Valladolid v. Pac. Operations Offshore

• Decision Date: 13 May 2010
• Docket Number: No. 08-73862.,08-73862.
• Parties: Luisa VALLADOLID, Petitioner,v.PACIFIC OPERATIONS OFFSHORE, LLP; Insurance Company of the State of Pennsylvania; and Director, Office of Workers' Compensation Programs, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

604 F.3d 1126

Luisa VALLADOLID, Petitioner,v.PACIFIC OPERATIONS OFFSHORE, LLP; Insurance Company of the State of Pennsylvania; and Director, Office of Workers' Compensation Programs, Respondents.

No. 08-73862.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2010.

Filed May 13, 2010.

COPYRIGHT MATERIAL OMITTED

Timothy K. Sprinkles, Law Office of Charles D. Naylor, San Pedro, CA, and Joshua T. Gillelan II, Longshore Claimants' National Law Center, Washington, DC, for the petitioner.

Michael W. Thomas, Laughlin, Falbo, Levy & Moresi LLP, San Francisco, CA, for the respondents.

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

Before: STEPHEN REINHARDT and JAY S. BYBEE, Circuit Judges, and JAMES V. SELNA,^* District Judge.

SELNA, District Judge:

In this case, we consider whether an employee must be injured on the outer continental shelf to be eligible for workers' compensation benefits under the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq. The two other circuits that have considered this question have reached conflicting conclusions.

I.

Decedent Juan Valladolid worked for Pacific Operations Offshore as a roustabout, stationed primarily on one of Pacific Operations's two offshore drilling platforms. He was killed, however, on the grounds of Pacific Operations's onshore oil-processing facility when he was crushed by a forklift. His widow seeks workers' compensation benefits under OCSLA and the Longshore and Harbor Workers' Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq.

Pacific Operations runs two offshore oil drilling platforms, the Hogan and the Houchin, both located more than three miles off the coast of California. Valladolid spent roughly 98% of his working time aboard the Hogan. As a roustabout, his work primarily consisted of cleaning and maintenance duties: picking up litter, emptying trash cans, washing decks, painting, fixing equipment, and helping load and unload the platform crane.

Valladolid also spent time working at Pacific Operations's onshore oil flocculation facility, located on the California coast just 250-300 feet from the shore.¹ This facility, referred to as La Conchita, received crude oil slurry from the Hogan and the Houchin via pipeline. The slurry would then be processed, separating its oil, gas, water, and solid constituents, with the oil and gas routed off site through pipelines to third parties. Valladolid performed maintenance duties at La Conchita, including painting, sandblasting, weed-pulling, cleaning drain-culverts, and operating a forklift.

Crew members traveled to and from the offshore platforms on a crew boat departing from the Casitas Pass Pier, located about three miles from La Conchita. The crew boat was also used to ferry equipment and supplies and to remove scrap metal-pieces of old pipe, storage tanks, catwalks, chain, and cables-from the platforms. The scrap metal was ferried to the Casitas Pass Pier, where it was loaded into trucks and driven to La Conchita. There it was dumped at various spots on the property. Neither the loading crew at the pier nor the truck drivers were employed by Pacific Operations.

One of Valladolid's duties at La Conchita was to “centralize” the scrap metal from the various locations so that third-party scrap metal vendors could pick the metal up and haul it away. Valladolid would use a forklift to retrieve the scattered metal and transport it to a central location. The consolidation process was performed roughly once every two years. Valladolid was killed during this process when he was crushed by a forklift.

Petitioner, Valladolid's widow, received death benefits under California's workers' compensation scheme. She also filed a claim for benefits under the LHWCA, both directly under the LHWCA and via the OCSLA extension to outer continental shelf workers. After informal proceedings before the local district director of the Department of Labor's Office of Workers' Compensation Programs, the matter was referred to an Administrative Law Judge (“ALJ”).

The ALJ denied Petitioner's OCSLA claim on the grounds that Valladolid's injury had occurred outside the geographic situs of the outer continental shelf. The ALJ denied the LHWCA claim on two grounds: (1) Valladolid was not engaged in maritime employment, and (2) he was not injured on a maritime situs. The Benefits Review Board (“BRB”) upheld the ALJ's denial of the OCSLA benefits under the “situs-of-injury” test, and affirmed the denial of LHWCA benefits on the maritime situs ground. The BRB did not reach the maritime employment issue.

II.

