Peru v. Owcp ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL PERU, 
Petitioner,
No. 05-75337
v.
OWCP Nos.
SHARPSHOOTER SPECTRUM VENTURE  BRB-04-0929
LLC; DIRECTOR, OFFICE OF LHC-2722
WORKERS’ COMPENSATION
OPINION
PROGRAMS,
Respondents.

On Petition for Review of an Order of the
Office of Workers’ Compensation Programs
Argued and Submitted
November 13, 2006—Honolulu, Hawaii
Filed June 27, 2007
Before: Stephen S. Trott, Kim McLane Wardlaw, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
7669
7672 PERU v. SHARPSHOOTER SPECTRUM VENTURE
COUNSEL
Jay Lawrence Friedheim, Honolulu, Hawaii, Joshua T. Gille-
lan, II, Longshore Claimants’ National Law Center, Washing-
ton, D.C., for the petitioner.
Michael Formby, Frame Formby and O’Kane, Honolulu,
Hawaii, for respondent Sharpshooter Spectrum Venture.
Thomas Shepard, Benefits Review Board, Washington, D.C.,
Carol DeDeo, Mark A. Reinhalter, Barry H. Joyner, Michael
Niss, United States Department of Labor, Office of the Solici-
tor, Washington, D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
In this petition for review, we must determine whether an
employee of a company that shoots, processes, and sells pho-
tographs to tourists on a historic naval ship is entitled to col-
lect benefits under the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), 33 U.S.C. § 901-950 (2006),
or is barred from recovery by the LHWCA’s express exclu-
PERU v. SHARPSHOOTER SPECTRUM VENTURE 7673
sion of “individuals employed by a . . . museum[ ] or retail
outlet.” 33 U.S.C. § 902(3)(B). We hold that in determining
the applicability of § 902(3)(B), we must look not only at the
nature of a claimant’s employer but also at the nature of the
claimant’s particular workplace and duties. In this case, we
conclude that petitioner falls within the scope of the “retail
outlet” exclusion at § 902(3)(B) because both her employer’s
business and her own employment activities focused, in sub-
stantial part, on retail sales and, moreover, had little connec-
tion to traditional maritime activities. Because an employee
may be excluded from LHWCA benefits under § 902(3)(B)
only if he or she is covered by state workers’ compensation,
however, we remand the case for a determination whether
petitioner is eligible for benefits under Hawaii law.
I. Background
On November 17, 2002, while petitioner Cheryl Peru was
ascending a ladder inside the USS Missouri, she hit her head,
sustaining head and neck injuries. Peru worked for respondent
Sharpshooter Spectrum Venture, LLC (“SSV”), the “exclu-
sive provider of photographic and imaging concession ser-
vices for visitors” to the famous World War II battleship,
which is now moored at Pearl Harbor and open to the public.
SSV employees greet tourists as they enter the USS Missouri
and ask permission to take their photographs. The employees
then shoot photographs of the tourists at several locations on
the ship and the nearby pier. They process the photographs in
a mobile trailer “lab” located on the pier and offer them for
sale at a designated sales area, also located on the pier.
When Peru started at SSV in July 2001, she worked as a
photographer. Peru subsequently was promoted to a sales job
and then to a position as assistant manager. As assistant man-
ager, Peru performed a variety of administrative tasks, but
also continued to do greeting, sales, and photography work as
needed. At the time of her accident, Peru, loaded with camera
7674 PERU v. SHARPSHOOTER SPECTRUM VENTURE
equipment, was making her way to the USS Missouri’s cap-
tain’s room to photograph a tour group.
