Keller Found./Case Found. v. Tracy

• Decision Date: 20 September 2012
• Docket Number: 11–71800.,Nos. 11–71703,s. 11–71703
• Citation: 696 F.3d 835
• Parties: KELLER FOUNDATION/CASE FOUNDATION; ACE USA/ESIS, Petitioners, v. Joseph TRACY; Global International Offshore Ltd.; Liberty Mutual Insurance Company; Director, Office of Workers' Compensation Programs; U.S. Department of Labor, Respondents. Joseph Tracy, Jr., Petitioner, v. Director, Office of Workers' Compensation Programs; U.S. Department of Labor; Global International Offshore Ltd.; Liberty Mutual Insurance Co.; Keller Foundation, Inc./Case Foundation Co.; ACE USA/ESIS, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

696 F.3d 835

2012 Daily Journal D.A.R. 13,205

KELLER FOUNDATION/CASE FOUNDATION; ACE USA/ESIS, Petitioners,

v.Joseph TRACY; Global International Offshore Ltd.; Liberty Mutual Insurance Company; Director, Office of Workers' Compensation Programs; U.S. Department of Labor, Respondents.

Joseph Tracy, Jr., Petitioner,

v.Director, Office of Workers' Compensation Programs; U.S. Department of Labor; Global International Offshore Ltd.; Liberty Mutual Insurance Co.; Keller Foundation, Inc./Case Foundation Co.; ACE USA/ESIS, Respondents.

Nos. 11–71703, 11–71800.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 9, 2012.

Filed Sept. 20, 2012.

Joshua T. Gillelan II (argued), Longshore Claimants' National Law Center, Washington, DC; Eric A. Dupree, Dupree Law, APLC, Coronado, California, for petitioner-appellant Joseph Tracy.

Robert E. Babcock (argued), Holmes Weddle & Barcott, P.C., Lake Oswego, Oregon, for petitioners-appellants Keller Foundation/Case Foundation and ACE USA/ESIS.

James P. Aleccia (argued), Aleccia, Socha & Mitani, Long Beach, California, for respondents-appellees Global International Offshore Ltd. and Liberty Mutual Insurance Company.

Jonathan P. Rolfe (argued), M. Patricia Smith, Rae Ellen James, Mark A. Reinhalter, Sean Bajkowski, U.S. Department of Labor, Office of the Solicitor, Washington, DC, for respondent-appellee Director, Office of Workers' Compensation Programs.

On Petition for Review of an Order of the Benefits Review Board, U.S. Department of Labor. OWCP No. 08–0119.

Before: A. WALLACE TASHIMA, RICHARD C. TALLMAN, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

Joseph Tracy appeals the Benefits Review Board's determination that injuries he incurred in part during his employment by Global International Offshore Ltd. from 1998 to 2002 were not covered under the Longshore and Harbor Workers' Compensation Act (referred to as LHWCA, or the Act).¹ Because we hold that no portion of Tracy's employment during this period satisfied the Act's status and situs tests, we affirm.

I

The LHWCA provides workers' compensation coverage for maritime employees engaged in longshoring and harbor work and similar operations. The question in this case is whether Tracy qualified for coverage under the Act during the period in which he worked for Global, his last employer. This question is crucial for Global because of the “last employer rule,” which determines which employer is liable for compensating an employee covered under the Act. Under this rule, even if the claimant suffered an injury while working for a prior employer, if a “subsequent injury aggravated, accelerated or combined with claimant's prior injury, thus resulting in claimant's disability,” the subsequent employer is responsible for the full amount of the compensatory award. Found. Constructors, Inc. v. Dir., Office of Workers Comp. Programs, 950 F.2d 621, 624 (9th Cir.1991) (quoting Kelaita v. Dir., Office of Workers' Comp. Programs, 799 F.2d 1308, 1311 (9th Cir.1986)) (internal quotation marks omitted).

It is undisputed that Tracy was covered by the Act during his previous employment with Keller Foundation, and that Tracy's disability stemmed from cumulative trauma he experienced during his separate stints with Keller and Global. Under the last employer rule, then, if Tracy were covered by the Act while working for Global, Global would be responsible for paying the full award owed to Tracy under the Act. If not, then Keller would be responsible.²

We now briefly review the Act's history and purposes, which provide essential insight to the tests we must apply in determining whether the Act covers Tracy's employment with Global.

