1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_____________

No. 08-4651

_____________

CONSOLIDATION COAL COMPANY,

 Petitioner

v.

BENEFITS REVIEW BOARD; DANIEL X. SMITH; 

DIRECTOR OFFICE OF WORKERS COMPENSATION 

PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

 Respondents

_____________

ON PETITION FOR REVIEW OF AN ORDER OF THE 

BENEFITS REVIEW BOARD FROM (Claim No. 08-0287)

Administrative Law Judge: Honorable Daniel L. Leland

______________

Submitted Under Third Circuit LAR 34.1(a)

October 20, 2010

______________
2

Before: HARDIMAN, GREENAWAY, JR., and 

NYGAARD, Circuit Judges

(Opinion Filed: December 22, 2010 )

Jean E. Novak, Esquire

Strassburger, McKenna, Gutnick & Gefsky 

444 Liberty Avenue Suite 2200

Four Gateway Center 

Pittsburgh, PA 15222-0000

Counsel for Petitioner

Stephen P. Moschetta, Esquire

The Moschetta Law Firm 

28 West Cherry Avenue 

Washington, PA 15301-0000

Counsel for Respondent

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge

Consolidation Coal Company (“Consolidation”) 

appeals from the Benefits Review Board‟s (the “Board”) 

decision affirming an Administrative Law Judge‟s (the 

“ALJ”) decision and order that Consolidation must pay 

Daniel Smith (“Smith” or “Claimant”) benefits under the 

Longshore and Harbor Workers‟ Compensation Act 

(“LHWCA” or the “Act”), 33 U.S.C. §§ 901-950, for an 

injury he suffered while working for Consolidation. 

Consolidation argues that the Board erred in affirming the 
3

ALJ because Smith did not satisfy the two-part test under the 

Act—the “status” of the injured individual and the “situs” of 

the injury. Maher Terminals, Inc. v. Dir., Office of Workers‟ 

Comp. Programs, 330 F.3d 162, 166 (3d Cir. 2003). For the 

reasons explained below, we find that the LHWCA covers 

Smith‟s injury. Smith satisfies the two-part test. We shall 

affirm the Board‟s decision.

I. BACKGROUND

Mr. Smith was a diesel mechanic for Consolidation at 

Robena Preparation Plant Facility (“Robena”), where he 

worked in a maintenance garage. Robena is located in 

Greensboro, Pennsylvania, adjacent to the Monongahela 

River. Consolidation prepares and processes coal at Robena. 

Also, it receives “raw” coal from barges, moves the coal by 

conveyor belts through the processing plant, loads the 

processed coal back onto barges, or stockpiles and ships the 

coal later. Clean coal is also occasionally stockpiled beside 

the river rather than loaded directly onto the barges. Coal is 

then dropped into a machine called a de-stock hopper and

goes to the river tipple and into the barges.1 Smith testified 

that, at Robena, he worked on any equipment that ran on fuel. 

Relying on documentary and testimonial evidence, the ALJ 

found that Smith did not work on vessels or components of

vessels, and records showed that the “virtual entirety” of his 

work was as a mechanic performing repairs on Terex 

machines and other heavy equipment. (App. at 21.) 

 

1

 According to Smith, “de-stocking” or “de-stockpiling” is a 

colloquial term referring to taking stockpiled coal and loading 

it onto barges. (Appellee‟s Br. 4 n.1.)
4

The Robena facility covers approximately seven 

hundred acres. The garage where Smith‟s injury occurred is 

approximately one hundred yards from the edge of the 

Monongahela River. The garage is adjacent to the stockpiled 

coal, and to four Quonset huts, where steel cables, used as 

barge running lines, are stored. The garage is also located 

approximately one hundred fifty feet from the de-stock 

hopper. 

On June 22, 1998, Smith was injured while repairing a 

Terex machine that had become disabled while loading coal 

into the de-stock hopper belt, which was adjacent to the 

garage. He shoveled coal out of the Terex onto the de-stock 

belt and brought the Terex to the garage for repairs. While 

using a sixteen-pound sledgehammer to remove rusted hinge 

pins from the Terex, Smith injured his back. 

