125 F.3d 904 (5th Cir. 1997), 96-60676, Wilkerson v. Ingalls Shipbuilding, Inc.

Docket Nº:96-60676.
Citation:125 F.3d 904
Party Name:Lovett R. WILKERSON, Petitioner, v. INGALLS SHIPBUILDING, INC.; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
Case Date:October 23, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 904

125 F.3d 904 (5th Cir. 1997)

Lovett R. WILKERSON, Petitioner,


INGALLS SHIPBUILDING, INC.; Director, Office of Workers'

Compensation Programs, United States Department of

Labor, Respondents.

No. 96-60676.

United States Court of Appeals, Fifth Circuit

October 23, 1997

Page 905

Mitchell G. Lattof, Sr., Lattof & Lattof, Mobile, AL, for Petitioner.

Richard P. Salloum, Traci Marie Castille, Franke, Rainey & Salloum, Gulfport, MS, Robert Joseph Ariatti, William J. Powers, Jr., Ingalls Shipbuilding, Inc. Law Department, Pascagoula, MS, for Ingalls Shipbuilding, Inc.

Petition for Review of a Decision of the Benefits Review Board.

Before REYNALDO G. GARZA, SMITH and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:


In 1972, Lovett Wilkerson retired after working fourteen years at the shipyard of Ingalls Shipbuilding, Inc. ("Ingalls"), in Pascagoula, Mississippi. The year before he retired, his average weekly wage was $167.70. In 1992, he underwent tests that revealed he suffered a permanent hearing loss in both ears, and the parties agree that he suffered a binaural hearing impairment of 19.23%. It is undisputed that his hearing loss was a result of the noise to which he was exposed at Ingalls and thus that the injury occurred in the course of his employment.

In March 1992, Wilkerson notified Ingalls of his disability claim under the Longshore and Harbor Workers' Compensation Act ("LHWCA"). It is undisputed that the claim was timely filed. 1 Although Ingalls controverted the claim, it nevertheless began compensating Wilkerson, paying him $4,299.83 between April 1992 and May 1993, based on the scheduled compensation under the LHWCA. 2 Despite this payment, Wilkerson pursued his claim before an administrative law judge ("ALJ"). In addition to the $4,299.83, he sought attorneys' fees, penalties, and prejudgment interest from the 1972 date of his injury. 3

At a hearing before the ALJ, Ingalls argued that it had in fact already overcompensated Wilkerson for his injury. Under the statutory scheme in force at the time of his injury--upon his retirement--it owed only $2,692.20. Ingalls maintains this argument on appeal.

At the time of Wilkerson's retirement, the LHWCA allowed a maximum benefit of only $70 per week: much less than the $111.80 to which Wilkerson would otherwise have been entitled under § 908. After Wilkerson retired but before he filed his claim, Congress amended the LHWCA to provide a much higher maximum benefit, determined yearly by the Department of Labor as a factor of the national average wage. See 33 U.S.C. § 906. Thus, on November 26, 1972, the cap jumped to $167 and has been increasing with inflation ever since.

The ALJ agreed that Ingalls owed only the $70 weekly maximum, and held that because Wilkerson was entitled only to $2,692.20, he must reimburse Ingalls for its overpayment. The ALJ further ruled that Ingalls was not liable for penalties or attorneys' fees. The ALJ's decision was affirmed by the Benefits Review Board ("BRB") by operation of law on September 12, 1996. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, § 101(d), 110 Stat. 1321, 1321-219 (1996).

Page 906


The petition for review presents two distinct questions. The first--made apparent by the above recitation of facts--is whether Wilkerson should receive compensation according to the maximum rate in effect at the time of his injury (his retirement), or instead according to the maximum at some later time. This question is easily resolved, as the statute makes plain that compensation is governed by the maximum rate in effect at the time of an award.

The second question--not so straightforward--is from what date, if at all, prejudgment interest ought to be calculated. Particularly in light of the twenty-year lag between Wilkerson's injury and his claim, it matters very much whether interest should be awarded from the date of his injury, the date of his claim, or the date his compensation became due.

We are informed in part by Strachan Shipping Co. v. Wedemeyer, 452 F.2d 1225 (5th Cir.1971), which upheld an award of prejudgment interest under the LHWCA, dating from the time compensation becomes due without an award. Strachan did not decide whether an award of...

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