Kirkpatrick v. B.B.I., Incorporated

• Decision Date: 20 May 2004
• Docket Number: BRB 03-0561
• Parties: GARY L. KIRKPATRICK Claimant-Respondent v. B.B.I., INCORPORATED Employer and HOUSTON GENERAL INSURANCE COMPANY Carrier-Respondent Cross-Petitioner and INSURANCE COMPANY OF NORTH AMERICA Carrier-Petitioner Cross-Respondent
• Court: Longshore Complaints Court of Appeals

GARY L. KIRKPATRICK Claimant-Respondent
v.
B.B.I., INCORPORATED Employer and HOUSTON GENERAL INSURANCE COMPANY Carrier-Respondent Cross-Petitioner and INSURANCE COMPANY OF NORTH AMERICA Carrier-Petitioner Cross-Respondent

BRB Nos. 03-0561

May 20, 2004

Appeals of the Decision and Order Awarding Benefits of Larry W. Price, Administrative Law Judge, United States Department of Labor.

Gary B. Pitts (Pitts & Associates), Houston, Texas, for claimant.

Christopher Lowrance (Royston, Rayzor, Vickery & Williams, L.L.P.), Corpus Christi, Texas, for employer and Houston General Insurance Company.

Michael J. Kincade, Metairie, Louisiana, for employer and Insurance Company of North America.

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

PER CURIAM

Insurance Company of North America (INA) appeals, and Houston General Insurance Company, and its successor in interest following insolvency, Texas International Solutions, LLC (collectively referred to as Houston General), cross-appeals, the Decision and Order Awarding Benefits (2002-LHC-1656) of Administrative Law Judge Larry W. Price 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), as extended by the Outer Continental Shelf Lands Act, 43 U.S.C. §1301 et seq. (OCSLA). 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).

The facts of this case are not in dispute. Claimant was a "material expeditor" employed by B.B.I., Incorporated (BBI). BBI had a contract with Bay, Incorporated to provide general contractor labor, and Bay had a contract with Conoco to construct a fixed platform on the Outer Continental Shelf (OCS) approximately 170 miles southwest of New Orleans in the Gulf of Mexico. ^[1] On October 21, 1989, claimant was working in his capacity as a material expeditor in an office on the fixed platform when he leaned across his desk to answer the phone. Jt. Ex. 1. He sustained an injury to his lumbar spine, requiring five surgeries. HG Ex. 3; Jt. Ex. 1. He also suffered a post-injury stroke. As the result of his injury and complications, he is unable to return to any work. Houston General, one of BBI's carriers, voluntarily paid claimant temporary total disability and medical benefits from 1989 until May 2, 2001, totaling $656, 374.39. Jt. Ex. 1.

In 2000, Houston General controverted its liability for benefits and at an informal conference before the district director on January 23, 2001, it asserted a claim for reimbursement against INA, another of BBI's carriers. Jt. Ex. 1. The parties stipulated that Houston General issued an insurance policy to BBI, effective from December 19, 1988, through December 19, 1989, with an OCSLA endorsement covering work on the OCS off the coast of Texas in the Gulf of Mexico. The parties also stipulated that INA issued BBI an insurance policy, effective from July 24, 1989, through July 24, 1990, with an OCSLA endorsement covering all "oil lease work off the coast of Louisiana in the Gulf of Mexico." Decision and Order at 4-5; Jt. Ex. 1. The administrative law judge found that this claim is covered by the OCSLA, as claimant satisfied the OCSLA situs and status criteria. Decision and Order at 14. He then found that because the parties agreed the injury occurred off the coast of Louisiana, the INA policy covered claimant's injury. Decision and Order at 15-16. Additionally, the administrative law judge determined that Houston General's claim for reimbursement was not essential to resolving the rights and liabilities of the parties herein; therefore, he found that the reimbursement issue falls outside his jurisdiction, and he dismissed it without prejudice. Id. at 18. As the parties had not disputed claimant's entitlement to benefits or to the amount he received, the administrative law judge ordered INA to pay claimant permanent total disability benefits from May 3, 2001, and continuing based on an average weekly wage of $763.26. He gave INA a credit for benefits it had paid. ^[2] Id.

INA appeals the decision holding it to be the responsible carrier and holding it liable for permanent total disability benefits. Houston General responds, urging the Board to affirm the determination that INA is the responsible carrier. Claimant responds, arguing that he has no opinion on which carrier is liable, as long as one remains so, and he urges affirmance of the award of permanent total disability benefits. BRB No. 03-561. Houston General cross-appeals the administrative law judge's decision declining to address the reimbursement issue. INA responds, arguing that the administrative law judge properly declined to address the reimbursement issue. BRB No. 03-561A.

