Consolidation Coal Co. v. Benefits Review Board

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 08-4651
_____________

CONSOLIDATION COAL COMPANY,

Petitioner

v.

BENEFITS REVIEW BOARD; DANIEL X. SMITH;
DIRECTOR OFFICE OF WORKERS COMPENSATION
PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,

Respondents

_____________

ON PETITION FOR REVIEW OF AN ORDER OF THE
BENEFITS REVIEW BOARD FROM (Claim No. 08-0287)
Administrative Law Judge: Honorable Daniel L. Leland
______________

Submitted Under Third Circuit LAR 34.1(a)
October 20, 2010
______________

1
 Before: HARDIMAN, GREENAWAY, JR., and
NYGAARD, Circuit Judges

(Opinion Filed: December 22, 2010 )

Jean E. Novak, Esquire
Strassburger, McKenna, Gutnick & Gefsky
444 Liberty Avenue Suite 2200
Four Gateway Center
Pittsburgh, PA 15222-0000
Counsel for Petitioner

Stephen P. Moschetta, Esquire
The Moschetta Law Firm
28 West Cherry Avenue
Washington, PA 15301-0000
Counsel for Respondent
______________

OPINION
______________

GREENAWAY, JR., Circuit Judge

Consolidation Coal Company (“Consolidation”)
appeals from the Benefits Review Board‟s (the “Board”)
decision affirming an Administrative Law Judge‟s (the
“ALJ”) decision and order that Consolidation must pay
Daniel Smith (“Smith” or “Claimant”) benefits under the
Longshore and Harbor Workers‟ Compensation Act
(“LHWCA” or the “Act”), 33 U.S.C. §§ 901-950, for an
injury he suffered while working for Consolidation.
Consolidation argues that the Board erred in affirming the

2
ALJ because Smith did not satisfy the two-part test under the
Act—the “status” of the injured individual and the “situs” of
the injury. Maher Terminals, Inc. v. Dir., Office of Workers‟
Comp. Programs, 330 F.3d 162, 166 (3d Cir. 2003). For the
reasons explained below, we find that the LHWCA covers
Smith‟s injury. Smith satisfies the two-part test. We shall
affirm the Board‟s decision.

I. BACKGROUND

Mr. Smith was a diesel mechanic for Consolidation at
Robena Preparation Plant Facility (“Robena”), where he
worked in a maintenance garage. Robena is located in
Greensboro, Pennsylvania, adjacent to the Monongahela
River. Consolidation prepares and processes coal at Robena.
Also, it receives “raw” coal from barges, moves the coal by
conveyor belts through the processing plant, loads the
processed coal back onto barges, or stockpiles and ships the
coal later. Clean coal is also occasionally stockpiled beside
the river rather than loaded directly onto the barges. Coal is
then dropped into a machine called a de-stock hopper and
goes to the river tipple and into the barges.1 Smith testified
that, at Robena, he worked on any equipment that ran on fuel.
Relying on documentary and testimonial evidence, the ALJ
found that Smith did not work on vessels or components of
vessels, and records showed that the “virtual entirety” of his
work was as a mechanic performing repairs on Terex
machines and other heavy equipment. (App. at 21.)

1
According to Smith, “de-stocking” or “de-stockpiling” is a
colloquial term referring to taking stockpiled coal and loading
it onto barges. (Appellee‟s Br. 4 n.1.)

3
 The Robena facility covers approximately seven
hundred acres. The garage where Smith‟s injury occurred is
approximately one hundred yards from the edge of the
Monongahela River. The garage is adjacent to the stockpiled
coal, and to four Quonset huts, where steel cables, used as
barge running lines, are stored. The garage is also located
approximately one hundred fifty feet from the de-stock
hopper.

On June 22, 1998, Smith was injured while repairing a
Terex machine that had become disabled while loading coal
into the de-stock hopper belt, which was adjacent to the
garage. He shoveled coal out of the Terex onto the de-stock
belt and brought the Terex to the garage for repairs. While
using a sixteen-pound sledgehammer to remove rusted hinge
pins from the Terex, Smith injured his back.

As a result of the injury, Smith had back surgery and
has not returned to work. He received benefits under
Pennsylvania‟s workers‟ compensation law. On May 26,
2004, Smith filed a claim for benefits under § 908(a) of the
Act. On March 10, 2006, the parties requested by Joint
Motion that the issue of jurisdiction be bifurcated from all
other issues in the case. (Id.) The ALJ granted that request
on March 13, 2006, and held a formal hearing on the issue of
jurisdiction on March 30, 2006, in Pittsburgh, Pennsylvania.

