Alcala v. Director, Office of Workers Compensation Programs, U.S. Dept. of Labor

• Decision Date: 13 April 1998
• Docket Number: No. 96-70794,96-70794
• Citation: 141 F.3d 942
• Parties: , 98 Cal. Daily Op. Serv. 2688, 98 Daily Journal D.A.R. 3721 Jose ALCALA, Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR; Pan Pacific Fisheries; State Compensation Insurance Fund, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 942

141 F.3d 942

1998 A.M.C. 1659, 98 Cal. Daily Op. Serv. 2688,

98 Daily Journal D.A.R. 3721

Jose ALCALA, Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, U.S DEPARTMENT OF LABOR; Pan Pacific Fisheries State Compensation Insurance Fund, Respondents.

No. 96-70794.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 2, 1998.

Decided April 13, 1998.

Preston Easley, Law Offices of Preston Easley, San Pedro, California, for appellant-petitioner.

Gary M. Spero, Cerritos, California, for appellees-respondents Pan Pacific Fisheries and State Compensation Insurance Fund.

Petition for Review of an Order of the Benefits Review Board. OWCP No. 18-53230, BRB No. 94-3743.

Before: WALLACE, TROTT, and HAWKINS, Circuit Judges.

TROTT, Circuit Judge:

OVERVIEW

An Administrative Law Judge denied Appellant's request for benefits pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-50 (1994), because he found Appellant to be an excluded "aquaculture worker." See 33 U.S.C. § 902(3)(E). The Benefits Review Board (Board) automatically affirmed the ALJ's decision.

Appellant's job duties as a freezer forklift operator fall within the aquaculture worker exception. Aquaculture workers by their status are excluded from the LHWCA's jurisdiction and coverage even if they momentarily or episodically work on the docks. Therefore, the ALJ and Board correctly concluded that Appellant's claim does not fall within the LHWCA's jurisdiction.

Appellant's petition for review is denied.

BACKGROUND

Jose F. Alcala, Claimant-Appellant, sought LHWCA benefits after he injured his shoulder and back by slipping on ice and fish blood in his employer's freezer warehouse. Appellant was employed by Pan Pacific Fisheries (PPF). PPF is a large cannery that primarily cans tuna fish, but also processes squid, mackerel and pet food.

PPF's facility is situated beside a dock in a harbor at Long Beach, California. The fish comes to the processing plant mainly by truck and only occasionally by ship. Fish delivered by ship would be unloaded by the ship's crew and left in bins on the dock. Only one ship delivered fish in 1991, the year of Appellant's injury.

At the time of his injury, Appellant was a freezer forklift operator at PPF. A freezer forklift operator picks up bins of fish from an ante room, the area located next to the freezer entrance, which are left there by outside forklift operators. The operator then stacks and inventories the fish in the freezer while the fish awaits the next step in processing or canning. Appellant's job was a critical part of PPF's processing and canning operation.

At the administrative hearing, PPF contended that Appellant did not qualify for LHWCA benefits because he did not perform maritime work. PPF claimed Appellant performed non-maritime duties inside its freezer warehouse as evidenced by the special suit he wore at work that was designed to withstand frigid temperatures. Appellant also drove a forklift designed to stack bins of fish high in the freezer. He was paid a different wage from and belonged to a different union than PPF's outside forklift operators.

Appellant did not dispute PPF's contention that his duties required him to work inside the freezer. He did claim, however, that he occasionally moved bins of fish on the dock if there were too few outside drivers. This led to his assertion that some of the duties he performed were maritime in nature, and therefore, his claim was subject to LHWCA jurisdiction despite the explicit aquaculture worker exception.

The ALJ held that Appellant's duties as a freezer forklift operator were part of PPF's On appeal, the Board granted automatic affirmance of the ALJ's decision. ¹ Appellant petitions this court for review.

                processing and canning operation.  He determined this was true even if Appellant occasionally moved bins of fish outside, because the "processing operation began once the fish were deposited into the bins on the dock."   The ALJ concluded, "the regulatory definition of 'aquaculture worker' [included] any employee of an employer engaged in fish 'cleaning, processing or canning' operations whose duties take place after the employer takes possession of the incoming fish."   Because Appellant was subject to California state workers' compensation coverage, the ALJ dismissed Appellant's LHWCA claim.  See 33 U.S.C. § 902(3)(E) (LHWCA does not apply to aquaculture workers who are subject to state compensation laws)
                

STANDARD OF REVIEW

The Board "may not substitute its views for those of the ALJ, but instead must accept the ALJ's findings unless they are contrary to the law, irrational, or unsupported by substantial evidence." King v. Director, OWCP, 904 F.2d 17, 18 (9th Cir.1990) (quotation and citation omitted). "We review the Board's decision for errors of law and adherence to the substantial evidence standard, and we may affirm on any basis contained in the record." Cretan v. Bethlehem Steel Corp., 1 F.3d 843, 845 (9th Cir.1993) (quotations and citations omitted). The court defers to the Board's interpretation of the LHWCA if it "is reasonable and reflects the underlying policy of the statute." Todd Shipyards Corp. v. Director, OWCP, 848 F.2d 125, 126 n. 2 (9th Cir.1988).

