McGray Const. Co. v. Director, Office of Workers' Compensation Programs, 96-70041
| Decision Date | 02 May 1997 |
| Docket Number | No. 96-70041,96-70041 |
| Citation | 112 F.3d 1025 |
| Parties | , 65 USLW 2741, 97 Cal. Daily Op. Serv. 3246, 97 Daily Journal D.A.R. 5643 McGRAY CONSTRUCTION COMPANY; Beaver Insurance Company, Petitioners, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; Harry Hurston, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Roger A. Levy, Laughlin, Falbo, Levy & Moresi, San Francisco, California, for petitioners.
Joshua Gillelan, Office of Workers Compensation, Washington, D.C., and John R. Hillsman, McGuinn, Hillsman & Palefsky, San Francisco, California, for respondents.
Petition for Review of an Order of the Benefits Review Board.
Before: HUG, Chief Judge; THOMPSON and KLEINFELD, Circuit Judges.
Opinion by Judge THOMPSON; Dissent by Judge KLEINFELD.
Harry Hurston was injured while working as a pile driver on a pier built and used exclusively for processing oil. McGray Construction Co. ("McGray"), Hurston's employer at the time, petitions for review of the Benefits Review Board decision and order granting Hurston benefits under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 44 Stat. 1424, as amended, 33 U.S.C. §§ 901-950 (1976 ed.).
This case requires us to interpret the "status" requirement of 33 U.S.C. § 902(3). This section of the LHWCA restricts coverage to injured employees "engaged in maritime employment."
We conclude that Hurston's work repairing a pier was not itself "maritime employment" under section 902(3) because it did not facilitate the loading, unloading, repair or building of vessels. Nevertheless, we hold Hurston was "engaged in maritime employment" under section 902(3) by virtue of his overall occupation as a marine diver. Thus, Hurston satisfied the status requirement and we affirm the Benefits Review Board's award of benefits under the LHWCA.
In March 1985, Harry Hurston was working as a pile driver on Elwood Pier No. 1 for McGray Construction Company. He was helping to repair and replace sheet piling on the seaward sides of the pier. He was injured when a 1,000 pound sheet pile fell from a crane, landed on him, and left him permanently disabled.
Hurston filed a disability claim under the LHWCA against McGray and its workers compensation insurer, Beaver Insurance Company. McGray voluntarily paid Hurston benefits under the state workers compensation law, but contested liability under the LHWCA.
To qualify for benefits under the LHWCA, an injured worker must satisfy two requirements: (1) the "situs" requirement, 33 U.S.C. § 903(a), and (2) the "status" requirement, 33 U.S.C. § 902(3). See Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 264-65, 97 S.Ct. 2348, 2357-58, 53 L.Ed.2d 320 (1977). In a prior published opinion, we held that Hurston satisfied the situs requirement because his injury occurred on Elwood Pier No. 1, "an adjoining pier" within the meaning of section 903(a). 1 See Hurston v. Director, Office of Workers Compensation Programs, 989 F.2d 1547, 1547-48 (9th Cir.1993). We concluded that an "adjoining pier" is any structure built on pilings extending from land to navigable water, regardless of the structure's function. Id. at 1549-50. Because Hurston met the situs requirement, we remanded the case to the Benefits Review Board to determine whether he also met the Act's status requirement. Id. at 1553.
On remand, the Board concluded that Hurston satisfied the status requirement in two different ways. First, it held that Hurston's work on Elwood Pier No. 1 itself constituted "maritime employment" and was sufficient to confer status. Second, it held that regardless of whether Hurston's work on Elwood Pier No. 1 was "maritime employment," his overall employment history was sufficient to confer upon him maritime status because he spent the vast majority of his total working life engaged in indisputably maritime work.
In this petition for review, McGray contends Hurston did not satisfy the "status" requirement by virtue of his work on Elwood Pier No. 1, and that any status he may have earned by engaging in maritime work for past employers is not "transferable" to his nonmaritime employment by McGray on the day he was injured.