In his Decision and Order, the ALJ determined that
Smith was eligible for compensation under the Act.
Specifically, the ALJ held that Smith satisfied both the
“status” and “situs” aspects of the jurisdictional test.

4
 First, the ALJ decided that Smith was a maritime
employee, and thus had “status” under 33 U.S.C. § 902(3),
stating:

[] I find that the evidence of record establishes
that Claimant was responsible for servicing
mobile equipment, including Terex machines,
which were used to load coal from operations
on land to barges. Claimant stated, and Darrell
Smith [Smith‟s supervisor] confirmed, that
Terexes were used, in part, to load coal into the
de-stock hopper, from which coal goes into the
river tipple and directly onto barges. The
Supreme Court has held that a person engaged
in some portion of loading is as much an
integral part of the process of loading and
unloading as a person who participates in the
entire process. [P.C.] Pfeiffer [Co., Inc. v.
Ford], 444 U.S. [69,] 83 [(1979)]. The Third
Circuit concluded that activities are indeed
maritime if they are an integral or essential part
of the chain of events leading up to the loading,
unloading, or building of any vessel. [Sea-Land
Serv., Inc. v.] Rock, 953 F.2d [56,] 67 [(3d Cir.
1992)]. Further, it is reasonable to conclude
that a cessation of barge loading of Robena
would occur if a mechanic such as Claimant did
not service heavy equipment at the facility used,
in part, in the loading process. Thus,
Claimant‟s work is an integral or essential part
of the chain of events ensuring that the loading
process proceeds as Employer‟s business
requires.

5
(App. at 21.) The ALJ also determined that Smith was
injured on a covered “situs” under the Act. The ALJ
reasoned that the garage was essential to the unloading of
coal from vessels, was located within and around essential
elements that comprise the loading process, and provided a
site for repairs on equipment active in the loading process.
Additionally, the ALJ noted that the Terex machine broke
down in the midst of loading coal onto the de-stock belt, and
was squarely within Robena‟s loading or unloading area at
the time. As a result of these findings, the ALJ decided that
“[t]he geography and function of the garage [were]
sufficiently related to navigable waters such that Claimant . . .
established he was injured on a covered situs.” (Id. at 26.)

Consolidation filed a Notice of Appeal with the Board
on December 18, 2007, and submitted a brief in support of its
appeal on February 19, 2008. On September 29, 2008, the
Board issued a Decision and Order affirming the ALJ.

Before the Board, Consolidation first contended that
Smith lacked status “because the Terex is not used primarily
to load coal, and [Smith] repairs other equipment as well.”
(Id. at 8.) The Board found that these uncontested facts were
not dispositive, because it read the Supreme Court‟s decision
in Chesapeake and Ohio Ry. Co. v. Schwalb, 493 U.S. 40
(1989), to hold that a claimant‟s contribution to the loading
process need not be constant. (Id. (citing Schwalb, 493 U.S.
at 48).) Further, the Board held that the ALJ “rationally
found that interruption of barge loading at the Robena facility
would occur if a mechanic did not service the heavy
equipment used in the loading process. Accordingly, the ALJ
properly concluded that [Smith‟s] work repairing the Terex
machine is integral to the loading process.” (Id. at 9 (internal
citations omitted).)

6
 Additionally, the Board found that “substantial
evidence supports [the ALJ‟s] finding that [Smith] spent „at
least some of his time‟ in indisputably maritime work as this
repair work was a regular non-discretionary part of [Smith‟s]
job.” (Id. (quoting Maher, 330 F.3d at 164.))

The Board also affirmed the ALJ‟s decision that
Smith‟s injury occurred on a covered situs; specifically, the
ALJ ruled that the garage was a covered situs. In so ruling,
the Board recognized that this Circuit has not addressed
whether a mixed-use situs where an employer maintains and
repairs equipment used in both its loading/unloading and its
plant operations, such as the Robena garage where Smith was
injured, is an “adjoining area” under § 3(c) of the Act. The
Board relied on statutory construction and authority from the
United States Courts of Appeal for the First, Fifth, and Ninth
Circuits. The Board rejected Consolidation‟s contention that
§ 3(a) of the Act “mandates that the site of an injury must be
specifically used for loading, unloading, repairing,
dismantling, or building a vessel to constitute an adjoining
area.” (App. at 12.) Rather, the Board found that because the
garage had both a functional and geographical nexus to the
loading site on the river, it was a covered situs under the Act.

