Bienvenu v. Texaco, Inc.

• Decision Date: 11 January 1999
• Docket Number: No. 96-60625,96-60625
• Parties: Carl BIENVENU, Petitioner, v. TEXACO, INC.; Director, Office of Worker's Compensation Programs, U.S. Department of Labor; Insurance Company of North America, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 901

164 F.3d 901

1999 A.M.C. 1255

Carl BIENVENU, Petitioner, v. 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.

Jan. 11, 1999.

David Bruce Allen, Stephen M. LaRussa & Associates, Houma, LA, for Petitioner.

Wayne G. Zeringue, Jr., Elizabeth Slatten Healy, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John D. Fitzmorris, Jr., Courtenay, Forstall, Hunter & Fontana, New Orleans, LA, for Texaco, Inc. and Insurance Co. of North America.

Michael Scott Hertzig, Washington, DC, Thomas O. Shepherd, Jr., Clerk, Benefits Review Bd., Carol A. De Deo, U.S. Dept. of Labor, Dir., Office of Workers Comp. Programs, Joshua T. Gillelan, II, Office of the Sol. of Labor, Washington, DC, for Director, Office of Worker's Comp. Programs, U.S. Dept. of Labor.

Petition for Review of an Order of the Benefits Review Board.

Before POLITZ, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges. ^*

PATRICK E. HIGGINBOTHAM and W. EUGENE DAVIS, Circuit Judges:

Carl Bienvenu seeks benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA) for injuries sustained on navigable waters during the course of his employment. His petition requires us to enter the unsettled waters of our LHWCA jurisprudence. In deciding that Bienvenu is entitled to LHWCA benefits, we right our wayward precedent and chart a smoother course for future panels to follow.

I.

Bienvenu worked for Texaco, Inc., in the Caillou Island production field as a pumper specialist. By 1987 he had been employed by Texaco in this field for about twenty-two years. 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 and his fellow employees lived in a base camp on pilings over the water. Bienvenu worked seven days on and seven days off, and on his work days he worked a twelve-hour shift. Bienvenu was responsible for maintaining and calibrating automated equipment located on fixed production platforms. Bienvenu had the almost exclusive use of a vessel, the MISS JACKIE, along with a skipper to transport him around the field 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." The ALJ read this Court's prior decisions to mean that coverage under the Act was dictated by the "amount of time devoted to specific work activity by a Claimant." The ALJ ruled that Bienvenu was not a "maritime employee" because he spent the vast majority of his working hours on fixed platforms and was only fortuitously on navigable waters when injured. The extension of the LHWCA to land-based activities did not apply to Bienvenu since his work was not an integral or essential part of loading or unloading a vessel.

Bienvenu timely appealed the ALJ's decision to the Benefits Review Board ("BRB"). The BRB failed to render a timely decision and was deemed to have affirmed the ALJ's ruling. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321-219. Bienvenu petitioned us for review. A panel of this Court reversed the ALJ's decision because Fifth Circuit precedent 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 systems could not reach longshoremen injured seaward of the water's edge. Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917). In response, Congress passed the LHWCA in 1927. See Pub.L. No. 803, 44 Stat. 1429. Technically, there were five requirements for coverage under the LHWCA as originally enacted, as later detailed by the Supreme Court in Director v. Perini North River Associates, 459 U.S. 297, 306-07, 103 S.Ct. 634, 641-42, 74 L.Ed.2d 465 (1983):

(1) The employee could not be a "master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under 18 tons net."

(2) The employee must suffer injury during the course of employment.

(3) The employee had to be employed by a statutory "employer," defined to be "an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States."

(4) The employee had to meet a situs requirement that injury occurred upon navigable waters.

(5) No federal coverage unless compensation may not validly be provided by state law. ¹ In 1969, the Supreme Court, while recognizing the harshness of the Jensen line, held that the LHWCA did not extend to injuries occurring on a pier attached to land. Nacirema Operating Co. v. Johnson, 396 U.S. 212, 218-20, 90 S.Ct. 347, 351-52, 24 L.Ed.2d 371 (1969). The Court stated that the "invitation to move that line landward must be addressed to Congress, not to this Court." Id. at 224, 90 S.Ct. at 354. Congress acted on this invitation in 1972 when it amended the LHWCA. See LHWCA Amendments of 1972, Pub.L. No. 92-576, 86 Stat. 1251. The 1972 Amendments extended "coverage to more workers by replacing the single-situs requirement with a two-part situs and status standard." P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 73, 100 S.Ct. 328, 332, 62 L.Ed.2d 225 (1979). The situs test now reached shoreward to reach injuries "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, dismantling, or building a vessel.)" 33 U.S.C. § 903(a). The status test defined an employee as "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 ship-breaker." Id. § 902(3).

In Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977), the Supreme Court first expounded on the status test. The workers in that case were Blundo and Caputo. Blundo was injured when he fell while checking cargo as it was removed from a container. Caputo moved cargo from the hold of the vessel onto shore and was hurt when rolling a dolly into a truck. Though the 1972 Act did not expressly state that workers in their positions were covered, the Court held that both Blundo and Caputo were entitled to benefits. Blundo was covered because "[o]ne of the reasons Congress expanded coverage in 1972 was that containerization permits loading and unloading tasks traditionally conducted aboard ship to be performed on the land." Pfeiffer, 444 U.S. at 74, 100 S.Ct. at 333. Caputo fell under the LHWCA because he spent some of his time in "indisputably longshoring operations,"Caputo, 432 U.S. at 273, 97 S.Ct. at 2362, and Congress had intended "to ensure that a worker who could have been covered part of the time by the pre-1972 Act would be completely covered by the 1972 Act." Pfeiffer, 444 U.S. at 75, 100 S.Ct. at 333.

In Pfeiffer, the Supreme Court further elaborated on the difference between the situs and status tests by noting that the situs test limits the geographic coverage of the LHWCA, while the status test is an occupational concept that focuses on the nature of the worker's activities. Id. at 78, 100 S.Ct. at 334-35. The "crucial factor" in determining the scope of maritime employment "is the nature of the activity to which a worker may be assigned." Id. at 82, 100 S.Ct. at 337. Though the 1972 Amendments extend coverage, they do not provide benefits to all workers in the situs area, such as truck drivers who pick up goods for further trans-shipment. Id. at 83, 100 S.Ct. at 337.

Four years after Pfeiffer, the Supreme Court returned to this issue in Perini. In that case, a workman, Churchill, was employed in the construction of a sewage treatment plant that extended over the Hudson River. He was injured on the deck of a cargo barge where he was supervising operations. The Court found no congressional intent in the 1972 Amendments to withdraw LHWCA coverage from workmen covered by the Act before 1972. The Court held that when a worker is injured on the actual navigable waters in the course of his employment on these waters, he satisfies the status requirement, assuming that the other requirements of the LHWCA are met. 459 U.S. at 324 & n. 33, 103 S.Ct. at 651 & n. 33. The Court expressed no opinion on whether LHWCA coverage extends to a worker "injured while transiently or fortuitously upon actual navigable waters or to a land-based worker injured on land who then falls into actual navigable waters." Id. at 324 n. 34, 103 S.Ct. at 651 n. 34.

The Perini Court discussed three of its pre-1972 cases to illustrate the scope of the Act's coverage before the amendments were adopted. See id. at 307-12, 103 S.Ct. at 642-45 (discussing ...