filed: January 7, 1992; As Corrected January 24, 1992.
On Petition for Review of a Decision of the Benefits Review Board of the United States Department of Labor. (BRB Case No. 90-1883)
Before: Becker, Greenberg, and Garth, Circuit Judges
GREENBERG, Circuit Judge.
John J. Rock seeks compensation under the Longshore and Harbor Workers' Compensation Act (Act), 33 U.S.C. § 901 et seq., for personal injuries sustained in the course of his employment with Sea-Land Service, Inc. (Sea-Land) as a "courtesy van" driver who transported passengers primarily within his employer's marine terminal. This case presents the question of whether Rock was engaged in "maritime employment" and is thus entitled to compensation under the Act. The administrative law Judge denied benefits, but the Benefits Review Board (board) reversed on the basis that Rock's functions were "essential to maritime industry." Because we find that Rock's occupation was not essential to the process of loading and unloading a vessel, we will set aside the board's determination.
I. Background Facts and Procedural History
Sea-Land operates a 200-acre container loading and unloading terminal in Port Elizabeth, New Jersey. For security reasons Sea-Land does not permit private vehicles in the facility so it provides two white courtesy vans for the transportation of executives, visitors, seamen, ship's crewmen, clerical workers, customs officials and customers. Separate yellow buses transport the longshoremen who work at the facility. Other groups, such as shore gangs, crane workers, lashing personnel and linemen, are transported by their own trucks or vans.
Rock began working for Sea-Land as a longshoreman and "hustler" driver in the early 1960's. In 1979, based on seniority, Rock elected the job of driving one of the white courtesy vans, but he maintained his status as a member of the International Longshoremen's Association. As a courtesy van driver, Rock was required to transport individuals within the facility and was also required to perform errands outside the facility, including gathering mail and transporting people to airports and hotels. According to a supervisor, Rock was not authorized to transport longshoremen, but Rock testified at his hearing that he did on occasion provide such transportation at his supervisor's instruction. Rock did not haul cargo and did not perform repairs or equipment maintenance. When he did not have an assignment, Rock waited at the marine operations building, where he spent approximately 60% of his time.
When Rock was absent from work, a warehouseman would substitute for him and drive the courtesy van. No evidence at his hearing established, however, that Rock ever substituted as a warehouseman. Thus, Rock's duties were limited to driving one of the courtesy vans from 1979 until the time of his injury.
On October 21, 1981, as he stepped from one of the courtesy vans, Rock twisted his right knee. Rock submitted a claim for benefits under the Act, and a formal hearing was held before an administrative law Judge on December 13, 1983. Sea-Land did not dispute the extent of Rock's disability and it did not deny that he was injured while on a covered situs and that it is an employer under the Act. Thus, the only issue presented to the administrative law Judge was whether Rock was engaged in "maritime employment" within section 902(3) of the Act.*fn1 The administrative law Judge denied compensation benefits in a decision and order of February 7, 1985, as he concluded that Rock's job did not require him to perform any "indisputably longshoring or maritime activities," and Rock was therefore not engaged in maritime employment as a matter of law.
Rock appealed the administrative law Judge's decision and order to the Benefits Review Board which, on June 30, 1988, issued a decision and order reversing the administrative law Judge's determination. The board held that, because Rock's job required him to transport various maritime personnel, customs officials and customers, his duties were "therefore essential to maritime industry and furthered the concerns of a covered employer." The board thus held that Rock was covered under the Act, and it remanded the matter to the deputy commissioner for payment of benefits.
In August 1988, Sea-Land filed a petition for review of the board's decision and order which we dismissed on the ground that the decision and order was not a final order within the meaning of 33 U.S.C. § 921(c). On November 21, 1989, the deputy commissioner filed a compensation order awarding benefits. On November 27, 1989, Sea-Land appealed this order to the Benefits Review Board so that it could modify its June 30, 1988, decision and order to incorporate the award and issue a final order that could be appealed to this court. On January 25, 1991, the board issued a final order modifying its earlier decision and order to the extent that it found that Rock was entitled to specified compensation benefits but which otherwise reaffirmed the June 30, 1988, decision and order in all respects.*fn2 Sea-Land then petitioned this court for review of the January 25, 1991, order.
We have appellate jurisdiction pursuant to 33 U.S.C. § 921(c), which gives the courts of appeals jurisdiction to review final orders of the Benefits Review Board. Our review is "limited to a determination of whether the Board acted in conformance with applicable law and within its proper scope of review." Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d 805, 807 (3d Cir. 1988). When factual findings are at issue, we may make an independent factual review to determine whether the administrative law Judge's findings were supported by substantial evidence, but because the parties do not contest his factual findings,*fn3 and the board merely repeated them in its decision and order, such a review is not necessary here. See Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d 286, 290 (3d Cir. 1982).
While no deference is accorded to the board's interpretation of the Act as it does not administer it, Potomac Electric Power Co. v. Director, Office of Workers' Compensation Programs, 449 U.S. 268, 278 n.18, 101 S. Ct. 509, 514-15, 66 L. Ed. 2d 446 n.18 (1980); Kaiser Steel Corp. v. Director, Office of Workers' Compensation Programs, 812 F.2d 518, 521 (9th Cir. 1987), we have indicated that we will "respect" that interpretation if it is "reasonable." Curtis, 849 F.2d at 808. Nevertheless our review is essentially plenary for as we explained in Director, Office of Workers' Compensation Programs v. O'Keefe, 545 F.2d 337 (3d Cir. 1976):
First, neither the Director nor the Board is the officer or agency charged with the administration of the statute. While the Director is authorized by Congress to administer the statute he does not resolve disputed legal issues involving the Act. Substantial questions of law arising in an adversarial context are specifically reserved for decision first by administrative law Judges and then by the Board. Moreover, the Board is only a quasi-judicial body presented with select cases and not an agency involved in the overall administration of the statute . . .
We know of no authority which would require judicial deference to either one arm or the other under these circumstances.
Id. at 343. See also Director, Office of Workers' Compensation Programs v. General Dynamics Corp., 900 F.2d 506, 510 (2d Cir. 1990) (adopting the O'Keefe rationale).
A. The 1972 Amendments to the Act
Congress amended the Act in 1972. Before that time, it only covered injuries sustained on the actual "navigable waters of the United States (including any dry dock)." 44 Stat. 1426. Injuries occurring on land were covered by the often inadequate state compensation programs. The 1972 amendments, which extended the coverage landward, addressed the "continuing anomaly that the schedule of benefits to be applied in any case depended on whether the injury occurred on the land or water side of the gangplank." Sea-Land Service, Inc. v. Director, Office of Workers' Compensation Programs, 540 F.2d 629, 633 (3d Cir. 1976). In broadening the coverage, Congress also noted that the advent of modern cargo-handling techniques, such as ...