Hullinghorst Industries, Inc. v. Carroll

• Decision Date: 16 July 1981
• Docket Number: No. 80-3116,80-3116
• Parties: HULLINGHORST INDUSTRIES, INC., Petitioner, v. David E. CARROLL, and Director, Office of Workers' Compensation Programs, U. S. Department of Labor, Respondents. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 750

650 F.2d 750

HULLINGHORST INDUSTRIES, INC., Petitioner, v. David E. CARROLL, and Director, Office of Workers' Compensation Programs, U. S. Department of Labor Respondents.

No. 80-3116.

United States Court of Appeals, Fifth Circuit.

Unit A

July 16, 1981.

John Dale Powers, Michael H. Rubin, Baton Rouge, La., for petitioner.

Boris F. Navratil, Baton Rouge, La., for amicus curiae Nichols Const. Co.

Janine Syll Simerly, New Orleans, La., for Carroll.

Joshua T. Gillelan, II, U. S. Dept. of Labor, Washington, D. C., for respondents.

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

Before CHARLES CLARK, TATE and WILLIAMS, Circuit Judges.

TATE, Circuit Judge:

Hullinghorst Industries, Inc. appeals from a decision of the Benefits Review Board awarding benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., to David E. Carroll, an injured Hullinghorst employee. The appeal is based on two contentions: ¹ First, that the Board erred in concluding that Carroll was a covered employee within the meaning of the Act, and second, that the Board erred in affirming the administrative law judge's conclusion that there was a connexity between Carroll's injury and his subsequent disability.

Our review of the record before us discloses no legal error in the Board's decision. It is, therefore, in all respects affirmed.

Facts

This appeal is brought on undisputed facts.

David E. Carroll, the compensation claimant, suffered a back injury while erecting a scaffold beneath a pier extending out over the Mississippi River.

The pier was part of a port facility owned and operated by the BASF Wyandotte Corp. (Wyandotte) in Geismar, Louisiana. The sole purpose of the scaffold was to provide a place for Wyandotte employees to stand in order to repair a turntable (a piece of equipment used by Wyandotte in the loading and unloading of vessels) that had been damaged by a ship.

Carroll was not a Wyandotte employee and was to have no direct role in the actual repair work on the turntable. He was employed as a carpenter by Hullinghorst Industries, Inc. (Hullinghorst), which acted solely as the scaffolding subcontractor at the Wyandotte port facility. Neither Hullinghorst nor any of its employees (including Carroll) participated directly in the loading, unloading, building, repair, or breaking of any vessel. Indeed, Hullinghorst (and Carroll) did nothing but erect scaffolding for whatever purpose needed at the Wyandotte facility.

Following his injury, Carroll filed a claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., with the United States Department of Labor (DOL). ²

Initially, the administrative law judge (ALJ) denied benefits to Carroll on the ground that he was not an "employee" within the meaning of the Act. The Director of DOL's Office of Workers' Compensation Programs appealed that decision to the Benefits Review Board (Board). The Board reversed the ALJ's determination that Carroll was not a covered employee under the Act and remanded the case for determination of the amount of compensation due.

The ALJ's determination on remand was upheld by the Board, and Hullinghorst petitions for review of the Board's final order.

I. Scope of Review

The scope of our review of the Board's determinations is relatively narrow: We are to review for errors of law, and to assure that the Board has adhered to its statutory standard of review of factual determinations. Alford v. American Bridge Div., U. S. Steel Corp., 642 F.2d 807, 809 (5th Cir. 1981) (petition for rehearing pending, on denial of coverage to worker who spent some portion of his time in shipbuilding activities, but who was not engaged in shipbuilding activities at the time of his injury); Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. 1976).

Under the terms of the Act, 33 U.S.C. § 921(b)(3), the findings of fact by the ALJ are "conclusive if supported by substantial evidence." The Board is thus constrained to accept the factual findings of the ALJ unless they are irrational or are unsupported by substantial evidence in the record as a whole. Alford v. American Bridge Div., U. S. Steel Corp., supra, 642 F.2d at 809; Presley v. Tinsley Maintenance Service, supra, 529 F.2d at 436. In addition, the ALJ's selection of reasonable conflicting factual inferences is conclusive upon the Board if supported by the evidence and not inconsistent with the law. Alford v. American Bridge Div., U. S. Steel Corp., supra; Presley v. Tinsley Maintenance Service, supra.

In accord with these principles, we reject at the outset Hullinghorst's contention that the Board exceeded its statutory authority in reversing the determination of the ALJ that Carroll was not a covered employee within the meaning of the Act. Under the uncontested facts, the ALJ's determination in this regard was neither a finding of fact nor a factual inference drawn from the evidence. It was a conclusion of law. As such, it was subject to reversal by the Board as legally erroneous, and is open to review by this court on appeal. It is clear from the Board's opinion that it did not in any wise reject the ALJ's findings or inferences of fact. To the contrary it expressly accepted them and reached on that predicate a contrary legal conclusion. Such action is well within its statutory power. See Presley v. Tinsley Maintenance Service, supra, 529 F.2d at 436-37.

