Munguia v. Chevron U.S.A. Inc. ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 92-4380
_______________
NOEL E. MUNGUIA,
Petitioner,
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent,
VERSUS
CHEVRON U.S.A. INC.,
Respondent.
_________________________
Petition for Review of an Order of
the Benefits Review Board
_________________________
August 20, 1993
Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Noel Munguia appeals a decision of the Benefits Review Board
(the "Board") of the United States Department of Labor, rejecting
his claim for benefits under the Longshore and Harbor Workers'
Compensation Act (the "Act"), 33 U.S.C. § 901 et seq. (1988), for
injuries sustained while in the employ of Chevron, U.S.A., Inc.
("Chevron"). We affirm the Board's decision, but for reasons
different from those relied upon by the Board.
I.
Munguia had been employed by Chevron as a roustabout and
relief pumper-gauger for nine years. At the time he was injured,
he had been assigned as a pumper-gauger to Chevron's South and
Southwest Pass oil field for over two years. The field includes
about 200 producing oil wells drilled in an area eighteen miles
long on both sides of, and a short distance from, the Mississippi
River. Each well is situated on a stationary platform built in the
marsh or on water and is accessible only by water.
Munguia worked for seven days, then was off duty for seven
days. When on duty, he was provided sleeping quarters and meals in
a bunkhouse, near which Chevron maintained a group of oil storage
tanks, called a tank battery. A number of vessels, varying from
eight to twelve, were anchored at the tank battery, including small
boats of various kinds (Lafitte skiffs, Boston whalers, and Jo-
boats) fitted with outboard motors and other small vessels that
could transport one or two workers and their equipment. There was
also at least one larger vessel, a wire-line barge, aboard which
equipment needed for work on wells was permanently stored. Chevron
maintained this small fleet for the sole purpose of enabling its
employees to service the production field.
On the day he was injured, Munguia was assigned to work with
a gas specialist checking a number of wells for gas leaks. They
proceeded in a Lafitte skiff to check the valves on the well-
control unit for leaks. One of them would close the valve, and the
other would listen for leaks. Munguia injured his back while
2
attempting to close a frozen master valve.
II.
Munguia's claim was referred for disposition to an
administrative law judge ("ALJ"). Concluding that Munguia
satisfied the "status" requirement of the Act and that the parties
had not contested the "situs" requirement, the ALJ awarded Munguia
his requested compensation benefits. Chevron appealed the decision
to the Board.
Citing the transcript of the evidentiary hearing before the
ALJ, the Board disagreed with the ALJ's statement that Chevron had
not raised the situs issue. Addressing the merits, the Board then
concluded that the scope of Munguia's employment did not satisfy
the situs requirement, and it reversed the ALJ's decision on that
ground. Munguia, joined by the Director of the Office of Worker's
Compensation Programs (the "Director"), appeals.1
III.
Our review of Board decisions is limited to considering errors
of law and ensuring that the Board adhered to its statutory
standard of review, namely, whether the ALJ's findings of fact are
supported by substantial evidence and consistent with the law. 33
U.S.C. § 921(b)(3); Miller v. Central Dispatch, Inc., 673 F.2d 773,
1
The Director is a party to the litigation of disputed claims under the
Act at all stages of the litigation. See Ingalls Shipbuilding Div., Litton
Systems, Inc. v. White, 681 F.2d 275, 281-88 (5th Cir. 1982), overruled on
other grounds, Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399,
406-07 (5th Cir. 1984) (en banc).
3
778 (5th Cir. Unit A 1982).
In order to demonstrate coverage under the Act, a worker must
satisfy both a situs and a status test; in the words of the
statute, he must show that, at the approximate time he incurred
disability or death, he was "engaged in maritime employment," 33
U.S.C. § 902(3), and that his injury "occurr[ed] upon the navigable
waters of the United States . . . ." Id. § 903(a) (1982). See
also Herb's Welding, Inc. v. Gray, 470 U.S. 414, 415-16 (1985).2
These threshold inquiries were the focus of dispute before both the
ALJ and the Board.
Section 902(3) of the Act, embodying the "maritime employment"
status requirement, has been deemed "an occupational test that
focuses on loading and unloading." P.C. Pfeiffer Co. v. Ford, 444
U.S. 69, 80 (1979). While certain enumerated categories of
employees )) e.g., longshoremen and harbor workers )) are
automatically included within section 902(3)'s ambit, coverage may
also extend to other employees. A string of Supreme Court
decisions addressing this issue has left it "clearly decided that,
aside from the specified occupations, land-based activity occurring
within the § 903 situs will be deemed maritime only if it is an
integral or essential part of loading or unloading a vessel."
