MMR Constructors, Inc. v. Dir., Office of Workers’ Comp. Programs
| Decision Date | 26 March 2020 |
| Docket Number | No. 19-60027,19-60027 |
| Citation | 954 F.3d 259 |
| Parties | MMR CONSTRUCTORS, INCORPORATED; Zurich Mutual Insurance Company, Petitioners v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States Department of Labor; Henry T. Flores, Respondents |
| Court | U.S. Court of Appeals — Fifth Circuit |
Russell Joe Manning, Cotten, Schmidt & Abbott, L.L.P., Corpus Christi, TX, for Petitioner.
Matthew W. Boyle, Rae Ellen James, Associate Solicitor, Mark A. Reinhalter, Counsel, U.S. Department of Labor, Office of the Solicitor, Washington, DC, David Widener, U.S. Department of Labor, ESA/OWCP Longshore Division, Houston, TX, for Respondent DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR.
David Charles Frederick, Brendan Jeremiah Crimmins, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC, Lara D. Merrigan, San Rafael, CA, for Respondent HENRY T. FLORES.
Before DAVIS, HAYNES, and OLDHAM, Circuit Judges.
Petitioner MMR Constructors appeals the Benefits Review Board’s order awarding benefits to claimant Henry Flores under the Longshore and Harbor Workers’ Compensation Act. Concluding that Flores was on navigable waters at the time of injury and that his case is controlled by Perini ,1 we AFFIRM.
The facts are straightforward and uncontested. Henry Flores worked for MMR Constructors ("MMR") as a quality assurance and control technician for electrical systems. He assisted with electrical wiring for the construction of Chevron’s tension-leg platform named Big Foot.2 While working on the platform on January 20, 2014, Flores’s left foot got caught on a cable, and he tore his Achilles tendon. The parties do not dispute that the injury occurred during the course and scope of his employment.
While Big Foot is currently located at its permanent home in the outer Continental Shelf of the Gulf of Mexico, at the time of Flores’s accident, it was under construction at a shipyard in Corpus Christi Bay. During construction of what would ultimately become Big Foot, the platform floated in the bay on pontoons, connected to land by steel cables and utility lines.
An Administrative Law Judge (ALJ) held a formal hearing to assess Flores’s claim for benefits, both under the Longshore and Harbor Workers’ Compensation Act3 (LHWCA or the Act) and as extended by the Outer Continental Shelf Lands Act4 (OCSLA). The ALJ initially found that, although there was "no question" Flores was injured on navigable waters, he was not a maritime employee and thus failed the LHWCA’s status test under the 1972 amendments.5 The Benefits Review Board (BRB) overturned the ALJ’s order, relying on the Supreme Court’s decision in Perini to conclude that Flores was covered under the LHWCA because he was injured on navigable waters.6 MMR timely filed a petition for review.
This court reviews the BRB’s legal conclusions de novo.7 Because the facts here are not in dispute, "whether LHWCA coverage exists is a question of statutory interpretation and thus is reviewed as a pure question of law."8
The LHWCA establishes a federal statutory workers’ compensation scheme providing certain maritime workers with "medical, disability, and survivor benefits for work-related injuries and death."9 Prior to 1972, the LHWCA’s "situs" requirement only extended coverage to employees injured or killed on "navigable waters of the United States (including any dry dock)."10 When Congress amended the LHWCA in 1972, it (1) expanded the situs requirement to include certain adjoining land areas and (2) added a "status" component in 33 U.S.C. § 902(3), requiring that employees be engaged in maritime employment within the meaning of the Act.11
We start with the Supreme Court’s decision in Perini , decided after the LHWCA was amended in 1972. The facts in Perini bear some resemblance to the facts here: an employee was denied benefits after being injured on navigable waters because he was not engaged in maritime employment and, thus, could not satisfy the status test under the LHWCA as amended in 1972.12 The Supreme Court reversed.13 It held that the 1972 amendments to the LHWCA sought to expand, not limit, coverage.14 Before 1972, any claimant injured upon navigable waters in the course of his employment who satisfied the definition of "employee" would have been covered under the Act if employed by a statutory "employer."15 The Court concluded that such claimants—"injured on the actual navigable waters in the course of [their] employment"—were still eligible under the amended LHWCA because the Court "consider[ed] these employees to be engaged in maritime employment."16 Thus, these claimants satisfied the amended Act’s status requirement, the other statutory provisions notwithstanding.17
Our first challenge is to determine whether Flores, injured on a floating platform, would have satisfied the "situs" test under the LHWCA prior to 1972. In short, if Big Foot was on navigable waters, then Flores would have been covered under the pre-1972 LHWCA, and Perini teaches that he would also be eligible for coverage under the amended Act, despite his inability to otherwise meet the "status" test.18 If, however, Big Foot did not rest on navigable waters, then Flores’s claim fails because he cannot satisfy the situs or the status test required by the post-1972 amendments to the LHWCA. Two pre-1972 Fifth Circuit cases are helpful in determining whether Flores was injured on navigable waters.