On November 28, 2008, Consolidation filed a timely
petition for review in this Court seeking reversal of the
Board‟s decision.

II. JURISDICTION AND STANDARD OF REVIEW

We exercise jurisdiction over this matter, pursuant to
33 U.S.C. § 921(c), which “gives the courts of appeals
jurisdiction to review final orders of the Benefits Review
Board.” Sea-Land Serv., Inc. v. Rock, 953 F.2d 56, 59 (3d

7
Cir. 1992). We review the Board‟s decision to determine
“whether the Board acted in conformance with applicable law
and within its proper scope of review.” Id. (citation omitted).
The Board is bound by the ALJ‟s factual findings if they are
supported by substantial evidence. Kowalchick v. Dir.,
Office of Workers‟ Comp. Programs, 893 F.2d 615, 619 (3d
Cir. 1990). In reviewing the Board‟s decision, we must
therefore independently review the record and decide whether
the ALJ‟s findings are supported by substantial evidence. Id.
Substantial evidence is “more than a mere scintilla,” and is
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id.

“Because the Board does not administer the
[LHWCA], our review of its interpretation of the Act is
essentially plenary but we will respect the Board‟s
interpretation if it is reasonable.” Maher, 330 F.3d at 166
(internal citations and quotation marks omitted).

III. ANALYSIS

Consolidation argues that the Board erred in affirming
the ALJ‟s decision that Smith met both the situs and status
tests under the Act.2 Based on our review of the record, we

2
In 1972, Congress amended the Act to extend coverage
landward. We summarized the significance of this
amendment in Sea-Land Serv., Inc. v. Rock, 953 F.2d 56 (3d
Cir. 1992):

Before [1972], [the Act] only covered injuries
sustained on the actual “navigable waters of the
United States (including any dry dock).” 44
Stat. 1426. Injuries occurring on land were

8
conclude that the Board acted in conformance with applicable
law and the ALJ‟s decision was supported by substantial
evidence. We find that Smith‟s injury placed him within the
ambit of the Act‟s status and situs requirements.

A. Status

Consolidation argues that Smith does not meet the
Act‟s status requirement. It contends that his work as a
mechanic was not integral to the loading and unloading
process, and that when he was injured, while repairing the
Terex, he was neither engaged in the loading or unloading of

covered by the often inadequate state
compensation programs. The 1972
amendments, which extended the coverage
landward, addressed the “continuing anomaly
that the schedule of benefits to be applied in any
case depended on whether the injury occurred
on the land or water side of the gangplank.”
Sea-Land Service, Inc. v. Director, Office of
Workers‟ Compensation Programs, 540 F.2d
629, 633 (3d Cir. 1976).
....
In place of the situs test, Congress substituted a
two-part test “looking both to the „situs‟ of the
injury and the „status‟ of the injured,” to
determine eligibility for compensation.
Northeast Marine Terminal Co. v. Caputo, 432
U.S. 249, 265, 97 S.Ct. 2348, 2357, 53 L. Ed.
2d 320 (1977).
Rock, 953 F.2d at 60 (internal citations omitted).

9
ships, nor was he performing duties integrally connected with
the loading or unloading process at the river‟s edge.

With regard to status, § 902(3) of the Act states that a
covered employee must be a “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-” certain enumerated categories of
employees under § 902(3). Schwalb, 493 U.S. at 45.

Maritime employment within the meaning of § 902(3)
“expressly includes the specified occupations but obviously is
not limited to those callings.” Id. at 45 (citing Herb‟s
Welding, Inc. v. Gray, 470 U.S. 414, 423 n.9 (1985)). In
Schwalb, the Supreme Court held that covered activities
included those of employees who are injured “while
maintaining or repairing equipment essential to the loading or
unloading process . . . .” Id. at 47. There, the Court upheld
coverage for three employees, two of whom were responsible
for ordinary janitorial services in addition to cleaning spilled
coal from loading equipment to prevent it from
malfunctioning. It found that “[s]omeone who repairs or
maintains a piece of loading equipment is just as vital to and
an integral part of the loading process as the operator of the
equipment.” Id. Additionally, the Court held that “[i]t is
irrelevant that an employee‟s contribution to the loading
process is not continuous or that repair or maintenance is not
always needed.” Id. “The determinative consideration is that
the ship loading process could not continue unless [the
machinery] that [claimant] worked on was operating
properly.” Id. at 48.

