E J Fields Machine v. Guidry ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
Summary Calendar
Case No. 02-60211
__________________________
E J FIELDS MACHINE WORKS INC; LOUISIANA WORKERS’
COMPENSATION CORPORATION
Petitioners
v.
EDMOND GUIDRY; DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, US DEPARTMENT OF LABOR
Respondents
_____________________________________________________________
Petition for Review from an Administrative Decision of the
Benefits Review Board
(BRB No.: 01-0445)
_____________________________________________________________
December 3, 2002
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.
PER CURIAM:*
Claimant Edmond Guidry injured his back while cleaning a ball
bearing used in a vessel steering or propulsion system. Both the
administrative law judge and the Department of Labor Benefits
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not
precedent except under the limited circumstances set
forth in 5TH CIR. R. 47.5.4.
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Review Board (“BRB”) agreed that Guidry was injured on a maritime
situs and required his employer, E.J. Fields Machine Works
(“Fields”), to pay benefits to Guidry under the Longshore and
Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq.
(2000).2 The discrete issue on appeal is whether substantial
evidence supports the finding that Guidry’s accident occurred on a
covered “situs” under the LHWCA.
For the reasons stated herein, we answer this question in the
affirmative and affirm the determination of the BRB.
FACTUAL AND PROCEDURAL PREDICATE
Fields operates a job shop in Morgan City, Louisiana,
specializing in the repair, construction and fabrication of marine
parts. Its operations are carried out at three locations
designated as Shop #1, Shop #2 and Shop #3. All shops are located
on Front Street, a two lane road in Morgan City that runs along the
Atchafalaya River.
Guidry began employment with Fields in August 1998 as a welder
fitter doing a variety of jobs, including rudder repairs,
construction of manhole or hatch covers for boats and barges, shaft
welding and boat repairs. Guidry spent ninety percent of his time
fabricating or repairing rudders and shafts. Sixty percent of his
2
At the hearing before the administrative law judge, the
Petitioners (Fields and the Louisiana Workers’ Compensation
Corporation) conceded that Guidry satisfied the status
requirement under the LHWCA. The only disputed issue for the
administrative law judge to decide was whether Guidry also
satisfied the situs requirement of the LHWCA.
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work related to vessel repair work and forty percent related to new
vessel construction. On August 24, 1999, Guidry injured his lower
back in a work-related accident at Shop #2, where he principally
worked.
On January 9, 2001, subsequent to a hearing, the
administrative law judge issued an order finding that Shop #2
constituted an “other adjoining area” under the LHWCA. On February
4, 2002, the BRB affirmed the administrative law judge’s finding
that Guidry was injured on a maritime situs as supported by
substantial evidence. Petitioners Fields and the Louisiana
Workers’ Compensation Corporation appeal this decision.
STANDARD OF REVIEW
All parties agree that this court should review the decision
of the BRB using the same standard the BRB applies to review a
decision of the administrative law judge – to discern whether the
decision is supported by substantial evidence and is in accordance
with the law. SGS Control Services v. Director, Office of Workers’
Compensation Programs, U.S. Department of Labor, 86 F.3d 438, 440
(5th Cir. 1996). “Substantial evidence” is evidence that provides
“a substantial basis of fact from which the fact in issue can be
reasonably inferred . . . more than a scintilla . . . more than
create a suspicion . . . such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Avondale
Industries, Inc. v. Director, Office of Workers’ Compensation
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Programs, 977 F.2d 186, 189 (5th Cir. 1992). “The substantial
evidence standard is less demanding than that of preponderance of
the evidence, and the ALJ’s decision need not constitute the sole
inference that can be drawn from the facts.” New Thoughts
Finishing Co. v. Chilton, 118 F.3d 1028, 1030 (5th Cir. 1997). If
the situs determination is supported by substantial evidence on the
record as a whole, it will not be set aside by this court.
Texports Stevedore Co. v. Winchester, 632 F.2d 504, 515 (5th Cir.
1980).
ANALYSIS
Coverage under the LHWCA is determined by the nature of the
place of work at the moment of injury. See Northeast Marine
Terminal Co. v. Caputo, 432 U.S. 249 (1977). Petitioners dispute
the conclusion that Guidry was injured on a maritime situs,
averring that (1) Fields accepts business from both maritime and
non-maritime customers with no particular advantage being gained by
its proximity to the Atchafayala River, (2) non-maritime businesses
and residences are located in the vicinity of its operations, and
(3) Fields chose its original location because it was located in a
commercial area of town, not because of its proximity to the water.
However, as discussed below, the record evidence belies some of
these averments. More importantly, Plaintiff’s narrow approach to
the definition of a maritime situs does not comport with the
expansive definition our court uses.
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1. Definition of “Other Adjoining Area”
The 1972 amendments to the LHWCA broadened the definition of
“navigable waters” (the “situs” of injury) to include “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) (2000) (emphasis added).3 See Northeast Marine
Terminal Co. v. Caputo, 432 U.S. 249, 268 (1977) (“The language of
the 1972 Amendments is broad and suggests that we should take an
expansive view of the extended coverage.”). As the injury in this
case did not occur at one of the specifically enumerated areas
under the LHWCA, to qualify as a maritime situs, the location must
fall within the definition of an “other adjoining area” under the
LHWCA.
