Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 14 September 1982
• Docket Number: 79-7094,DUNCANSON-HARRELSON,Nos. 79-7093,s. 79-7093
• Citation: 686 F.2d 1336
• Parties: COMPANY and Employers Mutual Liability Insurance Company of Wausau, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent, and Nancy A. Freer, Claimant. Nancy A. FREER, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1336

686 F.2d 1336

1984 A.M.C. 1519

DUNCANSON-HARRELSON COMPANY and Employers Mutual Liability

Insurance Company of Wausau, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR, Respondent,

and

Nancy A. Freer, Claimant.

Nancy A. FREER, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, Respondent.

Nos. 79-7093, 79-7094.

United States Court of Appeals Ninth Circuit.

Argued Dec. 10, 1980.

Submitted April 6, 1982.

Decided Sept. 14, 1982.

B. James Finnegan, San Francisco, Cal., argued, for Duncanson-Harrelson Co., et al.; Kiernan & Finnegan, San Francisco, Cal., on brief.

Lee H. Cliff, San Francisco, Cal., argued, for Freer; W. Martin Tellegen, Hall, Henry, Oliver & McReavy, San Francisco, Cal., on brief.

Mark C. Walters, Washington, D.C., for Director; Mary A. Sheehan, Washington, D.C., on brief.

Petition to Review a Decision of the Benefits Review Board United States Department of Labor.

Before TRASK and ANDERSON, Circuit Judges, and STEPHENS, ^* district judge.

TRASK, Circuit Judge:

Claimant Freer challenges the amount of compensation awarded her under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1976) (Act or LHWCA), by the Benefits Review Board (BRB). Freer's husband (the decedent) was employed as a pile driver and was killed over navigable waters while cutting pilings for the construction of a pier. Freer asserts that the Administrative Law Judge (ALJ) and the BRB erred in determining the amount of compensation by applying the wrong subsection of 33 U.S.C. § 910 and by failing to include employer contributions to the union pension and health funds as part of decedent's wages.

Defendants Duncanson-Harrelson Company and its liability insurer (collectively D-H) also appeal urging that the decedent was not covered by the Act. D-H argues alternatively that decedent did not meet the Act's test of coverage or that he belonged to a class of employees specifically excluded.

I. FACTS

David W. Freer, the decedent, was killed while working as a pile butt or pile driver on the expansion of the oil tanker docking facilities operated by Pacific Gas & Electric Company in Pittsburg, California. The dock extends into Suisun Bay, a body of navigable water, and D-H was expanding the facilities at the Pittsburg dock to accommodate a rising volume of fuel oil deliveries. Decedent was employed by D-H and was fatally injured when the top of a dolphin piling he was cutting fell on him. The dolphin was located in 35 feet of water, approximately 25 feet from the nearest dock. ¹

Decedent's wife was awarded death benefits by the ALJ who found that the decedent was killed over navigable waters, that he was engaged in maritime employment and was therefore an employee within section 2(3) of the Act. The ALJ also found that decedent was not a member of the crew of the crane barge on which he worked. The ALJ applied section 10(c) of the Act to determine decedent's average weekly wage in the amount of $368.64.

Both D-H and the claimant appealed the decision of the ALJ to the BRB. D-H challenged the findings that decedent was engaged in maritime employment and that he was not a member of the crew of a vessel. The claimant sought review of the average weekly wage computation arguing that the ALJ erred in applying section 10(c) rather than section 10(a) of the Act in determining the amount. Claimant also urged that the ALJ erred in failing to include certain fringe benefits in the computation of decedent's earnings. The BRB affirmed the decision of the ALJ. The parties press the same arguments in their appeal to this court.

II. STANDARD OF REVIEW

The Findings of Fact of the ALJ are reviewed by the BRB under the "substantial evidence" standard. 33 U.S.C. § 921(b)(3). The courts have held that the BRB must accept the ALJ's determinations unless they are contrary to the law, irrational, or unsupported by substantial evidence. E.g., Director (OWCP) v. Campbell Industries, 678 F.2d 836, 838 (9th Cir. 1982). We must review BRB decisions for " 'errors of law and for adherence to the statutory standard governing the Board's review of the administrative law judge's factual determinations.' " Id., citing Bumble Bee Sea Foods v. Director (OWCP), 629 F.2d 1327, 1329 (9th Cir. 1980). In Duncanson-Harrelson Co. v. Director (OWCP), 644 F.2d 827, 830 (9th Cir. 1981), this court indicated that the BRB's determinations should be given deference since an administrative agency's interpretation of the statute which it administers is deserving of considerable respect. 644 F.2d at 830. See, e.g., E. I duPont de Nemours & Co. v. Collins, 432 U.S. 46, 56-57, 97 S.Ct. 2229, 2235, 53 L.Ed.2d 100 (1977), quoting, S.E.C. v. Chenery Corp., 332 U.S. 194, 209, 67 S.Ct. 1575, 1583, 91 L.Ed. 1995 (1947). The Supreme Court, however, has noted that because the BRB does not make policy, its interpretations of the LHWCA are not entitled to any special deference. Potomac Electric Power Co. v. Director (OWCP), 449 U.S. 268, 278 n.18, 101 S.Ct. 509, 514 n.18, 66 L.Ed.2d 446 (1980).