As a result of the injury, Smith had back surgery and 

has not returned to work. He received benefits under 

Pennsylvania‟s workers‟ compensation law. On May 26, 

2004, Smith filed a claim for benefits under § 908(a) of the 

Act. On March 10, 2006, the parties requested by Joint 

Motion that the issue of jurisdiction be bifurcated from all 

other issues in the case. (Id.) The ALJ granted that request 

on March 13, 2006, and held a formal hearing on the issue of 

jurisdiction on March 30, 2006, in Pittsburgh, Pennsylvania. 

In his Decision and Order, the ALJ determined that 

Smith was eligible for compensation under the Act. 

Specifically, the ALJ held that Smith satisfied both the 

“status” and “situs” aspects of the jurisdictional test. 
5

First, the ALJ decided that Smith was a maritime 

employee, and thus had “status” under 33 U.S.C. § 902(3), 

stating:

[] I find that the evidence of record establishes 

that Claimant was responsible for servicing 

mobile equipment, including Terex machines, 

which were used to load coal from operations 

on land to barges. Claimant stated, and Darrell 

Smith [Smith‟s supervisor] confirmed, that 

Terexes were used, in part, to load coal into the 

de-stock hopper, from which coal goes into the 

river tipple and directly onto barges. The 

Supreme Court has held that a person engaged 

in some portion of loading is as much an 

integral part of the process of loading and 

unloading as a person who participates in the 

entire process. [P.C.] Pfeiffer [Co., Inc. v. 

Ford], 444 U.S. [69,] 83 [(1979)]. The Third 

Circuit concluded that activities are indeed 

maritime if they are an integral or essential part 

of the chain of events leading up to the loading, 

unloading, or building of any vessel. [Sea-Land 

Serv., Inc. v.] Rock, 953 F.2d [56,] 67 [(3d Cir. 

1992)]. Further, it is reasonable to conclude 

that a cessation of barge loading of Robena 

would occur if a mechanic such as Claimant did 

not service heavy equipment at the facility used, 

in part, in the loading process. Thus, 

Claimant‟s work is an integral or essential part 

of the chain of events ensuring that the loading 

process proceeds as Employer‟s business 

requires.
6

(App. at 21.) The ALJ also determined that Smith was 

injured on a covered “situs” under the Act. The ALJ 

reasoned that the garage was essential to the unloading of 

coal from vessels, was located within and around essential 

elements that comprise the loading process, and provided a 

site for repairs on equipment active in the loading process. 

Additionally, the ALJ noted that the Terex machine broke 

down in the midst of loading coal onto the de-stock belt, and 

was squarely within Robena‟s loading or unloading area at 

the time. As a result of these findings, the ALJ decided that 

“[t]he geography and function of the garage [were] 

sufficiently related to navigable waters such that Claimant . . . 

established he was injured on a covered situs.” (Id. at 26.)

Consolidation filed a Notice of Appeal with the Board 

on December 18, 2007, and submitted a brief in support of its 

appeal on February 19, 2008. On September 29, 2008, the 

Board issued a Decision and Order affirming the ALJ.

Before the Board, Consolidation first contended that 

Smith lacked status “because the Terex is not used primarily 

to load coal, and [Smith] repairs other equipment as well.” 

(Id. at 8.) The Board found that these uncontested facts were 

not dispositive, because it read the Supreme Court‟s decision 

in Chesapeake and Ohio Ry. Co. v. Schwalb, 493 U.S. 40 

(1989), to hold that a claimant‟s contribution to the loading 

process need not be constant. (Id. (citing Schwalb, 493 U.S. 

at 48).) Further, the Board held that the ALJ “rationally 

found that interruption of barge loading at the Robena facility 

would occur if a mechanic did not service the heavy 

equipment used in the loading process. Accordingly, the ALJ 

properly concluded that [Smith‟s] work repairing the Terex 

machine is integral to the loading process.” (Id. at 9 (internal 

citations omitted).) 
7

Additionally, the Board found that “substantial 

evidence supports [the ALJ‟s] finding that [Smith] spent „at 

least some of his time‟ in indisputably maritime work as this 

repair work was a regular non-discretionary part of [Smith‟s] 

job.” (Id. (quoting Maher, 330 F.3d at 164.))

