Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Citation: 583 F.2d 1273
• Decision Date: 21 September 1978
• Docket Number: No. 77-1886,77-1886
• Parties: NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR and Sammy J. Jenkins, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1273

583 F.2d 1273

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR and Sammy J. Jenkins Respondents.

No. 77-1886.

United States Court of Appeals Fourth Circuit.

Argued May 1, 1978.

Decided Sept. 21, 1978.

Mark A. Lies, II, Chicago, Ill. (Robert H. Joyce, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., William McL. Ferguson, Shannon T. Mason, Jr., Ferguson & Mason, Newport News, Va., on brief), for petitioner.

Joshua T. Gillelan, II, Atty., U. S. Dept. of Labor, Washington, D.C., Robert Arthur Blount, Hampton, Va., for respondents.

Before HAYNSWORTH, Chief Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

FIELD, Senior Circuit Judge:

On April 1, 1975, a commissioner of the Industrial Commission of Virginia "denied and dismissed" the application of Sammy J. Jenkins for state workmen's compensation, concluding that the medical evidence failed to establish a causal relationship between the claimant's work-related exposure to welding fumes and the respiratory disability of which he complained. Upon review, the full Commission concurred, and on June 11, 1975, affirmed the commissioner's disposition of the claim. During the June 4th hearing upon the appeal from the single commissioner's award, a commissioner apparently suggested to the claimant that he was in the wrong forum because this was a "federal case." ¹ On the same day Jenkins filed a claim for compensation based upon his respiratory disability under the federal Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, Et seq.

Upon an evidentiary hearing, a federal administrative law judge determined that Jenkins, who worked as a welder aboard ships under construction, was engaged in "maritime employment" covered by the federal Act. Finding no evidence that Jenkins' serious respiratory problems existed prior to his tenure with the company, and concluding that the evidence offered by the employer on the issue of causation was insufficient to rebut the statutory presumption of compensability, the judge held that the claimant's disease was either caused or aggravated by his employment. The resulting award of compensation to Jenkins for a temporary partial disability was affirmed by the Labor Department's Benefits Review Board on May 13, 1977. ²

The claimant's employer, Newport News Shipbuilding and Dry Dock Company, has petitioned for review, asking that we set aside the Board's affirmance of the Longshoremen's Act award and dismiss the employee's claim. ³ Petitioner maintains, as it did throughout the federal administrative proceedings, that the award was improper because (1) the claimant's initial pursuit of state compensation barred a federal award under the principles of "election of remedies," Res judicata, and "full faith and credit;" (2) the application for Longshoremen's compensation was not timely filed; and (3) the award is not supported by substantial evidence.

Persuaded by none of these arguments, we affirm the final order of the Benefits Review Board.

-I-

We do not agree that Jenkins' prosecution of his claim under the Virginia compensation act constituted a "binding election of remedies" which deprived him of the right to subsequently pursue an award under the Longshoremen's Act. So far as we can ascertain, whatever legitimacy an " election of remedies" defense may once have enjoyed under the Act was attributable to a now defunct provision of the federal statute which brought an injury within the statute's coverage only if "recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law." Longshoremen's and Harbor Workers' Compensation Act, c. 509, § 3,44 Stat. 1426 (1927) (current version at 33 U.S.C. § 903). See Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959); Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942). Cf. Shea v. Texas Employers' Insurance Association, 383 F.2d 16, 18-20 (5 Cir. 1967). ⁴ This language was deleted from the Act in 1972, Pub.L. No. 92-576, § 2(c), 86 Stat. 1251, and at present the federal statute contains no language indicating even an arguable intention by Congress to prohibit an award of Longshoremen's benefits after resort has been had to a state's compensation program. ⁵ Nor is there any constitutional objection to the pursuit of both state and federal remedies. Since at least 1962, it has been clear that both the federal and the state governments are constitutionally competent to redress, via workmen's compensation-type remedies, injuries occurring upon the navigable waters in the course of ship construction. Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962).

