Mills v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 14 July 1989
• Docket Number: No. 87-4464,87-4464
• Parties: , 58 USLW 2068 O'Neal MILLS, Sr., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, McDermott, Inc., & Crawford and Company, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 356

877 F.2d 356

1990 A.M.C. 218, 58 USLW 2068

O'Neal MILLS, Sr., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, McDermott, Inc., &amp Crawford and Company, Respondents.

No. 87-4464.

United States Court of Appeals Fifth Circuit.

July 14, 1989.

Lawrence A. Arcell and Barker, Boudreaux, Lamy & Foley, New Orleans, La., for petitioner.

John J. Weigel, and John Gomila, New Orleans, La., for amicus Avondale.

Maurice C. Hebert, Jr. and Alan G. Brackett, New Orleans, La., for amicus Petroleum.

Joseph W. Looney, Michael R.C. Riess and House, Looney, Golden, Kingsmill & Riess, New Orleans, La., for McDermott & Grawford.

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

James F. Holmes, Christovich & Kearney, New Orleans, La., for amicus, Brown & Root and Gulf Marine.

Darrel E. Reed, Jr., E. John Gorman, James E. Doyle, Houston, Tex., for amicus curiae, American Petroleum Inst., et al.

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

Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH and DUHE, Circuit Judges. ^*

W. EUGENE DAVIS, Circuit Judge:

We granted rehearing en banc to determine whether appellant, O'Neal Mills, a land-based welder injured while building an offshore oil platform in Amelia, Louisiana, qualifies for benefits under the Longshore & Harbor Workers' Compensation Act (LHWCA) as incorporated in the Outer Continental Shelf Lands Act (OCSLA). Because we conclude that OCSLA's provision adopting LHWCA includes a situs of injury requirement that Mills did not satisfy, we affirm the order of the Benefits Review Board (BRB) rejecting Mills' claim.

I.

McDermott, Inc., employed Mills as a welder in February 1982 when he suffered an injury during construction of an oil production platform destined for the outer Continental Shelf. The injury occurred in McDermott's yard in Amelia, Louisiana, where Mills had been working on the platform for at least six months before the accident. Mills performed all of his welding work for McDermott on land.

The deputy commissioner of the Office of Workers' Compensation Programs initially approved Mills' application for LHWCA benefits under OCSLA, 43 U.S.C. Sec. 1333(b). An administrative law judge reversed the deputy commissioner's decision. The Benefits Review Board for the U.S. Department of Labor affirmed the ALJ's denial of benefits, and Mills appealed to this court.

In Mills v. Director, OWCP, 846 F.2d 1013 (5th Cir.1988), a panel of this court reversed the BRB and remanded. The court granted McDermott's petition for rehearing en banc on September 9, 1988. We now affirm the BRB's order and hold that Mills does not qualify for benefits under OCSLA because he does not satisfy its situs-of-injury requirement.

II.

Section 1333(b) of OCSLA extends the LHWCA's benefits to employees disabled or killed "as the result of operations conducted on the outer Continental Shelf for the purposes of exploring for ... [or] developing ... the natural resources ... of the subsoil and seabed of the outer Continental Shelf." As incorporated in OCSLA, Sec. 933(i) of the LHWCA provides the exclusive remedy of an injured employee against his employer. See 33 U.S.C. Sec. 933(i); Barger v. Petroleum Helicopters, Inc., 692 F.2d 337, 339 (5th Cir.1982).

McDermott argues that Mills falls outside the reach of Sec. 1333(b) because his injury occurred on Louisiana soil rather than on the outer Continental Shelf. The panel interpreted Sec. 1333(b) as extending LHWCA coverage to oilfield workers so long as their injury had the necessary connection with operations on the OCS, without regard to where the injury occurred. Mills, 846 F.2d at 1015. Thus, the panel concluded that Mills qualified for workers' compensation benefits under OCSLA because (1) he would not have been injured but for operations on the OCS; and (2) his welding work during platform construction " 'furthered the operation of a fixed rig on the shelf and ... [occurred] in the regular course of extractive operations on the shelf.' " Id. (quoting Herb's Welding, Inc. v. Gray, 766 F.2d 898, 900 (5th Cir.1985)).

III.

A.

In determining the Congressional intent behind Sec. 1333(b) we follow the Supreme Court's teaching to interpret the legislation "... in light of the language of the Act as a whole, the legislative history [and] the Congressional purposes underlying the Act...." Offshore Logistics v. Tallentire, 477 U.S. 207, 221, 106 S.Ct. 2485, 2494, 91 L.Ed.2d 174 (1986).