The Board also affirmed the ALJ‟s decision that 

Smith‟s injury occurred on a covered situs; specifically, the 

ALJ ruled that the garage was a covered situs. In so ruling, 

the Board recognized that this Circuit has not addressed 

whether a mixed-use situs where an employer maintains and 

repairs equipment used in both its loading/unloading and its 

plant operations, such as the Robena garage where Smith was 

injured, is an “adjoining area” under § 3(c) of the Act. The 

Board relied on statutory construction and authority from the 

United States Courts of Appeal for the First, Fifth, and Ninth 

Circuits. The Board rejected Consolidation‟s contention that 

§ 3(a) of the Act “mandates that the site of an injury must be 

specifically used for loading, unloading, repairing, 

dismantling, or building a vessel to constitute an adjoining 

area.” (App. at 12.) Rather, the Board found that because the 

garage had both a functional and geographical nexus to the 

loading site on the river, it was a covered situs under the Act.

On November 28, 2008, Consolidation filed a timely 

petition for review in this Court seeking reversal of the 

Board‟s decision.

II. JURISDICTION AND STANDARD OF REVIEW

We exercise jurisdiction over this matter, pursuant to 

33 U.S.C. § 921(c), which “gives the courts of appeals 

jurisdiction to review final orders of the Benefits Review 

Board.” Sea-Land Serv., Inc. v. Rock, 953 F.2d 56, 59 (3d 
8

Cir. 1992). We review the Board‟s decision to determine 

“whether the Board acted in conformance with applicable law 

and within its proper scope of review.” Id. (citation omitted). 

The Board is bound by the ALJ‟s factual findings if they are 

supported by substantial evidence. Kowalchick v. Dir., 

Office of Workers‟ Comp. Programs, 893 F.2d 615, 619 (3d 

Cir. 1990). In reviewing the Board‟s decision, we must 

therefore independently review the record and decide whether 

the ALJ‟s findings are supported by substantial evidence. Id. 

Substantial evidence is “more than a mere scintilla,” and is 

“such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Id.

“Because the Board does not administer the 

[LHWCA], our review of its interpretation of the Act is 

essentially plenary but we will respect the Board‟s 

interpretation if it is reasonable.” Maher, 330 F.3d at 166 

(internal citations and quotation marks omitted). 

III. ANALYSIS

Consolidation argues that the Board erred in affirming 

the ALJ‟s decision that Smith met both the situs and status 

tests under the Act.2 Based on our review of the record, we 

 

2

In 1972, Congress amended the Act to extend coverage 

landward. We summarized the significance of this 

amendment in Sea-Land Serv., Inc. v. Rock, 953 F.2d 56 (3d 

Cir. 1992): 

Before [1972], [the Act] 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 
9

conclude that the Board acted in conformance with applicable 

law and the ALJ‟s decision was supported by substantial 

evidence. We find that Smith‟s injury placed him within the 

ambit of the Act‟s status and situs requirements. 

A. Status

Consolidation argues that Smith does not meet the 

Act‟s status requirement. It contends that his work as a 

mechanic was not integral to the loading and unloading 

process, and that when he was injured, while repairing the 

Terex, he was neither engaged in the loading or unloading of 

 

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 place of the situs test, Congress substituted a 

two-part test “looking both to the „situs‟ of the 

injury and the „status‟ of the injured,” to 

determine eligibility for compensation. 

Northeast Marine Terminal Co. v. Caputo, 432 

U.S. 249, 265, 97 S.Ct. 2348, 2357, 53 L. Ed.

2d 320 (1977).

