622 F.2d 110 (5th Cir. 1980), 78-1483, Odom Const. Co., Inc. v. United States Dept. of Labor

Docket Nº:78-1483.
Citation:622 F.2d 110
Party Name:ODOM CONSTRUCTION COMPANY, INC., Employer, and American Mutual Insurance Company, Carrier, Petitioners, v. UNITED STATES DEPARTMENT OF LABOR and Director, Office of Workers' Compensation Programs, United States Department of Labor, and Garfield Maze, Jr., Respondents.
Case Date:July 21, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 110

622 F.2d 110 (5th Cir. 1980)

ODOM CONSTRUCTION COMPANY, INC., Employer, and American

Mutual Insurance Company, Carrier, Petitioners,

v.

UNITED STATES DEPARTMENT OF LABOR and Director, Office of

Workers' Compensation Programs, United States

Department of Labor, and Garfield Maze,

Jr., Respondents.

No. 78-1483.

United States Court of Appeals, Fifth Circuit

July 21, 1980

Page 111

Mouton, Roy, Carmouche, Bivins & Hill, John A. Bivins, Lafayette, La., for petitioners.

Page 112

John E. Conery, Franklin, La., for G. Maze, Jr.

Ralph M. Hartman, Director Office of Workers' Compensation Programs, U. S. Dept. of Labor, Mary A. Sheehan, U. S. Dept. of Labor, Washington, D. C., for respondents.

Petition for Review of an Order of the Benefits Review Board

Before GODBOLD, GARZA and RANDALL, Circuit Judges.

GODBOLD, Circuit Judge:

This is a petition by the employer and its insurer for review of a decision by the Benefits Review Board affirming an Administrative Law Judge's award to the respondent Maze of permanent disability benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq. ("LHWCA"). The petitioners raise three arguments: (1) Maze was not a covered "employee" within the meaning of 33 U.S.C. § 902(3); 1 (2) he was not injured on a situs covered under 33 U.S.C. § 903(a); 2 and (3) he was not permanently disabled as defined in 33 U.S.C. § 902(10). 3

I. Coverage under LHWCA

The facts underlying Odom's arguments that Maze was not a covered employee injured on a covered situs are largely undisputed. Maze, an employee of Odom, was accidentally injured on July 9, 1973 when an oxyacetylene torch, which he was using to cut wire rope, exploded and burned his forearms. Maze was normally a land-based construction worker. On the day of his injury he was engaged in a two-day job that required moving four large concrete blocks that had been located on the bank of a navigable canal 4 but had sunk into the water because of erosion. Earlier in the day of his injury Maze had been in the water digging under the blocks so that wire rope could be passed around them, but he was standing on shore when the torch exploded. The blocks were used solely as a place to tie off or moor barges that were waiting to be moved to the loading facilities of Domtar Salt Mine Company and barges that, after being loaded, were awaiting towboats.

  1. Maze's status under 33 U.S.C. § 902(3)

    Odom argues that Maze is not a covered "employee" both because moving the concrete blocks was not maritime work and because the great majority of Maze's work for Odom was indisputably nonmaritime. We reject both arguments.

    First, the act of moving the blocks is maritime work. Section 902(3) lists harborworkers among the types of workers covered. It is at least arguable that the repair of moorings, even of those not adjacent to main docks, is a type of job that could be performed by a typical harborworker. Yet we need not hold that Maze was engaged in "harborworking" at the time of his injury, for § 902(3) by its own terms states that longshoremen and harborworkers are not the only persons engaged in maritime employment. Cf. P. C. Pfeiffer Co. v. Ford,

    Page 113

    444 U.S. 69, 77, 100 S.Ct. 328, 334, 62 L.Ed.2d 225, 233 n.7 (1979); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 265 n.25, 97 S.Ct. 2348, 2358, 53 L.Ed.2d 320, 334 n.25 (1977) (maritime employment includes more than longshoring). Moving the blocks directly furthered maritime commerce. By tying up to the blocks, barges were moored and held in place before loading until they could be moved to the loading facilities and, after loading, until they could be taken away by tugs. Relocating the blocks after they had fallen or slipped into the water from erosion is not the type of job peripherally related to maritime matters that Congress said was not to be covered by the LHWCA, such as trans-shipment of stored cargo or clerical work. See S.Rep. No. 92-1125, 92d Cong., 2d Sess. 13; H.R.Rep. No. 92-1441, 92d Cong. 2d Sess. 10-11, quoted in P. C. Pfeiffer Co., supra, 444 U.S. at 79, 100 S.Ct. at 335, 62 L.Ed.2d at 234; Caputo, supra, 432 U.S. at 265 n.27, 97 S.Ct. at 2358, 53 L.Ed.2d at 334 n.27. On the facts before us, where the job being done clearly had "a realistically significant relationship to 'traditional maritime activity involving navigation and commerce on navigable waters' . . .," Weyerhauser 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) (citations omitted), Maze's work at the time of his injury was maritime.

    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 majority 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 maritime work at the time of his injury. See Thibodaux v. Atlantic Richfield Co., 580 F.2d 841, 843-45 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979); 1A Benedict on Admiralty § 16a (1979); cf. Fusco v. Perini North River Assoc., 601 F.2d 659, 668 (2d Cir...

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