Bienvenu v. Texaco, Inc., 96-60625

Decision Date29 September 1997
Docket NumberNo. 96-60625,96-60625
Citation124 F.3d 692
PartiesCarl BIENVENU, Petitioner, v. TEXACO, INC; Director, Office of Worker's Compensation Programs, U.S. Department of Labor; Insurance Company of North America, Respondents.
CourtU.S. Court of Appeals — Fifth Circuit

David Bruce Allen, Samanie, Barnes & Allen, Houma, LA, for Petitioner.

Wayne G. Zeringue, Jr., Michael L. Dubos, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John D. Fitzmorris, Jr., New Orleans, LA, for Texaco, Inc. and Insurance Co. of North America, Respondents.

Michael Scott Hertzig, Thomas O. Shepherd, Jr., Clerk, Benefits Review Board, Carol DeDeo, Assoc. Solicitor, U.S. Department of Labor, Dir., Office of Workers Comp. Programs, Washington, DC, for Director, Office of Worker's Comp. Programs, U.S. Dept. of Labor, Respondent.

Appeal from the United States Department of Labor Benefits Review Board.

Before POLITZ, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Carl F. Bienvenu petitions for review of the decision of the ALJ affirmed by the Benefits Review Board denying him relief under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq. The petition requires that we again repair to our troubled efforts to define maritime employment. We REVERSE and REMAND.

I.

Bienvenu worked for Texaco, Inc. in the Caillou Island production field as a pumper specialist. The Caillou Island production field is a five mile by twelve mile area located within three miles of the Louisiana coast and contains approximately 150 to 175 active fixed production platforms. Bienvenu was responsible for maintaining and calibrating automated equipment located on fixed production platforms. Bienvenu rode a vessel, the MISS JACKIE, to the platforms where he worked. The ALJ found that during an average twelve hour work day, Bienvenu spent approximately 75% of his time performing his duties while physically located on a fixed production platform; 16.7% of his time in transit as a passenger on the MISS JACKIE; and 8.3% of his time working on equipment on the back of the MISS JACKIE.

Bienvenu was injured twice during the course of his employment while on board the MISS JACKIE in navigable waters. The first time was while moving his tool box from the dock to the boat and the second time was while tying the MISS JACKIE to the dock. These injuries forced him to stop working.

Bienvenu claimed benefits under the LHWCA. An ALJ denied Bienvenu relief on the grounds that the LHWCA did not apply to him since he was not engaged in "maritime employment." Bienvenu timely appealed the ALJ's decision to the Benefits Review Board. The BRB failed to render a decision timely and was deemed to have affirmed the ALJ's ruling. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321, § 219 (1996). Bienvenu petitioned for review and we have jurisdiction pursuant to 33 U.S.C. § 921(c).

II.

"We review a decision of the Benefit [sic] Review Board under the same standard as it reviews the decision of the ALJ: Whether the decision is supported by substantial evidence and is in accordance with the law." Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th Cir.1991). Bienvenu passed the "situs" test for LHWCA coverage since he was on navigable waters when injured. See 33 U.S.C. § 903(a). The only issue presented is whether he was engaged in ...

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3 cases
  • Bienvenu v. Texaco, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 11, 1999
    ...compelled a conclusion that Bienvenu passed the status test since he was on navigable waters when injured. Bienvenu v. Texaco, Inc., 124 F.3d 692, 692-93 (5th Cir.), reh'g en banc granted, 131 F.3d 1135 (5th Cir.1997). II. In 1917, the Supreme Court held that state workers' compensation sys......
  • Ezell v. Direct Labor, Inc.
    • United States
    • Longshore Complaints Court of Appeals
    • March 8, 1999
    ... ... within whose jurisdiction this case arises, in Bienvenu ... v. Texaco, Inc. , 164 F.3d 901 (5th Cir. 1999)( en ... banc ), claimant was only ... ...
  • Bienvenu v. Texaco, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 18, 1997
    ...131 F.3d 1135 ... Carl BIENVENU, Petitioner, ... TEXACO, INC; Director, Office of Worker's Compensation ... Programs, U.S. Department of Labor; Insurance ... Company of North America, Respondents ... No. 96-60625 ... United States Court of Appeals, ... Fifth Circuit ... Dec. 18, 1997 ...         David Bruce Allen, Samanie, Barnes & Allen, Houma, LA, for Petitioner ...         Wayne G. Zeringue, Jr., Michael L. Dubos, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, ... ...

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