Rock, 953 F.2d at 60 (internal citations omitted).
10

ships, nor was he performing duties integrally connected with 

the loading or unloading process at the river‟s edge. 

With regard to status, § 902(3) of the Act states that a 

covered employee must be a “person engaged in maritime 

employment, including any longshoreman or other person 

engaged in longshoring operations, and any harbor-worker 

including a ship repairman, shipbuilder, and ship-breaker, but 

such term does not include-” certain enumerated categories of 

employees under § 902(3). Schwalb, 493 U.S. at 45. 

Maritime employment within the meaning of § 902(3) 

“expressly includes the specified occupations but obviously is 

not limited to those callings.” Id. at 45 (citing Herb‟s 

Welding, Inc. v. Gray, 470 U.S. 414, 423 n.9 (1985)). In 

Schwalb, the Supreme Court held that covered activities 

included those of employees who are injured “while 

maintaining or repairing equipment essential to the loading or 

unloading process . . . .” Id. at 47. There, the Court upheld 

coverage for three employees, two of whom were responsible 

for ordinary janitorial services in addition to cleaning spilled 

coal from loading equipment to prevent it from 

malfunctioning. It found that “[s]omeone who repairs or 

maintains a piece of loading equipment is just as vital to and 

an integral part of the loading process as the operator of the 

equipment.” Id. Additionally, the Court held that “[i]t is 

irrelevant that an employee‟s contribution to the loading 

process is not continuous or that repair or maintenance is not 

always needed.” Id. “The determinative consideration is that 

the ship loading process could not continue unless [the 

machinery] that [claimant] worked on was operating 

properly.” Id. at 48. 
11

We reject Consolidation‟s argument that Smith fails to 

meet the status requirement. First, the fact that Smith did not 

repair the Terex “at river‟s edge,” a requirement that 

Consolidation apparently reads into the status test, is not 

dispositive. As the Supreme Court has indicated, the purpose 

of the test is “to cover those workers on the situs who are 

involved in the essential elements of loading and 

unloading[.]” Herb‟s Welding, 470 U.S. at 423. 

Additionally, pursuant to the test articulated by the Supreme 

Court in Schwalb, we have held that “[l]and-based activity 

occurring within the section 903 situs . . . should be deemed 

maritime only if it is an integral or essential part of the chain 

of events leading up to the loading, unloading, or building of 

a vessel.” Rock, 953 F.2d at 67. Thus, although Smith‟s 

work was “land-based,” because the ALJ found his work to 

be “integral” or “essential” to Robena‟s loading or unloading 

operations, he met the Act‟s status requirements. (App. at 

21.)

We also reject Consolidation‟s argument that the ALJ 

had no basis for finding that Smith‟s work was so integral or 

essential as to be covered by the Act. In support of this 

argument Consolidation contends that Smith‟s regular job as 

a mechanic included repair and maintenance of processing 

equipment that was not integral to the loading or unloading of 

coal. However, as the Board held, covered employees 

include those whose contribution to the loading process, like 

Smith‟s, need not be continuous. See Schwalb, 493 U.S. at 

41; see also Maher, 330 F.3d at 170 (looking to the regular 

portion of overall tasks to which claimant could be assigned 

and whether he spends at least some of his time in 

indisputably longshoring operations).
12

The ALJ found, based on testimony from Claimant and 

his supervisor, Darrell Smith, that Claimant was responsible 

for servicing mobile equipment including Terexes. He also 

found that the Terex is used, at least in part, to load stockpiled 

coal into the de-stock hopper, which transfers the coal to a 

conveyor belt, which then transfers the coal to a barge on the 

river. Consolidation does not challenge the ALJ‟s finding 

that the Terex was used at times to load processed coal 

ultimately deposited onto barges. The Board, relying on 

Schwalb, properly found the Terex‟s non-continuous function 

to move coal was not a disqualifying factor.

