E J Fields Machine v. Guidry

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 5, 2002
• Docket: 02-60211
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 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.

2 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

3 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.

4 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).

5 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.

6 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.

7 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,

8 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.