[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 3, 2002
No. 01-14656 THOMAS K. KAHN
________________________ CLERK
USDL Docket No. 00-953A
Benefits Review Board No. 00-0953A
LAURA PATRICIA BIANCO,
Petitioner,
versus
GEORGIA PACIFIC CORP.,
Respondent/Employer
and
UNITED STATES DEPARTMENT OF LABOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
Respondents.
________________________
Petition for Review of an Order of the Benefits Review Board
United States Department of Labor
_________________________
(September 3, 2002)
Before HULL, FAY and GIBSON*, Circuit Judges.
PER CURIAM:
*
Honorable John R. Gibson, U.S.Circuit Judge for the Eighth Circuit, sitting
by designation.
Laura Patricia Bianco petitions for review of a final decision and order of the
United States Department of Labor Benefits Review Board affirming an
administrative law judge’s denial of her claims for compensation under the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901
et seq. Compensation under the LHWCA is available only if, among other things,
a “situs” test is satisfied. Under that “situs” test, a work-related injury must occur
“upon the navigable waters of the United States (including 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). Relying on the “other adjoining area”
clause, Bianco argues that she satisfied the “situs” test. After review and oral
argument, we affirm the denial of Bianco’s claim.
I. FACTS
The relevant facts are not in dispute. Bianco’s former employer, Georgia
Pacific Corporation (“GPC”), operates a gypsum products plant in Brunswick,
Georgia, on the banks of the Turtle and East Rivers. At its plant, GPC processes
raw gypsum into two products: (1) sheet-rock; and (2) gypcrete, a raw material
used by floor finishers.
GPC’s system for receiving and then processing raw gypsum is as follows.
Raw gypsum arrives by ship to the Lanier dock on the East River at the Port of
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Brunswick. The ship is a “self-unloader” and has its own conveyer belt for
unloading the gypsum into a hopper on the Lanier dock. Thus, that gypsum is first
off-loaded into a hopper and then onto a second conveyer belt owned by Glynn
County and the City of Brunswick. This second conveyer belt ships the gypsum to
Transfer House No. 2. The individuals operating the hopper and the second
conveyer belt do not work for GPC. The gypsum then comes out of the Transfer
House No. 2 on a third conveyer belt and moves all the way to GPC’s rock shed at
its production plant. Employees of GPC operate this third conveyer belt.
At GPC’s production plant, the raw gypsum is poured off of the conveyer
belt and into the rock shed. GPC owns the rock shed, which it uses to store the raw
gypsum until it is needed to manufacture sheet-rock or gypcrete. From the rock
shed, the raw gypsum is crushed, screened, baked and then transported to either (1)
the sheet-rock production department or (2) the gypcrete production department.
The gypsum is then bagged to be sold as gypcrete or used in the manufacturing of
sheet-rock. The finished product, whether gypcrete or sheet-rock, is transported
from GPC’s production plant by truck.
Bianco worked for GPC since 1977. During that employment, Bianco held
several different jobs, some in the production plant and others in or around the
3
ships and/or conveyer belts unloading gypsum.1 Bianco suffered two work-related
injuries, one on May 10, 1993, and one on July 28, 1995. Both injuries occurred in
the production departments of the GPC plant.
The May 1993 injury occurred while Bianco worked in the sheet-rock
production department. More specifically, at the time of her May 1993 injury,
Bianco worked as a knife operator. Knife operators work in the sheet-rock
production department of the GPC plant and are responsible for cutting the sheet-
rock into the appropriate length. In this capacity, Bianco fell as she was hurrying
to correct a malfunction of the knife machine. That fall injured Bianco’s right
ankle and right knee.
The July 1995 injury occurred while Bianco worked in the gypcrete
production department, operating the palletizer on the gypcrete production line.
The palletizer is a machine that stacks filled bags of gypcrete at the end of the
gypcrete production process. Bianco injured her right arm while operating that
palletizer.
II. PROCEDURAL HISTORY
1
Bianco testified that, through the years, she worked as a (1) laborer, (2) pre-
decker, (3) cleaner in wet end, (4) paper hanger, (5) bundle operator, (6) riser, (7)
supply operator, (8) crusher operator, (9) ship unloader, (10) utility person in the
yard and gypcrete area, (11) truck unloader, and (12) painter/sandblaster.
