Petition for Review of an Order of the Benefits Review Board. D.C. DOCKET NUMBER BRB # 88-1247.
Before Johnson, Smith, and Emilio M. Garza, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Noel Munguia appeals a decision of the Benefits Review Board (the "Board") of the United States Department of Labor, rejecting his claim for benefits under the Longshore and Harbor Workers' Compensation Act (the "Act"), 33 U.S.C. § 901 et seq. (1988), for injuries sustained while in the employ of Chevron, U.S.A., Inc. ("Chevron"). We affirm the Board's decision, but for reasons different from those relied upon by the Board.
Munguia had been employed by Chevron as a roustabout and relief pumper-gauger for nine years. At the time he was injured, he had been assigned as a pumper-gauger to Chevron's South and Southwest Pass oil field for over two years. The field includes about 200 producing oil wells drilled in an area eighteen miles long on both sides of, and a short distance from, the Mississippi River. Each well is situated on a stationary platform built in the marsh or on water and is accessible only by water.
Munguia worked for seven days, then was off duty for seven days. When on duty, he was provided sleeping quarters and meals in a bunkhouse, near which Chevron maintained a group of oil storage tanks, called a tank battery. A number of vessels, varying from eight to twelve, were anchored at the tank battery, including small boats of various kinds (Lafitte skiffs, Boston whalers, and Jo-boats) fitted with outboard motors and other small vessels that could transport one or two workers and their equipment. There was also at least one larger vessel, a wire-line barge, aboard which equipment needed for work on wells was permanently stored. Chevron maintained this small fleet for the sole purpose of enabling its employees to service the production field.
On the day he was injured, Munguia was assigned to work with a gas specialist checking a number of wells for gas leaks. They proceeded in a Lafitte skiff to check the valves on the well-control unit for leaks. One of them would close the valve, and the other would listen for leaks. Munguia injured his back while attempting to close a frozen master valve.
Munguia's claim was referred for Disposition to an administrative law Judge ("ALJ"). Concluding that Munguia satisfied the "status" requirement of the Act and that the parties had not contested the "situs" requirement, the ALJ awarded Munguia his requested compensation benefits. Chevron appealed the decision to the Board.
Citing the transcript of the evidentiary hearing before the ALJ, the Board disagreed with the ALJ's statement that Chevron had not raised the situs issue. Addressing the merits, the Board then concluded that the scope of Munguia's employment did not satisfy the situs requirement, and it reversed the ALJ's decision on that ground. Munguia, joined by the Director of the Office of Worker's Compensation Programs (the "Director"), appeals.*fn1
Our review of Board decisions is limited to considering errors of law and ensuring that the Board adhered to its statutory standard of review, namely, whether the ALJ's findings of fact are supported by substantial evidence and consistent with the law. 33 U.S.C. § 921(b)(3); Miller v. Central Dispatch, Inc., 673 F.2d 773, 778 (5th Cir. Unit A 1982).
In order to demonstrate coverage under the Act, a worker must satisfy both a situs and a status test; in the words of the statute, he must show that, at the approximate time he incurred disability or death, he was "engaged in maritime employment," 33 U.S.C. § 902(3), and that his injury "occurred upon the navigable waters of the United States . . . ." Id. § 903(a) (1982). See also Herb's Welding, Inc. v. Gray, 470 U.S. 414, 415-16, 84 L. Ed. 2d 406 ...