or part of their activity.” /bid, 97 S.Ct, at 2362,
A-37
traditional interests of admiralty in maritime commerce,
actions arising from such activities will not be considered
maritime for the purpose of applying maritime law.” (at
p. 718). The Board held the same way for the same
reasons in the case of Toups v. Chevron Oil Co., 7 BRBS
261 (1977), involving a pumper-gauger who was working
on an oil and gas production platform on navigable waters
about three miles from shore. The Board emphasized in
both cases that the only maritime connection with the
workers’ employment was the fact that the platforms on
which they were injured were situated in navigable waters
—and that fact alone was not sufficient to bring their
injuries within the coverage of the Act. It is apparent that
Claimant's primary duty of helping to construct a plat-
form to be used in offshore drilling operations and his
occasional duty of loading such platform onto a barge
lacks the significant relationship to the traditional interests
of admiralty in maritime commerce expressed in Ander-
son and Toups,
Claimant cannot be classified as a harbor worker since
the primary duties of a harbor worker “pertain to the
operation and care of vessels in trade or commerce within
a port or harbor area.” Anderson v. McBroom Rig Build-
ing Service, supra at p. 721. Nor does Claimant fall within
the definition of harbor worker announced by the Board
in Stewart v. Brown & Root, Inc., 7 BRBS 356 (1978)
as “those persons directly involved in the construction,
repair, alteration or maintenance of harbor facilities
(which include docks, piers, wharves and adjacent areas
used in the loading, unloading, repair or construction of
ships) * * *.” The mere fact that in the vicinity of the
area Claimant was cleaning at the time of his injury there
was a dock used by Brown & Root for load-outs does not
~~.
A-38
make him a dock builder or a person who maintains
harbor facilities which include docks. That contention by
Claimant is rejected because he was not performing either
of those functions—he was purely and simply cleaning
up the area to make room for the crane so it could lift
up a jacket bent. This was just one more step in the over-
all process of constructing a platform.
Turning now to the situs issue, the Board has consistent-
ly held that an “adjoining area” as defined in the Act
“is bounded only by the limits of its use as a maritime
enterprise.” Murphy v. General Dynamics Corporation,
7 BRBS 960, 965 (1978). The entire facility where
Claimant was injured was used exclusively for fabrication,
assembly, and construction of offshore drilling platforms
and is used an average of 21 days a year for load-outs of
completed platforms. The load-out of a platform is inci-
dental to its construction in that platforms are built right
onto the skids so that they can be skidded directly onto
a barge.
Prior to the 1972 amendments the Act provided com-
pensation only for those injuries occurring upon navigable
waters. In amending Sec. 3(a) of the Act Congress was
accepting the invitation of the Supreme Court in Nacirema
Operating Co., Inc. v. Johnson, 396 U.S. 212, 90 S.Ct.
347 (1969) to extend the jurisdictional boundary line
shoreward to insure “uniform treatment of longshoremen
injured while loading or unloading a ship.” Ibid at 223-
224 (emphasis furnished). As has already been discussed,
the platforms are not cargo in maritime commerce. There-
fore, the load-out process involved in this case is not the
type of activity contemplated by the phrase “adjoining
area customarily used by an employer in en os.
a vessel.”
“a
A-39
Arguendo if the Greens Bayou Fabrication Facility
were considered to be an area covered by the Act, Claim-
ant still could not recover because it is clear from the
legislative history of the Act that the Act was not in-
tended “to cover employees who are not engaged in
loading, unloading, repairing, or building a vessel, just
because they are injured in an area adjoining navigable
waters used for such activity.” Committee on Labor and
Public Welfare, S. Rep. 92-1125 at 13, 92 Cong., 2d
Sess. (1972). At the time of his injury Claimant was
not engaged in any of the foregoing activities—he was
performing duties which were essential to and in further-
ance of his employer’s business of platform construction.
All of the other theories of jurisdictional coverage ad-
vanced by Ciaimant in oral argument and post-hearing
brief which are not specifically addressed herein have been
carefully considered and rejected.
For all of the foregoing reasons it is concluded that
the jurisdictional requirements of status and situs have
not been met and that the claim filed herein must be
denied.
Order
The claim for compensation filed by Billy Thornton is
hereby denied.
/s/ JOYCE CAPPS
Joyce Capps
Administrative Law Judge
Dated: December 28, 1978
Washington, D. C.
A-40
APPENDIX E
U. S. DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
Office of Workers’ Compensation Programs
Division of Longshore and Harbor Workers’ Compensation
May 21, 1979
File No.: 7-50296
Re: James H. Broussard &
Murphy J. Landry
Case No.: 79-LHCA-413N &
79-LHCA-414N
See Attachment For
Addresses
Gentlemen:
The enclosed Decision and Order of the Administrative
Law Judge is hereby served upon the parties to whom this
letter is addressed. The decision was based on all of the
evidence of record, including testimony taken at a formal
hearing, and on the assumption that all available evidence
has been submitted.
The transcript, pleadings, and compensation order have
been dated and filed in the Deputy Commissioner’s Office.
Procedures for appealing are described on the back of
this letter.
The employer/insurance carrier is hereby advised that if
the order awards compensation benefits the filing of an
appeal does not relieve that party of the obligation of
paying compensation as directed in this order. The em-
ployer/insurance carrier is also advised that an additional
A-41
20 percent is added to the amount of compensation due
if not paid within 10 days, notwithstanding the filing of
an appeal, unless an order staying payments has been
issued by the Benefits Review Board, U.S. Department
of Labor, Suite 757, 1111 - 20th Street, N.W., Washing-
ton, D.C. 20036.
Sincerely,
/s/ MARILYN C. FELKNER
(Mrs.) Marilyn C. Felkner
Deputy Commissioner
Form Ltr. LS-20
Rev. Dec. 1978
Enclosure
Mr. James H. Broussard, Claimant
Mr. Murphy J. Landry, Claimant
Mr. William P. Rutledge, Esq., for James H. Broussard
Mr. James J. Cox, Esq., for Murphy J. Landry
Waukesha Pearce Industries, Employer
Highlands Insurance Company, Carrier
Mr. Robert M. Mahony, Esq., for Employer/Carrier
Kenneth Livaudais Claim Service, Insurance Adjuster
Honorable David W. Di Nardi
Associate Solicitor of Labor
Associate Director, LHWCA
A-42
Longshoremen’s and Harbor Workers’ Compensation Act,
as extended
A petition for reconsideration of a decision and order
must be filed with the Office of Administrative Law
Judges, U.S. Department of Labor, Washington, D.C.
