Thibodeaux v. Grasso Production Management Inc.

• Decision Date: 18 May 2004
• Docket Number: No. 03-60131.,03-60131.
• Parties: Randall THIBODEAUX, Petitioner, v. GRASSO PRODUCTION MANAGEMENT INC.; Signal Mutual Indemnity Association Limited, Carrier; Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

370 F.3d 486

Randall THIBODEAUX, Petitioner, v. GRASSO PRODUCTION MANAGEMENT INC.; Signal Mutual Indemnity Association Limited, Carrier; Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents.

No. 03-60131.

United States Court of Appeals, Fifth Circuit.

May 18, 2004.

Jennings Bryan Jones, III (argued), Jones Law Firm, Cameron, LA, for Thibodeaux.

Joshua T. Gillelan, II, Carol A. De Deo, U.S. Dept. of Labor, Thomas O. Shepherd, Jr., Clerk, Benefits Review Bd., Washington, DC, David Duhon, U.S. Dept. of Labor, Employment Standards Admin., New Orleans, LA, for Director, Office of Worker's Comp. Programs U.S. Dept. of Labor.

Edward S. Johnson, Robert C. Martell (argued), Johnson, Johnson, Barrios & Yacoubian, New Orleans, LA, for Grasso Production Management Inc. and Signal Mut. Indem. Ass'n Ltd., Carrier.

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

Before JONES, MAGILL^* and SMITH, Circuit Judges.

MAGILL, Circuit Judge:

Randall Thibodeaux petitions for review of an order of the Department of Labor Benefits Review Board ("Board") denying him benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901, et seq. (2000). Thibodeaux sought compensation under the LHWCA after injuring himself while working on a fixed oil production platform in the territorial waters of Louisiana. An administrative law judge held that Thibodeaux's injury was covered by the LHWCA. The Board reversed, holding that the platform was not a covered situs under 33 U.S.C. § 903(a). We have jurisdiction pursuant to 33 U.S.C. § 921(c), and we deny the petition for review of the Board's order.

I.

During the relevant period, Thibodeaux worked for Grasso Production Management Inc. as a pumper/gauger on Garden Island Bay platform No. 276, a fixed oil and gas production platform. As part of his duties, Thibodeaux monitored gauges both on the platform and on nearby wells. He reached the wells by using a 17- foot skiff. In addition to the skiff, Thibodeaux also piloted a 24-foot vessel, the M/V KATIE ELIZABETH, which was used to transport employees from Venice, Louisiana, to the platform along with their personal supplies and, on occasion, equipment used for production. The platform where Thibodeaux spent the majority of his working hours rests on wooden pilings driven into a small bank next to a canal; the platform extends over marsh and water, but is accessible only by vessel. There are docking areas for the two water craft noted above.

Thibodeaux injured himself after observing that a discharge line located five feet below the deck of the platform was leaking oil. Upon determining that he could better inspect the line from a small wooden platform below the deck and adjacent to the line, he first lowered himself over the edge and then jumped the two to three remaining feet down onto the wooden platform. The wood gave way, and Thibodeaux plunged into the marsh below where a nail pierced his hand. The accident did not occur on the portion of the platform used to dock the two vessels.

Thibodeaux filed a claim against Grasso and Signal Mutual Indemnity under the LHWCA. An ALJ held Thibodeaux was covered by the LHWCA as he was a maritime employee and his injury occurred on a pier, a situs enumerated in § 903(a). Grasso and Signal appealed to the Board. The Board reversed the ALJ, reasoning that the oil production platform was not a "pier" within the meaning of the statute. It did not reach the issue of status.

II.

We review Board decisions for errors of law and to ensure the Board does not exceed its statutory authority to review whether an ALJ's findings of fact are supported by substantial evidence and consistent with the law. Cooper/T. Smith Stevedoring Co. v. Liuzza, 293 F.3d 741, 744 (5th Cir.2002); Munguia v. Chevron U.S.A. Inc., 999 F.2d 808, 810 (5th Cir.1993); see also 33 U.S.C. § 921(b)(3). The LHWCA provides remuneration for workers who establish that they were engaged in maritime employment¹ on a covered situs at the approximate time of their injuries. Munguia, 999 F.2d at 810. The situs requirement is satisfied where an injury occurs "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). The sole issue for our review is whether a fixed oil production platform built on pilings over marsh² and water and inaccessible from land constitutes either a "pier" or an "other adjoining area" within the meaning of § 903(a). We hold the platform in question is neither, and therefore deny the petition for review of the Board's ruling that Thibodeaux has not met the situs requirement of the LHWCA.