4
Bianco filed two claims for compensation under the LHWCA, one for each
of her work-related injuries. An administrative law judge (“the ALJ”) held a
hearing. The ALJ then entered a decision and order denying both of Bianco’s
claims for compensation.
The ALJ found that Bianco failed to satisfy the “situs” test under the
LHWCA. In making his “situs” determination, the ALJ focused on whether
Bianco’s injuries occurred, as she argued, in an “adjoining area customarily used
by an employer in loading, unloading, repairing, dismantling, or building a vessel.”
Although the ALJ concluded that the GPC conveyer belt and rock shed were
“integral parts of the ship unloading process,” the ALJ concluded that the specific,
separate areas in which Bianco was injured – the sheet-rock and gypcrete
production departments – were not “maritime locations” sufficient to satisfy the
“situs” test. The ALJ rejected Bianco’s claim that the designation of certain areas
of the GPC facility as covered under the LHWCA necessarily meant that the entire
GPC facility, including the production departments, must be considered a covered
“situs.”
Bianco’s failure to satisfy the “situs” test alone precluded an award of
compensation. Nonetheless, the ALJ also considered whether, for each of her
injuries, Bianco satisfied the separate “status” test. The “status” test considers
whether the claimant was “engaged in maritime employment.” 33 U.S.C. § 902(3).
5
The ALJ concluded that Bianco satisfied the “status” test with regard to her May
1993 injury, but not with regard to her July 1995 injury.
Bianco appealed the ALJ’s decision to the Benefits Review Board
(“Board”), challenging the ALJ’s finding that she did not satisfy the “situs” test for
either injury. Bianco, however, did not challenge the ALJ’s finding that she also
did not have the requisite “status” with regard to her July 1995 injury. Because
that “status” finding alone precluded recovery under the LHWCA (irrespective of
whether the July 1995 injury occurred on a covered “situs”), the Board summarily
affirmed the denial of compensation for that July 1995 injury. As for Bianco’s
May 1993 injury in the sheet-rock production department, the Board also affirmed
the denial of compensation, concluding that the ALJ’s “situs” determination was
rational, supported by substantial evidence, and in accordance with the law.2
Bianco timely filed a petition for review of the Board’s decision and order in
this Court.3
2
Given this conclusion, the Board did not address GPC’s cross-appeal. In
that cross-appeal, GPC challenged the ALJ’s finding that Bianco had the requisite
“status” with regard to her May 1993 injury.
3
The Director of the Office of Workers’ Compensation Programs (the
“Director”), technically a respondent in this appeal along with GPC, argues that the
Board erred in affirming the ALJ’s denial of Bianco’s claims. Thus, the Director’s
and Bianco’s interests on appeal are aligned. We refer to all arguments, whether
raised by Bianco or the Director, as Bianco’s arguments.
While we consider the Director’s position in this appeal, we do not defer to
that position. See Alabama Dry Dock and Shipbuilding Corp. v. Sowell, 933 F.2d
1561, 1562 (11th Cir. 1991) (“We owe deference to official expressions of policy
6
III. STANDARD OF REVIEW
“We review the Board’s decisions to determine whether the Board has
adhered to its statutory standard of review and whether it has erred in interpreting
the law.” Alabama Dry Dock and Shipbuilding Corp. v. Sowell, 933 F.2d 1561,
1563 (11th Cir. 1991), abrogated on other grounds by Bath Iron Works Corp. v.
Dir., Office of Workers’ Comp. Programs, 506 U.S. 153 (1993). “This court, and
the Board, must uphold the factual determinations of the ALJ if they are supported
by substantial evidence in the record as a whole.” Id. See Argonaut Ins. Co. v.
Patterson, 846 F.2d 715, 718 (11th Cir. 1988) (“Our review of the Board’s two
opinions is limited . . . it is evident that we are to review only for errors of law, and
to make certain that the Board adhered to its statutory standard of review of factual
determinations.”) (internal quotation marks omitted). Indeed, “[a]lthough this
court reviews the ALJ’s interpretation of the LHWCA de novo, it will not set aside
the ALJ’s findings of fact, including its situs determination, if substantial evidence
supports them.” Brooker v. Durocher Dock and Dredge, 133 F.3d 1390, 1392 (11th
by the Dir3ctor, who does administer the statute, but settled law precludes us from
affording deference to an agency’s litigating position.”), abrogated on other
grounds by Bath Iron Works Corp. v. Dir., Office of Workers’ Comp. Programs,
506 U.S. 153 (1993); William Bros., Inc. v. Pate, 833 F.2d 261, 265 (11th Cir.
1987) (“Even assuming arguendo that the Director’s interpretations as well as
those of the Secretary are examples of agency construction which are entitled to
deference, we do not agree that the Director’s mere litigating position is due to be
given deference.”).
