Gilliland v. E.J. Bartells Co.

• Decision Date: 16 October 2001
• Docket Number: No. 00-70585,00-70585
• Parties: (9th Cir. 2001) DORELDA GILLILAND, PETITIONER, v. E.J. BARTELLS CO., INC.; WAUSAU INSURANCE CO.; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, RESPONDENTS
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1259

270 F.3d 1259 (9th Cir. 2001)

DORELDA GILLILAND, PETITIONER, v. E.J. BARTELLS CO., INC.; WAUSAU INSURANCE CO.; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, RESPONDENTS.

No. 00-70585

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted September 13, 2001

Filed October 16, 2001

Meagan A. Flynn, Preston, Bunnell & Stone, LLP, Portland, Oregon, for the petitioner.

Dennis R. VavRosky, VavRosky, MacColl, Olson & Pfeifer, P.C., Portland, Oregon; Samuel J. Oshinsky and Andrew D. Auerbauch, United States Department of Labor, Washingon, D.C., for the respondents.

On Petition for Review of an Order of the Benefits Review Board. OWCP No. 14-67397 BRB Nos. 99-698, 99-698A.

Before: Thompson, Tashima and Graber, Circuit Judges.

Graber, Circuit Judge:

This appeal requires us to decide how to compute the offset to which an employer owing benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA) is entitled under 33 U.S.C. § 933(f) when a claimant receives a third-party tort recovery that includes ongoing, periodic payments funded by an annuity contract. The Director of the Office of Workers' Compensation Programs (Director) allowed the employer to offset the amount of each periodic payment against benefits owed at the time the payment was made. Because that method of computing the offset reasonably interprets 33 U.S.C. § 933(f), we defer to the Director and, accordingly, affirm the decision of the Benefits Review Board.

FACTUAL AND PROCEDURAL BACKGROUND

In March 1982, Claimant Dorelda Gilliland filed a claim for death benefits under the LHWCA on behalf of herself and her two dependent children. Claimant's husband, Darol Gilliland, had died on December 22, 1981, of work-related asbestosis. Mr. Gilliland had been employed as an asbestos worker by Defendant E.J. Bartells Co., Inc. (Employer). Claimant was awarded funeral expenses, death benefits, and her husband's total disability benefits for the period from October 15 through December 22, 1981. "Death benefits" under the LHWCA are ongoing in nature, continuing "during widowhood." 33 U.S.C. § 909(b).

Claimant also prosecuted a wrongful death action against several third-party defendants (manufacturers and suppliers of asbestos). In February 1985, Claimant entered into a "Release and Settlement Agreement" with some of the third-party defendants. As part of the settlement, the third-party defendants agreed to pay to Claimant "$750 per month beginning February 21, 1985 and ending January 21, 2005. Monthly payments to increase by 3% each year with the increase to occur on the February 21 payment." By the terms of the agreement, the third-party defendants were permitted, but not required, to purchase one or more annuity contracts in order to fund their settlement obligation. The third-party defendants opted to purchase an annuity.

On July 2, 1996, Employer filed a notice of controversion, asserting that it had overpaid compensation to Claimant in view of the amounts that Claimant had recovered from the third-party defendants. The parties disagreed about how to compute the credit to which Employer was entitled under 33 U.S.C. § 933(f), and they sought a formal hearing before an administrative law judge (ALJ). Claimant argued that Employer was entitled to a one-time credit for the purchase price, or the present value, of the annuity that the third-party defendants purchased to fund their obligation to make the monthly payments. By contrast, Employer contended that it was entitled to a dollar-for-dollar credit against death benefits payable by it under the LHWCA for each monthly payment made pursuant to the third-party settlement, and it was entitled to such credit at the time Claimant received each payment.

The ALJ determined that the phrase "net income " in § 933(f) means the income "actually received" and that the terms of § 933(f) did not require that the value of the annuity be discounted to present value. Consequently, he agreed with Employer that Employer was entitled to a credit for the actual amount of each monthly payment received by Claimant.¹

Claimant appealed to the Benefits Review Board. The Director filed a brief in the proceeding at the request of the Board. The Director urged the Board to affirm the ALJ's decision in all respects. It did. Claimant then timely filed a petition for review with this court pursuant to 33 U.S.C. § 921(c).

