Hurston v. Director, Office of Workers Compensation Programs

• Decision Date: 01 April 1993
• Docket Number: No. 91-70528,91-70528
• Citation: Hurston v. Director, Office of Workers Compensation Programs, 989 F.2d 1547 (9th Cir. 1993)
• Parties: , 61 USLW 2607 Harry HURSTON, Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; McGray Construction Company; Beaver Insurance Company, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1547

989 F.2d 1547

1993 A.M.C. 2477, 61 USLW 2607

Harry HURSTON, Petitioner, v.DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; McGray Construction Company; Beaver Insurance CompanyRespondents.

No. 91-70528.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 4, 1993.

Decided April 1, 1993.

John R. Hillsman, McGuinn, Hillsman & Palefsky, San Francisco, CA, for petitioner.

Marianne Demetral Smith, U.S. Dept. of Labor, Washington, DC, for respondentDirector, Office of Workers' Compensation Program.

Roger A. Levy, Laughlin, Falbo, Levy & Moresi, San Francisco, CA, for respondentsMcGray Const. Co. and Beaver Ins. Co.

Appeal from a Decision of the Benefits Review Board.

Before: ALARCON, RYMER, and T.G. NELSON, Circuit Judges.

RYMER, Circuit Judge:

Harry Hurstonpetitions for review of the Benefits Review Board decision and order denying him benefits under the Longshoremen's and Harbor Workers' Compensation Act,33 U.S.C. §§ 901-950.We must decide whether a structure built on pilings that reaches from land to navigable water is a "pier" which is a covered situs under § 903(a) even though it is not used for a traditional maritime activity such as the loading or repair of vessels.

We hold that it is.The LHWCA's "status" requirement restricts coverage to only those employees engaged in maritime employment under § 902(3), but its "situs" requirement does not require that any pier adjoining navigable waters of the United States be used as a navigational aid or for boat hook-ups or the like to be covered under § 903(a).Therefore, it is the type of structure rather than its function which defines "any adjoining pier" under the Act.We have jurisdiction under 33 U.S.C. § 921(c), and we reverse.

I

Hurston worked as a pile driver on Elwood PierNo. 1 for McGray Construction Company in March, 1985.Elwood PierNo. 1 is a structure built on pilings extending from land to sea in the Santa Barbara channel.Oil is pumped from a nearby well and piped into Elwood PierNo. 1 where it is separated into water, gas, and crude oil.The crude oil is stored until it is pumped into a pipeline to be picked up by a tanker.Hurston was injured when a 1,000 pound sheet pile fell from a crane, landed on him, and left him permanently disabled.He filed a disability claim under the LHWCA against McGray and its workers' compensation insurer, Beaver Insurance Company.

The Administrative Law Judge found that Hurston qualified as a maritime employee under § 902(3), ¹ and held that Elwood PierNo. 1 was a covered "adjoining pier" within § 903(a).²The ALJ also found that Hurston was injured while replacing a thousand pound sheet pile on Elwood PierNo. 1, that Elwood PierNo. 1 was built on pilings and extended over water, and that it was a "pier" within the ordinary meaning of that term.

McGray appealed both findings to the Benefits Review Board.The Board held that a nexus with maritime activity is required for coverage under the Act, and since Elwood PierNo. 1 was used only for oil production, it lacked the requisite relationship to vessels and maritime activity.³Therefore, it reversed the order awarding benefits to Hurston.

Hurston seeks review of the Board's determination that § 903(a) extends geographic coverage only to those adjoining piers which have a maritime use.

II

We review the Board's decision for "errors of law and adherence to the substantial evidence standard."Port of Portland v. Director, Office of Workers' Compensation Programs, 932 F.2d 836, 838(9th Cir.1991).There is no dispute about the characteristics of the structure in this case.Since the Board is not a policy making body, we give no special deference to its interpretations of the Act.Id.However, we do "accord 'considerable weight' to the construction of the statute urged by the Director ... as he is charged with administering [the statute]."Force v. Director, Office of Workers' Compensation Programs, 938 F.2d 981, 983(9th Cir.1991);Port of Portland, 932 F.2d at 838.For example, in Force we found that since "the statute is easily susceptible to the Director's interpretation, we need go no further."Force, 938 F.2d at 984.

