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United States Court of Appeals,
Fifth Circuit.
No. 96-60722
Summary Calendar.
Lee Roy SISSON, Petitioner,
v.
DAVIS & SONS, INC.; Louisiana Insurance Guarantee Fund, Inc.;
Director, Office of Worker's Compensation Programs, U.S. Department
of Labor, Respondents.
Jan. 6, 1998.
Appeal from the United States Department of Labor, Benefits Review
Board.
Before BENAVIDES, PARKER and DENNIS, Circuit Judges.
PER CURIAM:
Petitioner, Lee Roy Sisson ("Sisson") appeals from the United
States Department of Labor Benefits Review Board decision denying
him coverage under the Longshore and Harbor Workers' Compensation
Act ("LHWCA"), 33 U.S.C. § 901, et seq., and under the Outer
Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1333(b). We
affirm.
FACTS AND PROCEEDINGS BEFORE THE BENEFITS REVIEW BOARD
Sisson injured his back on May 30, 1984, carrying a piece of
drill pipe while constructing a parking lot for Gulf Oil
Exploration with whom his employer, Davis & Sons, Inc., had a
contract. The drill pipe was to serve as a guardrail around a
parking lot at a heliport used by Gulf Oil to transport crewmen to
oil platforms on the Outer Continental Shelf. The injury site was
about a mile from the Gulf dock and about fifty yards from
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navigable waters.
Sisson's employer, Davis & Sons, Inc., initially paid Sisson
LHWCA benefits of $470.55 a week. He received these benefits for
approximately seventeen months. At that time, his benefits were
reduced to state workers' compensation benefits at $248.00 a week.
Sisson filed a claim with the Department of Labor for LHWCA
benefits. After a hearing on April 20, 1994, an Administrative Law
Judge held that Sisson was not covered under either the LHWCA or
the OCSLA. Sisson appealed to the United States Department of
Labor Benefits Review Board ("Review Board"). After Sisson's case
had been pending before the Review Board for more than a year, it
was affirmed, without argument, in accordance with Public Law 104-
134.
STANDARD OF REVIEW
Our review of Review Board decisions is limited to
considering errors of law and ensuring that the Review Board
adhered to its statutory standard of review, that is, whether the
ALJ's findings of fact are supported by substantial evidence and
are consistent with the law. 33 U.S.C. § 921(b)(3); Munguia v.
Chevron U.S.A., Inc., 999 F.2d 808, 810 (5th Cir.1993).
DISCUSSION
Sisson appeals the finding that his injury falls outside of
LHWCA coverage. LHWCA provides, in relevant part:
Compensation shall be payable ... in respect of disability or
death of an employee but only if the disability or death
results from an injury occurring 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,
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unloading, repairing or building a vessel) ...
33 U.S.C. § 903(a). Coverage requires a finding that the injured
individual is an "employee" as defined in § 902(3) of the statute
(the "status" test) and that the injury occurred at a LHWCA site
(the "situs" test). The ALJ correctly determined that Sisson
satisfied the "status" test, and the parties to this appeal do not
dispute that determination. Therefore, the only issue before us on
appeal is whether Sisson's injury occurred at a covered situs.
The injury is covered by the LHWCA if the parking lot was in
"the navigable waters of the United States, including any ...
adjoining area customarily used by an employer in loading,
unloading, repairing, or building a vessel." 33 U.S.C. § 903(a).
The Supreme Court has cautioned that we must "take an expansive
view of the extended coverage" of the LHWCA. Northeast Marine
Terminal Co., Inc. v. Caputo, 432 U.S. 249, 268, 97 S.Ct. 2348,
2359, 53 L.Ed.2d 320 (1977). We must also keep in mind Congress's
purpose in amending the LHWCA in 1972, which was to expand
coverage, apply uniform standards, cover on-shore maritime duties
and reduce the number of employees walking in and out of coverage.
P.C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62
L.Ed.2d 225 (1979). This court has held, in keeping with the
spirit of congressional purpose, that "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 requirement
that it adjoin navigable waters. Texports Stevedore Co. v.
Winchester, 632 F.2d 504, 514 (5th Cir.1980). Absolute contiguity
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is not required. Id. The heliport parking lot was about one mile
from the Gulf dock and fifty yards from Dauphine pass, a navigable
waterway and so could be said to adjoin navigable waters.
However, under Fifth Circuit precedent, we are unable to say
that the parking lot was customarily used in loading, unloading,
repairing or building a vessel. See 33 U.S.C. § 903(a). The
parking lot was constructed at a heliport used by Gulf Oil to
transport crewmen to oil platforms on the Outer Continental Shelf.
Fixed platforms are not vessels but are properly analogized to
islands. Herb's Welding, Inc. v. Gray, 470 U.S. 414, 416 n. 2,
421-423, 105 S.Ct. 1421, 1424 n. 2, 1426-27, 84 L.Ed.2d 406 (1985).
Furthermore, this court has concluded that helicopters which
transport crewmen from land to offshore oil platforms cannot be
considered "vessels." Barger v. Petroleum Helicopters, Inc., 692
F.2d 337, 339 (5th Cir.1982) (holding that a helicopter pilot
cannot be considered a master or member of a crew of a vessel)
(citing Smith v. Pan Air Corp., 684 F.2d 1102, 1112-14 (5th
Cir.1982)). In the context of addressing a question of worker
status, this circuit has held that an employee who loaded and
unloaded a skiff to ferry supplies to a fixed well platform was not
engaged in maritime employment. Munguia v. Chevron U.S.A. Inc.,
999 F.2d 808, 810 (5th Cir.1993). Likewise, the parking lot in
this case used by crewmen who are being transported to fixed
platforms by helicopters cannot be said, under even the most
liberal reading of the statute, to be customarily used in loading,
unloading, repairing or building a "vessel." We therefore conclude
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that Sisson did not satisfy the situs requirement for coverage
under LHWCA.
Sisson also claims coverage under the OCSLA, 43 U.S.C.
1333(b). Mills v. Director, OWCP, 877 F.2d 356 (5th Cir.1989) held
that an employee had to be injured on the Outer Continental Shelf
to obtain LHWCA benefits through the OCSLA. Sisson concedes that
he was not so injured. Mills forecloses OCSLA relief for Sisson.
CONCLUSION
For the foregoing reasons, we AFFIRM the Review Board's denial
of LHWCA benefits to Sisson.
AFFIRM.

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