Baker v. Gulf Island Marine Fabricators, LLC
| Decision Date | 14 July 2015 |
| Docket Number | BRB 14-0344 |
| Parties | JAMES BAKER, JR., Claimant-Petitioner v. GULF ISLAND MARINE FABRICATORS, LLC, Self-Insured Employer-Respondent DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order of Patrick M. Rosenow Administrative Law Judge, United States Department of Labor.
William S. Vincent, Jr., W. Jared Vincent, and V. Jacob Garbin (Law Offices of William S. Vincent, Jr.), New Orleans Louisiana, for claimant.
William S. Bordelon (Bordelon & Shea, LLP), Houma, Louisiana, for self-insured employer.
Rebecca J. Fiebig (M. Patricia Smith, Solicitor of Labor; Rae Ellen James, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers’ Compensation Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, BOGGS and BUZZARD, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order (2013-LHC-1807) of Administrative Law Judge Patrick M. Rosenow rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C §901 et seq. (the Act), and as extended by the Outer Continental Shelf Lands Act, 43 U.S.C. §1301 et seq. (the OCSLA). We must affirm the administrative law judge’s findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law.[1] 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Claimant worked as a marine carpenter at employer’s land-based Houma, Louisiana, facility. He was hired to fabricate topside living quarters to be incorporated onto the tension leg oil platform Big Foot.[2] Although fabrication of these living quarters was essentially the same work as fabricating living quarters to be placed on a naval vessel, a private vessel, or a fixed oil rig, these particular quarters were designated for Big Foot. At all times during his eight-month employment, claimant worked on this project on dry land, approximately 100 yards from a navigable canal. EX 1. On two or three occasions, claimant boarded a boat to take a 10-to-15-minute ride across the canal to a meeting or function at employer’s facility on the other side of the canal.[3] Tr. at 44-48. Claimant alleges he injured his neck/back on October 22, 2012, while installing sheet metal during the construction of the living quarters.[4] On November 7, 2012, claimant filed a claim for benefits under the Act or, alternatively, under the OCSLA.
The administrative law judge set forth the statutory provisions relating to coverage under the Act and the OCSLA.[5] 33 U.S.C. §902(3), (21); 43 U.S.C. §1333. As it relates to the Act, the administrative law judge stated that “shipbuilding” requires an employee to be involved in furthering the employer’s goal of constructing ships and, thus, must involve a “vessel.” Therefore, he stated that he must determine whether Big Foot is a vessel, as that would establish whether claimant’s activities involved “shipbuilding.” 33 U.S.C. §902(3). The administrative law judge found that Big Foot is not a vessel and that claimant was not “in maritime status.” Decision and Order at 10. Next, the administrative law judge found that claimant is not covered by the OCSLA because, at the time of claimant’s alleged injury, “there was no completed rig, much less a rig operating, installed or even in transit[;]” thus, there was no significant link between claimant’s injury and any extractive operations on the Outer Continental Shelf (OCS). Id. at 11. Consequently, the administrative law judge denied the claim for benefits. Claimant appeals the denial of his claim. Employer and the Director, Office of Workers’ Compensation Programs (the Director), respond, urging affirmance of the administrative law judge’s decision. Claimant filed a reply brief.
Claimant contends the administrative law judge erred in finding Big Foot is not a vessel and in concluding he was not engaged in covered employment.[6] Alternatively, claimant contends the administrative law judge erred in finding he is not covered by the OCSLA, as there is a substantial nexus between his fabrication of the living quarters module and the extraction process on the OCS in that the living quarters will house those who will extract oil.[7] Employer urges the Board to affirm the administrative law judge’s findings. The Director agrees the administrative law judge properly found that Big Foot is not a vessel and that there is no substantial nexus between claimant’s work and OCS operations.
For a claim to be covered by the Act, a claimant must establish that his injury occurred upon the navigable waters of the United States, including any dry dock, or that it occurred on a landward area covered by Section 3(a), and that his work is maritime in nature pursuant to Section 2(3) and is not specifically excluded by any provision in the Act. 33 U.S.C §§902(3), 903(a); Director, OWCP v. Perini North River Associates, 459 U.S. 297, 15 BRBS 62(CRT) (1983); P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 11 BRBS 320 (1979); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977). Thus, in order to demonstrate that coverage exists, a claimant must separately satisfy both the “situs” and the “status” requirements of the Act. Anaya v. Traylor Brothers, Inc., 478 F.3d 251 (5th Cir. 2007), cert. denied, 552 U.S. 814 (2008).