First, MMR contends that because this court previously held that Big Foot is not a vessel, it must be considered an extension of land.19 But Williams v. Avondale Shipyards, Inc. reveals that this case does not hinge on whether Flores was injured on a vessel.20 In Williams , a claimant was injured on a not-yet-commissioned Coast Guard cutter on its final sea trial.21 The claimant filed multiple claims for relief under the Jones Act, general maritime law, and the LHWCA.22 The court followed settled law and first held that the Coast Guard cutter was not a vessel since it was uncompleted, thereby barring coverage under the Jones Act.23 Despite this fact, the court held that the claimant could still seek relief under the LHWCA if injured on navigable waters of the United States as opposed to international waters.24 Williams , then, stands for the solid proposition that an injury on a non-vessel located on navigable waters of the United States satisfies the situs requirement for purposes of coverage under the pre-1972 LHWCA. MMR’s attempt to distinguish Williams fails. MMR relies upon cases that deal with whether crafts in various forms are vessels for purposes of the Jones Act or general maritime law.25 Those cases are irrelevant for our purposes in determining coverage under the LHWCA.
Travelers Insurance Co. v. Shea is also helpful in our effort to determine whether Flores was injured on navigable waters. It teaches us that, pre-1972, if an employee was injured on a floating structure permanently attached to land, he was not covered under the LHWCA.26 In Shea , the claimant was injured on a floating outfitting pier, which was an extension of a ramp that had been permanently anchored to both the shore and seabed with steel pillars.27 We determined the pier was not on navigable waters and should instead be considered an extension of land.28 Indeed, "[i]ts permanent home was in the water, and the waters below it had been completely removed from navigation."29 Despite the fact that it was floating, the court treated it as a pier or extension of land because it was "permanently anchored ... for eighteen years" with no plans to ever move it from its fixed position.30
We have since followed this analysis, emphasizing that the extent to which a craft or pier is permanently attached to land is critical. In Peytavin v. Government Employees Insurance Co ., for example, the court held that a floating pontoon fastened to the shore by means of cables could not be considered an extension of land.31 Structures typically deemed extensions of land, the court noted, "were in some manner firmly and permanently fastened to the land."32 "A vessel moored to a dock does not become an extension of the land nor do other structures secured to the shore by cables, or other temporary means ."33
From these cases, it is clear that if a craft resting on navigable waters is permanently attached to land, then the water underneath the craft is removed from navigation and is not navigable under the LHWCA.34 While Big Foot was attached to land bordering Corpus Christi Bay, its attachment was not permanent. Big Foot was attached only temporarily while under construction—it was built to be moved offshore to drill for oil and gas in the Gulf of Mexico. Because it was not permanently attached to land, the water underneath it was not removed from navigation. Thus, Flores was injured on navigable waters and is entitled to benefits under the Act if MMR was a statutory "employer." We now turn to that question.
Both the original and amended LHWCA define "employer" as "an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States."35 MMR argues that because neither Flores nor any other employee of MMR was engaged in "maritime employment" as defined by the post-1972 LHWCA’s "status" test, MMR does not qualify as a statutory "employer" under § 902(4). As set forth below, we conclude that MMR was a statutory employer.
Because Perini teaches us that the 1972 amendments to the LHWCA did not intend to limit coverage, the definition of both "employee" and "employer" under the Act become relevant. Before the amendments, "employee" was defined negatively to read: "[t]he term ‘employee’ does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under...
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