     Case: 09-60859 Document: 00511296847 Page: 1 Date Filed: 11/17/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 17, 2010

                                       No. 09-60859                         Lyle W. Cayce
                                                                                 Clerk

GREAT SOUTHERN OIL AND GAS CO.; LOUISIANA WORKERS’
COMPENSATION CORP.,

                                                   Petitioners
V.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR; TONY MEYERS,

                                                   Respondents




                        Petition for Review of an Order of the
                                Benefits Review Board
                                      No. 09-0530


Before DAVIS, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
       In this appeal, Petitioner Great Southern Oil and Gas Co. (“Great
Southern”), the employer of Respondent Tony Meyers, challenges an order of the
Benefits Review Board (“BRB”) awarding Meyers benefits under the Longshore
and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 (2010).
We affirm.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-60859

      At the time of his accident on May 28, 1994, Meyers was employed as a
mechanic on a work-over rig mounted on a barge. The barge was spudded in at
a well location in Louisiana state waters. Meyers had been working in navigable
waters on the barge for four to five days before the accident. Prior to starting
this job, Meyers was told by his supervisors he could expect to remain on the
barge for a period of months or possibly years. Before he was assigned to the
barge, Meyers had performed essentially the same work for Great Southern on
work-over rigs on land.
      Following a hearing, the Administrative Law Judge (“ALJ”) concluded that
Meyers was not a covered employee under the LHWCA because the barge was
a fixed platform and not a vessel and Meyers was not engaged in a traditional
maritime activity. The BRB reversed and held that Meyers was injured in the
course of his employment on navigable waters and, therefore, under the
Supreme Court’s decision in Director v. Perini North River Associates, 459 U.S.
297, 306-07, 103 S. Ct. 634, 641-42, 74 L. Ed. 2d 465 (1983), Meyers was a
covered employee. The BRB remanded the case to the ALJ to award appropriate
benefits. The ALJ awarded temporary total disability. The BRB affirmed and
this appeal followed.
      This court reviews decisions of the BRB under the same standard that the
BRB reviews decisions of the ALJ. B&D Contracting v. Pearley, 548 F.3d 338
(5th Cir. 2008). That standard is limited to whether the ALJ’s findings of fact
are supported by substantial evidence and are consistent with the law. H.B.
Zachry Co. v. Quinones, 206 F.3d 474, 477 (5th Cir. 2000)(quotations omitted).
Substantial evidence is defined as such relevant evidence that a reasonable mind
might accept as an adequate basis for a factual conclusion. See Richardson v.
Perales, 402 U.S. 389, 401 (1971). This court reviews the legal conclusions of the
BRB de novo. Tarver v. Bo-Mac Contractors, Inc., 384 F.3d 180, 181 (5th Cir.
2004). On the other hand, this court gives deference to the Director of the Office

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                                 No. 09-60859

of Worker’s Compensation Programs’ interpretations of the LHWCA. Pool v.
Cooper, 274 F.3d 173, 177 (5th Cir. 2001).
      The only significant issue on appeal is whether Meyers qualifies for
benefits under the LHWCA. Great Southern argues that performing oilfield
work does not qualify as maritime employment and therefore Meyers has not
satisfied the “status” requirement of the LHWCA to qualify for benefits. We
disagree. As the Supreme Court stated in Perini - “when a worker is injured on
that actual navigable waters in the course of his employment on those waters,
he satisfies the status requirement . . . and is covered by the LHWCA.” 459 U.S.
at 324. Regarding whether the injured employee must establish that he was
engaged in maritime employment, we stated in Bienvenu v. Texaco, Inc.:
      In light of Bienvenu's injury on navigable waters, Texaco
      acknowledges, as it must, that Bienvenu need not establish that he
      was engaged in maritime employment as that term is used in § 2(3)
      of the Act. The Supreme Court's decisions in Perini and Herb's
      Welding foreclose this argument. Those cases recognize that the
      1972 Amendments were not intended to alter the scope of coverage
      for workmen injured on navigable waters. As our discussion above
      demonstrates, before 1972, any workman injured in the course of his
      employment actually engaged in the performance of his assigned
      duties on navigable waters enjoyed coverage under the LHWCA. He
      was not required to perform the traditional maritime work
      described in § 2(3) of the Act.

164 F.3d 901, 906-907 (5th Cir. 1999).
      This case is controlled by Perini and Bienvenu. Great Southern’s reliance
on Herb's Welding, Inc. v. Gray, 470 U.S. 414, 84 L. Ed. 2d 406, 105 S. Ct. 1421
(1985), is misplaced.   As we made clear in Bienvenu, the Supreme Court’s
holding in Herb’s Welding that employees engaged in oilfield work are not
engaged in maritime employment, is not applicable to the facts of this case. This
is because in Herb’s Welding the Court was addressing the status of workers




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                                       No. 09-60859

injured on stationery platforms and not on vessels.1 This court has recognized
that a barge of the exact configuration of the barge in this case was a vessel and
that the employee permanently assigned to that barge was a seaman. Manuel
v. P.A.W. Drilling & Well Service, Inc., 135 F.3d 344 (5th Cir. 1998). Because
Meyers was injured while working on a vessel in navigable waters, the BRB
correctly determined that Meyers was indeed covered under the Act.
       The employer and insurer, in a very brief argument, contended that based
on the testimony of Meyer’s treating physician’s, Dr. Cobb, the ALJ and BRB
erred in awarding temporary total disability benefits. They argue that suitable
alternative employment was available and offered to Meyers, but that Meyers
refused to accept this employment.                The ALJ, however, credited Meyers’
testimony that, because of his pain and limitation of motion, he was unable to
perform the alternate employment.                 Great Southern does not make any
argument as to why the ALJ erred in making these findings, which are
supported by substantial evidence. We therefore decline to disturb the award.
       Meyers argues that his award of benefits should be based on total,
permanent disability rather that temporary total disability as awarded by the
ALJ and affirmed by the BRB. However, since Meyers did not appeal the BRB’s
order we have no jurisdiction to consider that argument.
       For the above reasons, we affirm the BRB’s award of benefits to Meyers
under the LHWCA.
       AFFIRMED.




       1
          Great Southern’s argument that Meyers’s presence on navigable waters at the time
of his injury was transient or fortuitous fails because the BRB’s conclusion to the contrary is
supported by substantial evidence in the record. We decline to consider Great Southern’s
argument that Meyers is foreclosed from coverage under the LHWCA because his work
assignment on the barge rendered him a member of the crew of a vessel, which is a class of
employees statutorily excluded from LHWCA coverage, 33 U.S.C. § 902(3)(G), because that
issue was not raised before the ALJ.

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