20210, within 10 days from the date the Deputy Com-
missioner files the decision and order in his/her Office.
Any notice of appeal shall be sent by mail or otherwise
presented to the Clerk of the Benefits Review Board in
Washington, D.C., within 30 days from the date upon
which a decision and order has been filed in the Office
of the Deputy Commissioner, or within 30 days from the
date final action is taken on a timely filed petition for
reconsideration. If a timely notice of appeal is filed by a
party, any other party may initiate a cross-appeal or
protective appeal by filing a notice of appeal within 14
days of the date on which the first notice of appeal was
filed or within the 30-day period described above, which-
ever period last expires. A copy shall be served upon the
Deputy Commissioner and on all other parties by the
party who files a notice of appeal. Proof of service shall
be included with the notice of appeal.
The date compensation is due is the date the Deputy
Commissioner files the decision and order in his/her
Office.
Form. Ltr. LS-20
Rev. Dec. 1978
A-43
CERTIFICATE OF FILING AND SERVICE
I certify that on May 21, 1979 the foregoing Compen-
sation Order was filed in the Office of the Deputy Com-
missioner, Seventh District Office and a copy thereof was
mailed on said date by certified mail to the parties and
their representatives at the last known address of each
as follows:
Mr. James H. Broussard, 626 Lombard St., New
Iberia, LA 70560—Claimant
Mr. William P. Rutledge, Esq., P. O. Box 3668,
Lafayette, LA 70501
Mr. Robert M. Mahony, Esq., Suite 700, First Nat’l
Bank Towers, Lafayette, LA 70502
Highlands Insurance Co., 600 Jefferson St., Houston,
Texas 77002—Insurance Carrier or Employer (if
self-insured )
Mr. Murphy J. Landry, P. O. Box 93, Loreauville,
LA 70552—Claimant
Mr. James J. Cox, Esq., 702 Kirby St., Lake Charles,
LA 70601
Kenneth Livaudais Claim Service, P. O. Box 2481,
Lafayette, LA 70502
Waukesha Pearce Industries, P. O. Box 35068, Hous-
ton, Texas 77035
?
A-44
A copy was also mailed by regular mail to the following:
Judge David W. Di Nardi, Office of Administrative
Law Judges, U. S. Department of Labor, Room
909, F. Edward Hebert Federal Bldg., 600 South
St., New Orleans, LA 70130
Associate Solicitor of Labor for Employee Benefits,
U. S. Department of Labor, Suite N-2716, NDOL,
Washington, D.C. 20210
Director, Office of Workers’ Compensation Programs,
(LHWCA) U. S. Department of Labor, Washing-
ton, D.C. 20211
/s/ MARILYN C. FELKNER
(Mrs.) Marilyn C. Felkner
Deputy Commissioner
Seventh Compensation District
U.S. Department of Labor
EMPLOYMENT STANDARDS
ADMINISTRATION
Office of Workers’ Compensation
Programs
Form LS-19
Rev. Aug. 1975
A-45
U. S. DEPARTMENT OF LABOR
Office of Administrative Law Judges
Hebert Federal Building
Room 909, 600 South Street
New Orleans, Louisiana 70130
Reply to the Attention of: OALJ
In the Matters of
JAMES H. BROUSSARD _)
Claimant )
) Case No. 79-LHCA-
against ) 413N
)
WAUKESHA PEARCE ) OWCP No. 7-50296
INDUSTRIES )
Employer )
)
HIGHLANDS INSURANCE )
COMPANY’ )
Carrier )
MURPHY J. LANDRY )
Claimant )
) Case No. 79-LHCA-
against ) 414N
)
WAUKESHA PEARCE ) OWCP No. 7-50175
INDUSTRIES )
Employer )
)
HIGHLANDS INSURANCE )
COMPANY’ )
Carrier )
1. Kenneth Livaudais Claim Service, named in the Notice of
Hearing as Carrier, is the insurance adjuster for Highlands Insurance
om
A-46
William P. Rutledge, Esq.
P.O. Box 3668
Lafayette, Louisiana 70501
For the Claimant James H. Broussard
James J. Cox, Esq.
702 Kirby Street
Lake Charles, Louisiana 70601
For the Claimant Murphy J. Landry
Robert M. Mahony, Esq.
Suite 700, First National Bank Towers
666 Jefferson Street
Lafayette, Louisiana 70502
For the Employer/Carrier
Before: DAVID W. DI NARDI
Administrative Law Judge
DECISION AND ORDER
Statement of the Case
This is a consolidated hearing in the matter of two
claims for workmen’s compensation benefits under the
Longshoremen’s and Harbor Workers’ Compensation Act
(33 U.S.C. Section 901, et seq.), herein referred to as
the “Act”. Hearing was held on February 16, 1979 in
New Orleans, Louisiana at which time all parties were
given the opportunity to present evidence, oral arguments
and post-hearing evidence and briefs, all of which have
been identified and incorporated into the record as indi-
cated. This decision is being rendered giving full con-
sideration to the entire record.
The principal unresolved issues in controversy are:
X.
A-47
1. With reference to both Claimants: (a) Whether
the Employer and both Employees fulfill the jurisdictional
requirements under the Act; (b) if so, the nature and
extent of any disability; and (c) average weekly wage.
2. With reference to Claimant Murphy J. Landry:
Whether Section 8(f) of the Act is applicable to limit the
liability of the Respondents,
Based upon the entire record in this case, including the
stipulations of the parties and the evidence adduced dur-
ing the course of the hearing, I make the following Find-
ings of Fact, Conclusions of Law and Order.
Findings of Fact
James H. Broussard testified that he was 35 years of
age at the time of the hearing, married and the father
of four children (Tr. 46), had completed high school
through adult education classes (Tr. 27), that he was
employed by the Employer as a fabrication fitter involved
in “building (steel) buildings, constructing different parts
of a building, putting them together, cutting angle irons,
beams, building stairways, putting the porches up on the
building” and that the parts are tack-welded together,
that Employer’s facility is located at the Port of New
Iberia, Louisiana (Tr. 28) on a waterway which flows
into the Gulf of Mexico and that smali boats and barges
(Tr. 29) use the waterway. These buildings are offshore
living quarters for workers on offshore oil drilling fixed
platforms; some have electrical generating plants and
some have heliports on top. Mr. Broussard does not
belong to a labor union, performs various duties for the
Employer and has even been a roustabout (Tr. 30).