7
Cir. 1998) (citing Texports Stevedore Co. v. Winchester, 632 F.2d 504, 515 (5th
Cir. 1980) (en banc)4). “If the situs determination is supported by substantial
evidence on the record as a whole, it will not be set aside by this court.”
Winchester, 632 F.2d at 515.
III. DISCUSSION
To receive compensation under the LHWCA, a claimant must satisfy four
elements. Brooker, 133 F.3d at 1392. “First, the person must be injured in the
course of employment.” Id. (citing 33 U.S.C. § 902(2)). “Next, the employer must
have employees engaging in maritime employment.” Id. (citing 33 U.S.C. §
902(4)). “Third, the injured person must have ‘status,’ that is, be engaged in
maritime employment.” Id. (citing 33 U.S.C. § 902(3)). “Finally, the injury must
occur ‘upon the navigable waters of the United States (including 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).’” Id. (quoting 33 U.S.C. § 903(a)). “This last
element is known as the ‘situs’ test.” Id.
4
This Court adopted as binding precedent all Fifth Circuit decisions prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc).
8
Here, only the “status” and “situs” tests were in dispute before the ALJ and
the Board.5 We first consider whether Bianco satisfied the “situs” test, as that
determination may obviate the need to consider whether Bianco had the requisite
status. Like the Board, however, we need not consider whether Bianco satisfied
the “situs” test for her July 1995 injury in the gypcrete production department, as
Bianco did not challenge the ALJ’s finding that she did not have the requisite
status for that injury.
Thus, the primary issue before this Court is whether the place of Bianco’s
May 1993 injury, the sheet-rock production department within the GPC facility, is
a covered “situs” under the LHWCA. More specifically, we consider whether that
sheet-rock production department is, as Bianco contends, an “other adjoining area
customarily used by an employer in loading, unloading, repairing, dismantling, or
building a vessel.”6 For the reasons discussed below, we find that it is not and
affirm the denial of Bianco’s claims.
Arguably, GPC’s sheet-rock production department “adjoins” the navigable
waters of the United States, even though the GPC facility is separated from
navigable waters by certain city and county property. See Winchester, 632 F.2d at
5
Bianco and GPC stipulated that Bianco was injured in the course of
employment, and GPC has never argued that it does not have “employees engaging
in maritime employment.”
6
Bianco has never argued that the area in which she was injured qualifies
under the other sites listed in § 903(a). See 33 U.S.C. § 903(a).
9
514 (“‘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 LHWCA.”).7 We need not resolve that
issue, however, because even if GPC’s sheet-rock production plant “adjoins”
navigable waters, it is not an “area customarily used by an employer in loading,
unloading, repairing, dismantling, or building a vessel.”
Indeed, “[t]he other key word in the statute’s phrase is ‘area.’” Winchester,
632 F.2d at 515. Although “[a]rea is a broad term,” our precedent teaches us that
“[t]he answer to the question of where the boundaries are to an ‘area’ is found right
in [LHWCA].” Id. Specifically, “[t]he perimeter of an area is defined by
function” and “[t]he ‘area’ must be one ‘customarily used by an employer in
loading, unloading, repairing, or building a vessel.’” Id. While the LHWCA “does
not require that the area’s exclusive use be for maritime purposes,” the area must
be “customarily used for significant maritime activity.” Id. (emphasis added).
7
Indeed, in Winchester, the former Fifth Circuit rejected an argument that the
area in question must abut the water and concluded that an employer’s gear room
located five blocks from the gate of the nearest dock adjoined navigable waters.
632 F.2d at 514-15.
Unlike the former Fifth Circuit, the Fourth Circuit has strictly construed the
term “adjoining,” holding “that an area is ‘adjoining’ navigable waters only if it
‘adjoins’ navigable waters, that is, if it is ‘contiguous with’ or otherwise ‘touches’
such waters.” Sidwell v. Express Container Servs., Inc., 71 F.3d 1134, 1138 (4th
Cir. 1995).
