Humphries v. Director, Office of Workers Compensation Programs

834 F.2d 372
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 28, 1987
DocketNo. 87-2508
StatusPublished
Cited by4 cases

This text of 834 F.2d 372 (Humphries v. Director, Office of Workers Compensation Programs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Humphries v. Director, Office of Workers Compensation Programs, 834 F.2d 372 (4th Cir. 1987).

Opinion

JAMES DICKSON PHILLIPS, Circuit Judge:

This appeal challenges the Benefits Review Board’s conclusion that a maritime employee’s injury did not occur on a maritime situs, so that his injury cannot be compensated under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. The employee also raises various other issues pertaining to the decision by the Board. We conclude that the Board correctly decided that the injury did not fall within the jurisdiction of the Act, and thus affirm without addressing the other issues raised.

I

On December 23, 1974, a car struck and seriously injured petitioner Clifton J. Hum-phries. At the time of the accident, Hum-phries, a ship foreman for respondent Car-gill, Inc., was working in Chesapeake, Virginia, as a shift foreman on Cargill’s second loading shift from 3:30 P.M. to midnight. As one of his job duties as shift foreman, Humphries was required to pick up food for employees working overtime. Cargill imposed this responsibility on the shift foreman as a matter of company policy and on its direct orders in order to prevent interruptions in loading and unloading operations on the later shifts. At approximately 10:00 P.M., Humphries left the Cargill terminal to pick up a meal for one of the overtime workers at a restaurant approximately one and one-half miles [373]*373from the loading operation. Humphries picked up the meal but, as he left the restaurant, experienced car trouble. When Humphries left his car to check under the hood, a passing motorist struck him. Hum-phries suffered severe spinal cord and head injuries.

When Humphries filed a claim for benefits under the LHWCA, Cargill responded with a petition for review and hearing before an Administrative Law Judge (AU). After a full evidentiary hearing, the AU decided in favor of Humphries on most of the contested issues after ruling that Hum-phries had fully established jurisdiction under the Act.

Cargill petitioned for review by the Benefits Review Board, challenging the AU’s decision on jurisdiction, as well as the relief awarded. Humphries cross-appealed on the AU’s determination of his average weekly wage and the AU’s disallowance of a portion of his attorney’s fee request. The Board reversed the AU, concluding that Humphries’ injury was not covered under the LHWCA because, at the time of his injury, he was not on a maritime situs. Humphries then petitioned for review of the Board’s order and applied for enforcement of the AU’s order.

II

Before 1972, LHWCA coverage was determined primarily by the traditional “locality” test of maritime tort jurisdiction. Under this test, the Act covered workers injured on navigable waters, while those injured on adjoining land, pier, or wharf were afforded only state workmen’s compensation coverage. A longshoreman moving cargo from ship to pier passed in and out of coverage as he worked.

In 1972, Congress amended the LHWCA to protect “amphibious workers” who moved back and forth from ship to land during their maritime activities. Two amendments to the LHWCA accomplished this purpose. First, Congress extended the Act’s coverage landward by including “any adjoining pier, wharf, drydock, 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) (emphasis added). This so-called “situs requirement” not only expanded LHWCA coverage spatially but also created potential coverage for many workers whose occupations had never before been covered. Congress therefore added a parallel “status requirement,” limiting the landward coverage to those workers “engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, ship builder, and ship-breaker.” 33 U.S.C. § 902(3).

While in theory the conjunction of the “status” and “situs” requirements might seem to promise more uniform and predictable coverage, it created new and intractable jurisdictional problems of the sort we encounter in this appeal. In this case, the AU found that Humphries was engaged in “maritime employment” at the time of his accident, and thus met the status requirement. While Cargill implies on appeal that procuring a meal for a longshoreman is not really “maritime employment,” it never seriously contested Humphries’ status before the AU or the BRB. In any event, Humphries’ “status” does not depend on the specific task he was performing at the time of his injury, Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 140 (9th Cir.1978), and as a shift foreman supervising and facilitating a loading operation Humphries was clearly “engaged in maritime employment.”

The difficult question is whether Hum-phries can also meet the Act’s “situs requirement,” i.e., whether he was injured in an “adjoining area customarily used by an employer in loading ... a vessel.” It is generally settled that a covered situs need not be used exclusively for maritime purposes or be within any specified distance of navigable waters or a “maritime” operation. Perkins v. Marine Terminals Corp., 673 F.2d 1097, 1101-02 (9th Cir.1982). There is, however, no single convincing test for determining just where the geographi[374]*374cal boundaries of coverage under the LHWCA lie.

The Third Circuit, in a case heavily relied on by Humphries, attempted to solve the problem by folding the situs requirement into the status requirement, concluding that so long as the worker is engaged in maritime employment his physical location at the time of his injury is irrelevant. Sea-Land Service, Inc. v. Director, OWCP, 540 F.2d 629, 636-39 (3d Cir.1976). This approach to the jurisdictional problem created by the Act offers the advantage of preventing the “checkered coverage” created by an arbitrary geographical test. It also, however, effectively reads the explicit situs requirement out of the Act. The Supreme Court has rejected such “simplifications” of the LHWCA, observing that both the status and situs requirements of the Act must be met independently, and that any resulting “curious hole” in coverage is simply a product of Congress’s statutory scheme. See Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 426-27, 105 S.Ct. 1421, 1428-29, 84 L.Ed.2d 406 (1985) (noting, inter alia, that “there will always be a boundary to coverage, and there will always be people who cross it during their employment”). See also Northeast Marine Terminal Co. D. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977).

While the Sea-Land approach is unacceptable, any alternative requires a difficult exercise in line drawing. The Fifth Circuit, in an opinion which struggled bravely with the issue, ended up with little more than a litany of factors which are not

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