A-48
When the living quarters building has been completed
it is mechanically hoisted and loaded upon a barge for
shipment and delivery to the location of the offshore
drilling platform (Tr. 31). The fabrication fitters first
build, on the barge, “knee braces” to be used to support
and secure the building to the barge. The fitters then put
the braces against the four corners of the building, and
a tacker tack welds the knee brace; thereupon, the welders
weld the knee braces to the barge. Sometimes additional
work is required on the braces to complete the process
of securing the building to the barge. Mr. Broussard re-
called that on two occasions he “rode on the barge while
the tugboat pulled the barge back and turned it around
so it could be brought back so that smaller buildings
could be loaded on.” (Tr. 32-33). Mr. Broussard testified
that he participated in ten load-outs during 1976 and
that there was a slack period just before the holidays of
that year (Tr. 34). The smallest building was forty by
fifty feet and the largest buildings were two story high
and three stories with the heliport and were one hundred
and forty or fifty feet high (Tr. 35).
Mr. Broussard commenced working for the Employer
the latter part of 1975 and was injured on June 14, 1977
(Tr. 39), at about 2:30 p.m. or 2:45 p.m., while he
“was sheeting the heliport” and injured his back when
he attempted to remove a wooden block in the way of
the cherry picker tire and as he stepped down and picked
up the wooden block “my back snapped and I felt a
sharp pain and my right leg came up and I couldn’t move.”
(Tr. 40). Mr. Broussard then rested during a work break
(Tr. 41) and worked for an hour or so, until the com-
pletion of the shift, believing that hot baths would mini-
A-49
However, Mr. Broussard could not sleep that night
because of “the pain in my back and legs, right leg especi-
ally” and sought medical attention at about 6:00 a.m.
the next morning (Tr. 42) after reporting to work and
telling his leaderman that he was in severe pain. Dr.
La Haskie gave him an injection for the pain (Tr. 43)
and told him to go home, soak in warm water and place
himself on bed rest. The pain increased and Mr. Brous-
sard returned to Dr. La Haskie, who had him hospitalized
and examined by an orthopedic specialist, Dr. Hebert.
He was in traction for two weeks and a thirty pound
weight was placed on his legs (Tr. 44). Mr. Broussard
was then released and told to return to Dr. Hebert’s office
every day for physical therapy. Mr. Broussard told Dr.
Hebert that the physical therapy was not helping (Tr.
45).
Mr. Broussard then contacted the Employer, found out
that there were no compensation checks for him and de-
cided to obtain ..gal counsel from William P. Rutledge,
Esquire. Attorney Rutledge thereupon sent Mr. Broussard
to a number of doctors, each of whom took X-rays (Tr.
46). Mr. Broussard was examined by Drs. Montgomery,
Blanda, Borne, Foster, Moore, Llewelyn, and Leoni (Tr.
47). Mz. Broussard was hospitalized in Lake Charles,
Louisiana, where a myelogram and discogram led Dr.
Moore to tell him that “you're (sic) back is a mess” (Tr.
48). Dr. Foster recommended surgery and he thereupon
removed a disc from his back.
However, Mr. Broussard was still in pain and com-
plained to Dr. Foster who told him that there was nothing
more he could do and to “stick it out until January which
would be a year from my surgery and then he would put
A-50
me on total disability one hundred percent.” (Tr. 49).
Mr. Broussard was upset with the medical treatment he
was receiving from Dr. Foster and he thereupon advised
Mr. Rutledge to discharge Dr. Foster. Mr. Broussard
testified that he would undergo further surgery if it would
relieve his pain (Tr. 55), that since his accident he has
been receiving $95.00 per week as compensation (Tr. 56),
that at the hearing he was in “terrific pain” (Tr. 58) and
that he is not in condition to work at the present time
(Tr. 59). He also testified that some of the load-out
procedures lasted at least one week and perhaps a week
and a half (Tr. 63).
Upon cross-examination Mr. Broussard could not recall
the number of times he performed the duties of a roust-
about (Tr. 72) and did not know whether he could do
light work such as answering a telephone (Tr. 73) or as
a night watchman (Tr. 74).
Mr. Murphy J. Landry, the other Claimant herein, has
a ninth grade education, has worked mostly as a laborer
and welder and commenced working for the Employer
in February 1975 as a fitter’s helper (Tr. 78). He was
injured on April 6, 1977, while working with the roust-
abouts picking up scrap steel and sorting out large pieces
of iron from small pieces when he picked up a “five gallon
can” or bucket of welding rods and felt his “back crack
and it went” (Tr. 79) and “seemed pretty hard.” Mr.
Landry then told Darrell Lafont about his back injury
who told him to “try to hold up until noon” and to return
if it did not improve.
PE ym og Mr. Landry was sent to see the
doctor (Tr. 80), Dr. raphe Dye Pe ye
scribed pain pills, took x-rays and told him to
3
A-51
remarking that he would probably miss about thirteen
days of work. Dr. Landry had Mr. Landry hospitalized
in April 1977 where he was examined by Dr, Sutton
(Tr. 81), an orthopedic specialist, who treated Mr. Lan-
dry until January 1979. A myelogram was performed
and Dr, Sutton recommended surgery (Tr. 82) for the
ruptured disc condition (Tr. 83). Mr. Landry was in
the hospital for nineteen or twenty-one days (Tr. 88).
Mr. Landry was also examined by Dr. Lamprose and
then by Dr. Cobbs (Tr. 84) who had x-rays taken. In
November 1978 Mr. Landry was examined by Dr. Charles
A. Olivier, an orthopedic specialist (Tr. 85), who told
him his back was very weak and that he would have to
learn to live with the condition. Mr. Landry also saw
Dr. Logan Perkins once (Tr. 86) and has an appointment
with a Dr. Larrocco (Tr. 87).
Mr. Landry testified that before his injury he had no
problem performing any of his assigned tasks as a roust-
about (Tr. 88) or laborer or welder (Tr. 89). Prior to
working for the Employer, Mr. Landry worked on a
sugar cane farm, work which he described as “heavy
work” and which he performed without any difficulty.