10
Here, the sheet-rock production plant was not an “area” used either
exclusively, or even customarily, for a maritime purpose or for significant
maritime activity. There is no evidence that GPC ever used the sheet-rock
production department for maritime activity, or that the production in that plant
was part of the on-going overall process of unloading raw gypsum from the GPC
vessels; instead, that “area” was used solely for manufacturing sheet-rock. Thus,
the sheet-rock production area where Bianco was injured is not an “adjoining
area.” See Brooker, 133 F.3d at 1394 (concluding that substantial evidence
supported an ALJ’s finding that a seawall on which a claimant was injured was not
an “adjoining area” because “[a]ny loading and unloading on the barges was
accomplished without resort to the seawall. Therefore, while the seawall adjoined
a navigable waterway, it was not a place of traditional maritime activity at the time
of [claimant’s] injury”).
In apparent recognition that no maritime activity occurred in the specific
area in which she was injured, Bianco points out that maritime activity occurred in
other areas of the GPC facility, namely the areas where raw gypsum was unloaded
from the GPC vessels. Bianco notes that the ALJ concluded that the conveyer belt
11
and rock shed areas of the GPC facility were covered under the LHWCA, given
that those areas were “integral” to the “ship unloading process.”8
Although she was not injured in either of those areas, Bianco argues, as she
did before the Board, that the ALJ’s finding in this regard was sufficient to bring
GPC’s entire facility, including the sheet-rock production area, within the situs
requirement of § 903(a). Bianco contends that since a portion of the GPC facility
is maritime, the entire facility must be, because to hold otherwise would result in
workers walking in and out of coverage.
The evolution of the LHWCA indeed reflects a concern with workers
walking in and out of coverage. Until 1972, the LHWCA applied only to injuries
that occurred on navigable waters. Chesapeake and Ohio Ry. Co. v. Schwalb, 493
U.S. 40, 46 (1989). This meant that “[l]ongshoremen loading or unloading a ship
were covered on the ship and the gangplank but not shoreward, even though they
8
The ALJ reasoned as follows:
. . . I find the gypsum remains a “shipped” cargo until it arrives at the
Georgia Pacific rock shed. Specifically, the unloading of the gypsum
from the ship does not stop at the port authority’s transfer house.
Instead, the rock continues to be “unloaded” until it falls into the rock
shed for storage. At that moment, the gypsum leaves the stream of
maritime commerce and becomes “stored” cargo. Because the
gypsum continues to be unloaded along the conveyer belt from the
transfer house to the rock shed and into the rock shed, both the
Georgia Pacific conveyer belt and the rock shed are integral parts of
the ship unloading process. Consequently, that conveyer belt and the
rock shed have maritime functions and each location is a maritime
situs.
12
were performing the same functions whether on or off the ship.” Schwalb, 493
U.S. at 46. As the Fourth Circuit put it,
workers injured on navigable waters were covered under the
LHWCA, while those injured on adjoining land, piers, or wharves
were covered only by state workmen’s compensation laws. As a
consequence, longshoremen continually walked in and out of
LHWCA coverage as they walked up and down the gangplank from
ship to shore during the loading and unloading of vessels.
Sidwell, 71 F.3d at 1135 (internal citation omitted).
The 1972 amendments to the LHWCA expanded the definition of “navigable
waters” to encompass “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). The 1972 amendments reflected “Congress’ undoubted desire to treat
equally all workers engaged in loading or unloading a ship, whether they were
injured on the ship or on an adjoining pier or dock. The former were covered prior
to 1972; the latter were not.” Herb’s Welding Inc. v. Gray, 470 U.S. 414, 426
(1985).
As is evident from the above discussion, Congress was concerned with
workers walking in and out of coverage, but that concern was more with workers
engaged in maritime activity walking in and out of coverage at or near the water’s
13
edge.9 The facts in this case do not implicate that limited concern. Moreover, we
agree with the Fourth Circuit’s observation that “[w]hen Congress addressed a
longshoreman’s moving into and out of coverage at water’s edge as he unloaded a
ship or repaired it, Congress did not purport to eliminate the phenomenon of
moving into and out of coverage--such a condition necessarily attends any
geographical boundary of coverage.” Brickhouse, 142 F.3d at 222.