Following her injury, Peru was unable to continue in her
old job. Peru attempted to apply for Hawaii Workers’ Com-
pensation benefits in late November 2002, but, for reasons
that are not clear from the record, SSV’s claims adjustor
denied she was eligible. Peru then filed a claim with the
Department of Labor’s Office of Workers’ Compensation
Programs for compensation under the LHWCA. SSV again
disputed Peru’s claim for benefits, arguing that she was not
covered by the LHWCA. After a hearing, the Administrative
Law Judge (“ALJ”) held that Peru was not covered by the
LHWCA because she was an employee of a “museum,” a cat-
egory of worker expressly excluded from LHWCA benefits
under 33 U.S.C. § 902(3)(B). Alternately, the ALJ held that
Peru was employed by a “retail outlet,” and thus fell within
another category of worker excluded under § 902(3)(B).
Peru appealed the ALJ’s decision to the Benefits Review
Board (“BRB” or “Board”). The BRB affirmed the ALJ’s
holding that Peru was excluded from LHWCA coverage as an
employee of a retail outlet based on SSV’s sales of photo-
graphs to tourists on the pier and Peru’s employment duties
in furtherance of this sales activity. It declined to reach the
question of whether she was employed by a museum. Peru
now petitions for review of the BRB’s decision. We have
jurisdiction to review the denial of benefits pursuant to 28
U.S.C. § 1291. We affirm the BRB’s holding that Peru falls
under the retail outlet exclusion at § 902(3)(B) but remand for
further proceedings.
II. Standard of Review
Whether an employee who seeks benefits is covered by the
LHWCA is a mixed question of fact and law. Harbor Tug &
Barge Co. v. Papai, 520 U.S. 548, 553-54 (1997). Where, as
here, the underlying facts are undisputed, LHWCA coverage
PERU v. SHARPSHOOTER SPECTRUM VENTURE 7675
is decided as a matter of law. See id. We review “questions
of law, including interpretations of the LHWCA,” de novo.
Gen. Const. Co. v. Castro, 401 F.3d 963, 965 (9th Cir. 2005).
Because the BRB is not a policymaking body, its construction
of the LHWCA is not entitled to any “special deference.” M.
Cutter Co. v. Carroll, 458 F.3d 991, 993 (9th Cir. 2006)
(internal quotation marks omitted). However, we will “ ‘re-
spect the Board’s interpretation of the [LHWCA] where such
interpretation is reasonable and reflects the policy underlying
the statute.’ ” Id. (quoting McDonald v. Dir., OWCP, 897
F.2d 1510, 1512 (9th Cir. 1990)).
III. Scope of the LHWCA
Two federal acts provide no-fault compensation to workers
injured on or adjacent to navigable waters. The Jones Act
covers “seam[e]n.” 46 U.S.C. § 30104(a) (formerly 46 U.S.C.
§ 688(a)). The LHWCA covers certain land-based maritime
“employee[s].” 33 U.S.C. § 903(a). Those not eligible for
recovery under either federal act are covered by state work-
ers’ compensation laws. See McGray Const. Co. v. Dir.,
OWCP, 181 F.3d 1008, 1011 (9th Cir. 1999) (“[T]he question
is not whether an employee will be left out in the cold, but
only which scheme covers him.”). Peru contends that she is
entitled to recover under the LHWCA.
A. Status and Situs Requirements for LHWCA Coverage
[1] The Supreme Court has explained that to qualify for
LHWCA compensation, a worker ordinarily must satisfy both
a “situs” requirement and a “status” requirement. Dir., OWCP
v. Perini N. River Assocs., 459 U.S. 297, 299 (1983). It is
undisputed that Peru was injured on “navigable waters” or
“certain adjoining land areas,” namely, on board the USS Mis-
souri, and therefore satisfies the situs requirement. Id.; see
also 33 U.S.C. § 903(a). But SSV argues that Peru does not
satisfy the status requirement.