10
 We reject Consolidation‟s argument that Smith fails to
meet the status requirement. First, the fact that Smith did not
repair the Terex “at river‟s edge,” a requirement that
Consolidation apparently reads into the status test, is not
dispositive. As the Supreme Court has indicated, the purpose
of the test is “to cover those workers on the situs who are
involved in the essential elements of loading and
unloading[.]” Herb‟s Welding, 470 U.S. at 423.
Additionally, pursuant to the test articulated by the Supreme
Court in Schwalb, we have held that “[l]and-based activity
occurring within the section 903 situs . . . should be deemed
maritime only if it is an integral or essential part of the chain
of events leading up to the loading, unloading, or building of
a vessel.” Rock, 953 F.2d at 67. Thus, although Smith‟s
work was “land-based,” because the ALJ found his work to
be “integral” or “essential” to Robena‟s loading or unloading
operations, he met the Act‟s status requirements. (App. at
21.)

We also reject Consolidation‟s argument that the ALJ
had no basis for finding that Smith‟s work was so integral or
essential as to be covered by the Act. In support of this
argument Consolidation contends that Smith‟s regular job as
a mechanic included repair and maintenance of processing
equipment that was not integral to the loading or unloading of
coal. However, as the Board held, covered employees
include those whose contribution to the loading process, like
Smith‟s, need not be continuous. See Schwalb, 493 U.S. at
41; see also Maher, 330 F.3d at 170 (looking to the regular
portion of overall tasks to which claimant could be assigned
and whether he spends at least some of his time in
indisputably longshoring operations).

11
 The ALJ found, based on testimony from Claimant and
his supervisor, Darrell Smith, that Claimant was responsible
for servicing mobile equipment including Terexes. He also
found that the Terex is used, at least in part, to load stockpiled
coal into the de-stock hopper, which transfers the coal to a
conveyor belt, which then transfers the coal to a barge on the
river. Consolidation does not challenge the ALJ‟s finding
that the Terex was used at times to load processed coal
ultimately deposited onto barges. The Board, relying on
Schwalb, properly found the Terex‟s non-continuous function
to move coal was not a disqualifying factor.

This aspect of Claimant‟s employment creates a
sufficient nexus to the loading and unloading of cargo, unlike
the work of the employee in Rock, who is the focus of
Consolidation‟s argument. See id., 953 F.2d at 67
(insufficient nexus found where claimant, a courtesy van
driver, may have occasionally transported longshoremen
within employer‟s maritime facility, but job description did
not include this responsibility). The testimonial evidence
above supports the ALJ‟s conclusion that Claimant‟s
responsibilities were integral to the loading or unloading of
coal.

The ALJ further relied on Claimant and Darrell
Smith‟s evidence in concluding that a cessation of barge
loading at Robena would eventually occur if a mechanic like
Claimant did not service heavy equipment used in the loading
process. The Board affirmed the ALJ‟s decision, finding
immediate cessation of loading was not disqualifying because
it could eventually happen.3 Because we find that the ALJ

3
The First Circuit has also found that immediate cessation of
the shipbuilding process is not dispositive. See, e.g.,

12
relied on substantial evidence in determining that Smith‟s
repair work was essential to, and an integral part of, the chain
of events ensuring the continuation of the loading or
unloading process, we find this conclusion reasonable as well.

B. Situs

Consolidation next argues that that Board‟s situs
determination was incorrect. The situs requirement concerns
the location where a claimant seeking coverage under the Act
suffered his or her injury. Consolidation contends that Smith
was not injured on a covered situs because the garage in
which he was injured was not an adjoining area customarily
used by Consolidation for the loading, unloading, repairing,
dismantling, or building of vessels. Consolidation posits that
the language of § 903(a) makes clear that a site qualifies as an
adjoining area under the provision only if it is used for those
enumerated purposes. Section 903(a) states:

Except as otherwise provided in this section,
compensation shall be payable under this
chapter in respect of disability or death of an
employee, but only if the disability or death
results from an injury occurring upon the
navigable waters of the United States (including
any adjoining pier, wharf, dry dock, terminal,

Graziano v. Gen. Dynamics Corp., 663 F.2d 340, 343 (1st
Cir. 1981) (finding that claimant‟s maintenance and repair of
shipyard facilities was essential to the building and repairing
of ships, and failure to repair routine maintenance “would
have led eventually to a stoppage or curtailment of
shipbuilding and repairs.”).