This aspect of Claimant‟s employment creates a 

sufficient nexus to the loading and unloading of cargo, unlike 

the work of the employee in Rock, who is the focus of 

Consolidation‟s argument. See id., 953 F.2d at 67 

(insufficient nexus found where claimant, a courtesy van 

driver, may have occasionally transported longshoremen 

within employer‟s maritime facility, but job description did 

not include this responsibility). The testimonial evidence 

above supports the ALJ‟s conclusion that Claimant‟s 

responsibilities were integral to the loading or unloading of 

coal. 

The ALJ further relied on Claimant and Darrell 

Smith‟s evidence in concluding that a cessation of barge 

loading at Robena would eventually occur if a mechanic like 

Claimant did not service heavy equipment used in the loading 

process. The Board affirmed the ALJ‟s decision, finding 

immediate cessation of loading was not disqualifying because 

it could eventually happen.3 Because we find that the ALJ 

 

3 The First Circuit has also found that immediate cessation of 

the shipbuilding process is not dispositive. See, e.g., 
13

relied on substantial evidence in determining that Smith‟s 

repair work was essential to, and an integral part of, the chain 

of events ensuring the continuation of the loading or 

unloading process, we find this conclusion reasonable as well. 

B. Situs

Consolidation next argues that that Board‟s situs 

determination was incorrect. The situs requirement concerns 

the location where a claimant seeking coverage under the Act 

suffered his or her injury. Consolidation contends that Smith 

was not injured on a covered situs because the garage in 

which he was injured was not an adjoining area customarily 

used by Consolidation for the loading, unloading, repairing, 

dismantling, or building of vessels. Consolidation posits that 

the language of § 903(a) makes clear that a site qualifies as an 

adjoining area under the provision only if it is used for those 

enumerated purposes. Section 903(a) states:

Except as otherwise provided in this section, 

compensation shall be payable under this 

chapter 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, 

 

Graziano v. Gen. Dynamics Corp., 663 F.2d 340, 343 (1st 

Cir. 1981) (finding that claimant‟s maintenance and repair of 

shipyard facilities was essential to the building and repairing 

of ships, and failure to repair routine maintenance “would 

have led eventually to a stoppage or curtailment of 

shipbuilding and repairs.”).
14

building way, marine railway, or other 

adjoining area customarily used by an employer 

in loading, unloading, repairing, dismantling, or 

building a vessel).

33 U.S.C. § 903(a). Because Smith was not actually on 

navigable water or on a pier, wharf, dry dock, terminal, 

building way, or marine railway at the time of his injury, the 

determinative question is whether the garage in which 

Smith‟s injury occurred is an “adjoining area customarily 

used by an employer in loading, unloading, repairing, 

dismantling, or building a vessel.” Id.

The ALJ found that the garage was 100 yards from a 

navigable waterway and that it “was neither an area used by 

[Consolidation] for loading or unloading coal, nor was it used 

for repairing, dismantling, or building vessels.” (App. at 25.) 

Rather, “it was used for the repair of equipment . . . essential 

to the loading and unloading of coal from vessels.” (Id.) 

Therefore, we must determine whether the garage constitutes 

an “adjoining area” under § 903(a) and whether the garage, a 

site used for the repair of equipment essential to the loading 

and unloading of coal from vessels, is a covered situs under § 

903(a). 

i. Adjoining Area 

Although Consolidation‟s argument focuses on the 

ALJ‟s finding with respect to the “usage” part of the situs 

test, it also argues that the ALJ‟s conclusion leads to a 

definition of “adjoining area” far more expansive than that 

contemplated by the Act. Before 1972, the Act limited 

coverage to workers only for “injuries occurring on navigable 

waters.” Schwalb, 493 U.S. at 46. The pre-1972 situs test 
15

therefore drew “a sharp line between injuries sustained over 

water and those suffered on land.” P.C. Pfeiffer Co., Inc. v. 

Ford, 444 U.S. 69, 72 (1979). 

We have acknowledged the Supreme Court‟s repeated 

emphasis “that the broad language employed in the 1972 

amendments indicates that an expansive view of the 

legislation is appropriate.” Nelson v. Am. Dredging Co., 143 

F.3d 789, 795 (3d Cir. 1998) (citing Northeast Marine 

Terminal Co. v. Caputo, 432 U.S. 249, 268 (1977)). 