7676 PERU v. SHARPSHOOTER SPECTRUM VENTURE
[2] Congress added an express status requirement to the
LHWCA in 1972, specifying who qualifies as an “employee”
covered by the act. In 1984, Congress enumerated specific
types of workers who do not qualify as employees under the
LHWCA. The LHWCA now provides that
[t]he term “employee” means any person engaged in
maritime employment, including any longshoreman
or other person engaged in longshoring operations,
and any harbor-worker including a ship repairman,
shipbuilder, and ship-breaker, but such term does not
include —
(A) individuals employed exclusively to perform
office clerical, secretarial, security, or data process-
ing work;
(B) individuals employed by a club, camp, recre-
ational operation, restaurant, museum, or retail out-
let;
(C) individuals employed by a marina and who are
not engaged in construction, replacement, or expan-
sion of such marina (except for routine mainte-
nance);
(D) individuals who (i) are employed by suppliers,
transporters, or vendors, (ii) are temporarily doing
business on the premises of an employer described
in paragraph (4), and (iii) are not engaged in work
normally performed by employees of that employer
under this chapter;
(E) aquaculture workers;
(F) individuals employed to build, repair, or dis-
mantle any recreational vessel under sixty-five feet
in length;
PERU v. SHARPSHOOTER SPECTRUM VENTURE 7677
(G) a master or member of a crew of any vessel; or
(H) any person engaged by a master to load or
unload or repair any small vessel under eighteen tons
net;
if individuals described in clauses (A) through (F)
are subject to coverage under a State workers’ com-
pensation law.
33 U.S.C. § 902(3) (emphasis added).
Congress’s creation of an express status requirement coin-
cided with its relaxation of the situs requirement. “Before the
1972 Amendments, it was only necessary for an injured
employee to satisfy a situs requirement”; however, under the
situs requirement then in effect, “the injury had to have
occurred upon the navigable water of the United States.”
Ramos v. Universal Dredging Corp., 653 F.2d 1353, 1356
(9th Cir. 1981). In 1972, Congress extended LHWCA cover-
age to individuals injured on areas “adjoining” navigable
waters, including “ ‘any . . . pier, wharf, dry dock, terminal,
building way, [or] marine railway,’ ” in order to “avoid ano-
malies inherent in a system that drew lines at the water’s
edge.” Ne. Marine Terminal Co. v. Caputo, 432 U.S. 249,
279, 281 (1977) (quoting 33 U.S.C. § 903(a)). The expansion
of the situs covered by the LHWCA “to include rather large
shoreside areas necessitated an affirmative description of the
particular employees working in those areas who would be
covered.” Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 423
(1985).
[3] Both we and the Supreme Court have construed the
general definition of “employee” in the first paragraph of 33
U.S.C. § 902(3) narrowly to encompass only those employees
“engaged in loading, unloading, repairing, or building a ves-
sel.” McGray Const. Co., 181 F.3d at 1012 (quoting Herb’s
7678 PERU v. SHARPSHOOTER SPECTRUM VENTURE
Welding, Inc., 470 U.S. at 424) (internal quotation marks
omitted). Peru clearly does not fall within this definition.
[4] However, the Supreme Court, in Perini, concluded that
Congress, in enacting the 1972 amendments, intended to
broaden, not narrow, the LHWCA’s overall coverage. 459
U.S. at 315. The Court thus held that individuals who would
have qualified for LHWCA benefits prior to 1972 because
they were injured on navigable waters would not be excluded
from coverage because they were not engaged in traditional
maritime employment, so long as they did not fall under one
of the act’s express exclusions. Id. at 324. As the Second Cir-
cuit explained in Lockheed Martin Corp. v. Morganti, 412
F.3d 407 (2d Cir. 2005), under Perini, “certain kinds of situs”
will also “fulfill the status requirement.” Id. at 412. It is undis-
puted that Peru was injured on navigable waters. Therefore,
under Perini, we agree with the BRB that Peru is eligible for
coverage under the LHWCA “absent the applicability of any
exclusions.”