13
 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). Because Smith was not actually on
navigable water or on a pier, wharf, dry dock, terminal,
building way, or marine railway at the time of his injury, the
determinative question is whether the garage in which
Smith‟s injury occurred is an “adjoining area customarily
used by an employer in loading, unloading, repairing,
dismantling, or building a vessel.” Id.

The ALJ found that the garage was 100 yards from a
navigable waterway and that it “was neither an area used by
[Consolidation] for loading or unloading coal, nor was it used
for repairing, dismantling, or building vessels.” (App. at 25.)
Rather, “it was used for the repair of equipment . . . essential
to the loading and unloading of coal from vessels.” (Id.)
Therefore, we must determine whether the garage constitutes
an “adjoining area” under § 903(a) and whether the garage, a
site used for the repair of equipment essential to the loading
and unloading of coal from vessels, is a covered situs under §
903(a).

i. Adjoining Area

Although Consolidation‟s argument focuses on the
ALJ‟s finding with respect to the “usage” part of the situs
test, it also argues that the ALJ‟s conclusion leads to a
definition of “adjoining area” far more expansive than that
contemplated by the Act. Before 1972, the Act limited
coverage to workers only for “injuries occurring on navigable
waters.” Schwalb, 493 U.S. at 46. The pre-1972 situs test

14
therefore drew “a sharp line between injuries sustained over
water and those suffered on land.” P.C. Pfeiffer Co., Inc. v.
Ford, 444 U.S. 69, 72 (1979).

We have acknowledged the Supreme Court‟s repeated
emphasis “that the broad language employed in the 1972
amendments indicates that an expansive view of the
legislation is appropriate.” Nelson v. Am. Dredging Co., 143
F.3d 789, 795 (3d Cir. 1998) (citing Northeast Marine
Terminal Co. v. Caputo, 432 U.S. 249, 268 (1977)).
Construing the statute as required in Nelson, we gave the
word “area” its plain meaning and determined that it does not
denote a building or structure as such, but “an open space,
indeed sometimes within a building or other structure.” Id. at
797.4

In Dravo Corp. v. Maxin, 545 F.2d 374 (3d Cir. 1976),
cert. denied, 433 U.S. 908 (1977), although we did not define
“adjoining,” we held that the structural shop where the
claimant was injured satisfied the situs test where “[t]he great
majority of the work performed in the shop [wa]s related to
shipbuilding or ship repair.” Id. at 381. We also held that the
facility was an adjoining area, notwithstanding that it was
located 2,000 feet from the navigable channel and separated
from more of the facility by a city street. Id. at 380.

4
We noted in Nelson that the beach, the situs at issue which
was covered under the Act, was contiguous to navigable
waters; however, we did not define “adjoining,” as used in the
statute. Id. at 798 (noting that the “broader context of the
statute” indicated Congress‟ intent primarily to ensure that
areas on or adjacent to navigable waters be covered).

15
 Our sister circuits‟ rationale in defining “adjoining
area” is also instructive.5 The Fifth Circuit, in examining
whether an injury which took place in a gear locker used for
the storage and maintenance of gear used to perform the
loading operations five blocks from any wharf, held that the
broader meaning of “adjoin”—“to be close to,” “to be near,”
or “neighboring”—“instill[s] in the term its broader meanings
. . . in keeping with the spirit of the congressional purposes.”
Texports Stevedore Co. v. Winchester, 632 F.2d 504, 513-14
(5th Cir. 1980).

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 [Act].
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.

Id. at 514-15.

The Ninth Circuit, in an opinion by then-Circuit Judge
Kennedy, also adopted a broad reading of “adjoining area,”
finding that “[i]n order to further Congress‟ goal of uniform
coverage, the phrase „adjoining area‟ should be read to

5
On the other hand, the Fourth Circuit has held “that an area
is „adjoining‟ navigable waters only if it . . . is „contiguous
with‟ or otherwise „touches‟ such waters.” Sidwell v. Express
Container Servs., Inc., 71 F.3d 1134, 1138 (4th Cir. 1995).
We decline to adopt that approach.