2
Although the ALJ and, to a lesser extent, the Board phrase this two-
part inquiry in terms of jurisdiction rather than coverage, it should be noted
that jurisdiction is presumed under the Act. See 33 U.S.C. § 920(a); New
Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1038 (5th Cir. Unit A
Nov. 1981). The presumption is, of course, rebuttable, but the burden of
establishing jurisdiction (or the lack thereof) does not lie with the
claimant.
4
Chesapeake & Ohio R. R. v. Schwalb, 493 U.S. 40, 45 (1989).3
The status test was added in the 1972 amendments to the Act,
the purpose of which was to extend coverage to those injured in
maritime employment on certain areas adjoining previously-covered
sites but not actually on navigable waters. It thus "became
necessary to describe affirmatively the class of workers Congress
desired to compensate," Caputo, 432 U.S. at 264, and the status
requirement was born.4 But because Congress presumed that an
employee injured upon navigable waters in the course of his
employment had always been covered, and would remain covered, the
Supreme Court has held that the added status requirement defines
only the scope of the landward coverage extended by the 1972
amendments. See Director v. Perini N. River Associates, 459 U.S.
297, 317-19 (1983).
Thus the current status test, as our caselaw recognizes,
presents a dual inquiry. Under Perini, an employee may be engaged
in maritime employment if he was injured in the course of his
employment while on navigable waters. If he was not on navigable
waters at the time of his injury, however, he may satisfy the
3
See also Herb's Welding, 470 U.S. at 423 ("Congress did not seek to
cover all those who breathe salt air. Its purpose was to cover those workers
on the situs who are involved in the essential elements of loading and
unloading; it is ``clear that persons who are on the situs but not engaged in
the overall process of loading or unloading vessels are not covered.'"
(Quoting Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 267 (1977).).
4
As the legislative history states, "[t]he Committee does not intend to
cover employees who are not engaged in loading, unloading, repairing, or
building a vessel, just because they are injured in an area adjoining
navigable waters used for such activity." S. REP. NO. 1125, 92d Cong., 2d Sess.
13 (1972); H. R. REP. NO. 1441, 92d Cong., 2d Sess. 11 (1972).
5
status test only if his work "is directly connected to the commerce
carried on by a ship or vessel, under Gray." Fontenot v. AWI,
Inc., 923 F.2d 1127, 1130 (5th Cir. 1991).
It is undisputed that Munguia injured himself while working on
one of the fixed well platforms in the Southwest Pass field. In
Herb's Welding, the Supreme Court held that a welder injured while
working on just such a fixed platform was not engaged in "maritime
employment" and therefore was not covered by the Act.5 Because
Munguia's injury transpired on a platform almost identical to that
at issue in Herb's Welding, any resort Munguia might have had to
the first prong of the status test is necessarily foreclosed by
that precedent.
We are left, therefore, with the functional test of maritime
employment commended to us by the Court: Munguia's work will be
deemed maritime "only if it is an integral or essential part of
loading or unloading a vessel." Schwalb, 493 U.S. at 45. In
Schwalb, of course, the Court extended the Act's coverage to
"[s]omeone who repairs or maintains a piece of unloading
equipment," id. at 47, but it reaffirmed the essential nexus to the
loading and unloading processes.
IV.
5
The Court relied for this result upon its earlier conclusion in
Rodrigue v. Aetna Casualty & Sur. Co., 395 U.S. 352, 360 (1969), that fixed
platforms are not vessels but are properly analogized to islands. Thus, an
injury incurred while working thereon did not constitute an injury upon
navigable waters and was not covered under the Act. See Gray, 470 U.S. at 416
n.2, 421-23.
6
The record evinces some confusion as to the precise duties
Munguia was performing at the time of his injury. According to the
ALJ,
Claimant testified that he loaded and unloaded
supplies from crew boats to tank batteries. The supplies
Claimant said he unloaded were heavy equipment such as
generators, motors, compressors, 500 pound drums of soap,
chemicals and hay. Claimant said all the materials
arrived only by boat and he would at times navigate the
boat to other tank batteries. Claimant testified that no
one else was specifically hired by Employer to load and
unload equipment off and on the supply boats. Claimant
also testified that he had to operate a crane at times to
off-load equipment from the supply boats. Claimant
testified that he spent 90% of his time working on the
waterway and of that time, 50% of his time would be spent
loading and unloading.