Prior to this he was working for a firm involved in in-
stelling pipeline—very heavy work, involving heavy lift-
ing, stooping, bending and climbing (Tr. 91). Mr. Lan-
dry recalled that in 1968 he injured his back (Tr. 92,
112-116) and experienced muscle spasms and was treated
by Drs. Homer Kirgis, Muhleman and Richard E. Pat-
terson, that no surgery was performed (Tr. 93), that he
was able to return to work in November 1970 and worked
continually until the day of his injury (Tr. 94). Mr.
Landry also recalled some back ailments about twenty
A-52
years ago and having to miss a few weeks of work (Tr.
95, 109-112).
Mr. Landry also participated in the load-out procedures
by performing various tasks such as loading pumps on
board the barges and pumping water into the barges when
they were too high in the water to permit loading of the
buildings (Tr. 96-97). Mr. Landry’s duties were to then
tack and weld the supports to the building to secure the
building to the barge and to pump out the water from the
barge at the completion of the load-out. Mr. Landry could
not recall how many load-outs in which he participated
in 1976 (Tr. 98) but then admitted “more than ten.”
Mr. Landry also helped load on the barges refrigerators
and furniture (Tr. 99) eight or nine times (Tr. 101) and
admitted that nine times out of ten he had to do additional
fabrication work on the structures after the¥-were loaded
on the barges (Tr. 102) and that seventy-five or eighty
percent of the structures were delivered by barges (Tr.
103). Mr. Landry recalled working on at least one and
perhaps two load-outs during the three months he worked
in 1977 (Tr. 104) but could not recall the length of the
load-out (Tr. 107).
Upon cross-examination Mr. Landry admitted that all
of the work he did as a structure welder took place on
land except during the load-out procedures (Tr. 107).
Mr. Landry admitted that there was no load-out taking
place at the time he was injured on April 6, 1977 (Tr.
118), that the one load-out he worked in 1977 lasted
twenty-five to twenty-six hours (Tr. 119) and that he is
being paid State Compensation Benefits at the rate of
$95.00 per week (Tr. 122). Mr. Landry made approxim-
ately $15,000 in 1976 (Tr. 123), was making $300.00 per
A-53
week in 1977 when he was injured and his hourly rate
had just been increased to $5.30 per hour (Tr. 124).
Mr. Landry was shown the form LS-202 indicating that
in 1976 he earned wages of $12,172.81 (Tr. 126).
Mrs. James H. Broussard testified that her husband
was very healthy prior to his accident and that thereafter
“he had all types of problems” (Tr. 130) and was “in
such terrific pain” in the lower part of his back, legs, toes,
hands and his neck, ever since the night of the accident
(Tr. 131). Her husband does not have the strength he
had before the accident and has to use a cane most of
the time (Tr. 132).
Mrs. Jaclyn M. Landry testified that her husband suf-
fered from a back injury the latter part of 1968 to the
fall of 1970, that he returned to work in November 1970
for a pipeline construction company in Houston, Texas,
work which lasted six months (Tr. 135), that he harvest-
ed sugar cane for a time (Tr. 136), went to work for
the Employer in February 1975 and did not have any
trouble with his back until his accident on April 6, 1977,
at which time he complained of pain in his back (Tr.
137). Mrs. Landry testified further that her husband,
prior to the accident, was able to do heavy lifting but
could not do so after the accident (Tr. 138).
Randy Jacobs testified that, during the years 1970 to
1973, he and Mr. Landry worked for various firms in-
stalling oil and gas pipelines, work which he chacterized
as “hard labor” (Tr. 141), that he has known Mr.
Landry for about twenty years (Tr. 143), that Mr.
Landry has not had any accidents since April 1977 (Tr.
143) and that Mr. Landry was using a cane every time
he sew him (Tr. 144).
‘a ae
A-54
Mr. Broussard earned $13,786.91 for 1976 and the
first month of 1977 and earned $2,069.71 for the first
three months of 1977 (Tr. 152).
Mr. Louis Peltier, Employer’s District Manager, has
worked for the Employer for thirty-two years and has
held a number of positions during that time (Tr. 153).
As District Manager, Mr. Peltier has responsibility for
the operations of Employer’s New Iberia, Louisiana facil-
ity (Tr. 154). He testified that the employer fabricates,
at the facility in question, “packages, we call them modules
. , a combination of living quarters, power plants
. , some have heliports, some are generator pack-
ages . . . without any living accomodations or heli-
ports. And some were pump packages, pump units” (Tr.
155-156).
Mr. Peltier identified photographs of the various units
and packages made by the Employer, photographs which
were admitted into evidence as Employer’s Exhibits 4,
5 and 6 (Tr. 157-162). He testified that the structures
identified as living quarters are placed on a fixed plat-
form, offshore, in connection with oil drilling operations
and permanently affixed to the bottom of the ocean (Tr.
160), the structure in Employer’s Exhibit 5 having been
built for Amoco Oil Company for shipment to the Gulf
of Suez. He further testified that all of the structures
end up on fixed platforms in the Gulf of Mexico, the
North Sea, the Gulf of Suez or at some other point (Tr.
162), that the Employer does not build or repair or
break up any ships, vessels or barges (Tr. 163), that
Mr. Broussard was a fabrication fitter and that his
duties were to take a set of blue prints and construct a
building by assembling structural steel beams and that
A-55
Mr. Landry was a welder whose duties were to follow the
fabrication fitters and weld that material which the fabri-
cation fitter has fitted into position (Tr. 163).
Mr. Peltier testified further that the construction of
those buildings takes place on land and that the Claim-
ants would work on the barge only during a load-out, that
an independent contractor, Lloyd Berard, is employed
to hoist the buildings from the work site onto the barge
(Tr. 164), that Mr. Broussard worked on three load-outs
from August 4, 1975 to June 14, 1977 (Tr. 165-169)
and that there were nineteen load-outs during this time
(Tr. 174), and that Mr. Landry worked on two load-outs
from February 18, 1975 to April 6, 1977 and that there
were seventeen load-outs during this time (Tr. 174).
Mr. Peltier authenticated Employer’s records and de-
scribed the procedures used to account for work done by
his employees on each particular work project (Tr. 175-
190) to enable Mr. Peltier “to monitor costing on our
fabrication yard” (Tr. 186). He testified that during
March and June 1977 the Employer had twenty-two
welders and ten fabrication fitters, the job descriptions of
Mr. Landry and Mr. Broussard, respectively (Tr. 192),
that during each load-out an average of five welders out
of twenty-two (Tr. 193) and an average of two fitters
out of ten would perform duties on the barge (Tr. 194).