We have jurisdiction to review the final orders of the BRB under 33 U.S.C. § 921(c). We review the BRB's decisions for errors of law and adherence to the substantial evidence standard. Pedroza v. BRB, 583 F.3d 1139, 1143 (9th Cir.2009). The BRB's decisions on questions of law are reviewed de novo. M. Cutter Co. v. Carroll, 458 F.3d 991, 993 (9th Cir.2006). Because the BRB is not a policymaking body, its constructions of the LHWCA are not entitled to special deference. Dyer v. Cenex Harvest States Coop., 563 F.3d 1044, 1047 (9th Cir.2009). However, the Court must “respect the [BRB's] interpretation of the statute where such interpretation is reasonable and reflects the policy underlying the statute.” Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049, 1052 (9th Cir.2009) (quoting McDonald v. Dir., Office of Workers' Comp. Programs, 897 F.2d 1510, 1512 (9th Cir.1990)).

III.

The LHWCA provides compensation for the disability or death of a maritime employee “if the disability or death results from an injury occurring upon the navigable waters of the United States.” 33 U.S.C. § 903(a). Under the OCSLA workers' compensation provision, LHWCA benefits are extended to:

[the] disability or death of an employee resulting from any injury occurring 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, or involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf.

43 U.S.C. § 1333(b). The outer continental shelf is comprised of “all submerged lands lying seaward and outside of the area of lands beneath navigable waters”-that is, submerged lands lying outside the territorial jurisdiction of the states. Id. § 1331(a); see id. § 1301(a)(2). State jurisdiction over offshore lands generally extends three miles from the coast line, though in certain cases not relevant here, it may extend further. See id. § 1301(a)(2).

Petitioner contends that the BRB impermissibly applied a “situs-of-injury” requirement for OCSLA workers' compensation, denying her claim because her husband was killed on shore and not on the outer continental shelf. This is an issue of first impression in the Ninth Circuit. Two other circuits presented with this exact issue have reached conflicting conclusions.

In Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d 805 (3d Cir.1988), the Third Circuit rejected the situs-of-injury test and held that a claimant need only satisfy a “but for” test in establishing that the injury occurred “as the result of” operations on the outer continental shelf. Id. at 809-11. Accordingly, an employee injured in a car accident on his way to meet a helicopter that would take him to an offshore platform was eligible for OCSLA disability benefits. Id. at 806, 811.

However, in Mills v. Director, Office of Workers' Compensation Programs, 877 F.2d 356 (5th Cir.1989) (en banc), the Fifth Circuit adopted a situs-of-injury requirement for OCSLA claims. Under Mills, an OCSLA claimant must show that the injury occurred on an outer continental shelf platform or on the waters above the outer continental shelf, in addition to satisfying the “but for” test. Id. at 362; see also Becker v. Tidewater, Inc., 586 F.3d 358, 366-67 (5th Cir.2009); Pickett v. Petroleum Helicopters, Inc., 266 F.3d 366, 368 (5th Cir.2001); Sisson v. Davis & Sons, Inc., 131 F.3d 555, 558 (5th Cir.1998). Thus, a welder injured during the onshore construction of a platform destined for the outer continental shelf was not eligible for OCSLA disability benefits. Mills, 877 F.2d at 357, 362.

A.

Aside from the two conflicting Court of Appeals decisions, there is little precedent on the question before us. The Supreme Court touched on the question in passing in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). The relevant issue there was whether a choice-of-law provision in OCSLA, 43 U.S.C. § 1333(a)(2)(A), applied so as to allow the widows of employees killed in a helicopter crash to pursue a wrongful death action under state law. Id. at 209, 106 S.Ct. 2485. Section 1333(a)(2)(A) applies the law of the nearest state as surrogate federal law for “the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon.” 43 U.S.C. § 1333(a)(2)(A). The Court declined to extend this provision to an accident occurring on the waters above the outer continental shelf, finding that “Congress determined that the general scope of OCSLA's coverage ... would be determined principally by locale, not by the status of the individual injured or killed.” Tallentire, 477 U.S. at 219, 106 S.Ct. 2485. In an accompanying footnote, the Court added:

Only one provision of OCSLA superimposes a status requirement on the otherwise determinative OCSLA situs requirement; § 1333(b) makes compensation for the death or injury of an “employee” resulting from certain operations on the Outer Continental Shelf payable under the Longshoremen's and Harbor Workers' Compensation Act. We note that because this case does not involve a suit by an injured employee against his employer pursuant to § 1333(b), this provision has no bearing on this case.

Id. at 219 n. 2, 106 S.Ct. 2485.

Pacific Operations contends that this footnote is dispositive of this...