* District Judge of the Western District of Texas, sitting by designation.

1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 01-60705

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BOOMTOWN BELLE CASINO; LOUISIANA WORKERS’ COMPENSATION CORPORATION,

Petitioners,

versus

JERRY KATE BAZ OR, Widow of Ben Bazor; DIRECTOR, OFFICE OF WORKER’S

COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR; GREAT-WEST LIFE AND

ANNUITY INSURANCE COMPANY,

Respondents.

___________________________________________________

Petition for Review of an Order of the

Benefits Review Board

___________________________________________________

December 6, 2002

Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and HUDSPETH, * District Judge.

EDITH BROWN CLEMENT:

Petitioner Boo mt o wn Belle Casino (“Boomtown”) asks this Court to set aside the Benefit

Review Board’s order affirming the award of compensation benefits under the Longshore and Harbor

Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq.

, to Jerry Kate Bazor (“Bazor”),

widow of Ben Bazor (“the Decedent”), and reimbursement to the Decedent’s health insurer, Great-2

West Life and Annuity Insurance Company (“Great-West”). We reverse for two independent, legally

sufficient reasons: Decedent did not have the employee “status” required by the LHWCA and

Decedent was not injured at a “situs” covered by the LHWCA.

I. BACKGROUND

Boom town hired Ben Bazor as chief engineer of the “Boomtown facility,” the land-based

operations of the casino. The Boomtown facility comprises a personnel office, one o r two

warehouses, and a “main” building. The casino itself occupies a boat floating in the Harvey Canal

in Harvey, Louisiana. At all times pertinent to this suit, the “main” building was yet to be completed,

the Boom town facilit

y included a “temporary tent,” and the casino boat was under construction at

the Avondale shipyard and had not yet been moored at t he Boomtown facility. Apparently, the

temporary tent was to provide a waiting area for casino patrons after the boat was in place but before

the main building was operational.

Mr. Bazor worked 40-hour weeks for his first month of employment. Beginning in his second

month, Mr. Bazor worked 10-12 hours per day in preparation for th e casino opening. As chief

engineer, Mr. Bazor was ultimately responsible for the work of supervisors and employees in the

housekeeping, maintenance, and outside grounds departments, some of whom Mr. Bazor hired during

his tenure. Some of the workers under Mr. Bazor’s supervision wired slot machines, data processing

equipment, and security systems on the vessel while it was at Avondale. Others cleaned the boat.

At some poi nt , Mr. Bazor oversaw work to lower the point where the gangplank attached to the

dock, ensuring the gangplank would not be too steep when the boat fel l wit h the tide. Once in

operation, Mr. Bazor’s responsibilities on board the casino were to include general maintenance. In3

preparation for such responsibilities, Mr. Bazor regularly visited the Avondale shipyard to note the

position of wires and pipes before Avondale workers enclosed them in walls.

Eight days into his second month of employment, Mr. B azo r collapsed while under the

temporary tent. Mr. Bazor was diagnosed with an aneurysmal subarachnoid hemorrhage, or stroke.

Mr. Bazor never regained consciousness. He remained in intensive care for approximately forty-eight

days and died in a nursing home roughly three years later. Great-West paid over $600,000 in medical

expenses to and on behalf of Mr. Bazor and his family.

Bazor brought a LHWCA claim for permanent total disabilit y benefits, pursuant to 33 U.S.C.

§ 908(a), and death benefits, pursuant to § 909. Great-West int ervened and requested

reimbursement.

The Administrative Law Judge (“ALJ”) held Bazor satisfied the status and situs requirements,

predicate s t o LHWCA coverage under § 902(3) and § 903(a), respectively. The ALJ awarded

benefits to Bazor, reimbursement to Great-West, and attorney’s fees to them both.

Boom town and the Louisiana Workers’ Compensation Corporati on (“LWCC”) appealed to

the Benefits Review Board (“BRB”). The BRB affirmed. Boomtown and LWCC appealed to this

Court, pursuant to § 921(c).

II. STANDARD OF REVIEW

This Court upholds BRB decisi o ns that are supported by substantial evidence and in

accordance with law. E mpire United Stevedores v. Gatlin

, 936 F.2d 819, 822 (5th Cir. 1991). We

review the determination of LHWCA coverage by either an ALJ or the BRB as a question of law.

