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

• Decision Date: 29 December 1978
• Docket Number: No. 78-1690,78-1690
• Citation: 590 F.2d 1267
• Parties: NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Otha Ballard, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1267

590 F.2d 1267

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

No. 78-1690.

United States Court of Appeals Fourth Circuit.

Submitted Dec. 8, 1978.

Decided Dec. 29, 1978.

Junius C. McElveen, Jr., Washington, D. C., for petitioner.

Carin Ann Clauss, Sol. of Labor, Laurie M. Streeter, Associate Sol., Mark C. Walters, U. S. Department of Labor, Washington, D. C., and E. D. David, Newport News, Va., for respondents.

Before WINTER, BUTZNER, Circuit Judges, and FIELD, Senior Circuit Judge.

PER CURIAM:

Newport News Shipbuilding and Dry Dock Company filed a petition to review an order of the Benefits Review Board of the Department of Labor which remanded the claim of Otha Ballard, an employee of Newport News, for further administrative proceedings. The government has moved for dismissal of the petition on the grounds that the Board's decision is not final and, consequently, not reviewable by this Court.

After conducting an evidentiary hearing, the administrative law judge found that Ballard sustained a low back injury on May 19, 1975, during the course of his employment at Newport News and was entitled to compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, Et seq. The administrative law judge awarded Ballard compensation for temporary total disability from May 20, 1975, through June 8, 1975, and from June 11, 1975, through November 2, 1975, and for a five percent permanent partial disability. The administrative law judge also ordered a penalty on all unpaid compensation pursuant to Section 14(e) of the Act, 33 U.S.C. § 914(e), interest and attorney fees.

On appeal, the Benefits Review Board rejected Newport News' contention that the injury did not occur at a jurisdictional situs under Section 3(a) of the Act, 33 U.S.C. § 903(a), and affirmed the temporary total disability award, penalty, interest and attorney fees. As to the five percent permanent partial disability award, the Board ruled that evidence supported the finding that disability may extend into the future. However, the administrative law judge had failed to calculate the extent of the disability as mandated by Section 8(c)(21) of the Act, 33 U.S.C. § 908(c)(21) and therefore, the Board vacated that portion of the award and remanded the case for further proceedings.

The Longshoremen's and Harbor Workers' Compensation Act provides that "(a)ny person adversely affected or aggrieved by a Final order " of the Benefits Review Board may invoke the jurisdiction of the appropriate Court of Appeals to review a decision of the Board, 33 U.S.C. § 921(c) (Supp.1972) (emphasis added). It is clear that the Act adheres to the "statutory concept of finality," Bohms v. Gardner, 381 F.2d 283, 285 (8th Cir. 1967), as the basis of our appellate jurisdiction. See also 28 U.S.C. § 1291. In judging the finality of an order, we have been admonished to use a "practical rather than a technical construction." Cohen v. Beneficial Industrial Loan Corp.,337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949).

While it has been determined that the claimant sustained a compensable...