STANDARD OF REVIEW

We review the Board's decision for "errors of law " and for compliance with the substantial evidence standard. Taylor v. Director, OWCP, 201 F.3d 1234, 1238 (9th Cir. 2000). The Board's interpretation of the LHWCA is a question of law that we review de novo. Force v. Director, OWCP , 938 F.2d 981, 983 (9th Cir. 1991). Although we grant no "special deference" to the Board's construction of the LHWCA, we "must . . . respect the Board's interpretation of the statute where such interpretation is reasonable and reflects the policy underlying the statute." McDonald v. Director, OWCP, 897 F.2d 1510, 1512 (9th Cir. 1990).

By contrast, we afford "considerable weight" to the construction of the LHWCA urged by the Director. Mallot & Peterson v. Director, OWCP, 98 F.3d 1170, 1172 (9th Cir. 1996).

If the Director's interpretation is reasonable, the court should defer to it. Put another way, if the provision to be interpreted is easily susceptible to the Director's interpretation, the reviewing court need go no further. This deference extends not only to regulations articulating the Director's interpretation, but also to litigating positions asserted by the Director in the course of administrative adjudications, since administrative adjudications are agency action, not post hoc rationalizations for it.

Id. (citation and internal quotation marks omitted) (citing Martin v. Occupational Safety & Health Rev. Comm'n, 499 U.S. 144, 158 (1991)).

We recognize that we sometimes have stated that our deference is limited when the Director adopts an interpretation of a statute as a "litigating position." Port of Portland v. Director, OWCP, 192 F.3d 933, 939 (9th Cir. 1999), cert. denied, 529 U.S. 933 (2000); McGray Constr. Co. v. Director, OWCP, 181 F.3d 1008, 1015 (9th Cir. 1999). However, the opinion in McGray was referring to a litigation position that the Director advanced solely in post hoc judicial proceedings, as distinct from the underlying administrative proceedings. McGray, 181 F.3d at 1015 ("The deference would in any case be limited, because the Director's view is only a litigation position, and has not been adopted as a regulation, nor have Benefits Review Board opinions within the agency adopted it."). Port of Portland relied exclusively on McGray in support of its statement that a "litigating position " is not entitled to deference; nothing in the opinion indicates an expansion of McGray. Port of Portland, 192 F.3d at 939. We therefore conclude that the Director's interpretation of the LHWCA is entitled to deference if it is contained either in a regulation or in the Director's litigation position within an agency adjudication, so long as the interpretation is reasonable.

Here, the Director has advanced his interpretation of § 933(f) in the course of administrative adjudications-not only in this case, but also at least one other, earlier case. Cretan v. Bethlehem Steel Corp., 24 B.R.B.S. 35, 1990 WL 284097 (1990), rev'd in part on other grounds, 1 F.3d 843 (9th Cir. 1993). Moreover, the Board already has adopted the Director's interpretation. Cretan, 1990 WL 284097, at *2 & *5 (holding that, when a claimant receives an annuity as part of a third-party tort recovery, the employer/carrier is entitled to a credit for each annuity payment at the time the claimant receives it). Consequently, we must defer to the Director's interpretation of the statute, if that construction is reasonable.

DISCUSSION

Title 33 U.S.C. § 933(f) governs the computation of benefits owed to a claimant when the claimant receives a third-party tort recovery on account of injuries compensable under the Act. That section provides:

If the person entitled to compensation institutes proceedings within the period prescribed in subsection (b) of this section the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the net amount recovered against such third person. Such net amount shall be equal to the actual amount recovered less the expenses reasonably incurred by such person in respect to such proceedings (including reasonable attorneys' fees).

The parties dispute what constitutes "the net amount recovered against such third person" in this case. Claimant argues that the "net amount recovered" against the third-party defendants with respect to the series of $750 monthly payments is the present value, as of 1985, of the annuity that was purchased to fund the payments. Employer and the Director contend, by contrast, that the "net amount recovered " consists of the actual amount of each payment as it is made. ²

We defer to the Director's interpretation of 33 U.S.C. § 933(f)-that an employer or carrier is entitled to a credit for the amount of each annuity payment actually received by the claimant under the terms of a settlement at the time each such payment is received-because it is a reasonable interpretation of the statute. Indeed, § 933(f) is not susceptible to Claimant's interpretation.

Claimant's interpretation of § 933(f) as requiring a lumpsum credit to the employer for the purchase price of an annuity stretches the meanings of the words "actual " and "recovered." An amount paid to an annuity company is not an amount "recovered" by a claimant, because it is not received by the claimant. Neither is it an "actual" amount recovered. "Actual" means "existing and not merely potential or possible." The American Heritage Dictionary of the English...