Healy Tibbitts Builders, Inc. John M. Mannering v. Director, Office of Workers' Compensation Programs Darlette Maumau (Widow of Finefeuiaki Maumau) Shelly Dagget (Mother of Salesi and Maika Maumau) Hawaii Employers' Mutual Insurance Company
Docket: 04-70575
Court: Court of Appeals for the Ninth Circuit; April 14, 2006; Federal Appellate Court
The case involves Healy Tibbitts Builders, Inc. and the death of employee Finefeuiaki Maumau while he was excavating a trench as part of a project to renovate submarine berths at Pearl Harbor. The Ninth Circuit Court of Appeals reviewed the Benefits Review Board's determination that Maumau qualified as a "harbor worker" under the Longshore and Harbor Workers' Compensation Act, despite his non-maritime specific job.
The renovation project included replacing existing wharves, rerouting utility lines, and installing a main duct bank for electrical and communication services, which extended from the shore into navigable waters. Healy Tibbitts contracted the work to Mannering, who managed the installation of the duct bank and related infrastructure. Maumau, employed by Mannering, was responsible for digging the trench when he was fatally injured by a steel trench shield. Mannering completed the project shortly after the incident.
The court affirmed the Board's conclusion that Maumau's work, while not uniquely maritime, was covered by the Act due to its proximity to navigable waters and the nature of the project.
Darlette Maumau, the surviving spouse of the decedent, and Shelly Dagget, the mother of his two children, filed for benefits under the Longshore and Harbor Workers' Compensation Act. The case was referred to an Administrative Law Judge (ALJ) by the District Director of the Department of Labor's Office of Workers' Compensation Programs, leading to an evidentiary hearing on May 23, 2002. The ALJ based his decision on previous rulings by the Benefits Review Board, which had determined that the Act covers construction workers associated with maritime facilities. The ALJ found that it was not pertinent whether Maumau's job duties involved loading or unloading ships or were inherently maritime. He awarded Maumau $1,166.78 per week in benefits after calculating his average weekly wage based on his earnings from a submarine berths project, totaling $22,168.90 over 19 weeks. The Benefits Review Board upheld the ALJ's decision, asserting that the critical factor for coverage was the connection of the project to ship servicing, rather than the maritime nature of Maumau's specific duties. The Board also indicated that Maumau likely would have continued working at his pre-injury wage. The petitioners, Healy Tibbitts and Mannering, sought review of this determination.
To qualify for benefits under the Act, an individual must meet the definition of "employee," which includes various categories such as longshoremen and harbor workers. The claimants did not claim Maumau was a longshoreman or ship repairman but focused on the definitions of "maritime employment" and "harbor worker," which remain undefined in the Act. The Director of the OWCP argued for an interpretation of "harbor worker" that encompasses any worker involved in constructing maritime facilities, regardless of their specific job duties. This interpretation was deemed reasonable and consistent with the Act's remedial purpose, and the courts give considerable weight to the Director's views, especially when the Act can be interpreted in line with his position. The Act is intended to be liberally construed, allowing for an expansive understanding of its coverage.
The court adopts the Director's interpretation of "harbor worker" as reasonable and aligned with the Act's remedial goals, affirming coverage for those repairing equipment used in the loading and unloading of ships. It rejects a distinction between workers repairing such equipment and those constructing facilities for the same purpose, emphasizing that both roles are vital to maritime operations. The Act was amended to include injuries occurring in areas adjacent to ships, addressing previous coverage gaps.
Further, the statute excludes workers employed by marinas who are not involved in construction, but those engaged in constructing maritime facilities like marinas are covered. The Director's interpretation is supported by prior Benefits Review Board decisions that awarded benefits to non-maritime job duties related to maritime facility construction. Notable cases, such as Hawkins v. Reid Associates, demonstrate this coverage in practice for workers at submarine repair facilities. Overall, the interpretation broadly encompasses individuals involved in the construction, repair, alteration, or maintenance of harbor facilities.
Employees in Stewart and Joyner were involved in constructing a dry dock, yet their tasks were not maritime. The Second Circuit has supported the Director's interpretation of "harbor worker," deeming it reasonable and aligned with the objectives of the Act, as seen in the case of Fleischmann. The Director's definition includes marine construction workers due to the ambiguity of the term "harbor worker." Although the specifics of the Second Circuit's case involved more maritime activities than those of Maumau, the approach of interpreting the Act to fulfill its remedial purpose is influential.