This court has previously adopted a functional approach to construing the parenthetically enumerated structures in § 903(a). Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 541 (5th Cir.1976), vacated and remanded, P.C. Pfeiffer Co., Inc. v. Ford, 433 U.S. 904, 97 S.Ct. 2966, 53 L.Ed.2d 1088 (1977), reaffirmed, 575 F.2d 79 (5th Cir.1978), cert. denied, 440 U.S. 967, 99 S.Ct. 1520, 59 L.Ed.2d 784 (1979), overruled on other grounds, Texports Stevedore Co. v. Winchester, 632 F.2d 504, 516 (5th Cir.1980).³ In Jacksonville Shipyards, we required an employee to demonstrate that "a putative situs actually be used for loading, unloading, or one of the other functions specified in the Act." Id. In this way, we interpreted the statute not to encompass all possible instances of the enumerated structures, but rather only those with some relation to the purpose of the LHWCA — providing compensation for maritime workers injured in areas used for maritime work. Id. Under the reasoning of Jacksonville Shipyards, while a structure built on pilings and straddling both land and water may bear some physical resemblance to a pier, if it does not serve a maritime purpose, it is not a pier within the meaning of § 903(a). This position has been criticized; the ALJ in this case declined to follow Jacksonville Shipyards, instead employing the interpretation of pier first set forth in Hurston v. Dir., Office of Workers Comp. Programs, 989 F.2d 1547 (9th Cir.1993), and later adopted by Fleischmann v. Dir., Office of Workers' Comp. Programs, 137 F.3d 131 (2d Cir.1998). Thibodeaux v. Grasso Prod. Mgmt., Inc., No.2001-LHC-1433 at 12 (ALJ Nov. 15, 2001). The Board in turn rejected the Hurston approach and set forth a functional analysis. We agree with the Board that the Hurston court's definition of pier is overly broad, and we instead adhere to the functional approach first announced in Jacksonville Shipyards.

In Hurston, the employee worked as a pile driver on a fixed oil production platform built on pilings extending from land to sea. Id. at 1548. Unlike the structure in this case, the platform at issue in Hurston was accessible from land. Id. at 1554 (quoting findings of fact made by the ALJ) (Alarcon, J., dissenting). In the course of holding that an oil production platform was a pier and therefore a covered situs, the Ninth Circuit eschewed the functional approach of Jacksonville Shipyards, instead holding that appearance wholly determined identity: "if it appears to be a pier, if it is built like a pier and adjoins navigable waters, it's a pier." Id. at 1549. The court rested its decision mainly on the fact that a close reading of § 903(a) reveals the enumerated term "pier" is not qualified by the phrase "customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel" as is the phrase "other adjoining area." Id. It reasoned that had Congress wanted to limit the meaning of the enumerated structures to its maritime connotation, it would have supplied a comma between "other adjoining area" and "customarily used," or otherwise explicitly stated its intention. Id. at 1549-50. Since Congress did not, the Hurston court assumed Congress must have intended "pier" to have its broadest meaning — any structure "built on pilings extending from land to navigable water." Id. at 1553. The Supreme Court, this circuit and the Eleventh Circuit have all expressly declined to resolve whether an enumerated structure such as a pier or a wharf need also be "customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel." Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 280, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977); Texports Stevedore Co. v. Winchester, 632 F.2d 504, 511-12 n. 11 (5th Cir.1980) (en banc)⁴; Brooker v. Durocher Dock & Dredge, 133 F.3d 1390, 1394 (11th Cir.1998) ("We, like the Supreme Court in Caputo and the former Fifth Circuit in Winchester, need not reach the issue of whether a pier must be `customarily used' for vessel activity to meet the situs test in section 3(a) of the LHWCA.").

Even assuming the Hurston court is correct in its grammatical reading of § 903(a), its conclusion does not follow from its premise. To hold as a matter of grammar and punctuation that the phrase beginning "customarily used" does not modify "pier" is quite different from holding as a matter of law that the term "pier" derives no meaning from its context in a maritime statute, and that the term's statutory meaning extends to the outer limits of its meaning in ordinary language.

The Board in the present case aptly described Hurston's error in this regard:

While the Board acknowledged in Hurston that the sites enumerated in Section 3(a) need not be shown to be customarily used for loading, unloading, building or repairing vessels, in contrast to the general "other adjoining areas" covered by the Act, it does not follow that such a site is covered based solely on appearance where it clearly lacks a maritime purpose. The sites enumerated in Section 3(a) are all land-based structures or areas which adjoin navigable...