Hullinghorst Indus., Inc. v. Carroll , 650 F.2d 750, 753 (5th Cir. Unit A July 1981).4

III. DISCUSSION

A claimant must satisfy both a status and a situs requirement in order to qualify for LHWCA

coverage. Director v. Perini N. River Assocs. , 459 U.S. 297, 314 (1983).

A. STATUS REQUIREMENT

The LHWCA covers longshoremen and harbor workers, but excludes some individuals for

various reasons:

(3) The term “employee” means any 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—

(A) individuals employed exclusively to perform office clerical, secretarial,

security, or data processing work;

(B) individuals employed by a club, camp, recreational operation,

restaurant, museum, or retail outlet;

(C) individuals employed by a marina and who are not engaged in

construction, replacement, or expansion of such marina (except for routine

maintenance);

. . . .

if individuals described in clauses (A) through (F) are subject to coverage under a

State workers’ compensation law.

§ 902(3). Congress added § 902(3)(A)-(F) to the LHWCA in 1984.

Boomtown argues that whether an employee is excluded from coverage under § 902(3)(B)

is determined entirely by the nature of his or her employer. S ee Arnest v. Miss. River Boat, Ltd.

, 29

BRBS 423(ALJ), 425(ALJ) (1995) (noting the “absurdity” that a Biloxi Belle Casino’s pit

manager/floor supervisor, but not the casino’s bartenders and gift shop sales clerks, would be covered

by the LHWCA); P eters v. Roy Anderson Bldg. Corp.

, 29 BRBS 437(A L J), 442(ALJ) (1995)2 The legislative history states: “some enterprises which are provided with exclusions

under sections [902(3)(B) and (C)] because of the nature of the employing enterprise may in fact

employ workers who should remain covered by the Act because of the nature of the work which

they do, or the nature of the hazards to which they are exposed.” H.R. R EP

. N O

. 98-570, pt. 1, at

4 (1984), reprinted in 1984 U.S.C.C.A.N. 2734, 2737.

5 (granting a ship cleaner LHWCA coverage because her employer, a general contractor, was not

expressly excluded by statute). Boomtown asserts that because a casino is a “recreational operation,”

it s employees are categorically denied LHWCA coverage under § 902(3)(B). The law is mo re

nuanced than Boomtown acknowledges.

In Green v. Vermillion Corp

. , t his Co urt looked at the club and camp exceptions in §

902(3)(B). 144 F.3d 332, 335 (5th Cir. 1998). Green worked as cook, watchman, and general

repairman at a hunting camp but was employed by a corporate entity with operations from trapping

a lligat o rs to rice farming. Green sought LHWCA coverage, arguing § 903(3)(B)’s club or camp

exclusion did not apply because he was not an individual employed by a club or camp. Id. The district

co urt rejected this argument, stating such a “construction of § 902(3)(B) renders the exception

mea ningless in today’s world of business organizations.” I d. We affirmed and provided a test in

situations of conglomerate employers. “Green worked e xclusively to f urther an operation w

hich

comports with the plain meaning of the terms ‘camp’ and ‘club.’

. . . Since Green was emp loyed

solely to render services to promote and maintain a duck camp, we hold that he is excluded from

LHWCA coverage under § 902(3)(B).” I d. (emphasis added). In passing, G reen noted the legislative

history of the Act’s 1984 amendments did not alter its conclusion. Id. 2

Bazor resists the plain language of § 902(3 )(B) wit h t he legislative history mentioned in

Green

, and wit h Huff v. Mike Fink Restaurant, Benson’s Inc. , 33 BRBS 179 (1999). H uff

, the

BRB’s first opportuni ty to address the § 902(3)(B) exclusion, id. at 181, rejected a categori cal6

exemption from coverage for individuals employed by entities listed in § 902(3)(B). I d. at 185.

Instead, Huff adopted for status inquiries under § 902(3)(B) the status test devel oped pri or to the

1984 amendments: “in determining whether a claimant is a covered maritime employee under the

Act, the inquiry centers on the claimant’s assignable duties at the time of injury, not the corporate

purpose or structure of the employer.” Id. at 185; see generally Northeast Marine Terminal Co. v.

