IN THE UNITED STATES
COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Margie A. Pickett
(Widow of Joseph Pickett),
Petroleum Helicopters, Inc.;
Employers Insurance of Wausau,
a Mutual Company;
Director, Office of Worker's
United States Department of
Petition for Review of a Decision of the
Benefits Review Board
September 28, 2001
Before JONES, SMITH, and DeMOSS, Circuit Judges.
Margie Pickett appeals a decision of the Benefits
Review Board ("BRB") that she does not qualify for death benefits regarding
her late husband, Joseph Pickett, under the Longshore and Harbor Workers'
Compensation Act ("LHWCA"), as adopted in the Outer Continental Shelf Lands
Act ("OCSLA"), 43 U.S.C. § 1333(b). We affirm.
Joseph Pickett was a helicopter pilot for
Petroleum Helicopters, Inc., performing contract services for Amerada Hess
Corporation. He ferried workers and equipment between land and offshore
platforms. He was killed when his helicopter crashed over land during a
Margie Pickett filed for benefits under the
OCSLA. An administrative law judge ruled Pickett ineligible under OCSLA
because his death did not occur over the Outer Continental Shelf ("OCS")
and thus did not satisfy this court's situs requirement for OCSLA benefits.(2)
Margie Pickett appealed to the BRB, which affirmed.
Margie Pickett concedes that the death did
not occur over the OCS but argues that the plain language of OCSLA is inconsistent
with this court's situs requirement. Whatever the merits of Pickett's statutory
argument, however, we are bound by Mills v. Director, OWCP, 877
F.2d 356, 362 (5th Cir. 1989) (en banc), which allows OCSLA coverage only
for employees who "(1) suffer injury or death on an OCS platform or the
waters above the OCS; and (2) satisfy the 'but for' status test this court
described in Herb's Welding, Inc. v. Gray, 766 F.2d 898, 900 (5th
Cir. 1985)." Accord Sisson v. Davis & Sons, 131 F.3d 555, 558
(5th Cir. 1998).
Margie Pickettt argues that Mills is
factually distinct and that our earlier decisions therefore should control.
We disagree. The relevant language in Mills is not fact-specific,
but categorically requires the injury to occur on the OCS. In fact, the
court discussed the two cases on which Margie Pickett relies:
The Director argues that we imposed no situs
requirement for § 1333(b) coverage in Barger v. Petroleum Helicopters,
Inc., 692 F.2d 337 (5th Cir. 1982), and Stansbury v. Sikorski Aircraft,
681 F.2d 948 (5th Cir. ) . . . . The Director's reliance on those
cases is misplaced.
Barger and Stansbury held that
§ 1333(b) extended the LHWCA as the sole remedy for survivors suing
the employers of individuals who (1) satisfied the "but for" status test;
and (2) died in helicopter crashes on the high seas above the OCS. Although
some of the dicta in those opinions may be overly broad, we have no quarrel
with those holdings to the extent they grant LHWCA benefits to oilfield
workers injured on waters above the OCS. We do not interpret those cases
to read § 1333(b) as extending LHWCA benefits to oilfield workers
injured on land or state territorial waters. But cf. Curtis v. Schlumberger
Offshore Service, Inc., 849 F.2d 805 (3d Cir. 1988) (Section 1333(b)
covers OCS platform worker injured in car accident on New Jersey Garden
State Parkway while driving to meet helicopter that would have flown him
Mills, 877 F.2d at 361-62. Contrary
to Margie Pickett's suggestion, Mills plainly requires satisfaction
of the situs test, even as to helicopter crashes.
Moreover, Margie Pickett's second contention--that
we should follow Curtis because "the Court's opinion in Mills
. . . did not disagree with Curtis"--is unpersuasive. Mills
referenced Curtis only as "authority [that] cites a proposition
analogous to the contrary of the main proposition." The Bluebook: A Uniform
System of Citation R. 1.2(c), at 23 (Columbia Law Review Ass'n et al. eds.,
17th ed. 2000).
1. If the flight test had
been successful, the helicopter would have landed, boarded passengers,
and ferried the passengers to oil platforms on the OCS.
2. Pickett also sought
benefits under the LHWCA. The administrative law judge found--and Margie
Pickett does not dispute--that her husband failed to meet the status requirement
of the act.