Ivan Ramos v. Director, OWCP , 486 F. App'x 775 ( 2012 )


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  •              Case: 11-15884   Date Filed: 08/10/2012   Page: 1 of 5
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 11-15884
    Non-Argument Calendar
    ________________________
    OWCP-0:11-0130
    IVAN RAMOS,
    Petitioner,
    versus
    DIRECTOR, OWCP,
    CONTAINER MAINTENANCE OF FLORIDA,
    SIGNAL MUTUAL INDEMNITY ASSOCIATION, LTD.,
    UNITED STATES DEPARTMENT OF LABOR,
    Respondents.
    ________________________
    Appeal from the Office of Workers Compensation Programs
    ________________________
    (August 10, 2012)
    Before CARNES, WILSON, and COX, Circuit Judges.
    PER CURIAM:
    Container Maintenance of Florida repairs and stores containers used to
    transport cargo through ports in Jacksonville, Florida. The company has four
    Case: 11-15884     Date Filed: 08/10/2012    Page: 2 of 5
    facilities in the Jacksonville area. One of its facilities is located on Alta Drive about
    three miles from the deep water port on Blount Island. Ivan Ramos worked at the
    Alta Drive location as a dual mechanic. He suffered injuries while performing an
    inspection on one of the containers located at the Alta Drive facility.
    Ramos filed a claim for compensation for his injuries under the Longshore and
    Harbor Worker’s Compensation Act (“LHWCA”), 
    33 U.S.C. §§ 901-950
    . Container
    Maintenance controverted the claim and the case was heard before an Administrative
    Law Judge (“ALJ”). The ALJ decided that Ramos was a maritime employee and that
    he was injured on a covered maritime situs. After the ALJ entered a compensation
    order, Container Maintenance appealed to the Benefits Review Board (the “Board”).
    The Board reversed the ALJ’s award of benefits, concluding that Ramos’s injury did
    not occur on a situs covered by the LHWCA. Ramos then filed a petition for review
    of the Board’s order in this court. The only issue before the court is whether the place
    where Ramos’s injury occurred, the Alta Drive facility, is a covered situs under the
    LHWCA, 
    33 U.S.C. § 903
    (a).
    “We review the Board’s decisions to determine whether the Board has adhered
    to its statutory standard of review and whether it has erred in interpreting the law.”
    Bianco v. Ga. Pac. Corp., 
    304 F.3d 1053
    , 1056 (11th Cir. 2002) (quoting Ala. Dry
    Dock & Shipbuilding Corp. v. Sowell, 
    933 F.2d 1561
    , 1563 (11th Cir. 1991),
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    abrogated on other grounds by Bath Iron Works Corp. v. Dir., Office of Workers’
    Comp. Programs, 
    506 U.S. 153
    , 
    113 S. Ct. 692
     (1993)). “[We] will not set aside the
    ALJ’s findings of fact, including its situs determination, if substantial evidence
    supports them.” Id. at 1057 (quoting Brooker v. Durocher Dock & Dredge, 
    133 F.3d 1390
    , 1392 (11th Cir. 1998)).
    To receive compensation under the LHWCA, the claimant must satisfy multiple
    requirements. Only one of these requirements, the so-called “situs” test, is at issue
    on appeal. This test requires that the claimant’s injury occur “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).”
    Brooker, 
    133 F.3d at 1392
     (quoting 
    33 U.S.C. § 903
    (a)). More specifically, the
    parties dispute whether Container Maintenance’s Alta Drive facility is an “adjoining
    area” covered by the LHWCA.
    To decide whether the Alta Drive facility is an adjoining area, both the Board
    and the ALJ evaluated whether the facility had a geographic nexus with navigable
    waters and a functional nexus with maritime activities. When considering the
    geographic nexus, the ALJ concluded that while the businesses surrounding the Alta
    Drive facility did not engage in maritime operations, the facility’s 3.2 mile distance
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    to the Blount Island port was as close as feasible. Upon its review, the Board held
    that the fact the facility was as close as feasible to the Blount Island port was
    insufficient standing alone to satisfy the geographic nexus requirement. Therefore,
    the Board reversed the ALJ’s award of benefits.
    Analyzing the situs requirement of the LHWCA, the former Fifth Circuit
    rejected the argument that a site must actually adjoin navigable waters of the United
    States to be covered by the LHWCA. Instead, the court said that “[s]o long as the site
    is close to or in the vicinity of navigable waters, or in a neighboring area, an
    employee’s injury can come within the [LHWCA].” Texports Stevedore Co. v.
    Winchester, 
    632 F.2d 504
    , 514 (5th Cir. 1980) (en banc).1 Thus, while a location
    need not adjoin navigable waters to meet the situs test, there must be a geographic
    connection to navigable waters. And we agree with the Board that substantial
    evidence does not support finding that the Alta Drive facility satisfies this geographic
    nexus requirement. As the Board explained, the Alta Drive facility “is not adjacent
    to or in the vicinity of navigable water; its location was chosen based on general
    business factors; the Blount Island facility is three miles away; properties closer to
    Blount Island were rejected as unsuitable for employer’s purposes; and the businesses
    1
    In Bonner v. City of Prichard, Ala., 
    661 F.2d 1206
    , 1209 (11th Cir. 1981), this court
    adopted as binding precedent all decisions of the Fifth Circuit handed down before the close of
    business on September 30, 1981.
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    surrounding the [facility] are not maritime.” Ramos v. Container Maint. of Fla., 
    45 Ben. Rev. Bd. Serv. (MB) 61
     (2011). Because substantial evidence does not support
    finding that the Alta Drive facility was in the vicinity of navigable waters, or in a
    neighboring area, the ALJ erred by finding that the facility was a covered situs at the
    time of Ramos’s injury.2 Therefore, Ramos does not qualify for benefits under the
    LHWCA.
    PETITION DENIED.
    2
    The Board also concluded that the ALJ erred by applying the presumption of coverage
    under the LHWCA in this case. Petitioner argues that the Board should have applied this
    presumption when considering the functional nexus between the Alta Drive facility and maritime
    activities. But, like the Board, we find it unnecessary to consider the facility’s functional nexus.
    Ramos makes no argument that application of the presumption would alter the Board’s analysis of
    the geographic nexus of the facility to navigable waters.
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