Construing the statute as required in Nelson, we gave the 

word “area” its plain meaning and determined that it does not 

denote a building or structure as such, but “an open space, 

indeed sometimes within a building or other structure.” Id. at 

797.4 

In Dravo Corp. v. Maxin, 545 F.2d 374 (3d Cir. 1976), 

cert. denied, 433 U.S. 908 (1977), although we did not define 

“adjoining,” we held that the structural shop where the 

claimant was injured satisfied the situs test where “[t]he great 

majority of the work performed in the shop [wa]s related to 

shipbuilding or ship repair.” Id. at 381. We also held that the 

facility was an adjoining area, notwithstanding that it was 

located 2,000 feet from the navigable channel and separated 

from more of the facility by a city street. Id. at 380. 

 

4 We noted in Nelson that the beach, the situs at issue which 

was covered under the Act, was contiguous to navigable 

waters; however, we did not define “adjoining,” as used in the 

statute. Id. at 798 (noting that the “broader context of the 

statute” indicated Congress‟ intent primarily to ensure that 

areas on or adjacent to navigable waters be covered).
16

Our sister circuits‟ rationale in defining “adjoining 

area” is also instructive.5 The Fifth Circuit, in examining 

whether an injury which took place in a gear locker used for 

the storage and maintenance of gear used to perform the 

loading operations five blocks from any wharf, held that the 

broader meaning of “adjoin”—“to be close to,” “to be near,” 

or “neighboring”—“instill[s] in the term its broader meanings 

. . . in keeping with the spirit of the congressional purposes.” 

Texports Stevedore Co. v. Winchester, 632 F.2d 504, 513-14 

(5th Cir. 1980). 

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 [Act]. 

To require absolute contiguity would be to 

reenact the hard lines that caused longshoremen 

to move continually in and out of coverage. It 

would frustrate the congressional objectives of 

providing uniform benefits and covering landbased maritime activity.

Id. at 514-15. 

The Ninth Circuit, in an opinion by then-Circuit Judge 

Kennedy, also adopted a broad reading of “adjoining area,” 

finding that “[i]n order to further Congress‟ goal of uniform 

coverage, the phrase „adjoining area‟ should be read to 

 

5 On the other hand, the Fourth Circuit has held “that an area 

is „adjoining‟ navigable waters only if it . . . is „contiguous 

with‟ or otherwise „touches‟ such waters.” Sidwell v. Express 

Container Servs., Inc., 71 F.3d 1134, 1138 (4th Cir. 1995). 

We decline to adopt that approach.
17

describe a functional relationship that does not in all cases 

depend upon physical contiguity.” Brady-Hamilton 

Stevedore Co. v. Herron, 568 F.2d 137, 141 (9th Cir. 1978). 

That court enunciated a non-exclusive list of factors to 

consider in determining whether or not a site is an „adjoining 

area‟ under § 903(a), including “the particular suitability of 

the site for the maritime uses referred to in the statute; 

whether adjoining properties are devoted primarily to uses in 

maritime commerce; the proximity of the site to the 

waterway; and whether the site is as close to the waterway as 

is feasible given all of the circumstances in the case.” Id. 

The court found that a gear locker used for storing and 

repairing machinery and equipment used exclusively for 

loading and unloading vessels and located approximately 

2,600 feet north of the edge of the water was a covered situs 

under the Act. Id. 