DISCUSSION

A. History of the Jensen Line and the Aquaculture Exception

Since Congress enacted the LHWCA, courts have struggled to define the line between state workers' compensation and LHWCA jurisdiction. See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 256-65, 97 S.Ct. 2348, 2353-58, 53 L.Ed.2d 320 (1977) (discussing history of the LHWCA). This line of jurisdiction is referred to as the "Jensen line." See Southern Pac. Co. v. Jensen, 244 U.S. 205, 217-18, 37 S.Ct. 524, 529-30, 61 L.Ed. 1086 (1917) (refusing to allow States to extend workers' compensation benefits to maritime workers injured on the seaward side of the pier). It turned out that the LHWCA was harder to apply than Congress had expected. Jurisdiction often still depended on whether the claimant was hurt on the landward or seaward side of the Jensen line, and amphibious workers literally walked in and out of coverage as they performed their various duties. See Caputo, 432 U.S. at 256-65, 97 S.Ct. at 2353-58. Frustrated by inconsistent LHWCA decisions, Congress moved the Jensen line shoreward in order to offer more uniform coverage to amphibious maritime workers. See id. at 263-64, 97 S.Ct. at 2356-57 However, Congress's shoreward shift of the Jensen line resulted in broader LHWCA jurisdiction than it had intended. Id. at 272-73, 97 S.Ct. at 2361-62. Thus, in 1984, Congress attempted to tighten the Jensen line by identifying and excluding workers "who, although by circumstance happened to work on or adjacent to waters, lacked a sufficient nexus to maritime navigation and commerce." S.Rep. No. 98-81, at 24-25 (1983). Congress accomplished this change by redefining the statute's definition of "employee." LHWCA Amendments of 1984, Pub.L. No. 98-426, 98 Stat. 1639, 1655, § 28(c) (codified in relevant part at 33 U.S.C. § 902(3)). Among other changes, the revised definition of "employee" excluded aquaculture workers subject to workers' compensation. See id.

The revised statute does not define the term "aquaculture worker." However, the term is defined by the Code of Federal Regulations as:

those employed by commercial enterprises involved in the controlled cultivation and harvest of aquatic plants and animals, including the cleaning, processing or canning 20 C.F.R. § 701.301(a)(12)(iii)(E) (1994). The exclusion of aquaculture workers applies even if the claimant is injured over navigable waters. Id. § 701.301(a)(12)(iii).

of fish and fish products, the cultivation and harvesting of shellfish, and the controlled growing and harvesting of other aquatic species.

Appellant argues the ALJ and Board erred by concluding that he was an excluded aquaculture worker and denying LHWCA jurisdiction for his claim. The outcome of his petition for review depends entirely on where Congress drew the Jensen line in relation to his duties and to the aquaculture worker exception.

B. Ljubic and Maritime Duties

Appellant argues that claimants doing both aquaculture work and maritime work qualify for LHWCA coverage, because spending some time in longshoring operations is enough to confer LHWCA jurisdiction. Caputo, 432 U.S. at 273, 97 S.Ct. at 2362 (claimant spending "at least some of his time in indisputably longshoring operations" is covered). He contends that the ALJ and the Board erred by rejecting the legal conclusions set forth in Ljubic v. United Food Processors, 27 BRBS 112 (1993), aff'd, Nos. 93-1949 and 93-2255, 1996 WL 582352, at * 3 (BRB Sept. 11, 1996), because the Board in Ljubic recognized that even excluded aquaculture workers are covered under the LHWCA if they engage in occasional maritime duties.

In Ljubic, the claimant was a maintenance supervisor and mechanic. 27 BRBS at 114. The claimant spent forty percent of his time doing maintenance work on structures and equipment used on the docks for unloading fish. See id. His other duties involved the repair and maintenance of his employer's cannery. See id. The ALJ held the claimant was not an excluded aquaculture worker. See id. at 118. The ALJ reasoned that a cannery worker who regularly engaged in traditional maritime duties as an expected part of his job would be exposed to the risk of walking in and out of coverage if the exception applied. See id. at 117. The Board held the ALJ had properly focused on the claimant's duties when assessing the applicability of the aquaculture exclusion. Ljubic, 1996 WL 582352, at * 3; see also Coloma v. Director, OWCP, 897 F.2d 394, 397-400 (9th Cir.1990) (maritime work consists of duties essential to the overall loading and unloading of vessels). Because Ljubic's traditional maritime duties were a regular, expected part of his duties, the Board...