16
describe a functional relationship that does not in all cases
depend upon physical contiguity.” Brady-Hamilton
Stevedore Co. v. Herron, 568 F.2d 137, 141 (9th Cir. 1978).
That court enunciated a non-exclusive list of factors to
consider in determining whether or not a site is an „adjoining
area‟ under § 903(a), including “the particular suitability of
the site for the maritime uses referred to in the statute;
whether adjoining properties are devoted primarily to uses in
maritime commerce; the proximity of the site to the
waterway; and whether the site is as close to the waterway as
is feasible given all of the circumstances in the case.” Id.
The court found that a gear locker used for storing and
repairing machinery and equipment used exclusively for
loading and unloading vessels and located approximately
2,600 feet north of the edge of the water was a covered situs
under the Act. Id.

The expansive view of the 1972 amendments militates
strongly in favor of defining “adjoining area” broadly. Thus,
an area adjoins the navigable waters of the United States if it
is “close to” or “near” those waters. Winchester, 632 F.2d at
514. However, the nearness of two locations is contextual.
In this context, we find that in light of the spirit of the
amendments and the Act‟s legislative history, our own
expansive definition of “area” as articulated in Nelson, and
the decisions of our sister circuits in Herron and Winchester,
the Robena garage, located approximately one hundred yards
(or three hundred feet) from the Monongahela River is an
adjoining area under § 903(a). We view the ALJ‟s finding
that the garage is located within and around essential
elements of the loading operation of the maritime component
of the Robena, specifically next to the stockpiled coal and 150

17
feet from the de-stock hopper, is evidence consistent with this
conclusion.

ii. Customarily Used in an Enumerated Activity

In addition to being adjoining, the area must also
“customarily [be] used by an employer in loading, unloading,
repairing, dismantling, or building a vessel.” 33 U.S.C. §
903(a). Here, the ALJ found, and the Board affirmed, that the
garage serviced aspects of the loading process, thereby
“ensuring the smooth operation of the maritime component of
the Robena facility.” (App. at 11.) Under Nelson, it is
enough, the Board determined, that the garage had some
maritime purpose.

The site at issue in Nelson was a beach, which we
found to be “customarily used by at least one maritime
employer to unload its vessel.” 143 F.3d at 797. That usage
satisfied an enumerated ground because of the area‟s use in
unloading vessels. Here, it is undisputed that the Robena
garage was not “directly” or “immediately” used for loading,
unloading, repairing, dismantling, or building a vessel. It was
used, however, to house and repair equipment necessary for
these purposes. Subsequently, the Board held that “[t]he
garage has a functional nexus with the loading process on the
river sufficient to bring it within the scope of Section
[90]3(a).” (App. at 12 (citing Pearson v. Jered Brown Bros.,
et al., 39 Ben. Rev. Bd. Serv. 59 (2005), aff‟d on recon. en
banc, 40 Ben. Rev. Bd. Serv. 2 (2006)).) Thus, the question
to resolve is whether it is sufficient for an “adjoining area” to
have a functional nexus with one of the activities enumerated
in § 903(a).

18
 The Fifth and Ninth Circuits have held that a
functional nexus between the site and the maritime activities
is sufficient for the location of the injury to satisfy § 903(a)
where the facility is used for repair or storage of equipment
integral or essential to the enumerated purposes in the Act.
Herron, employing a functional relationship test, found that
“[a]ll of the machinery and equipment in the Brady-Hamilton
gear locker was used exclusively for loading and unloading
vessels.” 568 F.2d at 141. Thus, the court concluded that an
injury suffered in the gear locker, which “was used as an
integral part of longshoring operations” including the loading
and unloading of vessels, “occurred at a place within the situs
requirements of the Act.” Id.

Similarly, the Fifth Circuit held that a gear room,
housing repair and maintenance equipment for loading and
unloading operations, was a part of the on-going overall
loading process. Based on this situation, the Court held that
the gear room “ha[d] a sufficient nexus to the waterfront” to
meet the situs requirement. Winchester, 632 F.3d at 504, 515.
More recently, the Fifth Circuit has clarified that its holding
in Winchester “teaches that if a particular area is associated
with items used as part of the loading process, the area need
not itself be directly involved in loading or unloading a vessel
or physically connected to the point of loading or unloading.”
Coastal Prod. Servs. Inc. v. Hudson, 555 F.3d 426, 434 (5th
Cir. 2009).

