Healy Tibbitts Builders v. Workers' Comp.

• Decision Date: 14 April 2006
• Docket Number: No. 04-70575.,04-70575.
• Citation: 444 F.3d 1095
• Parties: HEALY TIBBITTS BUILDERS, INC.; John M. Mannering, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Darlette Maumau (Widow of Finefeuiaki Maumau); Shelly Dagget (Mother of Salesi and Maika Maumau); Hawaii Employers' Mutual Insurance Company, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

444 F.3d 1095

HEALY TIBBITTS BUILDERS, INC.; John M. Mannering, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Darlette Maumau (Widow of Finefeuiaki Maumau); Shelly Dagget (Mother of Salesi and Maika Maumau); Hawaii Employers' Mutual Insurance Company, Respondents.

No. 04-70575.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2006.

Filed April 14, 2006.

Paul A. Schraff, Dwyer Schraff Meyer Jossem & Bushnell, Honolulu, HI; and Christopher J. Field, Field Womack & Kawczynski, LLC, South Amboy, NJ, for the petitioners.

Howard M. Radzely, Solicitor of Labor; Donald S. Shire, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore; and Barry H. Joyner, U.S. Department of Labor Office of the Solicitor, Washington, DC; and Preston Easley, San Pedro, CA, for the respondents.

On Petition for Review of Orders of the Department of Labor Benefits Review Board. BRB Nos. 03-239, 03-239A, 03-239B.

Before HALL, SILVERMAN, and GRABER, Circuit Judges.

SILVERMAN, Circuit Judge.

The Longshore and Harbor Workers' Compensation Act does not cover "all those who breathe salt air," but neither is it limited to Popeye. The decedent in this case was killed near the water's edge while excavating a utility line trench, a job that was part of a project to renovate three submarine berths at Pearl Harbor. We hold today that the Benefits Review Board reasonably concluded that the decedent was a "harbor worker" covered by the Act even though his specific job was not uniquely maritime in nature.

I. BACKGROUND

Berthing wharves are large, concrete decks that extend from shore over navigable waters, and are used to accommodate submarines and other vessels while they are in port. Healy Tibbitts Builders, Inc. entered into a contract with the United States Navy to replace each 28-foot-long deck with a 50-foot-long deck, as measured from the land to the water's edge where the submarines dock. The contract required rerouting utility lines that provided power and communication capabilities to the old berths by digging trenches and installing a new underground concrete duct bank, along with several new manholes. This "main duct bank," which encases conduit through which the electrical and communication cables run, runs parallel to the shoreline at a variable distance of 40 to 75 feet from the water's edge.

The contract contemplated that the new utility lines would run from nearby electrical substations on the naval base (outside the construction area), through the main duct bank and to shore power mounds on the berths. Shore power mounds are large box-shaped receptacles that ships can plug into while in port. To accomplish this, the contract also required installation of "secondary feeders," which are additional duct banks that run off the main duct bank to the shore power mounds.

Healy Tibbitts subcontracted with John Mannering to build the main duct bank. According to the contract's terms, Mannering was to: (i) demolish existing duct banks and manholes; (ii) excavate for installation of new electrical and communication duct banks and manholes; (iii) install concrete for duct banks after ducts and rebar are installed by others; and (iv) restore surfaces by backfilling and compacting over duct banks and manholes.

Decedent Finefeuiaki Maumau was hired by Mannering and began work on the project sometime in May 2001. On the day in question, fifteen weeks into the project, his job was to dig a trench. Maumau died when a steel trench shield that supported the sidewalls of the excavated trench fell on him. Mannering completed its work on the project four weeks later.

Darlette Maumau, decedent's surviving spouse, and Shelly Dagget, the mother of his two children, sought benefits under the Longshore and Harbor Workers' Compensation Act. The District Director of the Department of Labor's Office of Workers' Compensation Programs ("OWCP") referred this case to an Administrative Law Judge, who conducted an evidentiary hearing on May 23, 2002. In his decision, the ALJ relied on past decisions in which the Benefits Review Board had interpreted the Act to cover construction workers involved in the construction of a dock used to house a submarine repair facility and other maritime facilities. The ALJ concluded that it was irrelevant that Maumau's specific job duties did not involve the loading and unloading of ships or were not "inherently maritime" in nature.