Mr. Peltier described the steps involved in the load-out
of the structures onto the barges (Tr. 200-203), testify-
ing that the barges belong to the oil companies and they
prefer to have the structure ready within forty-eight hours
because of their schedules (Tr. 203), that “the module
itself is never altered” after it is hoisted upon the barge
(Tr. 211) although sometimes the supports have to be
A-56
altered to make a secure fit between the module and the
barge (Tr. 212), that eighty percent of the modules are
shipped by barge (Tr. 212), that the primary duties of
Mr. Broussard and Mr. Landry were to construct the
buildings (Tr. 214) on land (Tr. 216) and that he (Mr.
Peltier) has been present and supervised ninety percent
of the load-outs. He further testified that there might
be eight load-outs in one year and twelve or thirteen
another year (Tr. 221), that a welder or fitter might
spend two or three days a month working on the barge
and the remaining time working on land (Tr. 222).
Mr. Darrell Lafont, one of the Employer’s supervisors
of load-outs, testified each load-out took fifteen to sixteen
hours (Tr. 228) and that a welder or fitter not working
on the barge during a load-out would be working in the
yard (Tr. 229).
Homer D. Kirgis, Ph.D., M.D., a neurosurgeon, testi-
fied by deposition and stated that he first examined Mr.
Landry on December 11, 1968 (Employer’s Exhibit 13,
pg. 4), that Mr. Landry stated that he had been injured
on August 13 or 14, 1968, when he and a fellow worker
lifted a roll of felt and Mr. Landry made an extra effort
to hold the roll as his co-worker allowed the roll to slip
from his grasp. Mr. Landry slipped and fell backwards,
“experiencing a ‘snapping’ sensation in the lower back.”
There was mild discomfort at first and two days later
Mr. Landry went to a local doctor who prescribed medi-
cation (Ibid., 5), heat treatments and sleeping on a hard
bed. Mr. Landry had to stop working and went to see
a doctor in his hometown who applied heat to his back,
fitted him with a back support, told him to use a heating
pad at home and prescribed some medication. Mr. Lan-
dry visited this doctor once a week (/bid., 6).
A-57
Dr. Kirgis further testified that Mr. Landry’s back pain
increased with activities such as riding, stooping, coughing
and lifting and that prior to this accident Mr. Landry had
no similar back problems (J/bid., 7).
Dr. Kirgis’ examination of Mr. Landry on December
11, 1968, revealed “asymmetry of the thoracical lumbar”
area and “lumbar paraspinous muscles” (/bid., 7), a
positive straight-leg raising test at 45 degrees on the left
—indicating a more serious (/bid., 8) injury to the left
of the midline than to the right and, according to the
X-rays, moderate narrowing of the lumbosacral interverte-
bral space—rather permanent osteophytes on the anterior
margins of the third and fourth lumbar vertebra—Dr.
Kirgis concluding that Mr. Landry had ruptured a disc
(Ibid., 9) and that surgery would correct the problem.
On September 8, 1969, Mr. Landry advised Dr. Kirgis
by letter that he had been disabled since August 1968,
that his family doctor had recommended an operation and
asked Dr. Kirgis to perform the surgery (/bid., 10). Dr.
Kirgis responded, on September 15, 1969, that he agreed
that Mr. Landry had a ruptured disc and that he would
perform the operation (/bid., 11). Dr. Kirgis further testi-
fied that, as of December 11, 1968, Mr. Landry was un-
able to return to work because of his ruptured disc (Jbid.,
13), that the narrowing at the lumbrosacral level might
cause nerve root irritation at that level, that the spur
formation at the L-3 and L-4 level could have been caused
by trauma but does not produce pain (/bid., 14-15).
Upon cross-examination Dr. Kirgis stated that Mr.
Landry’s “back was unstable”, that spurs at the L-3/L-4
level, on the anterior margin of the vertebra, would cause
pain (/bid., 16), that the preferred treatment would have
A-58
been surgery (/bid., 17) to enable Mr. Landry to return
to work sooner to prevent “further difficulty in the future”
(Ibid., 19). Dr. Kirgis admitted that the ruptured disc at
that time caused some degree of disability, although he
could not rate the percentage of disability since Mr. Lan-
dry needed additional medical treatment (/bid., 20-21).
The record evidence reflects, and I find, the following
as to the situs of Employer’s fabrication facility, its opera-
tion and the duties of the Claimants.
On April 6, 1977, Claimant Murphy J. Landry sus-
tained an injury arising out of and in the course of his
employment as a laborer and welder for Waukesha Pearce
Industries (Employer) at its New Iberia, Louisiana fabri-
cation facility. On June 14, 1977, Claimant James H.
Broussard sustained an injury arising out or in the course
of his employment as a fabrication fitter for the Employer
at the same fabrication facility.
This facility is used by Employer exclusively for the
fabrication of buildings for use in offshore drilling opera-
tions by oil companies for whom they are constructed.
The buildings are assembled together into a gigantic struc-
ture which shall hereinafter be referred to simply as a
platform. It takes three to four months to assemble and
build one of these structures and Employer builds ten to
twelve of them in a year’s time. The fabricated parts of a
platform are assembled on land. Upon completion they
are hoisted from land onto barges by Berard & Co., a
private firm, for transportation to offshore locations where
they are permanently fixed in the ocean floor. The loading
of a completed offshore drilling platform onto a barge is
described as a “load-out”. A load-out occurs ten to twelve
times a year and takes anywhere from one day to a week.
A-59
Mr. Broussard’s work as fabrication fitter involved con-
struction of different parts of the steel structures which
are then tack-welded by a welder such as Mr. Landry, the
other Claimant herein. Both Claimants participated in the
load-out operations, the exact number of which has been
disputed by both parties. Mr. Broussard testified he par-
ticipated in ten load-outs and Mr. Landry testified to par-
ticipating in at least ten load-outs. However, Employer's
records disclose that Mfr. Broussard worked on three load-
outs for a total of 100 hours during 20% months and
Mr. Landry worked on two load-outs during his employ-
ment. I accept the validity of Employer’s books and
records kept in the ordinary course of business. Sometimes
the load-outs required additional work, not on the plat-
form itself, but on the support braces used to secure the
platform to the barge for shipment to the Gulf of Suez,
the North Sea or some other offshore drilling area.