A

The LHWCA is best understood as a legislative effort to fill a narrow, albeit troublesome gap between two well-established remedial schemes for injured workers: the Jones Act, which covers “seamen,” and state-based workers' compensation programs, which cover non-maritime, land-based workers. Although the Jones Act does not explicitly define “seamen,” the Supreme Court has made clear that this term refers to employees who are part of a ship's crew, thus excluding harbor workers.³See Chandris, Inc. v. Latsis, 515 U.S. 347, 355–56, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). Likewise, the Supreme Court has held that states cannot extend their workers' compensation programs to cover harbor workers, either on their own initiative or under authorization from Congress, due to paramount federal authority over all matters involving maritime law. See Washington v. W.C. Dawson & Co. (Dawson's Case), 264 U.S. 219, 227, 44 S.Ct. 302, 68 L.Ed. 646 (1924); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 164, 40 S.Ct. 438, 64 L.Ed. 834 (1920); S. Pac. Co. v. Jensen, 244 U.S. 205, 217, 37 S.Ct. 524, 61 L.Ed. 1086 (1917). It was thus left to Congress to fill this remedial gap by federal statute, which it did in 1927 by passing the LHWCA. See Act of Mar. 4, 1927, ch. 509, 44 Stat. 1424, 33 U.S.C. §§ 901– 50.

For nearly five decades after the LHWCA's enactment, however, courts struggled to define when an injured worker was entitled to relief. Initially, the LHWCA provided coverage on the basis of a “situs test” alone, allowing recovery for a work-related injury as long as the injury occurred on “navigable waters” and the employer had at least one employee (but not necessarily the injured employee) who was engaged in maritime employment. Ne. Marine Terminal Co. v. Caputo, 432 U.S. 249, 264, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977) (citing Pa. R.R. Co. v. O'Rourke, 344 U.S. 334, 340–42, 73 S.Ct. 302, 97 L.Ed. 367 (1953)). Thus construed, however, the situs test often produced arbitrarily restrictive outcomes. See, e.g., Nacirema Operating Co. v. Johnson, 396 U.S. 212, 224–25, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969) (holding that longshoremen killed or injured on a pier while loading or unloading a ship were not covered under the Act, but would be if they had been thrown into the water or were on the deck of the ship when the accident happened).

To address this problem, Congress in 1972 broadened the situs test, which now provides:

Except as otherwise provided in this section, compensation 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). Effectively, Congress redefined “navigable waters” to include landward areas where maritime employees might be working, so they remained covered by the Act even if they were on the landward side of the pier when the injury occurred, and to avoid making coverage dependent on “where the body falls.” Nacirema, 396 U.S. at 224, 90 S.Ct. 347 (1969) (Douglas, J., dissenting).

But this broader situs test, if applied alone, could extend the LHWCA's coverage to non-maritime workers who simply happened to be injured near the water's edge. Accordingly, the 1972 amendment included a new “status” test, which defines the word “employee” to mean “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). The status test also continues the Act's exclusion of seamen, excepting from coverage “a master or member of a crew of any vessel,” § 902(3)(G), thus preserving the mutually-exclusive relationship between the Jones Act and the LHWCA.

With this historical context in mind, we now turn to a brief discussion of Tracy's work for Global before analyzing his claims.

B

Tracy was hired by Global in March 1998 as a barge foreman. Although Tracy was assigned to several vessels and locations during his employment by Global, on appeal he points to only two assignments where he qualified for coverage under the Act: (1) his assignment to the Iroquois, and (2) his assignment in the ports of Indonesia and Singapore.

Tracy's assignment to the Iroquois, a pipe-laying derrick barge, commenced when he was first hired by Global in March 1998. For the first three weeks of Tracy's employment, the Iroquois was floating in a shipyard in Louisiana, and Tracy was assigned to do repairs, maintenance, and modifications to the deck to ensure the Iroquois's seaworthiness and prepare it for its mission. He also assisted with work on some other barges during his time in Louisiana, although he was assigned only to the Iroquois.

After preparations were complete, the Iroquois was towed from Louisiana to Tuxpan, Mexico. Tracy served as barge foreman on the Iroquois and was third in command over a skeleton crew of about 60 people during the voyage, which took about seven days. When the barge arrived in Mexico, Tracy first worked in the port, helping to check and load equipment, doing repairs, and performing general maintenance on the Iroquois until the barge was ready to set out on its mission of laying pipe off the coast of Del Carmen, Mexico. Once the Iroquois commenced this mission, Tracy oversaw the barge's general maintenance. While the Iroquois was still laying pipe off Del Carmen, Global reassigned Tracy to the Seminole, a pipe-laying barge located in Malaysia. Tracy served as the Seminole's anchor foreman for about four to six months.

The second assignment on which Tracy relies occurred after his work on the Seminole. Beginning some time in 1999, Tracy was periodically assigned to land-based assignments in the ports of Singapore and a shipyard in Indonesia. These assignments generally took place during the monsoon season (from October through March), and were designed to keep Tracy in Global's employ even when the barge to which he was assigned had been temporarily brought into...