II. Coverage

In construing the coverage provisions of the Act, 33 U.S.C. § 903(a) ³ this circuit has identified three controlling jurisdictional requirements: (1) The injured claimant must have "employee" status as defined by 33 U.S.C. § 902(3); ⁴ (2) his injury must have occurred on the "navigable waters" situs described in § 903(a); and (3) the claimant's employer must qualify as an "employer" within the meaning of 33 U.S.C. § 902(4). ⁵ Alford v. American Bridge Div., U. S. Steel Corp., supra, 642 F.2d at 810-11. As to (3), however, see Trotti & Thompson v. Crawford, 631 F.2d 1214, 1216 & n.5 (5th Cir. 1980) and discussion in text at note 8 infra.

It is not disputed that the situs requirement of the Act is satisfied the injury did occur on the navigable waters of the United States, as described in § 903(a). The focus of the parties' contentions is upon Carroll's status as an "employee" within the meaning of § 902(3).

a. "Employee" status.

The essential element of the status requirement is that the claimant must be "engaged in maritime employment." 33 U.S.C. § 902(3). The requirement is occupational rather than geographic, P. C. Pfeiffer Company, Inc. v. Ford, 444 U.S. 69, 78-81, 100 S.Ct. 328, 335-36, 62 L.Ed.2d 225 (1979), and encompasses occupations beyond those enumerated in the ACt, P. C. Pfeiffer Company, Inc. v. Ford, supra, 444 U.S. at 77 n.7, 100 S.Ct. at 334 n.7; Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 265 n.25, 97 S.Ct. 2348, 2358 n.25, 53 L.Ed.2d 320; Trotti & Thompson v. Crawford, supra, 631 F.2d at 1220; Odom Construction Co. v. United States Dep't of Labor, 622 F.2d 110, 112 (5th Cir. 1980), cert. denied, -- U.S. --, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981). In addition, "employee" status under the Act may be based either upon the maritime nature of the claimant's activity at the time of his injury or upon the maritime nature of his employment as a whole. Thibodaux v. Atlantic Richfield Co., 580 F.2d 841, 844 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979). See also Texports Stevedore Co. v. Winchester, 632 F.2d 504, 511 (5th Cir. 1980) (en banc); Odom Construction Co. v. United States Dep't of Labor, supra, 622 F.2d at 113. Thus, a claimant will meet the status requirement of the Act, not only if he is engaged in "maritime employment" at the time of injury, but also if he spends some portion of his overall employment engaged in maritime activities. See, e. g., Howard v. Rebel Well Service, 632 F.2d 1348 (5th Cir. 1980); Boudloche v. Howard Trucking Co., Inc., 632 F.2d 1346 (5th Cir. 1980).

The term "maritime employment" is not defined in the Act. The basic elements of that status were articulated by this court in Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 539-40 (5th Cir. 1976), vacated and remanded in part sub nom. P. C. Pfeiffer Company, Inc. v. Ford, 433 U.S. 904, 97 S.Ct. 2966, 53 L.Ed.2d 1088 (1977), reaff'd on remand, 575 F.2d 79 (5th Cir. 1978) (per curiam), aff'd sub nom. P. C. Pfeiffer Company, Inc. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979):

(A)n injured worker is a covered "employee" if (a) he was performing the work of loading, unloading, repairing, building, or breaking a vessel, or (b) although he was not actually carrying out these specified functions, he was "directly involved" in such work.

See also Thibodaux v. Atlantic Richfield Co., supra, 580 F.2d at 844 (establishing alternative test of either time of injury or overall occupation). The Jacksonville Shipyards panel expressly left open the possibility of future expansion of coverage to include

other types of work which cannot be characterized as loading, unloading, repairing, building, or breaking, and which are not "directly involved" with these five types of work, but which nevertheless are sufficiently similar to fall within the Congressional scheme.

Jacksonville Shipyards, Inc. v. Perdue, supra, 539 F.2d at 540 n.18.

Subsequent cases have followed the Jacksonville Shipyards "direct involvement" test, construing it liberally in order to further the compensatory purposes of the Act. ⁶ Thus, coverage has been extended on the basis of "employee" status to a worker (who had never worked aboard a ship) injured while cleaning a piece of steel to prepare it for fabrication into a shipbuilding component, Ingalls Shipbuilding Corp. v. Morgan, 551 F.2d 61, 62 (5th Cir. 1977) (cleaning was "necessary prerequisite to the fabrication of the steel" and thus was "an...