The ALJ awarded $1,166.78 per week in benefits. The ALJ considered the fact that Maumau earned $17,501.76 on the submarine berths project, and would have earned an additional $4,667.14 had he been there the last four weeks of the job. The ALJ computed Maumau's average weekly wage by dividing $22,168.90 (the total he could have earned on the project) by 19 weeks, the duration of Mannering's work on the project.

The Benefits Review Board affirmed. In ruling that Maumau was a "harbor worker" covered by the Act, the Board held that the relevant inquiry was whether the project on which he was working was connected to the servicing of ships, as opposed to whether his specific job duties were of a uniquely maritime nature. The Board also concluded that Maumau "in all likelihood would have continued to work... at the same wage as he was earning at the time of his injury." Healy Tibbitts and Mannering petitioned for review.

II. ANALYSIS

To qualify for benefits, an individual must be an "employee" as that term is defined in the Act.¹ The Act defines "employee" as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker." 33 U.S.C. § 902(3).

The claimants do not assert that Maumau was a longshoreman, that he was engaged in longshoring operations, or that he was a ship repairman, shipbuilder or shipbreaker. Instead, the controversy in this case centers on the terms "maritime employment" and "harbor worker," both of which the Act leaves undefined.

A. The Director's interpretation of "harbor worker" is reasonable and consistent with the Act's remedial purpose.

The Director of the OWCP urges an interpretation of "harbor worker" that would extend coverage to any worker, like Maumau, directly engaged in the construction of a maritime facility, even if the worker's specific job duties are not maritime in nature. We accord "considerable weight" to the Director's interpretation of the Act, even when its interpretation is advanced in litigation. See Mallott & Peterson v. Dir., OWCP, 98 F.3d 1170, 1172 (9th Cir.1996) ("This deference extends not only to regulations articulating the Director's interpretation, but also to litigating positions asserted by the Director in the course of administrative adjudications...."). If the Act is "easily susceptible" to the Director's interpretation, we "need go no further." Id. (internal quotations omitted). The Act, as remedial legislation, "should be liberally construed." Ramos v. Universal Dredging Corp., 653 F.2d 1353, 1358-59 (9th Cir.1981) (courts should "`take an expansive view'" of the Act's coverage (quoting Ne. Marine Terminal Co. v. Caputo, 432 U.S. 249, 268, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977))).

We adopt the Director's interpretation of "harbor worker" because it is reasonable and consistent with the remedial purpose behind the Act. Significantly, it already has been held that the Act covers those who repair the equipment with which ships are loaded and unloaded. See Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 47, 110 S.Ct. 381, 107 L.Ed.2d 278 (1989) ("[E]mployees who are injured while maintaining or repairing equipment essential to the loading or unloading process are covered by the Act."). We decline the invitation to interpret the term "employee" in a way that distinguishes between those who repair equipment used in the loading and unloading process and those who build the facilities at which that same process takes place. Both groups are essential to the loading and unloading of a ship, and many of the skills necessary to repair the equipment used in that process (e.g., welding, electrical) are no more maritime in nature than those necessary to build a facility like the submarine berths in this case. Indeed, a primary purpose behind the Act was to eliminate such arbitrary gaps in coverage. As the Schwalb Court explained:

Prior to 1972, the Act applied only to injuries occurring on navigable waters. Longshoremen loading or unloading a ship were covered on the ship and the gangplank but not shoreward, even though they were performing the same functions whether on or off the ship. Congress acted to obviate this anomaly: § 903(a) extended coverage to the area adjacent to the ship that is normally used for loading and unloading, but restricted the covered activity within that area to maritime employment.

Id. at 46, 110 S.Ct. 381.

We must also account for the fact that 33 U.S.C. § 902(3)(C) excludes from the Act's coverage those persons "employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance)." (Emphasis added.) It follows, then, that those who are engaged in the construction of a marina are covered. The text of the statute clearly shows that Congress considered the construction of a maritime facility, like a marina, as fully within the scope of the Act.

Deference to the Director's interpretation is further warranted in light of past Benefits Review Board decisions that have extended benefits to employees engaged in building a maritime facility, even though their specific job duties were not maritime in nature. See Fleischmann v. Dir., OWCP, 137 F.3d 131, 137 (2d Cir.1998) ("While the [Board], as opposed to the Director, does not merit deference, the [Board]'s consistent decisions bear upon the reasonableness of the Director's interpretation." (citation omitted)). The...