The expansive view of the 1972 amendments militates 

strongly in favor of defining “adjoining area” broadly. Thus, 

an area adjoins the navigable waters of the United States if it 

is “close to” or “near” those waters. Winchester, 632 F.2d at 

514. However, the nearness of two locations is contextual. 

In this context, we find that in light of the spirit of the 

amendments and the Act‟s legislative history, our own 

expansive definition of “area” as articulated in Nelson, and 

the decisions of our sister circuits in Herron and Winchester, 

the Robena garage, located approximately one hundred yards 

(or three hundred feet) from the Monongahela River is an 

adjoining area under § 903(a). We view the ALJ‟s finding 

that the garage is located within and around essential 

elements of the loading operation of the maritime component 

of the Robena, specifically next to the stockpiled coal and 150 
18

feet from the de-stock hopper, is evidence consistent with this 

conclusion.

ii. Customarily Used in an Enumerated Activity

In addition to being adjoining, the area must also 

“customarily [be] used by an employer in loading, unloading, 

repairing, dismantling, or building a vessel.” 33 U.S.C. § 

903(a). Here, the ALJ found, and the Board affirmed, that the 

garage serviced aspects of the loading process, thereby 

“ensuring the smooth operation of the maritime component of 

the Robena facility.” (App. at 11.) Under Nelson, it is 

enough, the Board determined, that the garage had some 

maritime purpose.

The site at issue in Nelson was a beach, which we 

found to be “customarily used by at least one maritime 

employer to unload its vessel.” 143 F.3d at 797. That usage 

satisfied an enumerated ground because of the area‟s use in 

unloading vessels. Here, it is undisputed that the Robena 

garage was not “directly” or “immediately” used for loading, 

unloading, repairing, dismantling, or building a vessel. It was 

used, however, to house and repair equipment necessary for 

these purposes. Subsequently, the Board held that “[t]he 

garage has a functional nexus with the loading process on the 

river sufficient to bring it within the scope of Section 

[90]3(a).” (App. at 12 (citing Pearson v. Jered Brown Bros., 

et al., 39 Ben. Rev. Bd. Serv. 59 (2005), aff‟d on recon. en 

banc, 40 Ben. Rev. Bd. Serv. 2 (2006)).) Thus, the question 

to resolve is whether it is sufficient for an “adjoining area” to 

have a functional nexus with one of the activities enumerated 

in § 903(a).
19

The Fifth and Ninth Circuits have held that a 

functional nexus between the site and the maritime activities 

is sufficient for the location of the injury to satisfy § 903(a) 

where the facility is used for repair or storage of equipment 

integral or essential to the enumerated purposes in the Act. 

Herron, employing a functional relationship test, found that 

“[a]ll of the machinery and equipment in the Brady-Hamilton 

gear locker was used exclusively for loading and unloading 

vessels.” 568 F.2d at 141. Thus, the court concluded that an 

injury suffered in the gear locker, which “was used as an 

integral part of longshoring operations” including the loading 

and unloading of vessels, “occurred at a place within the situs 

requirements of the Act.” Id. 

Similarly, the Fifth Circuit held that a gear room,

housing repair and maintenance equipment for loading and 

unloading operations, was a part of the on-going overall 

loading process. Based on this situation, the Court held that 

the gear room “ha[d] a sufficient nexus to the waterfront” to 

meet the situs requirement. Winchester, 632 F.3d at 504, 515. 

More recently, the Fifth Circuit has clarified that its holding 

in Winchester “teaches that if a particular area is associated 

with items used as part of the loading process, the area need 

not itself be directly involved in loading or unloading a vessel 

or physically connected to the point of loading or unloading.” 

Coastal Prod. Servs. Inc. v. Hudson, 555 F.3d 426, 434 (5th 

Cir. 2009).

Since the Supreme Court‟s holding in Caputo, we have 

not addressed whether a functional nexus is sufficient to 

satisfy the situs requirement.6 In Sea-Land v. Dir., Office of 

 

6

In Sea-Land Service, Inc. v. Dir., Office of Workers‟ Comp. 

Programs, we suggested that as long as the employment 
20

Workers‟ Comp. Programs, we stated that the key to the 

status determination “is the functional relationship of the 

employee‟s activity to maritime transportation[.]” 540 F.2d 

629, 638 (3d Cir. 1976). We find it to be consistent with our 

ruling on status, looking to whether an employee performs 

work that is integral and essential to the loading process, as 

well as with the Supreme Court‟s instruction to construe the 

statute liberally, Caputo, 432 U.S. at 268, to apply a similar 

functional nexus test to the situs requirement. The repair 

work employing loading and unloading equipment in the 

garage satisfies the functional nexus test and leads us to 

conclude that the garage is a covered situs.