Only claimant’s “status” is at issue in this case. See n. 5, supra. Section 2(3) of the Act provides:
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, shipbuilder, and ship-breaker....
33 U.S.C. §902(3). A claimant satisfies the “status” requirement if he is an employee engaged in work which is integral to the loading, unloading, constructing, or repairing of vessels. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96(CRT) (1989). To satisfy this requirement, he need only “spend at least some of [his] time in indisputably [covered] operations.” Caputo, 432 U.S. at 273, 6 BRBS at 165; Boudloche v. Howard Trucking Co., 632 F.2d 1346, 12 BRBS 732 (5th Cir. 1980), cert. denied, 452 U.S. 915 (1981).
Claimant argues that Big Foot will have two lives, one as a vessel and one as a floating oil platform on the OCS, and as it will be a vessel for at least some portion of its life, his work constructing the living quarters for that “vessel” constitutes the maritime work of “shipbuilding.” The Act’s definition of the term “vessel” at 33 U.S.C. §902(21), [8] is “circular;” thus, courts have held that the definition of “vessel” at 1 U.S.C. §3 applies to the Act because Section 2(21) does not define the type of craft to be included in the term “vessel.” See McCarthy v. The Bark Peking, 716 F.2d 130, 15 BRBS 182(CRT) (2d Cir. 1983), cert. denied, 465 U.S. 1068 (1984); Burks v. American River Transp. Co., 679 F.2d 69 (5th Cir. 1982); see also Stewart v. Dutra Constr. Co., Inc., 543 U.S. 481, 497, 39 BRBS 5, 12(CRT) (2005) (“1 U.S.C. § 3 defines the term ‘vessel’ throughout the LHWCA”). 1 U.S.C. §3 provides: “The word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” If Big Foot is a “vessel, ” claimant was engaged in “shipbuilding” under Section 2(3). In this respect, the Board held in McCullough v. Marathon Letourneau Co., 22 BRBS 359 (1989), that a jack-up rig under construction on land was a vessel under 1 U.S.C. §3, and therefore the claimant, who was a welder involved in the construction of the rig, was a “shipbuilder” under Section 2(3).
More recently, the Supreme Court has interpreted the 1 U.S.C. §3 definition of “vessel.” In Stewart, 543 U.S. 481, 39 BRBS 5(CRT), the Court addressed whether the Super Scoop dredge was a “vessel” such that the injured employee could pursue a Jones Act claim and a 33 U.S.C. §905(b) negligence suit. The Court stated that the factual question in all cases is “whether the watercraft’s use ‘as a means of transportation on water’ is a practical possibility or merely a theoretical one.” Stewart, 543 U.S. at 496, 39 BRBS at 11(CRT). Because Super Scoop could propel itself 15 to 25 feet per hour to accomplish its task of digging while carrying its machinery and crew over water, the Court held that it was “practically capable” of transporting people and cargo over water and, thus, was a “vessel.”[9]
The United States Court of Appeals for the Fifth Circuit, within whose jurisdiction this case arises, subsequently addressed Stewart in two Jones Act cases. Cain v Transocean Offshore USA, Inc., 518 F.3d 295, 42 BRBS 4(CRT) (5th Cir. 2008); Holmes v. Atlantic Sounding Co., Inc., 429 F.3d 174 (5th Cir. 2005), superseded by 437 F.3d 441, 39 BRBS 67(CRT) (5th Cir. 2006), abrogated by Lozman v. City of Riviera Beach, Florida, ___ U.S. ___, 133 S.Ct. 735, 46 BRBS 93(CRT) (2013). In Cain, the court addressed whether a semi-submersible drilling rig, still under construction, was a “vessel in navigation” under the Jones Act. The court held that Stewart did not address when a vessel-to-be actually becomes a vessel; therefore, Fifth Circuit precedent, which distinguished between completed watercrafts and those still under construction, remained intact. Specifically, the court noted that Stewart addressed whether an established structure was a vessel “in navigation, ” relating “navigation” to whether the structure may have lost its “vessel” characteristic by being removed from...
To continue reading
Request your trial