Apparently accepting Munguia's version of his employment
activities, the ALJ found the status requirement satisfied,
distinguishing Herb's Welding on the basis that "Claimant spent
some of his time loading and unloading supplies from boats, in
essence an action that the Act considers inherently maritime."6
The above-described activities Munguia testified to as part of
his employment background with Chevron. Specifically, his
testimony related to his specific duties as a roustabout (class "B"
6
Although he found no fixed percentage of time that Munguia had spent
loading and unloading supplies, the ALJ relied upon our adoption in two cases
of the Caputo test to extend coverage to employees who "spend at least some of
their time in indisputably longshoring operations." Caputo, 432 U.S. at 273.
See also Howard v. Rebel Well Serv., 632 F.2d 1348, 1350 (5th Cir. 1980);
Boudloche v. Howard Trucking Co., 632 F.2d 1346, 1347-48 (5th Cir. 1980),
cert. denied, 452 U.S. 915 (1981). In Boudloche, we found coverage where the
claimant spent only 2½% to 5% of his time in longshoring activities; in
Howard, we held that the status requirement could be satisfied even though a
claimant had spent less than 10% of his time in ship repair. Curiously, the
ALJ also cited, as support, Thornton v. Brown & Root, Inc., 707 F.2d 149, 152-
53 (5th Cir. 1983), cert. denied, 464 U.S. 1052 (1984), despite the fact that
Thornton applied the too-expansive "realistically significant relationship to
maritime employment" test expressly rejected in Herb's Welding, 470 U.S. at
418-19, 423.
7
and later, class "A") for Chevron from 1970, the start of his
employment, to sometime in 1977, when, according to both his own
testimony and that of his supervisor, James Burchfield, Munguia
assumed the duties of a relief pumper-gauger. For approximately
the last two and one-half years prior to his injury, then, Munguia
was performing, as a relief pumper-gauger, functions quite
different from those relied upon by the ALJ in finding coverage.
The ALJ's confusion in this respect compels our conclusion
that substantial evidence did not support his factual findings and
that they therefore are undeserving of the deference generally
accorded such findings. In contrast to the ALJ's recitation,
Munguia's duties as a relief pumper-gauger involved little or no
loading and unloading of boats. Our previous consideration of
Munguia's Jones Act appeal accurately described his activities:
Each day Munguia was assigned to duty at various
places in the field. If he was not assigned to work at
the tank battery but to work on the various wells,
Munguia took a boat, either alone or with another worker,
and visited a number of the multiple small platforms
within the field. He loaded onto the boat the tools and
equipment he would need for the day and then navigated
the boat to and from the various platforms. At each
platform he unloaded the tools and equipment needed to do
the work required at that platform. Approximately ninety
percent of his time was spent either traveling to, or
working on, the field platforms and other structures in
the water.
Munguia, 768 F.2d at 651.
Additionally, there was testimony by Clement Malley, Chevron's
production foreman for the South Pass field, that the tank
batteries were supplied by three small contract crew boats (for
small items) and two larger "lugger" boats, which operated three
8
days a week and delivered heavy equipment, drums of chemicals and
soap, and hay (for soaking up small oil spills). Although Munguia
claimed that, as a roustabout, he occasionally would help unload
these boats, Malley testified that Chevron contracted with two
different employers for crews to man these boats and perform the
off-loading themselves.
As for the individual wells serviced by Munguia, customarily
no heavy equipment was delivered to them. When working as a
pumper-gauger, moreover, Munguia took to the wells only those tools
and supplies he needed to perform his platform-related mission.
Unlike the ALJ, we find little to distinguish this case from Herb's
Welding. Like that of Mr. Gray, Munguia's work
had nothing to do with the loading or unloading process,
nor is there any indication that he was even employed in
the maintenance of equipment used in such tasks. Gray's
welding work was far removed from traditional LHWCA
activities, notwithstanding the fact that he unloaded his
own gear upon arriving at a platform by boat. He built
and maintained pipelines and the platforms themselves.
There is nothing inherently maritime about those tasks.
They are also performed on land, and their nature is not
significantly altered by the marine environment,
particularly since exploration and development of the
Continental Shelf are not themselves maritime commerce.
