Cargill, Inc., and State Accident Insurance Fund v. Kenneth E. Powell, and Director, Office of Worker's Compensation Programs

This petition for review is brought by Cargill, Inc., and its workers’ compensation insurer, the State Accident Insurance Fund, pursuant to 33 U.S.C. § 921 (c) of the Longshoremen’s and Harbor Workers’ Compensation Act [LHWCA], 33 U.S.C. § 901 , et seq., seeking reversal of a decision of the Benefits Review Board. The Board’s decision held that an injury suffered by Kenneth E. Powell in the course of his employment with Cargill was within the coverage of the LHWCA and thereby reversed the decision of the administrative law judge who had denied Powell’s claim. 1

In early 1973 Powell was hired from the union hall, jointly operated by Local 8 of the International Longshoremen’s and Warehousemen’s Union and the employers in the Port of Portland, to work for Cargill at its grain handling facilities at Terminal 4, a public dock facility owned by the Port and situated on the Willamette River. The longshoremen employed by Cargill were hired as “key men” which meant that they could perform any of the several tasks involved in the operation and maintenance of all grain handling equipment at the facility. Their work did not include work aboard the ships.

The employer, Cargill, Inc., is in…

dissenting:

In finding that Powell was not covered by the Act, the majority focuses upon his employment status at the time of the accident and concludes that his activities were “more oriented to the rails than to the sea.” Believing that Powell’s status at the time of the accident was identical to Caputo’s in the overall process of loading and unloading, although performed at different ends of the spectrum, I respectfully dissent.

It should be noted that in Northeast Marine Terminal, supra, the Supreme Court, by focusing on the fact that Caputo could have been assigned to any one of a number of “longshoring” tasks on the day of his injury, did not have to decide the issue before this panel, i. e., whether Caputo’s specific unloading task was covered under the Act. However, in my opinion, the Court indicated that that part of Caputo’s job would be covered, even if the other tasks performed were not indisputably longshoring operations.

First of all, the Court rejected the point of rest theory as too restrictive. From this it is clear that coverage, in the case of loading, is extended beyond the point where the stevedoring operation begins and the terminal operation ends. The…

573 F.2d 561 CARGILL, INC., and State Accident Insurance Fund, Petitioner, v. Kenneth E. POWELL, and Director, Office of Worker's Compensation Programs, Respondent. No. 75-2655. United States Court of Appeals, Ninth Circuit. Nov. 17, 1977. Rehearing and Rehearing En Banc Feb. 7, 1978. Robert E. Babcock (argued), of Lindsay, Nahstoll, Hart, Dafoe & Krause, Portland, Ore., for appellant. Joslua T. Gillelan, II (argued), of Dept. of Labor, Washington, D.C., Raymond J. Conboy (argued), Portland, Ore., for appellee. On Petition for Review of the Benefits Review Board. Before LUMBARD * , WRIGHT and ANDERSON, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 This petition for review is brought by Cargill, Inc., and its workers' compensation insurer, the State Accident Insurance Fund, pursuant to 33 U.S.C. § 921 (c) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 , et seq., seeking reversal of a decision of the Benefits Review Board. The Board's decision held that an injury suffered by Kenneth E. Powell in the course of his employment with Cargill was within the coverage of the LHWCA and thereby reversed the decision of the administrative…