INA first contends the administrative law judge erred in finding it liable for benefits because claimant did not satisfy the status and situs requirements of the OCSLA. Compensation is available under the Longshore Act for those employees injured on the OCS if they meet the status and situs test of the OCSLA. ^[3] 43 U.S.C. §1333(a)(1), (b); Offshore Logistics v. Tallentire, 477 U.S. 207 (1986); Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969); Demette v. Falcon Drilling Co., Inc., 280 F.3d 492, 35 BRBS 131(CRT) (5th Cir. 2002); see also Mills v. Director, OWCP, 877 F.2d 356, 22 BRBS 97(CRT) (5th Cir. 1989) (en banc). Specifically, the OCSLA situs applies to:

1) the subsoil and seabed of the OCS; 2) any artificial island, installation, or other device if (a) it is permanently or temporarily attached to the seabed of the OCS and (b) it has been erected on the seabed of the OCS, and (c) its presence on the OCS is to explore for, develop, or produce resources from the OCS; 3) any artificial island installation, or other device if (a) it is permanently or temporarily attached to the seabed of the OCS, and (b) it is not a ship or vessel, and (c) its presence on the OCS is to transport resources from the OCS

Demette, 280 F.3d at 497, 35 BRBS at 134(CRT); see also Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531 (5th Cir. 2002); Mills, 877 F.2d at 361, 22 BRBS at 101-102(CRT). The OCSLA covers non-seamen who are injured "as the result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources... of the subsoil and seabed of the [OCS.]" 43 U.S.C. §1333(b); Demette, 280 F.3d at 498, 35 BRBS at 134(CRT). An employee's activities have been held to be the "result of" these operations if they would not have occurred "but for" the employee's actions in furtherance of the exploration, development, removal or transportation of natural resources from the OCS. Barger v. Petroleum Helicopters, Inc., 692 F.2d 337 (5th Cir. 1983); Recar v. CNG Producing Co., 853 F.2d 367 (5th Cir. 1988). If the employee meets the status and situs requirements of Section 1333(a)(1), (b) of the OCSLA, then his exclusive remedy against his employer is compensation under the Longshore Act. Barger, 692 F.2d at 341.

INA first asserts that claimant does not satisfy the OCSLA situs requirement because the decision in Demette, issued by the United States Court of Appeals for the Fifth Circuit, within whose jurisdiction the instant case arises, effectively overruled the Board's decision in Robarge wherein the Board held that installations under construction are covered under an "expansive" reading of the OCSLA definition of "development." See 43 U.S.C. §1331(1). INA argues that the platform on which claimant was injured was still under construction ("not yet erected"), not in production ("not engaged in the transportation of resources"), and cannot be a covered situs because it was not "fully erected, " and it asserts that Demette prohibits any result to the contrary. INA Original Brief at 10, 14. Houston General asserts the platform need not be "fully erected" in order to be a covered situs. In support of its position, Houston General cites the OCSLA's definition of "development" as well as the decision of the United States Court of Appeals for the Ninth Circuit in Kaiser Steel Corp. v. Director, OWCP, 812 F.2d 518 (9th Cir. 1987), aff'g Robarge v. Kaiser Steel Corp., 17 BRBS 213 (1985). Without addressing the significance of the production status of the platform, the administrative law judge found that claimant was injured, during construction, on a fixed platform that fell within Demette's second category of OCSLA situs locations. Decision and Order at 8, 12, 14; Cl. Ex. 1 at 9-10, 15-16, 54; INA Ex. D.

We first reject INA's assertion that Demette changed the span of the coverage of the OCSLA. ^[4] Demette's second situs category covers "any artificial island, installation, or other device if (a) it is permanently or temporarily attached to the seabed of the OCS, and (b) it has been erected on the seabed of the OCS, and (c) its presence on the OCS is to explore for, develop, or produce resources from the OCS[.]" Demette, 280 F.3d at 497, 35 BRBS at 134(CRT) (emphasis added). The use of the term "erected" in Demette comes directly from Section 1333(a)(1) of the OCSLA. ^[5] Nevertheless, INA interprets the section as requiring the structure to be "fully erected, " which it considers synonymous with being "fully operational, " or "completed." Although neither Congress nor the Fifth Circuit has separately defined the term "erected, " we conclude that there is no support for an interpretation limiting the scope of coverage to only "fully operational" and/or "completed" structures.

When interpreting a statute, we begin with the words of the statute, Mallard v. U.S. Dist. Ct. for the Southern Dist. of...