In any event, while Congress’ amendments clearly intended to limit the
situations in which workers walk in and out of coverage, that does not give a court
the license to reach out and expand coverage beyond the terms of the amendments
in order to effectuate the policy which Congress sought to implement. Indeed,
9
See Winchester, 632 F.2d at 510 n.8 (“‘The present Act, insofar as
longshoremen and ship builders and repairmen are concerned, covers only injuries
which occur upon the navigable waters of the United States. Thus, coverage of the
present Act stops at the water’s edge; injuries occurring on land are covered by
State Workmen’s Compensation laws. The result is a disparity in benefits payable
for death or disability for the same type of injury depending on which side of the
water’s edge and in which State the accident occurs.’”) (quoting House and Senate
Committee Reports for the 1972 amendments) (internal quotation marks omitted);
Jonathan Corp. v. Brickhouse, 142 F.3d 217, 220 (4th Cir. 1998) (“One of
Congress’ principal purposes in moving the coverage line landward was to provide
more uniform coverage for longshoremen as they loaded and unloaded ships and
repaired them. It made little sense that a longshoreman injured at one end of a
gangplank was covered, while at the other end, he was not covered, even though he
was doing the same job. Also, with the advent of containerization and other
modern loading techniques, much of the loading and unloading work was done on
the pier adjacent to the ship. Thus, Congress believed that coverage for a person
who did traditional longshoremen’s work both on the water and on the adjacent
land should not depend on where the person was standing in relation to the water’s
edge when injured.”) (internal citations omitted).
14
were we to conclude that GPC’s entire facility (irrespective of what GPC does at
different areas therein) is an “adjoining area” simply because certain areas of the
GPC facility engage in maritime activity, we would effectively be writing out of
the statute the requirement that the adjoining area “be customarily used by an
employer in loading, unloading, repairing, dismantling, or building a vessel.”10
This we decline to do. See Winchester, 632 F.2d at 515 (“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.’”); Brickhouse, 142 F.3d at
10
Bianco contends (1) that “a broad interpretation of ‘area’ . . . reduce[s] the
number of employees walking in and out of coverage, and (2) that this broad
interpretation is “consistent with the congressional purposes behind the 1972
amendments.” Winchester, 632 F.2d at 516. We are mindful of these teachings
from our precedent. However, a broad interpretation of “area” is different from
one that ignores other language in the statute indicating that a functional nexus to
maritime activity must nonetheless exist. See Brickhouse, 142 F.3d at 221
(discussing the catchall “other adjoining area” clause of the LHWCA and stating,
“Congress did not abandon its legislating principle of connecting this ‘other area’
to the work of longshoremen on navigable waters. The ‘other area’ annexed to
navigable waters by the Act must again be ‘adjoining’ the water and must again be
linked to the traditional longshoremen’s work on the water. The ‘other area’ must
be for the loading or unloading of cargo onto ships in navigable waters or for the
‘repairing, dismantling, or building’ of those ships”).
We recognize that the necessary functional nexus to maritime activity to
bring an area within coverage need not be great. Indeed, in Winchester, it was
sufficient that the third “gear room” contained the equipment used to perform the
loading operation. The problem for Bianco, however, is that the sheet-rock
production area has nothing to do with, and no connection to, the loading or
unloading of the raw gypsum. In contrast, the third “gear room” in Winchester
that was five blocks away from the dock was an integral part of the loading
operation.
15
222 (concluding that a claimant failed to satisfy the “situs” test and stating,
“[w]hen [the claimant] worked on ships, which he occasionally did, he traveled by
land to shipyards where he then installed fabricated parts. During these times, he
was undoubtedly on a situs covered by the LHWCA. But while at the Tidewater
Steel plant [fabricating steel parts], his situs was no different than it would have
been at any steel fabrication plant anywhere in the land”); Jones v. Aluminum Co.
of Am., 35 B.R.B.S. 37 (2001) (DOL Ben. Rev. Bd.) (“As employer’s operation
contains manufacturing facilities as well as areas used in maritime work, the entire
site is not covered under [LHWCA]; the plant itself lacks the functional nexus to
be considered a covered area, and it cannot be brought into coverage simply
because goods are shipped by water from another portion of the facility.”).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the Board’s decision and order.
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