B. “Retail Outlet” Exclusion
SSV argues that even if Peru satisfies the LHWCA’s situs
and status requirements, she nonetheless falls under one of the
act’s express exclusions. SSV first argues that Peru is
excluded from LHWCA coverage as an individual “employed
by a . . . retail outlet.” 33 U.S.C. § 902(3)(B). Both the ALJ
and the BRB agreed. The ALJ did not engage in statutory
construction of the phrase “retail outlet,” remarking simply
that “[SSV] operates as a retail outlet, taking photographs of
tourists while they tour the Battleship Missouri and selling the
photographs to the tourists at the completion of their tour.”
The BRB, after considering the language and history of the
LHWCA, determined that the phrase “retail outlet” encom-
passes any place where items are sold to consumers. It
rejected Peru’s arguments in favor of a more restrictive read-
ing of “retail outlet” that would include only (1) stores “in the
traditional sense of having four walls and a front door,” (2)
PERU v. SHARPSHOOTER SPECTRUM VENTURE 7679
selling a “variety” of goods, (3) produced or manufactured by
a third party. Peru renews those arguments on appeal.
[5] The question of what is a “retail outlet” for purposes of
the LHWCA appears to be one of first impression. When con-
struing the LHWCA, we begin with its plain language. Steve-
doring Servs. of Am. v. Price, 382 F.3d 878, 890 (9th Cir.
2004) (as amended). We also consider whether a particular
interpretation is supported by the act’s history, see id., and by
the policies animating the act. See Gilliland v. E.J. Bartells
Co., 270 F.3d 1259, 1263 (9th Cir. 2001).
[6] Because the LHWCA does not define the phrase “retail
outlet,” we must look to its “ordinary, contemporary, common
meaning.” United States v. Rowland, 464 F.3d 899, 904-05
(9th Cir. 2006) (quoting United States v. Smith, 155 F.3d
1051, 1057 (9th Cir. 1998)). In its decision, the BRB quoted
the American Heritage Dictionary (4th ed. 2000) definition of
“retail”: “[t]he sale of goods or commodities in small quanti-
ties directly to consumers.” Id. at 1487. Black’s Law Dictio-
nary (8th ed. 2004) defines “retail” as “[t]he sale of goods or
commodities to ultimate consumers, as opposed to the sale for
further distribution or processing.” Id. at 1341. Both defini-
tions suggest that the key factor in determining whether sales
activity is retail is the identity of the purchaser, not the physi-
cal structure where the sales activity takes place, the selection
of goods offered, or the nature of the seller. That is, sales
activity directed at ultimate purchasers (“consumers”) is
retail, as opposed to wholesale sales activity directed at pur-
chasers who will further process, distribute, or resell the
items. See id. at 1628 (defining “wholesale”). The term “out-
let,” broadly defined by the American Heritage Dictionary as
“[a] commercial market for goods or services,” supra, at
1249, does not alter this conclusion as it does not imply a par-
ticular type of market, goods, or seller. Therefore, looking to
the plain language of the LHWCA, we conclude that the
BRB’s interpretation of the phrase “retail outlet” to mean any
7680 PERU v. SHARPSHOOTER SPECTRUM VENTURE
place where items are sold directly to consumers is reason-
able.
The BRB’s reading of “retail outlet” is also consistent with
the legislative history and policy of the LHWCA. The House
Education and Labor Committee Report on the 1984 Amend-
ments to the act — which added the express exclusions in 33
U.S.C. § 902(3)(B) — offered, as an example of “individuals
employed by a . . . retail outlet,”
Sales clerks, stockroom personnel and related per-
sonnel of a retail outlet built over the navigable
waterways or adjacent to such waterways . . . . On
the other hand, a worker employed by such an enter-
prise to build an addition to the retail outlet, or to
repair the pier upon which the store is located, would
not be excluded, and would remain within the Act’s
coverage.