In Texports Stevedore Co. v. Winchester, 632 F.2d 504, 513-16
(5th Cir. 1980), this court discussed the parameters of the “other
adjoining area” situs specified in the LHWCA. Winchester teaches
us that the situs requirement compels a factual determination that
cannot be hedged by mere labels placed on an area. There, we held
that a gear room located five blocks from the nearest dock fell
within the definition of a maritime situs under the LHWCA because
3
Prior to the 1972 amendments, the LHWCA extended
coverage to a maritime worker only for injuries incurred “upon
the navigable waters of the United States (including any dry
dock),” and only if such workers could not recover compensation
under state law. 33 U.S.C. § 903(a) (1970).
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it was in the vicinity of a navigable waterway, it was as close to
the docks as was feasible, and it had a nexus to maritime activity
in that it was used to store gear utilized in the loading process.
In so doing, we opined on the definition of the phrase “other
adjoining area,”
Although “adjoin” can be defined as “contiguous to” or
“to border upon,” it also is defined as “to be close to”
or “to be near.” “Adjoining” can mean “neighboring.” To
instill in the term its broader meanings is in keeping
with the spirit of the congressional purposes. So 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 LHW[C]A. To require absolute
contiguity would be to reenact the hard lines that caused
longshoremen to move continually in and out of coverage.
It would frustrate the congressional objectives of
providing uniform benefits and covering land-based
maritime activity.
. . .
The answer to the question of where the boundaries are to
an “area” is found right in the statute. The perimeter
of an area is defined by function. The “area” must be
one “customarily used by an employer in loading,
unloading, repairing, or building a vessel.” The statute
does not require that the area’s exclusive use be for
maritime purposes so long as it is customarily used for
significant maritime activity. The statute does not
restrict coverage to only these areas used by the
claimant’s employer. It is an “area” if it is
customarily used by any statutory employer.
Winchester, 632 F.2d at 514-15. Thus, under Winchester, so long as
(1) the site is close to or in the vicinity of navigable waters, or
in a neighboring area, and (2) the area is customarily used for
significant maritime activity, the locale of an employee’s injury
can come within the “other adjoining area” situs under the LHWCA.
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Id.
2. Application of the Definition
Shop #2 is in close proximity (100 to 175 feet) from the
Atchafalaya River. Indeed, although Petitioners claim that you
cannot see the Atchafalaya River from Shop #2, the only thing that
separates it from the waterway is a street (Front Street) and a
flood wall, making it accessible to the docks. Directly across
from Shop #2 is a public fishing pier and a dock for pleasure
boats. As Petitioners do not dispute that there are no other
businesses between Shop #2, Front Street and the flood wall, the
location is as close to the docks as is feasible.
Further, the area is customarily used for maritime activity.
Next to Shop #2 on the same side of Front Street is Control Fire
and Safety, a maritime business that supplies boat companies and
shipyards with fire extinguishers and safety equipment. Next to
Control Fire and Safety is Taylor Industries, a maritime related
business that sells hoses, fittings, pipes, pumps and residential
siding. Also next to Shop #2 is Shop #3. One-hundred percent of
the work performed at Shop #3 relates to the fabrication and repair
of vessel parts. Shop #1 is located approximately three blocks
from Shop #2. Sixty percent of the work performed at Shop #1
relates to the fabrication and repair of vessel parts. Directly
across the street from Shop #1 is Rio Fuel and Supply that fuels
vessels. Next to Rio Fuel and Supply is a tank cleaning business.
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Next in line comes Candy Fleet, Johnny Propeller Shop, Conrad
Industries Shipyard, Steven Shipyard, and Lang Towing – all
customers of Fields. While Petitioners argue that non-maritime
business – a warehouse, a dance studio, a frame shop, an antique
shop, a clothing store, a studio, a hardware store, a caterer, and
an electrical supply house – are also located in the area, this
fact does not strip Shop #2 of its maritime status. As stated by
the Winchester court, “[t]he statute does not require that the
area’s exclusive use be for maritime purposes so long as it is
customarily used for significant maritime activity.” 632 F.2d at
515. Significant maritime activity in the area close to Shop #2 is
evident from the record.
Contrary to Fields’s assertions, testimony further reflects
that Fields gains a significant economic advantage from its
location near other maritime businesses in the area. Conrad
Industries Shipyard, located in the area, makes up approximately
twenty-five percent of Fields’s total sales and accounted for
approximately seventy-five percent of the work performed by Guidry.
Richard Romaine, Fields’s president, testified that Fields
specializes in, but is not limited to, marine work, and that Fields
recognizes that the location of its facility is advantageous in
that it is near its customers. As was the situs in Winchester,
Shop #2 is a covered situs because it is in the vicinity of the
navigable water, it is as close to the docks as is feasible, and it
has a nexus to maritime activity. See also Jenkins v. McDermott,
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Inc., 734 F.2d 229, 231-32 (holding that plaintiff, who worked on
the construction of an offshore drilling platform and whose injury
occurred over 250 feet from navigable waters, satisfies the status
and situs requirements of the LHWCA), vacated in part on other
grounds, 734 F.2d 191 (5th Cir. 1984); Alford v. American Bridge
Div., 642 F.2d 807, 813-14 (5th Cir. 1981) (finding that a shipyard
which fabricated steel components for vessels is a covered situs);
Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141-43 (9th
Cir. 1978) (concluding that a gear locker located 2,050 feet
outside the entrance of a port satisfies the situs test).
CONCLUSION
Upon review of the record evidence and briefing submitted by
the parties, we agree with the BRB that substantial evidence
supports the administrative law judge’s finding that Guidry’s
injury occurred on a maritime situs under the LHWCA.
We AFFIRM.
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