To the extent that the petitioner may be understood to alternatively suggest that this is an appropriate case for the application of the traditional "election of remedies" doctrine which has an independent foundation in the common law, we note that in the absence of express legislative declaration to the contrary, the courts have been reluctant to extend this relatively harsh doctrine. See Brooks v. United States, 337 U.S. 49, 53, 69 S.Ct. 918, 93 L.Ed. 1200 (1949); Friederichsen v. Renard, 247 U.S. 207, 38 S.Ct. 450, 62 L.Ed. 1075 (1918). In any event, it is inapplicable where, as here, the second remedy which is pursued following an alleged " election" is not theoretically irreconcilable with the first, and does not require a claimant to assume a position inconsistent with that which he took in his initial quest for relief. United States v. Oregon Lumber Co., 260 U.S. 290, 304, 43 S.Ct. 100, 67 L.Ed. 261 (1922) (Brandeis, J., dissenting); Abdallah v. Abdallah, 359 F.2d 170 (3 Cir. 1966); 1B Moore's Federal Practice P 0.405(7) (Second edition).

Finally, in allowing Jenkins to pursue his federal Longshoremen's remedy, we discern no conflict with the "exclusivity" provision of the Virginia compensation statute, Va.Code § 65.1-40, which provides that:

"(t)he rights and remedies herein granted to an employee when he and his employer have accepted this Act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death."

Virginia itself has long recognized that where the Industrial Commission dismisses a claim upon a finding that the injury did not arise out of or in the course of employment, as it did in this case, § 65.1-40 is not to be interpreted to bar the employee from pursuing other available remedies. See Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 20 S.E.2d 530 (1942). See also, Perrin v. Brunswick Corp., 333 F.Supp. 221 (W.D.Va.1971).

We thus agree with the Benefits Review Board that Jenkins was not, solely by reason of his "election" to initially seek compensation in proceedings before the State Industrial Commission, barred from later filing a claim or receiving an award for the same alleged injury under the Longshoremen's Act.

-II-

Petitioner's reliance upon the doctrine of Res judicata is similarly misplaced. Committed to the exclusive jurisdiction of a federal forum, Jenkins' claim for longshoremen's benefits neither was nor could have been litigated in the state proceedings. It constituted a cause of action distinct from that upon which the judgment of the Industrial Commission was based. Because a prior judgment is Res judicata only as to demands involving the same cause of action, the denial of the claim under state law could not operate as a judgment in bar of the federal cause. See Lawlor v. National Screen Service, 349 U.S. 322, 329, 75 S.Ct. 865, 99 L.Ed. 1122 (1955); Commissioner v. Sunnen, 333 U.S. 591, 597-598, 68 S.Ct. 715, 92 L.Ed. 898 (1948); International Ass'n. of Mach. & Aero. Wkrs. v. Nix, 512 F.2d 125, 131 (5 Cir. 1975); Shea v. Texas Employers' Insurance Association, 383 F.2d 16, 18 (5 Cir. 1967).

-III-

The employer also contends that the prior action of the State Commission rendered a federal award improper under the "Full Faith and Credit" clause, Art. IV, Section 1, of the Federal Constitution. But even assuming that under the reasoning of Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943), the adjudication of a state compensation claim could in some circumstances bar later proceedings under the federal Act, it is obvious, especially from our discussion of the "exclusivity" provision of the Virginia statute, that the reasoning of Industrial Commission v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140 (1947), not Magnolia, is controlling in this case, and that no valid "full faith and credit" issue is raised by the federal award.

If "full faith and credit" is invoked by the petitioner "as a vehicle for applying collateral estoppel," Artrip v. Califano, 569 F.2d 1298, 1299 (4 Cir. 1978), then we agree with the Review Board that Virginia's conclusion that Jenkins' disease was not caused by his work ⁶ was not, by reason of collateral estoppel, binding upon the federal finder of fact. The standard of proof required to establish the work-relatedness of Jenkins' injury differed as between the two proceedings. With the possible exception of certain cases involving death, See Southern Motor Lines Company v. Alvis, 200 Va. 168, 104 S.E.2d 735, 738 (1958), Virginia awards compensation only if the claimant proves by "a preponderance of evidence" that his injury arose out of and in the course of his employment. Conner v. Bragg, 203 Va. 204, 123 S.E.2d 393, 396 (1962); Rogers v. Williams, 196 Va. 39, 82 S.E.2d 601, 602 (1954); Norfolk & Washington Steamboat Co. v. Holladay, 174 Va. 152, 5 S.E.2d 486, 488 (1939); Crews v. Mosley Bros., 148 Va. 125, ...