Caputo

, 432 U.S. 249, 269-74 (1977) (anal yzing § 902(3)(B)). The BRB found its reasoning in

Shano v. Rene Cross Construction

, 32 BRBS 221 (1998) (adopting Caputo test for § 902(3)(C)

inquiries) persuasive, and cited Green as support for its conclusion. Huff , 33 BRBS at 185.

We agree with Boom

town that the § 902(3)(B) coverage exclusion turns, as an init ial matter,

on the nature of the employing entity, and not on the nature of the duties an employee performs. The

plain l anguage o f § 902(3)(B) excludes from coverage “individuals employed by a club, camp,

recreational operation, restaurant, museum, or retail outl et” without reference to the nature of the

work they do. A ccord 1984 U.S.C.C.A.N. at 2737 (Paragraphs 902(3)(B) and (C) “exclud e

employees because of the nature of the employing enterprise, as o pposed to the excl usi ons i n

paragraph 2(3)(A), which are based on the nature of the work which the employee is performing.”).

It is true the legislative history states “that some enterprises which are provided with exclusions under

sections [902(3)(B) and (C)] because of the nature of the employing enterprise may in fact employ

workers who should remain covered by the Act because of the nature of the work which they do, or

the nature of the hazards t o which they are exposed.” I d. But the statute itself carves away the

coverage exception based upon the nature of an employee’s work only in § 903(3)(C), with respect

to individuals employed by a marina. Hence, we are not persuaded by Huff ’s adoption of Shano ’ s

reasoni7 ng for

§

903(3)

(B),

where

C ongre

s s

decline

d to

carve

away

the

covera

g e

excepti

on.

The parties did not seriously argue whether a floating casino is a “recreational operation” for

purposes of § 902(3)(B). We hold that it is. Consequently, Decedent is not covered by the LHWCA.

Even if we entertained the idea that Boom town was a conglomerate with mult iple business endeavors,

one of which was longshoring, Decedent does not satisfy the status requirement under the Green test.

Decedent was hired as the chief engineer of the Boom town facili

t y. All of his duties of (1)

maint aining the Boom

town facilit y, (2) sending employees to wire slot machines, data processing8

equipment, and security systems, and (3) sending employees to clean the boat, exclusively furthered

the operati on o f the casino. Under the language of the statute, Decedent, as an employee of a

recreational operation, is not covered by the LHWCA even if some of his duties expose him to the

hazards associated with maritime commerce.

B. SITUS REQUIREMENT

Boomtown contends Decedent does not satisfy the situs requirement of the LHWCA. We

agree. The LHWCA provides a recovery

i f t he 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

r ailway, or other adjoining area customarily used by an employer in loading, unloading,

repairing, dismantling, or building a vessel).

33 U.S.C. § 903(a).

Whether an adjoining area is a § 903(a) situs is determined by the nature of the adjoining area

at the time of injury. S ee Nelson v. Guy F. Atkinson Constr. Co.

, 29 BRBS 39, 41 (1995) (holding

that powderman injured while digging a lock on the Columbia River did not satisfy the “situs” element

because the site had yet to be used for marit ime commerce). At the time of Decedent’s stroke, the

Boom town facilit

y had yet to be used for a marit ime purpose. Nobody had loaded or unloaded cargo,

and nobody had repaired, dismantled, or built a vessel.

Bazor seeks to avoid this result with an early Fifth Circuit case proposin g that the si tus

requirement is governed by whether the situs “clearly played an integral role in employer’s overall

marit ime enterprise thereby qualifying as an adjoining area under the Act.” T exports Stevedore Co.

v. Winchester

, 632 F.2d 504, 507-5 08 (5t h Cir. 1980). Bazor notes the tent’s integral role in

Boomtown’s operation: the tent was within 50-300 feet of the Harvey Canal, the tent was to be used9

for passen g ers waiting to embark, and the tent and vessel were to be connected by a covered

walkway. Bazor’s appeal to the broad language in T exports is unavailing, as that case considered the

geographic dimension to “adjoining areas” and not the temporal dimension.

IV. CONCLUSION

For the reasons stated, we reverse the order of the Benefits Review Board.

REVERSED.