Congress enacted OCSLA in 1953 to establish the law governing conduct on the Outer Continental Shelf, an area of intense activity that lacked an established legal system because it lies beyond state boundaries. Congress enacted OCSLA "to define a body of law applicable to the seabed, the subsoil, and the fixed structures ... on the Outer Continental Shelf." Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 1837, 23 L.Ed.2d 360 (1969); 43 U.S.C. Sec. 1333(a). To that end Congress made non-maritime federal law applicable to the subsoil, seabed, and platforms. Id. at 355-56, 89 S.Ct. at 1837. In the event no federal law existed on a particular issue, Congress elected to borrow the adjacent state's law as surrogate federal law. Id.; 43 U.S.C. Sec. 1333(a)(2)(A).

One obvious void in the law governing the OCS was the lack of a workers' compensation scheme for thousands of workers employed in the dangerous oilfield extraction industry. Congress filled that void in Sec. 1333(b) when it adopted the LHWCA's benefits provision to cover non-seamen employed in the oil patch on the OCS.

Consistent with our interpretation of Sec. 1333(b), none of Sec. 1333's other subsections purport to apply beyond the OCS. Section 1333(a), which establishes the Shelf's substantive law, applies only to activity that occurs on the OCS. ¹ Subsection (c) applies the National Labor Relations Act to unfair labor practices on OCS platforms. ² Subsection (d) delegates to the Coast Guard the duty of promoting safety on the artificial islands and adjacent waters on the outer Continental Shelf. ³ Subsection (e) extends the Secretary of the Army's authority to prevent obstruction of navigation to those artificial islands, ⁴ while subsection (f) also focuses on certain legal provisions that apply to these same installations. ⁵

These subsections demonstrate that Congress intended to regulate the OCS, not those areas that already were governed by state law. Neither Mills nor the Director of the Office of Workers' Compensation identifies any legislative history suggesting that Congress intended to single out OCSLA's workers' compensation scheme for different treatment. Nor do they suggest why Congress would have wanted to create another layer of compensation coverage for select shorebound employees--such as factory and shipyard laborers--who fortuitously work on equipment destined for offshore platforms.

Section 1333(b)'s bare language does not resolve the issue because the phrase "[injured] as the result of operations conducted on the outer Continental Shelf for the purpose of ... developing ... the natural resources ... of the [OCS]" is open to interpretation (emphasis added).

Mills and the Director read "operations" broadly to encompass work by employees--wherever located--provided their work furthers OCS mineral extraction activity in some significant way. But under an equally plausible reading of Sec. 1333(b), coverage requires that the relevant "operations" out of which the injury arises occur on the OCS. We interpret Sec. 1333(b) to require that covered operations be (1) related to OCS development; and (2) conducted on the OCS. Given the second requirement, activity conducted off the OCS, even though related to OCS mineral extraction, does not satisfy Sec. 1333(b).

Legislative history from OCSLA and a related bill, the Submerged Lands Act, 43 U.S.C. Sec. 1301 et seq., supports the narrower reading of Sec. 1333(b). OCSLA vested control of the OCS beyond state territorial waters in the federal government; the Submerged Lands Act certified state control over the water and seabed within state boundaries. OCSLA originated as Subchapter III of the Submerged Lands Act; the act retained its focus on "only the area of the Outer Continental Shelf beyond State boundaries" when Congress enacted it as a separate bill. 99 Cong.Rec. 6962 (Daily ed. June 22, 1953) (statement of Senator Cordon, acting chairman of the Senate Committee on Interior and Insular Affairs). The legislative history explains that these two bills were "legislatively joined"--even as they focused individually on separate areas of the ocean floor--by a Congress determined to draw a clear boundary between areas of federal and state control. See id. ⁶

OCSLA's separate legislative history confirms this exclusive focus. In one exchange involving S.1901, the bill that became OCSLA, the senators concluded that state workers' compensation would cover a worker in state waters drilling a slant hole into the OCS. Outer Continental Shelf: Hearings on S.1901 before Senate Comm. on Interior and Insular Affairs, 83d Cong., 1st Sess., 12-16 (1953). The senators agreed that the place of injury controls the application of benefits. As the legislative history makes plain, Congress enacted OCSLA only as a vehicle to fill voids in the rules governing the federally managed territory of the OCS. No such void exists for disputes encompassing areas already governed by state law.

Mills and the Director seek support for their expansive reading of Sec. 1333(b) in Congress' deletion of a proviso to Section 4(c) of S.1901, the section that ultimately became Sec. 1333(b). Section 4(c) originally extended LHWCA benefits to workers killed or disabled as the result of operations conducted on the OCS "if recovery for such disability or death through workmen's...