It is undisputed that no ships, vessels or barges are
built, repaired or broken at the New Iberia, Louisiana
fabrication facility of Waukesha Pearce Industries, and
no ocean-going vessels put in at the facility for the pur-
pose of loading or unloading cargo in maritime commerce.
On the day of his injury, Mr. Broussard was hurt
while sheeting the heliport and injured his back as he
stepped down to pick up and remove a wooden block in
the way of the tire of a cherry picker. Mr. Landry was
hurt while working with several roustabouts picking up
and sorting salvage scrap steel.’
2. The parties stipulated, inter alia, and I find, that on April 6,
77 and June 14, 1977, an Employer-Employee relationship existed
the time of the accidents, that the injuries are work-related and
the claims were timely filed.
gers
A-60
Conclusions of Law
The 1972 Amendments to the Act effected an abandon-
ment of an overwhelming situs-oriented concept of cover-
age in favor of a two-part test which requires (1) that a
Claimant have been engaged in “maritime employment”
and (2) that the injury have occurred on a situs specified
in the Act. Northeast Marine Terminal Co. v. Caputo,
432 U.S. 249 (1977); Jacksonville Shipyards, Inc. v.
Perdue, 539 F.2d 533 (5th Cir. 1976). The frontiers of
post-1972 coverage have frequently been established in
the context of classic longshoring and shipbuilding opera-
tions in numerous administrative and appellate court de-
cisions.
Section 3(a) describes the covered situs:
“Compensation shall be payable . . . , but only if the
disability or death results from an injury occurring
on the navigable waters of the United States (includ-
ing any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area
customarily used by an employer in loading, unload-
ing, repairing, or building a vessel).”
Perdue holds that an area’s formal nomenclature is to
be ignored and the record facts examined to determine if
the situs is one customarily used in the maritime activity.
In Perdue, an office located one mile from the ship and
a shed in an unused facility were each held not to be a
covered situs. In other cases, the situs test was held to
have been satisfied where the injury occurred at the back
yard of a shipyard. Alabama Dry Dock & Shipbuilding
Co. v. Kininess, 554 F.2d 176 (Sth Cir. 1977).
A-61
The Benefits Review Board has consistently held that
an “adjoining area”, as defined in the Act, “is bounded
only by the limits of its use as a maritime enterprise.”
Edith §. Murphy v. General Dynamics Corporation, 7
BRBS 960, 965, BRB No. 77-249 (February 14, 1978).
The entire facility where Claimants were injured was used
exclusively for fabrication, assembly and construction of
offshore drilling platforms and is used an average of
twenty days a year for load-outs of completed platforms.
The load-out of a platform is incidental to its construction
in that platforms are constructed on land and then hoisted
onto the barge for shipment to the offshore drilling site.
Prior to the 1972 Amendments, the Act provided com-
pensation only for those injuries occurring upon navigable
waters. In amending § 3(a) of the Act Congress was
accepting the invitation of the Supreme Court in Naci-
rema Operating Co., Inc. v. Johnson, 396 U.S. 212, 90
S.Ct. 347 (1969) to extend the jurisdictional boundary
line shoreward to insure uniform treatment of longshore-
men injured while loading or unloading a ship. /bid., 223-
224. As has already been discussed, the platforms are not
cargo in maritime commerce. Therefore, the load-out
process involved in this case is not the type of activity
contemplated by the phrase “adjoining area customarily
used by an employer in loading * * * a vessel.”
Assuming, arguendo, that the New Iberia fabrication
facility is an area covered by the Act, Claimants still
could not recover because it is clear from the legislative
history of the Act that the Act was not intended “to
cover employees who are not engaged in loading, un-
loading, repairing, or building a vessel, just because they
are injured in an area adjoining navigable waters used
for such activity.” Committee on Labor and Public Wel-
A-62
fare, S. Rep. 92-1125 at 13, 92 Cong., 2d Sess. (1972).
At the time of their injuries, Claimants were not engaged
in any of the foregoing activities. They were performing
duties which were essential to and in furtherance of the
Employer’s business of platform construction.
The only business conducted by Employer at its New
Iberia fabrication facility is the fabrication, assembly and
construction of platforms for use in offshore drilling
operations by oil companies for whom they are con-
structed and by whom they are permanently imbedded
in the ocean floor. At the time they were injured both
Claimants were cleaning up the area to make room for
further fabrication activities, i.e. picking up a wooden
block and sorting scraps of salvage steel. Thus, they were
engaged in the furtherance of the Employer’s business of
fabricating fixed offshore drilling platforms. Such struc-
tures have been held not to be ships or vessels. Rodrigue
v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct.
1835 (1969); Thompson v. Crown Petroleum Corp., 418
F.2d 239 (Sth Cir. 1969). Section 2(3) of the Act speaks
of occupations and it would appear that Claimants oc-
cupations are more accurately characterized as platform
builders, since by no stretch of the imagination can they
be deemed to be longshoremen or engaged in maritime
employment as they contend. It is equally clear that they
cannot be deemed to be ship repairmen or ship breakers.
In view of the fact that the entire facility at which Claim-
ants worked was used exclusively for fabrication, assembly
and construction of offshore drilling platforms, I conclude
that their injuries did not occur upon navigable waters
or any “adjoining” pier, wharf, dry dock, terminal, building
way or marine railway. Thus, it is manifestly clear that
the Employer does not fulfill the situs requirement.
A-63
The Claimants herein were clearly not shipbuilders,
ship breakers or ship repairmen. Nor could they be classi-
fied as longshoremen or as engaged in longshoring opera-
tions. Although Claimants on occasion helped to secure
the platforms to barges, this did not alter the essential
nature of their occupations. The Claimants were not
engaged in “indisputably” longshoring operations. Viewing
Claimants’ overall activities, which has been the standard
consistently applied by the Board, they were construction
workers whose task of securing the platforms to barges
was an incidental function to their job of constructing the
platforms. See McNeil v. Prolerized New England Co.,
8 BRBS 1, BRB Nos. 77-328 & 77-328A (March 20,
1978); Coppolino vy. International Terminal Operating
Co., Inc., 1 BRBS 205, BRB No. 74-136 (December 2,
1974).
