Cunningham v. Director

• Decision Date: 03 August 2004
• Docket Number: No. 03-1980.,03-1980.
• Citation: 377 F.3d 98
• Parties: Damon R. CUNNINGHAM, Jr., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Bath Iron Works, Respondents.
• Court: U.S. Court of Appeals — First Circuit

377 F.3d 98

Damon R. CUNNINGHAM, Jr., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Bath Iron Works, Respondents.

No. 03-1980.

United States Court of Appeals, First Circuit.

Heard May 3, 2004.

Decided August 3, 2004.

COPYRIGHT MATERIAL OMITTED

Marcia J. Cleveland, for petitioner.

Barry H. Joyner, Attorney for the Director, with whom Howard M. Radzely, Solicitor of Labor, Donald S. Shire, Associate Solicitor, and Mark A. Reinhalter, Counsel for Longshore, were on brief for the Director, Office of Workers' Compensation Programs.

Stephen Hessert, with whom Doris V.R. Champagne and Norman, Hanson & Detroy, LLC, were on brief for Bath Iron Works.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

COFFIN, Senior Circuit Judge.

Petitioner Damon E. Cunningham, Jr. has been a pipe fitter for Bath Iron Works in Bath, Maine, for more than 25 years, and since 1998 has worked at the company's East Brunswick Manufacturing Facility ("EBMF"). At the EBMF, which is approximately 3.5 to 4 miles from BIW's main shipyard in Bath, workers prefabricate pipe units that are transported by truck and installed in ships at Bath. Cunningham injured his back at EBMF in October 1999 and subsequently sought disability coverage under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950. An Administrative Law Judge ("ALJ") and the Benefits Review Board ("BRB" or "Board") denied his claim on the ground that the EBMF is not a covered work location.

In his petition for review, Cunningham asserts that the ALJ and Board erred by too narrowly defining the reach of the statute. He contends that the EBMF qualifies as an area that adjoins navigable waters. See 33 U.S.C. § 903(a). Although Cunningham presents a sympathetic case based on the nature of his employment, we conclude that the ALJ properly determined that the LHWCA does not presently confer benefits on employees who are injured at the EBMF. We therefore must deny the petition for review.

I. Background

The LHWCA was enacted in 1927 to provide compensation for maritime workers who were injured while working on navigable waters in the course of their employment. Director, Office of Workers' Comp. Programs v. Perini North River Assocs., 459 U.S. 297, 311, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 257-58, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). Initially, a maritime worker was covered under the statute only if his injury occurred while he was performing work on the seaward side of the shore. Caputo, 432 U.S. at 258, 97 S.Ct. 2348.¹ In 1972, the law was significantly amended, see id. at 261, 97 S.Ct. 2348; Perini North River Assocs., 459 U.S. at 313, 103 S.Ct. 634, and one of the changes made is at the heart of this case. Rather than stopping at the water's edge, coverage under the act was extended shoreward in recognition that "modern technology had moved much of the longshoreman's work onto the land," Caputo, 432 U.S. at 262, 97 S.Ct. 2348 & n.20; see S.Rep. No. 92-1125, at 12-13 (1972); H.R.Rep. No. 92-1441, at 10-11 (1972), reprinted in 1972 U.S.C.C.A.N. 4698, 4707-08. The pertinent section of the amended statute provides as follows:

[C]ompensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury 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).

Among the other changes effected by the 1972 Amendments was the addition of a requirement that the injured employee be engaged in maritime employment. See Caputo, 432 U.S. at 263-64 & n. 21, 432 U.S. 249; 33 U.S.C. § 902(3). Previously, a worker generally was entitled to compensation so long as his injury occurred on navigable waters, without regard to whether his particular job was maritime in nature. Caputo, 432 U.S. at 263-64, 97 S.Ct. 2348. Eligibility for coverage under the LHWCA is thus now subject to both a "status" test and a "situs" test. Cunningham's status as a maritime worker is uncontested, and we therefore must address only whether the "situs" of his employment — the EBMF — falls within the statutory definition. Because Cunningham's injury occurred neither on a navigable waterway nor on any of the specific sites listed in section 903(a), the issue is whether the EBMF constitutes an "other adjoining area" under the statute.

