Weyerhaeuser Co. v. Gilmore, 74--3384

• Decision Date: 05 December 1975
• Docket Number: No. 74--3384,74--3384
• Citation: 1975 A.M.C. 2411,528 F.2d 957
• Parties: WEYERHAEUSER COMPANY, Petitioner, v. Robert L. GILMORE, and Director, Office of Workers' Compensation Programs, and United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 957

528 F.2d 957

WEYERHAEUSER COMPANY, Petitioner, v. Robert L. GILMORE, and Director, Office of Workers'

Compensation Programs, and United States

Department of Labor, Respondents.

No. 74--3384.

United States Court of Appeals, Ninth Circuit.

Dec. 5, 1975.

Rehearing and Rehearing En Banc

Denied Feb. 9, 1976.

Gregory W. Byrne (argued), Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, Or., for petitioner.

Joshua T. Gillelan, II (argued), U.S. Dept. of Labor, Washington, D.C., for respondents.

OPINION

Before KILKENNY and GOODWIN, Circuit Judges, and EAST, Senior District Judge. ^*

EAST, Senior District Judge:

Weyerhaeuser Company (Weyerhaeuser) seeks a review of the decision issued by the Benefits Review Board (Board) for the Director, Office of Workers' Compensation Programs, United States Department of Labor (Respondent). That decision reversed a denial by an Administrative Law Judge (Law Judge) and granted the claim of Robert L. Gilmore (Claimant) for compensation under the Longshoremen's and Harbor Workers' Compensation Act (LHCH), 33 U.S.C. § 901 et seq. We reverse.

FACTS:

The following essential facts are undisputed:

Claimant was employed as a 'pondman' by Weyerhaeuser at its sawmill in North Bend, Oregon. The sawmill is located on Coos Bay, a salt-water bay of the Pacific Ocean. Parts of the bay adjacent to the plant are enclosed by docks and log booms for the purpose of holding logs being processed and are known as 'ponds.' Claimant was injured when he fell from a floating walkway in one of these ponds.

The logs are transported to the mill in log rafts by an independent tug and barge company whose employees tie up the rafts to floating docks. The rafts are then taken by Weyerhaeuser's employees driving 'log broncs' (14' to 16' boats powered by diesel engines) to the mill where the logs are removed from the water by a chain hoist and debarked. After debarking, the logs are dropped back into the water and routed to the above-mentioned ponds where they are sorted by pondmen such as Claimant and fed into the mill for processing into lumber or plywood. The finished product is then loaded aboard ship.

At the time of his injury, Claimant was working at his duties involving the sorting of logs and feeding them into the mill for processing. In performing these duties, he would move about on floating walkways (and occasionally on the logs themselves), moving the logs by means of water jets and pike poles. He was required to wear a life jacket, hard hat, and cork boots. Claimant had no duties involving receiving the log rafts at the docks, operating the log broncs, initially moving the logs into the mill for debarking or loading ships with the finished product. Claimant is a member of the International Woodworkers of America labor union and is not a longshoreman or affiliated with the International Longshoremen's and Warehousemen's Union. He lost 21 days from work due to his injury and was paid benefits under the Oregon Workers' Compensation Law.

PERTINENT STATUTES:

LHCA as amended on October 27, 1972, provides:

Section 902(3): 'The term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker . . .'

Section 903(a): 'Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability . . . 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).'

ISSUE ON REVIEW:

We deem the sole issue presented to be:

Whether Claimant was at the time of his injury an employee 'engaged in maritime employment' within the purpose and purview of § 902(3) of the LHCA.

DISCUSSION:

The amendment, § 902(3), does not define the phrase 'engaged in maritime employment' other than to indicate that the phrase includes 'any longshoreman . . . harborworker . . . ship repairman,' etc. So far as we are advised, no court has yet construed and given a definition to the phrase and most certainly the Board did not attempt to do so. Rather the Board only reasoned that since Claimant was injured on navigable waters and Weyerhaeuser had other employees engaged in maritime employment, the Claimant would have been covered under LHCA prior to the 1972 amendment; therefore, he is covered now. The Board correctly stated:

'One of the purposes of the 1972 amendments to the Act was to extend coverage inland from the water's edge, not to narrow its scope.'

The Board then inexplainably found and concluded:

'(A)nyone covered under the Act prior to the 1972 amendments must indeed be permitted to come within its protection subsequent to the amendments. 'The fact that claimant is called a pondman or millworker is irrelevant as to determining his qualifications as an employee within the terms of the Act. Therefore, the Board finds that Claimant's injury in the course of his employment was within the coverage of the Longshoremen's and Harborworkers' Compensation Act, as amended, and he is entitled to benefits.'

We cannot accept the Board's open door construction of the effect of the 1972 amendment to LHCA as a rational interpretation of the newly adopted 1972 prerequisite of eligibility of an employee to compensation, namely, that at the time of his injury he 'be engaged in maritime employment.'

The LHCA was first enacted in 1972 and it is of no help to recount, as does the Board's brief, the pre-1972 amendment decisions of the Supreme Court wrestling with the problem of finding admiralty jurisdiction to permit recovery by maritime workers for shore based injuries, or dealing with the complex problems created by the fictional 'maritime, but local' doctrine to adjust state compensation laws with exclusive federal maritime jurisdiction. See Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), and particularly the dissenting opinion of Mr. Justice Stewart commencing at page 132, 82 S.Ct. 1196.

We relegate those decisions to limbo because it is obvious to us that the 1972 amendments radically changed the basis for an employee's entitlement to federal compensation. Prior to the amendment, an employee was entitled to federal compensation if his injuries occurred on navigable waters and his employer had an employee (not necessarily the injured employee) engaged in maritime employment; however, since the amendment, an employee is entitled to federal compensation only if he is engaged in maritime employment and he is injured on navigable waters or an adjoining area customarily used for loading, unloading, repairing or building a vessel.

Thus, the 1972 amendments to the pertinent sections of LHCA eliminate the gray areas of jurisdiction under the former statute and place a clear line of demarcation between those employees entitled to the benefits of federal compensation and those entitled to recover under state law.

Further support for our thinking is found in the legislative history of the 1972 amendments. For example:

'(T)he 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...