We review the Benefits Review 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). Because the Benefits Review Board is not a policy making body, we give no special deference to its interpretation of the LHWCA. Id. However, we "accord 'considerable weight' to the construction of the statute urged by the Director of the Office of Workers' Compensation Programs, as he is charged with administering it." Force v. Director, Office of Workers' Compensation Programs, Dep't of Labor, 938 F.2d 981, 983 (9th Cir.1991); Port of Portland, 932 F.2d at 838; McDonald v. Director, Office of Workers' Compensation Programs, U.S. Dep't of Labor, 897 F.2d 1510, 1512 (9th Cir.1990). But, we will "not defer to an agency position which is contrary to an intent of Congress expressed in unambiguous terms." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476, 112 S.Ct. 2589, 2594, 120 L.Ed.2d 379 (1992).
The status requirement of section 902(3) limits coverage to "employees," defined as those engaged in "maritime employment." 33 U.S.C. § 902(3). Section 902(3) provides in pertinent part:
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 shipbreaker....
33 U.S.C. § 902(3). 2 By use of the term "including," Congress indicated that the list of specified occupations is not exclusive. Herb's Welding, Inc. v. Gray, 470 U.S. 414, 423 n. 9, 105 S.Ct. 1421, 1427 n. 9, 84 L.Ed.2d 406 (1985).
A person is "engaged in maritime employment" under the Act if (1) he is engaged in maritime work at the moment of his injury, or, (2) regardless of whether he is engaged in maritime work at the moment of his injury, he spends at least some of his working time for his employer engaged in maritime work. See P.C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 83 n. 18, 100 S.Ct. 328, 337 n. 18, 62 L.Ed.2d 225 (1979); Northeast Marine, 432 U.S. at 273-74, 97 S.Ct. at 2361-63; Texports Stevedore Co. v. Winchester, 632 F.2d 504, 516 (5th Cir.1980) (en banc).
We turn first to the question whether Hurston was "engaged in maritime employment" by virtue of his work repairing Elwood Pier No. 1. The question is difficult because Congress failed to define the term "maritime employment" in the text of the Act or its legislative history. See Northeast Marine, 432 U.S. at 265, 97 S.Ct. at 2357-58. Nonetheless, Supreme Court precedent and the legislative history to the 1972 amendments to the LHWCA suggest that the work Hurston was doing on the pier when he was injured was not itself "maritime employment" within the meaning of the Act.
The Supreme Court has explained that coverage under the Act is limited to those whose work facilitates the loading, unloading, repair or construction of vessels:
The closest Congress came to defining the key terms [in section 902(3) ] is the "typical example" of shoreward coverage provided in the Committee Reports. The example clearly indicates an intent to cover those workers involved in the essential elements of unloading a vessel-taking cargo Northeast Marine, 432 U.S. at 266-67, 97 S.Ct. at 2358-59 (emphasis added) (internal footnote omitted). 3
out of the hold, moving it away from the ship's side, and carrying it immediately to a storage or holding area. The example also makes it clear that persons who are on the situs but are not engaged in the overall process of loading and unloading vessels are not covered. Thus, employees such as truckdrivers, whose responsibility on the waterfront is essentially to pick up or deliver cargo unloaded from or destined for maritime transportation are not covered. Also excluded are employees who perform purely clerical tasks and are not engaged in the handling of cargo
Of all the Supreme Court cases to address the meaning of "maritime employment," Herb's Welding, 470 U.S. 414, 105 S.Ct. 1421, is the most analogous to this case. The Court in Herb's Welding explained:
... Congress did not seek to cover all those who breathe salt air. Its purpose was to cover those workers on the situs who are involved in the essential elements of loading and unloading; it is "clear that persons who are on the situs but not engaged in the overall process of loading or unloading vessels are not covered." Northeast Marine Terminal Co. v. Caputo, 432 U.S., at 267 . While "maritime employment" is not limited to the occupations specifically mentioned in § 2(3), neither can it be read to eliminate any requirement of a connection with the loading or construction of ships. As we have said, the "maritime employment" requirement is "an occupational test that focuses on loading and unloading." P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 80 [100 S.Ct. 328, 336, 62 L.Ed.2d 225] (1979). The Amendments were not meant "to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity." H.R.Rep. No. 92-1441, p. 11 (1972); S.Rep. No. 92-1125, p. 13 (1972). We have never read "maritime employment" to extend so far beyond those actually involved in moving cargo between ship and land transportation.
Herb's Welding, 470 U.S. at 423-24, 105 S.Ct. at 1427-28 (emphasis added) (internal footnote omitted).
In Herb's Welding, the claimant Gray was injured while working on an oil drilling platform located in Louisiana waters. Id. at 416-417, ...
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