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BPU Management, Inc. v. Director, Office of Workers' Compensation Programs

United States Court of Appeals, Fifth Circuit

October 8, 2013


Petition for Review of an Order of the Benefits Review Board

Before DAVIS and JONES, Circuit Judges, and TRICHE-MILAZZO, District Judge. [*]

W. EUGENE DAVIS, Circuit Judge

Petitioner BPU Management Inc./Sherwin Alumina Co. ("Sherwin") employed Respondent David Martin ("Martin") as a dockworker at its waterside ore processing facility. When Martin was injured in one of the facility's underground ore transport tunnels, the Benefits Review Board ("BRB") ordered Sherwin to pay Martin benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA" or "the Act"). Because we conclude that the underground transport tunnel where Martin was injured is not used in the vessel-unloading process, Martin's injury did not occur on a LHWCA-covered situs. We therefore GRANT Sherwin's Petition for Review of the BRB's decision, and REMAND to the BRB to dismiss Martin's claim.


Sherwin operates an alumina processing facility on the Texas Gulf Coast, the primary purpose of which is the production of industrial alumina from raw bauxite.[1] Like many industrial production sites, Sherwin's alumina facility is situated along a navigable waterway so that vessels can easily unload feedstock materials and load finished product.

Because Sherwin's facility includes both its manufacturing and its loading/unloading operations. Bauxite unloaded from ships is moved directly into the alumina production process. Sherwin's operation begins when raw bauxite is unloaded from vessels at docks in Sherwin's deep water port using an "overhead conveyor system." The overhead conveyor system carries the bauxite over a street and fence separating the dock area from the alumina processing facility. There the conveyor deposits the bauxite into one of several dozen "bins" located in a large covered storage area. The bauxite remains in the storage area until it is needed; this varies from a few weeks to a period of years. Once a particular grade of bauxite is selected for alumina extraction, a small gate located in the floor beneath the appropriate bin or pile is opened to drain the bauxite into a large, underground "reclaim system." There the bauxite is mechanically sifted through a "screw feeder, " which breaks down the bauxite into smaller pieces and deposits it on the "reclaim conveyor belt." From there, the reclaim conveyor belt transports and drops the bauxite onto the "cross-tunnel conveyor." In turn, the cross-tunnel conveyor transports the selected bauxite to the "rod mill, " where it is further pulverized as part of the manufacturing process.[2] In the course of conveyor belt transport, bauxite often spills off the cross-tunnel conveyor onto the floor and must occasionally be shoveled back onto the conveyor.

From 1997 to 2006, Sherwin employed David Martin as a dockworker. Though Martin's primary duty was to ensure that ships were properly docked and loaded or unloaded, he ordinarily spent several hours each month cleaning the cross-tunnel of debris. On February 15, 2006, Martin was in the cross-tunnel shoveling fallen bauxite back onto the conveyor when he injured his lower back.

Martin was allegedly unable to return to his job with Sherwin and filed a claim seeking benefits under the LHWCA. At the benefits hearing, the ALJ concluded that the cross-tunnel where Martin was injured is a LHWCA-covered situs because it is "linked to buildings where vessels were loaded and unloaded." As such, the ALJ found that Sherwin was responsible to Martin for benefits under the LHWCA.

Sherwin appealed the ALJ's order to the BRB, arguing that the cross-tunnel is not a LHWCA-covered situs. However, the BRB rejected Sherwin's argument, reasoning that the cross-tunnel has a substantial nexus with the bauxite-unloading process. Because the cross-tunnel is underneath the storage area, which adjoins and has a "functional relationship with navigable waters, " the BRB concluded that it is a LHWCA-covered situs. Accordingly, the BRB affirmed the ALJ's decision, and Sherwin now petitions for review.


We conduct a de novo review of the BRB's legal conclusions.[3] The question of LHWCA situs is ordinarily a mixed question of law and fact.[4] "However, where, as in this case, the facts are not in dispute, '[LHWCA] coverage is an issue of statutory construction and legislative intent, ' and should be reviewed as a pure question of law."[5]


The sole question we must decide in this case is whether the cross-tunnel where Martin was injured is a ...

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