Hudson v. Coastal Production Services, Incorporated/Forest Oil Corp.

Decision Date22 June 2006
Docket NumberBRB 05-0779
PartiesTERRY W. HUDSON, Claimant-Respondent v. COASTAL PRODUCTION SERVICES, INCORPORATED/FOREST OIL CORPORATION and ACE AMERICAN INSURANCE COMPANY, Employer/Carrier- Petitioners
CourtLongshore Complaints Court of Appeals

Appeal of the Decision and Order – Awarding Benefits of Richard D. Mills, Administrative Law Judge, United States Department of Labor.

Arthur J. Brewster, Metairie, Louisiana, for claimant.

Ped C Kay, III, and Hal J. Broussard (Broussard & Kay, L.L.C.) Lafayette, Louisiana, for employer/carrier.

Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM

Employer appeals the Decision and Order – Awarding Benefits (2004-LHC-0492) of Administrative Law Judge Richard D. Mills 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). 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. 33 U.S.C. §921(b)(3); O’Keeffe v Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant was injured on a fixed oil and gas production platform located in the Saturday Island Field in Plaquemines Parish, Louisiana, on Barataria Bay. [1] Jt. Ex. 1; Tr. at 9. Claimant testified that he was employed by Coastal Production Services in January 2001, and was subcontracted to Forest Oil (herein collectively referred to as “employer”) to work on the platform. He worked a seven-days-on-and-seven-days-off shift, usually with one other person. The platform, which was accessible only by boat, helicopter, or sea plane, consisted of oil tanks, saltwater tanks, living quarters, pipelines attaching it to a number of satellite wells, and a holding barge. [2] Tr. at 19-21, 54. The holding barge, which was surrounded by pilings, also acted as a docking area for crew and supply boats and tug-drawn barges that collected and transported crude oil from the holding barge tanks. [3] Tr. at 27, 65, 84-85.

Claimant’s duties required him to perform daily inspections of and maintenance to the platform and the holding barge, including checking gauges, inspecting pipelines for leaks, and cranking motors. He would also inspect and maintain a sunken production barge, the MAGNOLIA, and the satellite wells, which required him to travel by boat, and he would facilitate the “dropping” of oil from the platform tanks to the holding barge tanks. [4] Tr. at 27, 46-49. Additionally, if the holding barge tanks were full, claimant or his partner would call for the transport barge to carry the crude oil away from the platform. When the barge arrived, claimant testified he would perform, assist with, or witness the following: placing the walk-board between the transport barge and the holding barge, monitoring the tank levels, filling out paperwork, hooking up pipelines and hoses to transfer the oil, manning the emergency shut-off switch, disconnecting and reconnecting the pipelines as the holding tanks emptied, recording the amount transferred, and unhooking the hoses and pipelines when the transfer was complete. Tr. at 27-29. The transfer took between two and four hours. There were 19 transfers between January 2001 and August 2001, four of which were signed by claimant. Emp. Ex. 2. However, claimant testified he took part in many, if not all, of the transfers that occurred while he was working. Tr. at 46, 49-51, 65, 90-92. Regardless of whether a transfer was to occur, claimant testified he spent some time every day on the holding barge inspecting the pipelines, hoses, and other equipment, and making repairs as needed. Tr. at 32, 36-37.

On August 11, 2001, claimant was attempting to crank the saltwater pump, in an area on the platform away from the holding barge, when the pump blew up and caught on fire. Claimant suffered burns to his face, hands and chest, imbedded metal on his forearm and hip, and a hip and back injury when he was thrown against the saltwater skid. Cl. Ex. 2a; Jt. Ex. 1; Tr. at 40-42, 54-55. Claimant filed a claim for benefits under the Act. [5]

The administrative law judge found that claimant was a “maritime employee” who was injured on a covered situs, 33 U.S.C. §§902(3), 903(a). Decision and Order at 12. He distinguished the instant case from the fixed platform cases in Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 17 BRBS 78(CRT) (1985), Thibodeaux v. Grasso Prod. Mgmt., Inc., 370 F.3d 486, 38 BRBS 13(CRT) (5 th Cir. 2004), and Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 27 BRBS 103(CRT), reh’g en banc denied, 8 F.3d 24 (5 th Cir. 1993), cert. denied, 511 U.S. 1086 (1994), and he found that the fixed platform herein satisfies the Act’s situs requirement because it has a docking area which is customarily used to load transport barges with oil, which is a maritime activity. 33 U.S.C. §903(a). The administrative law judge rejected employer’s assertion that the perimeter of coverage should end at the holding barge. Decision and Order at 8-9. With regard to claimant’s status as a maritime employee, the administrative law judge found that claimant’s duties included the upkeep of the holding barge tanks and docking facility, which were essential to the loading process, and the loading of crude oil onto transport barges. Decision and Order at 11; 33 U.S.C. §902(3). Employer appeals the administrative law judge’s decision, challenging his findings on both status and situs. Claimant responds, urging affirmance.

For a claim to be covered by the Act, a claimant must establish that the 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 the employee’s work is maritime in nature and is not specifically excluded by 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 under the Act exists, a claimant must satisfy the “situs” and the “status” requirements of the Act. Id.; see also Crapanzano v. Rice Mohawk, U.S. Constr. Co., Ltd., 30 BRBS 81 (1996).

Status

Employer argues that claimant is not a maritime employee. The administrative law judge found that claimant was a covered employee by virtue of his loading activities. Employer contends that either those activities are not maritime because they furthered the purpose of the oil production platform and they would be the same as if claimant worked on land, or those activities were so minimal as to be insignificant and not a regular part of claimant’s duties. It is well established that workers on fixed offshore platforms whose work involves oil production are not maritime employees under the Act. Herb’s Welding, 470 U.S. 414, 17 BRBS 78(CRT); Munguia, 999 F.2d 808, 27 BRBS 103(CRT). To be covered, therefore, claimant’s employment must be distinguishable from the employment of the workers in those cases. On the facts of this case, we hold that the administrative law judge properly found that claimant’s job is covered, as it included distinct loading duties which the claimants in Herb’s Welding and Munguia did not perform, and we affirm the administrative law judge’s finding that claimant was a maritime employee.

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 (5 th Cir. 1980), cert. denied, 452 U.S. 915 (1981). Although an employee is covered if some portion of his activities constitutes covered employment, those activities must be more than momentary or incidental to non-maritime work. Id.; Coleman v. Atlantic Container Service, Inc., 22 BRBS 309 (1989), aff’d, 904 F.2d 611, 23 BRBS 101(CRT) (11th Cir. 1990). [6]

The administrative law judge found that claimant’s work included the upkeep of the holding barge, as well as the loading of the transport barges. Decision and Order at 10. He also found that this work could not occur absent claimant’s participation, as the facility’s manuals detailed the procedure for transferring the crude oil to barges and listed, as part of claimant’s duties, the inspection and maintenance of the holding barge. Thus, the administrative law judge found that claimant’s work was essential to the loading of oil onto the transport barges. Id. Additionally, the administrative law judge found that claimant’s loading-related activities were not extraordinary or discretionary but were tasks to which claimant was regularly assigned. Id. at 11. The administrative law judge then calculated that claimant spent 9.7 percent of his time in activities related to the loading process and found that this is sufficient to convey coverage. Id.

We reject employer’s argument that claimant’s work does not satisfy the status test. It is well settled that maintaining equipment necessary to the loading process is maritime employment. Schwalb, 493 U.S. 40, 23 BRBS 96(CRT);...

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