III. COVERAGE OF DECEDENT UNDER THE ACT

A. Maritime Employment

Before the 1972 amendments to the Act, a single geographic test (the "situs" requirement) governed coverage. An employee was entitled to benefits if he was injured while working on or over navigable waters of the United States, even though his occupation was not "maritime." P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 72, 100 S.Ct. 328, 331, 62 L.Ed.2d 225 (1979). There was also a requirement that the worker's employer have at least one employee, not necessarily the injured one, engaged in maritime employment. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 264, 97 S.Ct. 2348, 2357, 53 L.Ed.2d 320 (1977). Because most of those who employ workers for jobs on or over navigable waters also employ someone in a traditional maritime capacity, this second requirement was nearly always met, leaving the situs test as the only operative limitation on coverage.

The 1972 amendments expanded the definition of "navigable waters" to include "any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel ...." 33 U.S.C. § 903(a). See Caputo, 432 U.S. at 260-64, 97 S.Ct. at 2355-57. But an injury sustained in this expanded area is covered only if the employee was engaged in "maritime employment" which includes "any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker" but not "a master or member of any vessel or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net." 33 U.S.C. § 902(3).

In Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976), this court held that in order for an injured employee's work to be considered "maritime," it "must have a realistically significant relationship to 'traditional maritime activity involving navigation and commerce on navigable waters,' " .... Id. at 961, quoting Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 272, 93 S.Ct. 493, 506, 34 L.Ed.2d 454 (1972). ² Although D-H argues that the decedent's employment as a pile driver on a marine construction project fails to satisfy the Weyerhaeuser test for "maritime employment," we recently stated that the Act covers workers involved in construction related to maritime activities. Schwabenland v. Sanger Boats, 683 F.2d 309 at 311 (9th Cir. 1982). In Duncanson-Harrelson Co. v. Director (OWCP), 644 F.2d 827, 830 (9th Cir. 1981), a case involving facts very similar to the present appeal, we upheld the finding of the BRB that two employees, injured while constructing an off-shore dock for the unloading of oil from tankers, were engaged in maritime employment. One of the claimants was constructing a dolphin when his injury occurred. Similarly, the decedent in the present case was killed when the top of a dolphin piling he was cutting fell on him.

B. Member of a Crew of a Vessel

D-H argues that decedent was a crew member as defined by section 2(3) of the Act, 33 U.S.C. § 902(3). Section 2(3) provides that "the term 'employee' means any person engaged in maritime employment ..., but such term does not include a master or member of a crew of any vessel ...." To find that an employee is a member of a crew excluded from coverage, the court must conclude that the vessel is in navigation, that the worker had a permanent connection with the vessel and that the employee was aboard the vessel primarily to aid in navigation. Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 36 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976); accord, Burks v. American River Transportation Co., 679 F.2d 69, 75-76 (5th Cir. 1982). Whether the decedent was a master or crew member is primarily a question of fact. Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1345 (5th Cir. 1980); Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d 383, 389 (6th Cir.), cert. denied, 346 U.S. 817, 74 S.Ct. 29, 98 L.Ed. 344 (1953). Thus, the finding of the ALJ that decedent was not a member of a crew must be affirmed if it is supported by substantial evidence. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 257, 60 S.Ct. 544, 547, 84 L.Ed. 732 (1940); Hardaway Contracting Co. v. O'Keeffe, 414 F.2d 657, 660-61 (5th Cir. 1968). The Supreme Court in Bassett stated that the question turns upon the employee's actual duties and held that the claimant's employment did not aid in navigation except for the incidental task of throwing the ship's rope or securing the line-duties which could be performed by any harbor worker. 309 U.S. at 260, 60 S.Ct. at 549. The ALJ in this case made similar findings...