Under the Fifth Circuit's reasoning in Hullinghorst Industries, Maumau would also be covered by the Act, as the employee's duties involved erecting a scaffold for ship-related repairs, which falls under "maritime employment." The court emphasized that the specific non-maritime nature of the job did not preclude coverage. Petitioners argued against the Director's interpretation, citing Supreme Court precedents that restrict coverage to jobs with a direct connection to traditional maritime activities. However, the court rejected these claims, highlighting that while "maritime employment" encompasses various occupations, it cannot completely detach from the loading or construction of vessels. The Herb's Welding case clarified the scope of "maritime employment" but did not address the qualifications for benefits as a "harbor worker," leaving the specific issue unresolved.
A marine construction worker may qualify for benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA) even if their specific job duties are not directly maritime. The Supreme Court's decision in Schwalb clarified that land-based activities are considered maritime if they are integral to the loading or unloading of a vessel. The case of McGray Construction Co. v. Director, OWCP, established that the Act does not cover workers involved in constructing facilities that do not directly accommodate ships. The Board's prior rulings on construction workers at piers were consistent with McGray, as they primarily addressed "ship-less piers." The Act does not encompass all workers near maritime environments; however, workers directly involved in constructing facilities for vessels, such as Maumau, are eligible for coverage. This interpretation emphasizes that a maritime facility is composed of various specialized tasks, and excluding workers based on the immediate purpose of their work would limit coverage unnecessarily. The arguments presented by Petitioners regarding the nature of Maumau's work and the relevance of power transmission cables were found insufficient to deny coverage under the LHWCA.
The Board determined that the power plant was crucial to shipyard operations, classifying Prevetire's role as maritime employment under the relevant Act. The Fourth Circuit identified the primary issue on appeal as whether Prevetire, as a power-plant construction worker, qualified as a "person engaged in maritime employment." Unlike Maumau, Prevetire could not claim to be a "harbor worker" involved in the construction of a maritime facility, as a power plant is not uniquely maritime. The court concluded that it is reasonable to interpret "harbor worker" to include those constructing maritime facilities, even when their specific tasks are not maritime in nature, thus affirming the Board's award of benefits.
Regarding benefit calculations, Petitioners contended the ALJ improperly estimated Maumau's future earnings based solely on his wages from the submarine berths project, neglecting to consider that Mannering would not hire him thereafter, Maumau's union status, and his reported business losses. Despite these arguments, substantial evidence supported the ALJ's award of $1,166.67 weekly. Title 33 U.S.C. § 910 outlines three methods for calculating average annual earnings for determining average weekly wage, which were considered. Since § 910(a) was deemed inapplicable and no evidence for similarly situated employees was presented, the ALJ applied § 910(c). This method aims to approximate future earning capacity based on the employee's abilities and opportunities. The court upheld the ALJ's calculation as a fair reflection of Maumau's earning potential.
Maika Mataele testified regarding Maumau’s experience with heavy machinery, stating that he had operated a 90-ton crane in the mid-1990s and was skilled with various construction equipment. Mataele indicated that Maumau would be highly sought after upon joining the operating engineer's union and noted that Maumau was on track for union eligibility and had a firm job offer from a previous employer. Mannering acknowledged that while he had not guaranteed Maumau future employment, there was potential for him to seek jobs through the union, and he would likely be rehired for similar work. The Administrative Law Judge (ALJ) found this testimony credible, and the petitioners did not challenge this finding. The ALJ was justified in using only Maumau's wages from the 13 weeks of the project to calculate benefits, as supported by legal precedent. The ALJ also considered Maumau's previous earnings, giving less weight to one factor does not invalidate the ruling, provided both were considered. The petitioners failed to present evidence of similarly situated employees' wages to counter the ALJ’s findings. The ALJ is authorized to include evidence of similarly situated employees' wages for benefit calculations under section 910(c), and the petitioners’ interpretation of the statute was deemed incorrect. The petition for review was consequently denied.
Determining an employee's eligibility for benefits under maritime law requires assessing whether the injury occurred at a maritime location, defined under 33 U.S.C. § 902(4) to include navigable waters and adjacent areas used for vessel operations, such as piers and docks. The petitioners acknowledge that the “situs test” applies in this case. In *In re Long*, a carpenter was injured while setting up scaffolding for pipeline repairs on a pier, a place where crude oil was offloaded from vessels. The Board upheld the benefits award, emphasizing that the nature of the employee's work (carpentry, a non-maritime skill) was irrelevant to the maritime context of the project. The excerpt also references cases involving various classifications of maritime workers, including longshoremen and shipbuilders, as per 33 U.S.C. § 902(3). Additionally, the calculation of an employee's average weekly wage is defined as one fifty-second of their average annual earnings, with specific formulas outlined in 33 U.S.C. § 910 depending on the employee's working schedule and earnings history, aiming to reflect the injured employee's earning capacity based on their past work and similar local employment.