H.R. Rep. No. 98-570, at 4-5 (1984), as reprinted in 1984
U.S.C.C.A.N. 2734, 2737-38. However, as the BRB noted,
this example was intended to be “illustrative” rather than
“necessarily exclusive,” and thus does not suggest that Con-
gress intended the phrase “retail outlet” to encompass only
permanent structures with stockrooms. See id. In fact, the
report elsewhere makes clear that § 902(3)(B) was designed
“to exclude from the term ‘employee’, and thus from the cov-
erage of the Longshore Act, certain categories of . . . individu-
als who are employed by enterprises which are not generally
viewed as maritime employers, although located on or adja-
cent to navigable waters, and who are not otherwise exposed
to maritime hazards.” Id. at 3; 1984 U.S.C.C.A.N. at 2736
(emphasis added).
IV. Employment by a Retail Outlet
Having affirmed the BRB’s interpretation of the phrase “re-
tail outlet” as encompassing any place where items are sold
PERU v. SHARPSHOOTER SPECTRUM VENTURE 7681
directly to consumers, we now turn to the question of whether
Peru was “employed by” such an enterprise when she was
injured. While we know of no cases addressing the specific
retail outlet exclusion at issue here, a handful of cases have
dealt with other excluded enterprises enumerated in
§ 902(3)(B). The courts in these cases have questioned
whether, in applying the exclusions in § 902(3)(B), they
should focus on “the nature of [the claimant’s] employer,”
Boomtown Belle Casino v. Bazor, 313 F.3d 300, 302 (5th Cir.
2002), or instead on the nature of the employee’s “assignable
duties at the time of injury,” Huff v. Mike Fink Rest., Benson’s
Inc., 33 B.R.B.S. 179, 185 (1999) (per curiam) (quoting
Shano v. Rene Cross Constr., 32 B.R.B.S. 221, 223 (1998))
(internal quotation marks omitted). For at least two reasons,
most courts have not looked simply at the identity of the
employer, but have also taken into account the employee’s
specific work environment and duties. Cf. Bazor, 313 F.3d at
303-04.
First, as the Fifth Circuit recognized in Green v. Vermilion
Corp., 144 F.3d 332 (5th Cir. 1998), many employers are
“multi-faceted corporation[s],” engaged in different types of
activities, some of which fall within the definition of an
excluded enterprise, but others which do not. Id. at 335. Thus,
although the language of § 902(3)(B) refers to employment
“by” rather than “at” an excluded enterprise, the court in
Green concluded that in applying the exclusion provision it is
necessary to conduct a particularized assessment of the nature
of an individual’s employment. Id. In Green, the claimant’s
employer, Vermilion, was engaged in “sundry business ven-
tures” on “marsh land near a private canal off a [Louisiana]
bayou.” Id. at 334-35. Vermilion harvested and sold alligator
eggs, trapped and sold alligators, trapped fur-bearing animals,
shrimped, farmed rice, and ran a “duck camp.” Id. at 334.
Green worked for Vermilion as a cook and watchman at the
duck camp and also “occasionally assisted in mooring and
unloading supply boats that docked” at the camp. Id. One day,
as he was helping to moor a boat, Green slipped and injured
7682 PERU v. SHARPSHOOTER SPECTRUM VENTURE
his neck and back. Id. The Fifth Circuit held that Green was
excluded from LHWCA coverage under § 902(3)(B) as an
“individual employed by a . . . club, [or] camp.” Id. at 335.
The court reasoned that even though Vermilion’s business
was not exclusively a camp, “Green worked exclusively to
further an operation which comport[ed] with the plain mean-
ing of the terms ‘camp’ and ‘club,’ ” and performed duties
that did not, “or only minutely, involve[d] maritime activities
and . . . expos[ure] to hazards associated with traditional mari-
time activities.” Id.; see also Bazor, 313 F.3d at 303.
Second, as noted by the Fifth Circuit in Green and by the
BRB in Huff, the legislative history for the 1984 amendments
strongly suggests that Congress intended application of
§ 902(3)(B) to be guided by both the identity of the claimant’s
employer and the conditions of his or her employment. Green,
144 F.3d at 335; Huff, 33 B.R.B.S. at 182. The House report
explains that § 902(3) was designed to exclude “certain cate-
gories of workers who are not engaged in maritime occupa-
tions or who are not exposed to maritime hazards even though
they may be employed by maritime employers.” H.R. Rep. No.