Herb's Welding, 470 U.S. at 425 (citations and footnotes omitted).
Munguia's testimony to the effect that small Jo-boats
occasionally were used to carry small amounts of soap and chemicals
between tank batteries does not alter our analysis. While loading
and unloading of ships was undeniably required in order to complete
these tasks, that fact alone does not warrant our concluding that
Munguia thereby engaged in "maritime employment." As we have
previously stated,
9
the unloading and loading, and construction activities
that the Court recognizes as the focus of the maritime
employment test . . . can be unconnected with maritime
commerce. . . . For example, an employee might unload
one train, and load another; or an employee might engage
in construction activities, but build an airplane instead
of a ship. Nothing intrinsic in any of these activities
established their maritime nature, rather it is that they
are undertaken with respect to a ship or vessel. When
the tasks are undertaken to enable a ship to engage in
maritime commerce, then the activities become "maritime
employment."
Fontenot, 923 F.2d at 1131 (footnotes omitted).
Because the transfer of small amounts of supplies between tank
batteries by Munguia and his fellow roustabouts was undertaken ))
like Gray's activities in Herb's Welding )) to further the non-
maritime-related purpose of servicing and maintaining the fixed
platform wells, the mere fact that Munguia may have loaded and
unloaded them onto his skiff cannot confer coverage. Likewise, the
incidental boat repairs performed by Chevron roustabouts )) even if
considered a part of Munguia's pumper-gauger duties7 )) were
intended to further the maintenance of the wells, not the loading
and unloading of cargo. Cf. Schwalb, 493 U.S. at 47 (extending
coverage to employees injured "while maintaining or repairing
equipment essential to the loading or unloading process" (emphasis
added)).
In short, Munguia's daily activities as a pumper-gauger were
intrinsically related to the servicing and maintenance of fixed
7
Munguia was, on occasion, required to clean the boats and perform
minor maintenance work such as changing wheels or propellers. The record
reflects that Munguia spent only 5% to 6% of his working hours doing such
maintenance work. On one occasion, he worked on the wire-line barge when it
was being used to raise a sunken Jo-boat.
10
platform wells )) wells, moreover, almost indistinguishable from
those built and maintained by Gray. Like Gray's welding
activities, Munguia's tasks involve "nothing inherently maritime."
Herb's Welding, 470 U.S. at 425. Any contact Munguia may have had
with cargo was fleeting, unrelated to maritime commerce, and
usually at a time by which these supplies no longer possessed the
properties normally associated with "cargo." And as the Court has
stated, "[w]e have never read ``maritime employment' to extend so
far beyond those actually involved in moving cargo between ship and
land transportation." Id. at 424 (emphasis added).8
Because Munguia has failed to demonstrate that he was engaged
in maritime employment when he was injured, he cannot meet the
status requirement for coverage under the Act. We therefore do not
address the question of situs, relied upon as dispositive by the
8
"Cargo. The load (i.e. freight) of a vessel, train, truck, airplane
or other carrier." BLACK'S LAW DICTIONARY 213 (6th ed. 1990). While we do not view
the issue as dispositive, we discern in the Court's emphasis on the loading
and unloading test for "maritime employment" at least an implicit requirement
that what is loaded be "cargo." See, e.g., Ford, 444 U.S. at 84 (advancing a
definition of maritime employment "that reaches any worker who moves cargo
between ship and land transportation"); Caputo, 432 U.S. at 267 (describing
the essential elements of unloading a vessel as "taking cargo out of the hold,
moving it away from the ship's side, and carrying it immediately to a storage
or holding area").
Thus, Munguia's transfer by boat of soap and chemicals from the tank
batteries to the well platforms does not constitute the loading and unloading
of cargo but rather the mere trans-shipment of supplies previously unloaded.
The committee reports accompanying the Act's 1972 amendments are plain on this
point:
The Committee does not intend to cover employees who are not
engaged in loading, unloading, repairing, or building a vessel,
just because they are injured in an area adjoining navigable
waters used for such activity. Thus, employees whose
responsibility is only to pick up stored cargo for further trans-
shipment would not be covered . . . .
Caputo, 432 U.S. at 266 n.27 (quoting S. REP. NO. 1125, at 13; H. R. REP. NO. 1441,
at 10-11).
11
Board, but substitute our reasoning for that of the Board and
AFFIRM.
12