Laura Patricia Bianco v. Georgia Pacific Corp., (11th Cir. 2002)

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UNITED STATES COURT OF APPEALS



FOR THE ELEVENTH CIRCUIT

No. 01-14656

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:

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

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

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

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). 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)

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 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.

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

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).

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

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

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

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,

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

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.









FOOTNOTES

* Honorable John R. Gibson, U.S.Circuit Judge for the
NAME="17">Eighth Circuit, sitting

by designation.

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.

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

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.").

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).

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).

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).

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.

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).

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.

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