The term “harbor worker”, an occupation expressly
covered by the Act, includes the occupations of ship-
builder, ship breaker and ship repairman, but is not
limited thereto. Recognizing this fact, the Board, in
Stewart v. Brown & Root, Inc., 7 BRBS 356, 365, BRB
No. 76-451 (January 12, 1978), defined the term “harbor
worker” to include “at least those persons directly in-
volved in the construction, repair, alterations or mainten-
ance of harbor facilities (which include docks, piers,
wharves al adjacent areas used in the loading, unload-
ing, repair or construction of ships).” The Claimants also
cannot be deemed harbor workers under the Stewart rule.
As noted previously, the Claimants were involved in the
construction of platforms for use in offshore oil opera-
tions. Accordingly, their employment was not related to
the “construction, repair, alteration or maintenance of
harbor facilities.”
bay
A-64
It is clear that in order for the Claimants to satisfy the
“status” test they must have been engaged in some form
of “maritime employment” other than that expressly recog-
nized in Section 2(3).
In approaching questions of status, the Supreme Court
stated in Caputo/Blundo that we should take an expansive
view of extended coverage and that the Act must be
liberally construed. Caputo/Blundo, 432 U.S. at 268.
The Court also pointed to the legislative history which
establishes that by means of the 1972 Amendments it
was Congress’ intent to create a “uniform compensation
system to employees who would otherwise be covered by
this Act for part of their activity” and to accommodate
coverage under the Act to modern technological change.
Ibid., 270-272. The Court however tempered these con-
siderations by quoting other portions from committee
reports to the effect that the committee did not intend
to cover employees not engaged in loading, unloading,
repairing, or building a vessel just because they are in-
jured over a covered situs. /bid., 266, n.27. Moreover,
the Court favorably cited Stockman v. John T. Clark &
Son of Boston, 538 F.2d 264, 4 BRBS 304 (lst Cir.
1976), cert. denied, 433 U.S. 908 (1977). Caputo, supra,
277, n.40, 281. In Stockman, the First Circuit examined
the Act’s legislative history and concluded that:
{the statement in the committee reports that the Act
is to apply to employees who would be covered for
part of their activity] as well as other parts of the
committee reports, indicates that Congress, in mov-
ing shoreward, did not see itself as including under
the Act whole new groups and classes of employees.
Coverage was still to be geared only to persons who
loaded and unloaded vessels (or else repaired or
A-65
built them) and who fit such traditional maritime
— as longshoreman, harbor worker, and
e like.
Stockman, Ibid., 276.
In view of the foregoing, it is clear that an injury over
navigable waters in and of itself is an insufficient bench-
mark by which to find maritime employment. See Caputo,
supra; Thibodaux v. Atlantic Richfield Company, 580
F.2d 841, 8 BRBS 787 (Sth Cir. 1978). Indeed, the
Supreme Court clearly stated in Caputo/Blundo, 432
U.S. at 264-265, that:
{t]he 1972 Amendments thus changed what had been
essentially only a “situs” test of eligibility for com-
pensation to one looking to both the “situs” of the
injury and the status of the injured. (Emphasis
added. ]
Given the above considerations, I conclude that Claim-
ants’ employment must have a realistically significant re-
lationship to maritime activities involving navigation and
commerce over navigable waters in order for that em-
ployment to be deemed maritime employment under Sec-
tion 2(3). Cf. Anderson v. McBroom Rig Building Ser-
vice, Inc., 5 BRBS 713, BRB No. 75-198 (April 7,
1977); Toups v. Chevron Oil Company, 7 BRBS 261,
BRB No. 76-453 (December 29, 1977). Since the Claim-
ants herein were engaged in the construction of offshore
oil drilling platforms, their employment did not have a
realistically significant relationship to maritime activities
involving navigation and commerce over navigable waters.
It follows that the Claimants were not engaged in mari-
time employment pursuant to Section 2(3) and thus are
not covered under the Act. Congress did not intend that
A-66
the phrase “maritime employment” include workers per-
forming their usual function in the construction of a struc-
ture on land which happened to be situated upon navi-
gable waters. To conclude otherwise would be to include
under the Act a whole new group or class of employees
not originally intended to be covered. Furthermore, to
provide coverage to workers under the Act based solely
upon some incidental work over navigable waters without
regard to their individual status would be tantamount to
the establishment of dual standards in the determination
of jurisdiction.
Claimants, in effect, argue that some work over navi-
gable waters is maritime employment within the meaning
of Section 2(3). As noted above, the Act requires that
the tests of “situs” and “status” both be satisfied in order
for an individual to be covered. To hold that any work
over navigable waters is sufficient for coverage would be
to read out of the Act the “status” test. I note further
that the Claimants were described as fabrication fitters
and welders. Although the label put upon an employee’s
activity or occupation is not dispositive of a determina-
tion of status, it is of interest. See Jacksonville Shipyards,
Inc. v. Perdue, 539 F.2d 533, 541, 4 RBS 482, 488
(5th Cir. 1976), vacated and remanded, 433 U.S. 904
(1977), reaffirmed, 575 F.2d 79, 8 BRBS 468 (Sth Cir.
1978).
In view of the foregoing, consideration will hereinafter
be focused on whether Claimants were longshoremen,
persons engaged in longshoring operations, or harbor
workers and whether their injuries occurred in an adjoin-
ing area customarily used by the Employer in loading
a vessel.
A-67
Claimants’ primary duties involved construction of plat-
forms to be used in offshore drilling operations and to
occasionally help in the hoisting of said platforms onto
barges. The load-out of a platform occurred ten to twelve
times a year and each load-out took from one to five days.
At the time Claimants were injured, there was not a
load-out in progress. Therefore, they were not involved
actually or directly in a loading or longshoring activity.
They were, at the time of injury, performing their primary
- duties which were an essential role in the construction of
fixed drilling platforms. The fact that a relatively small
amount of work time was spent in load-out operations is
not sufficient to bestow upon them the status of an Em-
ployee engaged in maritime employment, or a person
engaged in longshoring operations or as a longshoreman.
The job of a longshoreman is to load and unload cargo
that has been or is destined to become a part of maritime
commerce. Claimants never handled commercial goods
and commodities which had been or were destined to be
transported in vessels used in trade or commerce. The
only item they ever loaded was a platform onto a barge
for transportation to an offshore location where it was
permanently affixed to the ocean floor. The platforms
never entered the stream of maritime commerce and, as
such, were not the type of cargo included in the provi-
sions of the Act dealing with the activity of loading.