As noted earlier, the EBMF is several miles from BIW's main shipyard, which is located on the Kennebec River in Bath. The pipe and tin shops housed at the EBMF originally were located at the main shipyard and were moved in 1990 because more space was needed for them to operate efficiently. The work done at the EBMF is fully integrated into BIW's shipbuilding process; since 1995, the company has utilized a "just-in-time" system in which components are prefabricated in East Brunswick and delivered to Bath just before they are needed for installation in the ships.

The EBMF is one of five BIW facilities concentrated in the same area of East Brunswick. The complex of BIW buildings dominates the eastern portion of Brunswick, accounting for more acres and more employees than other land users. Other maritime businesses are located in East Brunswick, including a marina and propeller shop, but the area between the Bath shipyard and BIW's East Brunswick complex is not predominantly maritime in character. Based on a review of maps, photographs and testimony, the Board reported that the area contains restaurants, motels, convenience stores, gas stations, residences and other non-maritime uses.

Although removed by several miles from the Kennebec River, the EBMF does have proximity to salt water, at least some of which indisputably is navigable. At its closest point, the EBMF property is about 1,400 feet from the navigable New Meadows River, an inlet of Casco Bay. The property also is crossed by a body of water identified as Thompson Brook by BIW and described as a tidal saltwater marsh by petitioner. The parties debate whether that waterway is navigable within the meaning of the LHWCA.

After examining a variety of factors — including the geography, tidal activity and history of the area, as well as the relationship between BIW's main shipyard and the East Brunswick site — the ALJ concluded that the EBMF is neither literally contiguous to navigable waters nor otherwise an "adjoining area" within the meaning of section 903(a). The ALJ rejected petitioner's contention that Thompson Brook is navigable, finding, among other factors, that the waterway does not meet the requirement that it either be currently used for commercial purposes or reasonably capable of future commercial use. In evaluating whether the EBMF is an "adjoining area" in relation to the New Meadows River, the ALJ utilized a test set out by the Ninth Circuit in Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141 (9th Cir.1978), that focuses on the "functional relationship" between the workplace and navigable waters. See also Texports Stevedore Co. v. Winchester, 632 F.2d 504, 513-14 (5th Cir.1980) (en banc); but see Sidwell v. Express Container Servs., Inc., 71 F.3d 1134, 1138-39 (4th Cir.1995).² The ALJ found that no functional connection existed between the maritime work done at the facility and the New Meadows River, and thus that the EBMF was not covered as an extension of that waterway. The ALJ did not address the question whether the EBMF was an area adjoining the BIW shipyard on the Kennebec.

The Board largely agreed with the ALJ's findings, which it deemed supported by substantial evidence and consistent with the relevant case law. Although the ALJ did not explicitly consider the nexus between the EBMF and the Kennebec River, the Board's examination of the undisputed facts and the judge's subsidiary findings led it to conclude as a matter of law that the EBMF "is not within the perimeter of a general maritime area around the Kennebec River or the main shipyard."

Petitioner Cunningham asserts that the ALJ and Board decisions were infected by numerous factual and legal errors, including misinterpretation of the Herron"functional relationship" test, neglect of a statutory presumption in favor of coverage, and lack of record support for the finding that the salt marsh — the body of water called Thompson Brook by the ALJ and the Board³ — was not, and could not be made, navigable.

We review the Board's rulings of law de novo and otherwise examine its decision to determine if it adhered to the "substantial evidence" standard in reviewing the ALJ's factual findings. Bath Iron Works v. Director, Office of Workers' Comp. Programs, 244 F.3d 222, 226 (lst Cir.2001); Prolerized New England Co. v. Benefits Review Bd., 637 F.2d 30, 35-36 (lst Cir.1980).

II. Discussion

We dispose preliminarily of petitioner's contention that we must view this case with a bias in favor of coverage, pursuant to 33 U.S.C. § 920(a). Section 920(a) states a presumption that "the claim comes within the provisions of this chapter" if there is no "substantial evidence to the contrary." In Stockman v. John T. Clark & Son of Boston, Inc., 539 F.2d 264, 269 (lst Cir.1976), we held that this provision does not govern general interpretation of the situs requirement. Like Stockman, this case requires us to address "'general propositions or methods of approach,'" id. at 270 (citation omitted), for determining when a workplace may be classified as an "adjoining" area. How these standards, in turn, apply to the largely undisputed facts also requires legal judgments about the statute's scope that we conclude are not subject to the presumption. Cf. Pittston Stevedoring Corp. v....