Since the Supreme Court‟s holding in Caputo, we have
not addressed whether a functional nexus is sufficient to
satisfy the situs requirement.6 In Sea-Land v. Dir., Office of
6
In Sea-Land Service, Inc. v. Dir., Office of Workers‟ Comp.
Programs, we suggested that as long as the employment

19
Workers‟ Comp. Programs, we stated that the key to the
status determination “is the functional relationship of the
employee‟s activity to maritime transportation[.]” 540 F.2d
629, 638 (3d Cir. 1976). We find it to be consistent with our
ruling on status, looking to whether an employee performs
work that is integral and essential to the loading process, as
well as with the Supreme Court‟s instruction to construe the
statute liberally, Caputo, 432 U.S. at 268, to apply a similar
functional nexus test to the situs requirement. The repair
work employing loading and unloading equipment in the
garage satisfies the functional nexus test and leads us to
conclude that the garage is a covered situs.

Consolidation argues that applying the functional
nexus test must lead to a different result. Principally,
Consolidation posits that Winchester and Herron are
distinguishable from this case. It argues that the sites in
question in those cases were used exclusively to service
equipment used in the loading and unloading process,
whereas the garage in this case was used to service all heavy
equipment used at Robena, whether or not it related to the
unloading or loading of vessels. The Board is correct insofar
as it relies on Nelson to hold that exclusive use of the garage

nexus, or status, was maintained, the federal compensation
remedy should be available. Since that decision, we have
acknowledged that “[t]he status and situs tests were
subsequently approved by the Supreme Court in Northeast
Marine Terminal Co. v. Caputo.” Dravo Corp. v.
Occupational Safety and Health Review Com‟n, 613 F.2d
1227, 1231 n.8 (3d Cir. 1980); see also, Maher, 330 F.3d
at166 (3d Cir. 2003); Nelson, 143 F.3d at 794; Rock, 953
F.2d at 60.

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for an enumerated purposes is not necessary. Nelson, 143
F.3d at 796-97; see also Coastal Prod., 555 F.3d at 437.
Thus, using the functional nexus test, Consolidation‟s
argument that the non-exclusive use of the Robena garage for
repair of loading equipment prevents its coverage under the
Act is unavailing.

Further, Consolidation asserts that the Terex on which
Smith was working when he was injured was itself not used
exclusively for loading or unloading. Thus, Consolidation
argues that we should instead rely on the Board‟s decision in
Maraney v. Consolidation Coal Co., 37 Ben. Rev. Bd. Serv.
97 (2003), which held that a mobile equipment operator using
a Terex to haul refuse was not covered by the Act. Maraney,
however, is plainly distinguishable from this case.

In Maraney, the Board held that an entire maritime
facility was not a covered situs under § 903(a). “[W]here a
site contains distinct areas used for loading and unloading,
and for non-maritime manufacturing purposes, the separate
manufacturing area has been held outside the Act‟s
coverage.” Id. at 100. Thus, the Board held that the location
at issue in Maraney—which “[wa]s merely a repository for
slate and slurry, which are by-products of the cleaning
process,” and which “d[id] not store products destined for
vessels”—“ha[d] no functional relationship with the
navigable water where employer‟s unloading/loading
operations occur[ed].” Id. at 102. Here, the Board found that
the Robena garage had at least some relationship to the
loading and unloading process: “The administrative law
judge found that the operations of the garage are related in
part to the loading process since repairs are undertaken there
of equipment essential to the loading and unloading of coal.”
(App. at 11.) In addition, the ALJ found that “[t]he Terex

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machine on which claimant was working when he was injured
was brought in for repair after breaking down while loading
coal onto the de-stock hopper belt,” which loaded the
processed coal back onto barges located on the Monongahela.
(Id.)

These findings are supported by substantial evidence
and are more than sufficient to demonstrate a functional
nexus between the garage and the loading and unloading
activities enumerated in § 903(a), as the garage serviced at
least some equipment essential to the loading of coal. This
conclusion is reinforced by the Supreme Court‟s holding that
an expansive view of the extended coverage under the 1972
Amendments is proper. Caputo, 432 U.S. at 268.

IV. CONCLUSION

We find that Smith‟s employment satisfies the status
requirement and the garage where Smith was injured satisfies
the situs requirement of § 903(a). We hold that the Board did
not err in determining that Smith‟s claim fell within the
intended scope of LHWCA and we will affirm the Board‟s
decision.

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