Kerby v. Southeastern Pub Ser

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SANDRA K. KERBY,
Petitioner,
v.
SOUTHEASTERN PUBLIC SERVICE
No. 97-1323
AUTHORITY OF VIRGINIA; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
SOUTHEASTERN PUBLIC SERVICE
AUTHORITY OF VIRGINIA,
Petitioner,
v.
No. 97-1373
SANDRA K. KERBY; DIRECTOR, OFFICE
OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petitions for Review of an Order
of the Benefits Review Board.
(96-716, 96-705)
Argued: December 3, 1997
Decided: February 24, 1998
Before MURNAGHAN, ERVIN, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Gregory Edward Camden, RUTTER & MONTAGNA,
L.L.P., Norfolk, Virginia, for Petitioners. Mark Douglas Stiles,
WILLCOX & SAVAGE, P.C., Norfolk, Virginia, for Respondents.
ON BRIEF: Matthew H. Kraft, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Petitioners. Palmer S. Rutherford, Jr., WILL-
COX & SAVAGE, P.C., Norfolk, Virginia, for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Petitioner Sandra K. Kerby was injured while working at a power
plant that provides electricity and steam to the Norfolk Naval Ship-
yard ("NNS"). While the physical power plant building, as well as the
real estate on which it is located, is owned by the United States Navy,
the Navy has contracted with Respondent-cross petitioner Southeast-
ern Public Service Authority ("SPSA"), a public service authority cre-
ated under the laws of the Commonwealth of Virginia, to maintain
and operate the power plant. Kerby was an employee of SPSA, and
had no direct employment relationship with the Navy.
While the parcel of property on which the power plant is located
lies adjacent to NNS, and while NNS is located on land contiguous
with the Southern Branch of the Elizabeth River, the parcel of land
on which the power plant is located is not independently contiguous
with that river or any other navigable waters. Moreover, the property
on which the power plant is located is separated from NNS by a pri-
vately owned railroad spur, and by two chain-link fences, which sur-
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round the power plant and NNS respectively, and which separate the
properties from the railroad spur, and from each other. SPSA employ-
ees do not have access to NNS by virtue of their employment at the
power plant.
Subsequent to her injury, Kerby filed for benefits under the Long-
shore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et
seq. Although an Administrative Law Judge held that Kerby was enti-
tled to benefits, the Benefits Review Board reversed, finding that
under Sidwell v. Express Container Services, Inc., 71 F.3d 1134 (4th
Cir. 1995), Kerby had failed to establish that her injury had occurred
on a covered situs, as required by the LHWCA. See J.A. at 7-9 (dis-
cussing Sidwell). Because the BRB correctly determined that this case
is controlled by Sidwell, and because the BRB correctly applied that
precedent, we affirm essentially on the basis of its reasoning.*
AFFIRMED
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*Because our holding that Kerby has failed, under Sidwell, to establish
that her injury occurred on a covered situs suffices to resolve this case,
we do not address the question, raised on cross appeal, of whether the
BRB erred in finding that Kerby satisfied the LHWCA's status require-
ment.
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