98-570, at 3, 1984 U.S.C.C.A.N. at 2736 (emphasis added).
By the same measure, according to the report,
some enterprises which are provided with exclusions
under [§ 902(3)(B)] . . . because of the nature of the
employing enterprise may in fact employ workers
who should remain covered by the act because of the
nature of the work which they do, or the nature of
the hazards to which they are exposed.
Id. at 4; 1984 U.S.C.C.A.N. at 2737. Relying on this analysis,
the BRB held, in Huff, that a worker was covered by the
LHWCA despite the fact that his duties involved maintaining
a restaurant paddle-wheel vessel and adjoining dock. After
explaining that the § 902(3)(B) inquiry properly focuses on
the “day to day activities” of the claimant rather than simply
on the “corporate purpose or structure of the employer,” the
PERU v. SHARPSHOOTER SPECTRUM VENTURE 7683
BRB determined that while Huff’s duties “clearly further[ed]
the operation of the restaurant,” his “overall job duties . . .
constitute[d] the traditional maritime duties of a harbor-
worker” rather than those of a “food service” employee. Huff,
33 B.R.B.S. at 182 (internal quotation marks omitted). The
BRB observed that “[i]t is apparent that Congress did not
intend the coverage of a harbor master and a salad bar worker
to be determined solely by whether they were both paid by a
restaurant.” Id.
[7] The approach advocated by Green and Huff responds to
the complexities of modern business structures in a flexible,
pragmatic way. This approach is also consistent with Con-
gress’s goal, in passing the 1984 amendments, of ensuring
that LHWCA benefits are channeled to those with employ-
ment duties involving traditional maritime activities and haz-
ards. Following Green and Huff, we hold that in ascertaining
whether the § 902(3)(B) exclusion applies, it is necessary to
look both at the identity of the employer and at the employ-
ee’s specific work environment and duties.
In Peru’s case, the ALJ wrote that “[SSV] operates as a
retail outlet, taking photographs of tourists while they tour the
Battleship Missouri and selling the photographs to the tourists
at the completion of their tour.” The BRB concluded that
“[SSV] sells photographs, on the pier, that its employees have
taken of tourists” and that “the sale of photographs is a retail
function and therefore is sufficient to bring employer’s
employees within the exclusion of [§ 902(3)(B)].” While we
agree with the ALJ and the BRB that Peru falls within the
retail outlet exclusion at § 902(3)(B) because neither SSV’s
operations nor Peru’s work duties can be considered purely
retail in nature, we think that a somewhat more extended anal-
ysis is required.
[8] Based on the undisputed facts, and on the definition of
“retail outlet” discussed above, SSV’s operation of a stand or
booth on the pier, from which it sells photographs to tourists,
7684 PERU v. SHARPSHOOTER SPECTRUM VENTURE
undoubtedly constitutes the operation of a “retail outlet.”
However, SSV does not merely sell photographs to tourists;
it also shoots and processes these photographs — functions
that fall outside the plain meaning of retail sales. Nor did
Peru, in the position of assistant manager she held at the time
of her injury, simply sell photographs. Instead, she also shot
and processed photographs and discharged various adminis-
trative tasks. Following Green and Huff, we decline to con-
clude that Peru falls within the retail outlet exclusion at
§ 902(3)(B) simply because her employer, SSV, engages in
some activity that is retail in nature. Nor do we find disposi-
tive in itself the fact that the photograph shooting and process-
ing activities of SSV employees, including Peru, “clearly
further[ed] the operation of” SSV’s retail outlet. Huff, 33
B.R.B.S. at 182.