Consolidation argues that applying the functional 

nexus test must lead to a different result. Principally, 

Consolidation posits that Winchester and Herron are 

distinguishable from this case. It argues that the sites in 

question in those cases were used exclusively to service 

equipment used in the loading and unloading process, 

whereas the garage in this case was used to service all heavy 

equipment used at Robena, whether or not it related to the 

unloading or loading of vessels. The Board is correct insofar 

as it relies on Nelson to hold that exclusive use of the garage 

 

nexus, or status, was maintained, the federal compensation 

remedy should be available. Since that decision, we have 

acknowledged that “[t]he status and situs tests were 

subsequently approved by the Supreme Court in Northeast 

Marine Terminal Co. v. Caputo.” Dravo Corp. v. 

Occupational Safety and Health Review Com‟n, 613 F.2d 

1227, 1231 n.8 (3d Cir. 1980); see also, Maher, 330 F.3d 

at166 (3d Cir. 2003); Nelson, 143 F.3d at 794; Rock, 953 

F.2d at 60.
21

for an enumerated purposes is not necessary. Nelson, 143 

F.3d at 796-97; see also Coastal Prod., 555 F.3d at 437. 

Thus, using the functional nexus test, Consolidation‟s 

argument that the non-exclusive use of the Robena garage for 

repair of loading equipment prevents its coverage under the 

Act is unavailing. 

Further, Consolidation asserts that the Terex on which 

Smith was working when he was injured was itself not used 

exclusively for loading or unloading. Thus, Consolidation 

argues that we should instead rely on the Board‟s decision in 

Maraney v. Consolidation Coal Co., 37 Ben. Rev. Bd. Serv. 

97 (2003), which held that a mobile equipment operator using 

a Terex to haul refuse was not covered by the Act. Maraney, 

however, is plainly distinguishable from this case. 

In Maraney, the Board held that an entire maritime 

facility was not a covered situs under § 903(a). “[W]here a 

site contains distinct areas used for loading and unloading, 

and for non-maritime manufacturing purposes, the separate 

manufacturing area has been held outside the Act‟s 

coverage.” Id. at 100. Thus, the Board held that the location 

at issue in Maraney—which “[wa]s merely a repository for 

slate and slurry, which are by-products of the cleaning 

process,” and which “d[id] not store products destined for 

vessels”—“ha[d] no functional relationship with the 

navigable water where employer‟s unloading/loading 

operations occur[ed].” Id. at 102. Here, the Board found that 

the Robena garage had at least some relationship to the 

loading and unloading process: “The administrative law 

judge found that the operations of the garage are related in 

part to the loading process since repairs are undertaken there 

of equipment essential to the loading and unloading of coal.” 

(App. at 11.) In addition, the ALJ found that “[t]he Terex 
22

machine on which claimant was working when he was injured 

was brought in for repair after breaking down while loading 

coal onto the de-stock hopper belt,” which loaded the 

processed coal back onto barges located on the Monongahela. 

(Id.) 

These findings are supported by substantial evidence 

and are more than sufficient to demonstrate a functional 

nexus between the garage and the loading and unloading 

activities enumerated in § 903(a), as the garage serviced at 

least some equipment essential to the loading of coal. This 

conclusion is reinforced by the Supreme Court‟s holding that 

an expansive view of the extended coverage under the 1972 

Amendments is proper. Caputo, 432 U.S. at 268.

IV. CONCLUSION

We find that Smith‟s employment satisfies the status 

requirement and the garage where Smith was injured satisfies 

the situs requirement of § 903(a). We hold that the Board did 

not err in determining that Smith‟s claim fell within the 

intended scope of LHWCA and we will affirm the Board‟s 

decision.