III

Hurston and the Director argue that under the plain statutory language, the Benefits Review Board erred in holding that a § 903(a)"adjoining pier" must have a relationship to navigation and commerce over navigable waters.The Director's interpretation is that, for the purposes of the statute, an "adjoining pier" is a structure built on pilings extending from land to navigable water, regardless of the structure's use.The Board did not take issue with the ALJ's finding that Hurston was injured on a structure that resembled a pier to the extent that it extended from the beach on pilings and touched the water at high tide.Rather, it held as a matter of law that a structure may not be considered a "pier" based only on its appearance and location.The Board reasoned that, "[a]lthough the requirement that an area be customarily used for loading, unloading, building or repairing a vessel does not apply to the structures explicitly listed in Section 3(a), we believe that a facility must have a maritime use in order to be considered a 'pier.' "McGray similarly urges the court to look beyond the mere appearance of the structure on which injury occurred and, as the Board did, to consider whether it has a functional connection to maritime or navigational activity.

While we agree with McGray that we should not necessarily be bound to the principle "if it walks like a duck, if it sounds like a duck, it's a duck," if it appears to be a pier, if it is built like a pier and adjoins navigable waters, it's a pier.In short, as in Force, the statute is easily susceptible to the Director's interpretation.

A

As with all statutory interpretations, we begin with the language of the statute.Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766(1980).The plain language of § 903(a) supports the Director's interpretation.It says that compensation is payable if disability 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)(emphasis added).The phrase "any adjoining pier" is unqualified, whereas "other adjoining area" is qualified so as to require a relationship to maritime activity.⁴Thus, unless the injury occurs on a pier, wharf, dry dock, terminal, building way, or marine railway adjoining navigable waters, to be covered it must occur on "other adjoining areas" which are "customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel."When, however, the injury occurs on a pier, so long as it is adjoining navigable waters, it is within the situs requirement.

If Congress had wanted to restrict "any adjoining pier" to cover only those piers used for maritime purposes, it could have easily said so.Or, it could have eliminated the phrase "other adjoining area," so that "pier, wharf, dry dock, terminal, building way, [and] marine railway" would also have been modified by "customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel[ ]."Likewise, the drafters could have put a comma after "other adjoining area" had they wished "any adjoining pier" to be modified by "customarily used."SeeLarson, The Conflicts Problem Between the Longshoreman's Act and State Workman's Compensation Act Under the 1972 Amendments, 14 HoustonL.Rev. 287, 294(1977).As written, the language does none of these things.

Accordingly, under the plain meaning of § 903(a), a pier adjoining navigable waters of the United States, as Elwood PierNo. 1 admittedly is, is a covered situs without regard to its use for a maritime purpose.

B

In addition to the plain language, the history and context of § 903(a) support the Director's interpretation.⁵The LHWCA is basically a workmen's compensation system for maritime workers injured on or near navigable waterways.The Act became necessary because the Supreme Court had held in 1917 that the states were without power to extend workmen's compensation remedies to injuries at sea.Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086(1917).As a result of Jensen, a longshoreman would be insured by state workmen's compensation if he were injured on land, but would be uninsured if he were injured on a boat or at sea.The difference between land and sea, and coverage or no coverage, came to be known as the "Jensen line."See, e.g., Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 257, 97 S.Ct. 2348, 2353, 53 L.Ed.2d 320(1977).

Congress wanted to provide comprehensive coverage for longshoremen, and tried unsuccessfully to encourage state programs through delegation.Id.Finally, in 1927, it enacted the LHWCA to create a federal system of workmen's compensation to cover harbor workers and longshoremen so as to have " 'one law to cover their whole employment, whether directly part of the process of loading or unloading a ship or not.' "Id.(quotingH.R.Rep. No. 639, 67th Cong., 2d Sess. 2(1922)).Whereas before longshoremen and harborworkers were either covered under state programs or not covered at all, after the LHWCA was passed they were either covered under state programs or the federal LHWCA.

For the next forty-five years, the line dividing coverage under the LHWCA and state programs depended almost exclusively upon the situs of the injury.Though the situs line was somewhat unsettled early on, in 1969the Supreme Court held that coverage under the LHWCA stopped at the "Jensen line."Nacirema Operating Co. v. Johnson, 396 U.S. 212, 223-24, 90 S.Ct. 347, 354, 24 L.Ed.2d 371...