Brooker v. Durocher Dock and Dredge

Citation: 133 F.3d 1390Docket: 96-9297

Court: Court of Appeals for the Eleventh Circuit; January 25, 1998; Federal Appellate Court

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Petitioner Joseph G. Brooker appealed a denial of compensation for injuries sustained while employed as a welder with Durocher Dock and Dredge, under the Longshore and Harbor Workers' Compensation Act (LHWCA). Brooker was injured after falling off a seawall that Durocher was constructing to protect an electric company’s plant from the Savannah River. The new seawall extended beyond the old one, and while Durocher utilized barges for equipment, Brooker was not engaged in work on or moving to/from these barges at the time of his fall. The administrative law judge (ALJ) denied Brooker’s claim, determining that the injury site did not meet the "situs" requirement of the LHWCA, as the electric company did not engage in vessel activity and the seawall was not intended for docking or loading vessels. Brooker’s subsequent appeal to the Benefits Review Board (BRB) resulted in an automatic affirmation of the ALJ’s decision due to prolonged pendency. The key issue before the court was whether the injury location qualified as a covered "situs" under the LHWCA. The court affirmed the ALJ's decision, emphasizing that it would not overturn findings of fact if supported by substantial evidence. To qualify for compensation under the LHWCA, a claimant must demonstrate four elements, including sustaining injuries during employment on navigable waters or adjoining areas customarily used for maritime work, which the court found Brooker did not satisfy.

The ALJ hearing confirmed the first two elements of the claim but did not address the third element, status. Durocher and its insurer acknowledged that Brooker's injury occurred at a seawall adjacent to navigable U.S. waters, as defined by 33 U.S.C. § 903(a). Brooker did not argue that the seawall qualifies as a wharf or similar structure under this statute. The dispute centers on whether the seawall can be classified as a "pier" or an area typically used by an employer for maritime activities such as loading or repairing vessels, as described in 33 U.S.C. § 903(a). Case law on the definition of "pier" under the Longshore and Harbor Workers’ Compensation Act (LHWCA) is limited, with the Ninth Circuit being the only appellate court to provide explicit interpretation. In *Hurston v. Director, Office of Workers Compensation Programs*, the Ninth Circuit concluded that a structure resembling a pier met the situs requirement, even though it was not used for traditional maritime activities. The court emphasized that the definition of "pier" is not restricted by the requirement for customary maritime use. Additionally, both the Supreme Court and the Fifth Circuit have refrained from definitively ruling on whether "customarily used" modifies "pier." The Fifth Circuit in *Texports Stevedore Co. v. Winchester* determined that an inland facility for vessel-loading equipment satisfied the situs test. Brooker argues for alignment with the *Hurston* ruling, suggesting the seawall functions similarly to a pier due to its pilings. However, the court concludes that the seawall does not meet the criteria to be classified as a pier.

The seawall in question, while adjacent to navigable waters and supported by vertical pilings, does not meet the criteria for being classified as a pier under the Longshore and Harbor Workers' Compensation Act (LHWCA). The classification of a facility as a pier is a factual determination, with significant weight given to firsthand witness testimony. In this case, the construction supervisor, with fourteen years of experience, testified that the facility was not a pier, a statement supported by photographs and corroborated by Brooker, who referred to the structure as a wall.

The Administrative Law Judge (ALJ) reasonably rejected Brooker's argument based on substantial evidence. The ALJ also found that the seawall did not qualify as an "other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel" as required by section 3(a) of the LHWCA. Brooker's assertion that proximity to vessel activity at the Georgia Ports Authority constituted a covered situs was dismissed, as the LHWCA requires the site to be customarily used by the employer for maritime activities. Testimony indicated that the seawall was not designed for docking vessels, and any loading or unloading associated with Brooker's employer was conducted using dolphins instead of the seawall.

Consequently, the ALJ's determination that Brooker was not entitled to compensation under the LHWCA is affirmed based on the absence of traditional maritime activity at the seawall during the time of the injury.