Great Southern Oil and Gas Co., et al v. DOWCP, et al

Filing

UNPUBLISHED OPINION FILED. [09-60859 Affirmed] Judge: WED , Judge: JLW , Judge: JLD. Mandate pull date is 01/10/2011 [09-60859]

Great Southern Oil and se: 09-60859 DOWCP, et al 00511296847 Ca Gas Co., et al v. Document:

Page: 1 Date Filed: 11/17/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 17, 2010 N o . 09-60859 Lyle W. Cayce Clerk

G R E A T SOUTHERN OIL AND GAS CO.; LOUISIANA WORKERS' C O M P E N S A T I O N CORP., P e titio n e rs V. D I R E C T O R , OFFICE OF WORKER'S COMPENSATION PROGRAMS, U.S. D E P A R T M E N T OF LABOR; TONY MEYERS, R esp on d en ts

P e t itio n for Review of an Order of the Benefits Review Board N o . 09-0530

B e fo r e DAVIS, WIENER, and DENNIS, Circuit Judges. P E R CURIAM:* I n this appeal, Petitioner Great Southern Oil and Gas Co. ("Great S o u th e r n " ), the employer of Respondent Tony Meyers, challenges an order of the B e n e fit s Review Board ("BRB") awarding Meyers benefits under the Longshore a n d Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 (2010). We affirm.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-60859 Document: 00511296847 Page: 2 Date Filed: 11/17/2010

No. 09-60859 A t the time of his accident on May 28, 1994, Meyers was employed as a m e c h a n ic on a work-over rig mounted on a barge. The barge was spudded in at a well location in Louisiana state waters. Meyers had been working in navigable w a t e r s on the barge for four to five days before the accident. Prior to starting t h is job, Meyers was told by his supervisors he could expect to remain on the b a r g e for a period of months or possibly years. Before he was assigned to the b a r g e , Meyers had performed essentially the same work for Great Southern on w o r k -o v e r rigs on land. F ollow in g a hearing, the Administrative Law Judge ("ALJ") concluded that M e y e r s was not a covered employee under the LHWCA because the barge was a fixed platform and not a vessel and Meyers was not engaged in a traditional m a r i t i m e activity. The BRB reversed and held that Meyers was injured in the c o u r s e of his employment on navigable waters and, therefore, under the S u p r e m e Court's decision in Director v. Perini North River Associates, 459 U.S. 2 9 7 , 306-07, 103 S. Ct. 634, 641-42, 74 L. Ed. 2d 465 (1983), Meyers was a c o v e r e d employee. The BRB remanded the case to the ALJ to award appropriate b e n e fits . The ALJ awarded temporary total disability. The BRB affirmed and t h is appeal followed. T h is court reviews decisions of the BRB under the same standard that the B R B reviews decisions of the ALJ. B&D Contracting v. Pearley, 548 F.3d 338 (5 t h Cir. 2008). That standard is limited to whether the ALJ's findings of fact a r e supported by substantial evidence and are consistent with the law. H.B. Z a c h r y Co. v. Quinones, 206 F.3d 474, 477 (5th Cir. 2000)(quotations omitted). Substantial evidence is defined as such relevant evidence that a reasonable mind m ig h t accept as an adequate basis for a factual conclusion. See Richardson v. P e r a le s , 402 U.S. 389, 401 (1971). This court reviews the legal conclusions of the B R B de novo. Tarver v. Bo-Mac Contractors, Inc., 384 F.3d 180, 181 (5th Cir. 2 0 0 4 ). On the other hand, this court gives deference to the Director of the Office 2

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No. 09-60859 o f Worker's Compensation Programs' interpretations of the LHWCA. Pool v. C o o p e r , 274 F.3d 173, 177 (5th Cir. 2001). T h e only significant issue on appeal is whether Meyers qualifies for b e n e fits under the LHWCA. Great Southern argues that performing oilfield w o r k does not qualify as maritime employment and therefore Meyers has not s a t is fie d the "status" requirement of the LHWCA to qualify for benefits. We d is a g r e e . As the Supreme Court stated in Perini - "when a worker is injured on t h a t actual navigable waters in the course of his employment on those waters, h e satisfies the status requirement . . . and is covered by the LHWCA." 459 U.S. a t 324. Regarding whether the injured employee must establish that he was e n g a g e d in maritime employment, we stated in Bienvenu v. Texaco, Inc.: I n light of Bienvenu's injury on navigable waters, Texaco a c k n o w le d g e s , as it must, that Bienvenu need not establish that he w a s engaged in maritime employment as that term is used in § 2(3) o f the Act. The Supreme Court's decisions in Perini and Herb's W e ld in g foreclose this argument. Those cases recognize that the 1 9 7 2 Amendments were not intended to alter the scope of coverage fo r workmen injured on navigable waters. As our discussion above d e m o n s t r a t e s , before 1972, any workman injured in the course of his e m p lo y m e n t actually engaged in the performance of his assigned d u t ie s on navigable waters enjoyed coverage under the LHWCA. He w a s not required to perform the traditional maritime work d e s c r ib e d in § 2(3) of the Act. 1 6 4 F.3d 901, 906-907 (5th Cir. 1999). T h is case is controlled by Perini and Bienvenu. Great Southern's reliance o n Herb's Welding, Inc. v. Gray, 470 U.S. 414, 84 L. Ed. 2d 406, 105 S. Ct. 1421 (1 9 8 5 ), is misplaced. As we made clear in Bienvenu, the Supreme Court's

h o ld in g in Herb's Welding that employees engaged in oilfield work are not e n g a g e d in maritime employment, is not applicable to the facts of this case. This i s because in Herb's Welding the Court was addressing the status of workers

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No. 09-60859 in ju r e d on stationery platforms and not on vessels.1 This court has recognized t h a t a barge of the exact configuration of the barge in this case was a vessel and t h a t the employee permanently assigned to that barge was a seaman. Manuel v . P.A.W. Drilling & Well Service, Inc., 135 F.3d 344 (5th Cir. 1998). Because M e y e r s was injured while working on a vessel in navigable waters, the BRB c o r r e c t ly determined that Meyers was indeed covered under the Act. T h e employer and insurer, in a very brief argument, contended that based o n the testimony of Meyer's treating physician's, Dr. Cobb, the ALJ and BRB e r r e d in awarding temporary total disability benefits. They argue that suitable a lte r n a t iv e employment was available and offered to Meyers, but that Meyers r e fu s e d to accept this employment. The ALJ, however, credited Meyers'

t e s t im o n y that, because of his pain and limitation of motion, he was unable to p e r fo r m the alternate employment. Great Southern does not make any

a r g u m e n t as to why the ALJ erred in making these findings, which are s u p p o r t e d by substantial evidence. We therefore decline to disturb the award. M e y e r s argues that his award of benefits should be based on total, p e r m a n e n t disability rather that temporary total disability as awarded by the A L J and affirmed by the BRB. However, since Meyers did not appeal the BRB's o r d e r we have no jurisdiction to consider that argument. For the above reasons, we affirm the BRB's award of benefits to Meyers u n d e r the LHWCA. AFFIRMED.

Great Southern's argument that Meyers's presence on navigable waters at the time of his injury was transient or fortuitous fails because the BRB's conclusion to the contrary is supported by substantial evidence in the record. We decline to consider Great Southern's argument that Meyers is foreclosed from coverage under the LHWCA because his work assignment on the barge rendered him a member of the crew of a vessel, which is a class of employees statutorily excluded from LHWCA coverage, 33 U.S.C. § 902(3)(G), because that issue was not raised before the ALJ.

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