One can imagine, for example, a large corporation that
hires employees to run a booth on a scenic pier where it sells
t-shirts to tourists, and also hires employees to operate a ware-
house on a nearby dock, where its clothing is unloaded from
ships before being transported to the booth for sale. Clearly,
the hypothetical corporation operates a “retail outlet” within
the meaning of that phrase as discussed above. Moreover, in
some non-trivial sense, all of the hypothetical corporation’s
employees further the operation of its retail outlet. Yet we
think that it would be inconsistent with the legislative history
and policy of the LHWCA to exclude from coverage those
employees who unload cargo on the dock. Indeed, we are
inclined to think that even an employee who works both sell-
ing t-shirts at the booth and unloading cargo at the dock
would be covered under the LHWCA, provided that his or her
unloading activities were more than de minimis. See Caputo,
432 U.S. at 273; Alcala v. Dir., OWCP, 141 F.3d 942, 945
(9th Cir. 1998).
[9] What makes Peru’s case different from the hypothetical
is that neither SSV, as an employing entity, nor any of its
employees, appear to engage in core traditional maritime
PERU v. SHARPSHOOTER SPECTRUM VENTURE 7685
activities. It is true that SSV employees like Peru who take
photographs on the USS Missouri face somewhat unique
workplace risks by virtue of the fact that a ship’s architecture
and surroundings are different than those of an office build-
ing. However, the same is true of a salad bar worker on a res-
taurant paddle-wheel vessel and perhaps even, to a lesser
extent, of a salesperson in a retail shop located on a pier.
Given that a substantial, if not the substantial, part of both
SSV’s business and Peru’s employment activities revolved
around operation of a retail outlet, and absent any evidence
that either SSV’s business or Peru’s employment activities
had any substantial connection to traditional maritime activi-
ties, we conclude that the BRB’s holding that Peru falls
within the retail outlet exclusion at § 902(3)(B) is correct.
Because we agree with the BRB that Peru falls under the
provision expressly excluding from LHWCA coverage “indi-
viduals employed by a . . . retail outlet,” we do not reach the
question of whether she was also employed by a museum.
V. State Workers’ Compensation Law
[10] While we hold that Peru falls within the scope of the
“retail outlet” exclusion in § 902(3)(B), our holding does not
entirely resolve the question of whether she is barred from
recovering benefits under the LHWCA. Section 902(3)
expressly provides that “individuals described in clauses (A)
through (F)” are excluded from LHWCA coverage only if
they “are subject to coverage under a State workers’ compen-
sation law.” 33 U.S.C. § 902(3). The House report explained
that Congress intended “[a]ll of the exemptions from the defi-
nition of ‘employee’ found in . . . the bill [to be] applicable
only to the extent that the exempted workers would be cov-
ered by the workers’ compensation law of the state in which
they are employed.” H.R. Rep. No. 98-570 at 5; 1984
U.S.C.C.A.N. at 2738. It continued: “If the state law does not
cover such workers for any reason, they would remain under
the coverage of the Longshore Act.” Id. (emphasis added).
7686 PERU v. SHARPSHOOTER SPECTRUM VENTURE
While the record indicates that SSV objected to Peru recover-
ing state workers’ compensation benefits, the validity and
legal force of its objections are unclear. What the LHWCA’s
express language, and its legislative history, do make clear is
that, contrary to the position taken by SSV, Peru cannot be
per se ineligible for both state workers’ compensation benefits
and LHWCA benefits. Therefore, we remand Peru’s case to
the BRB to determine in the first instance whether she is cov-
ered by Hawaii’s state workers’ compensation law. Should
the BRB conclude that Peru is not covered by the state law for
any reason, she is eligible for LHWCA benefits.
Conclusion
For the foregoing reasons, we affirm the BRB’s holding
that Peru falls within the “retail outlet” exclusion at 33 U.S.C.
§ 902(3)(B), but remand for further proceedings consistent
with this opinion.
REMANDED. Each side to bear its own costs.