Since Claimants never loaded cargo in maritime com-
merce, their occasional load-out activities cannot give
them the status of a longshoreman or person engaged in
the longshoring operations even under the “continuous
coverage” rationale of Northeast Marine Terminal Co.,
3. The Supreme Court held that one whose employment is such
that he spends at least some of his time in indisputable longshoring
A-68
Inc. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348 (1977),
which was followed by the Board in Brady-Hamilton v.
Herron, 7 BRBS 409, aff'd 568 F.2d 137 (9th Cir. 1978),
where the Claimant was engaged in longshoring activity
during at least a portion of his working day.
In Anderson v. McBroom Rig Building Service, Inc.,
5 BRBS 713, BRB No. 75-198 (April 7, 1977), the
Benefits Review Board held that a roustabout who was
injured on a fixed oil well platform on navigable waters
60 feet offshore was not an Employee under the Act
because his duties lacked any significant maritime con-
nection. The Board applied the general rule that “unless
the activity bears a significant relationship to the tradi-
tional interests of admiralty in maritime commerce, ac-
tions arising from such activities will not be considered
maritime for the purpose of applying maritime law.” The
Board held the same way for the same reasons in the
case of Toups vy. Chevron Oil Company, 7 BRBS 261,
BRB No. 76-453 (December 29, 1977), involving a
pumper-gauger who was working on an oil and gas pro-
duction platform on navigable waters about three miles
from shore. The Board emphasized in both cases that the
only maritime connection with the workers’ employement
was the fact that the platforms on which they were in-
jured were situated in navigable waters—-and that fact
alone was not sufficient to bring their injuries within the
coverage of the Act. It is apparent that Clainants’
primary duties of helping to construct a platform to be
used in offshore drilling operations and the occasional
operations is a statutory Employee and that the text and history of
the 1972 Amendments “demonstrate a desire to provide continuous
coverage throughout their employment to these amphibious workers
] who, without the Amendments, would be covered only
for part of their activity.” /bid., 97 S.Ct. at 2362.
A-69
duty of loading such platforms onto a barge lack the
significant relationship to the traditional interest of ad-
miralty in maritime commerce expressed in Anderson and
Toups.
Claimants cannot be classified as harbor workers since
the primary duties of a harbor worker “pertain to the
operation and care of vessels in trade or commerce within
a port or harbor area.” Anderson v. McBroom Rig
Building Service, supra, at 721. Nor do Claimants fall
within the definition of harbor worker announced by the
Board in Stewart v. Brown & Root, Inc., 7 BRBS 356,
BRB No. 76-451 (January 12, 1978), as “those persons
directly involved in the construction, repair, alteration or
maintenance of harbor facilities (which include docks,
piers, wharves and adjacent areas used in the loading, un-
loading, repair or construction of ships) * * *.” The
mere fact that in the vicinity of the area Claimants were
cleaning at the time of injury there was a dock used by
Employer for load-outs does not make them dock build-
ers or a person who maintains harbor facilities which
include docks or a person handling deck cargo. That
contention by Claimants is rejected because they were
not performing either of those functions—they were
purely and simply cleaning up the area to make room
for construction of other platforms. This was just one
more step in the over-all process of constructing a plat-
form.
The “realistically significant relationship to maritime
activity” test has been applied by the Benefits Review
Board in the more recent decision of Scala v. Island City
Iron Supply, Inc., 9 BRBS 600, BRB No. 77-775 (Janu-
ary 17, 1979), wherein the Board held that a burner,
fatally injured while cutting metal from a shipyard’s dis-
mn
A-70
used dry dock for a scrap metal dealer, was not a harbor
worker since he was not involved in the construction or
maintenance of harbor facilities and was not an Employee
otherwise engaged in maritime employment within the
meaning of that section since this activity did not rea-
listically and significantly relate to navigation and com-
merce over water. In reaching that decision, the Board,
in Scala, supra, at 602, noted as follows:
“Section 2(3)— makes plain however that maritime
employment includes but is not limited to harbor
workers. 33 U.S.C. Section 902(3); Sedmak v.
Perini North River Associates, 9 BRBS 378, BRB
No. 77-896 et al. (November 30, 1978). In Sedmak,
the Board considered the term “maritime employ-
ment” and, after considering the legislative history
for the 1972 amendments and the relevant case law,
held that in order to satisfy the maritime employ-
ment requirement of Section 2(3), the particular
employment must have a realistically significant re-
lationship to maritime activities involving navigation
and commerce over navigable waters. Sedmak v.
Perini North River Associates, supra, (slip op. at pg.
14). See also Wright v. Traylor-Johnson Construc-
tion Co., 9 BRBS 372, BRB 77-591, and 77-591A
(November 30, 1978). As noted above, the dece-
dent was cutting up scrap metal pursuant to a sale
and purchase by employer. Applying the Sedmak
rule, we conclude that the decedent’s employment
did not have a realistically significant relationship
to maritime activities involving navigation and com-
merce over navigable waters. Claimant has there-
fore failed to establish that decedent’s employment
satisfied the status test according to Section 2(3).”
The Section 20(a) presumption under the Act does not
apply to the threshold issue of coverage and a determina-
A-71
tion of the status of the Claimant. The presumption is
inapplicable to an interpretive question of general import
such as coverage under Section 3. Pittston Stevedoring
Corp. v. Dellaventura, 544 F.2d 35 (2nd Cir. 1976),
aff'd sub nom. Northeast Marine Terminal Co., Inc. v.
Caputo, 432 U.S. 249 (1977). “This basic interpretative
decision must precede any application of the presump-
tion.” Stockman v. John T. Clark & Son of Boston, 539
F.2d 264, 269 (1st Cir. 1976), cert. “enied, 433 US.
908 (1977).
All of the other theories of jurisdictional coverage ad-
vanced by Claimants in oral arguments and post-hearing
briefs which are not specifically addressed herein have
been carefully considered and rejected.
For all the foregoing reasons, it is concluded that the
jurisdictional requirements of status and situs have not
been met and that the claims filed herein must be denied.
ORDER
It is therefore ORDERED that the claims for com-
pensation filed by James H. Broussard and Murphy J.
Landry are hereby denied.
/s/ DAVID W. DI NARDI
David W. Di Nardi
Administrative Law Judge
Dated: May 17, 1979
New Orleans, Louisiana
DWD:prce
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