United Brands Co. v. Melson

• Decision Date: 14 May 1979
• Docket Number: No. 77-2904,77-2904
• Citation: 594 F.2d 1068
• Parties: UNITED BRANDS COMPANY, Petitioner, v. Thad MELSON, and the Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1068

594 F.2d 1068

UNITED BRANDS COMPANY, Petitioner, v. Thad MELSON, and the Director, Office of Workers'

Compensation Programs, United States Department of

Labor, Respondents.

No. 77-2904.

United States Court of Appeals,

Fifth Circuit.

May 14, 1979.

George W. Healy, III, Patrick E. O'Keefe, New Orleans, La., for petitioner.

Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, La., Carin A. Clauss, Sol. of Labor, Harry L. Sheinfeld, Gilbert T. Renaut, Atty., Laurie M. Streeter, Associate Sol., U. S. Dept. of Labor, Washington, D. C., for respondents.

Benefits Review Board, Washington, D. C., for other interested party.

Petition for Review of an Order of the Benefits Review Board.

Before THORNBERRY, GODBOLD and HILL, Circuit Judges.

THORNBERRY, Circuit Judge:

This is an unusual case arising under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, Et seq. (Act). The claimant, Thad Melson, was employed by United Brands Company as a banana handler and a rigger for approximately thirteen (13) years. At United Brands, Melson engaged in strenuous manual labor such as the lifting of heavy equipment and the moving of numerous banana boxes. At the same time Melson was employed by United Brands, he held a second job at McKnight's Service Station. Melson worked approximately two or three days a week at United Brands while he worked six nights a week at the service station.

For two weeks prior to May 24, 1973, Melson's last day at United Brands, he experienced shortness of breath and chest pains. Testimony before the administrative law judge (ALJ) suggested that Melson's chest pains were so severe that Melson was unable to climb out of the ship's hold, and that Melson's co-workers would cover for him as he was unable to do his job. On Melson's last day, his foreman noticed Melson's condition and asked Melson if he were having a heart attack.

Despite his serious condition, Melson went to work at McKnight's service station and completed his assigned shift. The next day, May 25, Melson also worked at the service station, but he failed to go to the service station on May 26, and the next day Melson suffered a myocardial infarction.

On December 17, 1973, Melson filed suit against the gas station for workers' compensation benefits under the Louisiana Workmen's Compensation Act, La.R.S. §§ 23:1021-1351. On March 8, 1974, the station impleaded United Brands and United Brands defended on the ground that Melson's exclusive remedy was under the Longshoremen's Act. On February 7, 1975, Melson filed a formal claim for benefits under the Longshoremen's Act. As of this date, United Brands had not filed a report of Melson's injury with the Director of Workers' Compensation Programs (Director). ¹ On March 6, 1975, Melson settled his claim against the gas station for $11,500.00 without notice to United Brands.

The issues in this case are (1) Is Melson's claim barred as untimely? (2) Does the "Last Employer Rule" require that Melson's compensation come exclusively from the state compensation system? (3) Does Melson's settlement of his suit against the service station without written approval of United Brands bar this suit under 33 U.S.C. § 933(g)? (4) If Melson's Longshoremen's claim is not barred, should his federal award be reduced by the amount of his state award?

I.

Under the Act, an employee must comply with two separate limitations periods and failure to comply with either will defeat recovery. In this case United Brands argues that Melson's claim is prescribed by both the limitation period of 33 U.S.C. § 912(a) and 33 U.S.C. § 913(a).

Section 912(a) ² requires an employee to give written notice to the employer and to the deputy commissioner within thirty days after the employee knew, or reasonably should have known, that his illness is work- -related. Failure to comply with this section will be excused if the employer had knowledge of the injury and the deputy commissioner determines that the employer has not been prejudiced by failure to give such notice. ³ 33 U.S.C. § 912(d). ⁴

Section 33 U.S.C. § 913(a) ⁵ requires the employee to file a claim within one year after the employee knew, or reasonably should have known, of the relationship between his illness and employment. This limitation period is tolled by 33 U.S.C. § 930(f) ⁶ when the employer or carrier had knowledge of the illness and fails to file the report required by 33 U.S.C. § 930(a). ⁷ The limitation is also tolled by the filing of a claim under a state's workmen's compensation system. 33 U.S.C. § 913(d). ⁸

It is, of course, undisputed that Melson failed to give notice to the employer within the thirty days as required by 33 U.S.C. § 912(a) and failed to file his claim within one year as required by 33 U.S.C. § 913(a). Our question now becomes whether the failure to comply with 33 U.S.C. § 912(a) will be excused by the employer's knowledge of the injury, 33 U.S.C. § 912(d), and whether the limitation period of 33 U.S.C. § 912(a) was tolled by United Brands' failure to file an injury report, 33 U.S.C. § 930(f).

United Brands urges that our decision in Strachan Shipping v. Davis, 571 F.2d 968 (5 Cir. 1978), mandates a reversal of the Benefits Review Board in this case. In Davis, an employee who had spent his career unloading dust boats left work at the shipping company in December 1968. The employee discovered that he had a work-related injury in August 1969 but failed to file a claim until August 1971. The Benefits Review Board was of the opinion that the employer's mere knowledge that the employee was suffering from an illness was sufficient to toll the limitations period of 33 U.S.C. § 912(a) and 33 U.S.C. § 913(a). We rejected the Board's view and directed that the claimant's claim be denied on the strength of the administrative law judge's finding that the employer or carrier had no knowledge that the illness was job related. We carefully reserved the question of whether employer knowledge includes the situation in which the employer " 'should have known' of possible job-related illness." Id. at 974.

The Director suggests that the question reserved in Davis is now properly presented to this court because the Benefits Review Board used the "should have known of job-relatedness" standard. Taking the contrary position, United Brands argues that the Board held that the mere knowledge of the illness was enough to toll the limitations periods of the Act.

We find ourselves unable to completely agree with either viewpoint. The Director is correct to the extent that the Board did find that Melson's condition would lead a prudent employer to investigate Melson's injury, but this is slightly different from a determination that the employer should have known Melson's injury was job-related. United Brands is correct to the extent that the Board obviously relied on its pre-Davis view of knowledge since the Board decided this case before our decision in Davis, ⁹ but United Brands would have us ignore the Board's additional findings.

Our own view of this case along with our partial agreement and partial disagreement with the litigants leads us to conclude that the Board's opinion is not one from which we should properly decide the knowledge question reserved in Davis. Instead, we affirm the award of the Board for independent reasons. ¹⁰

In Davis, the employer had no reasonable suspicion that the claimant's injury was work-related. 571 F.2d at 974. The present case is distinguishable because there is abundant evidence that Melson's illness manifested itself on the job. When an employee's job is to move heavy boxes and while endeavoring in this task, the employee is under such obvious distress that his foreman inquires about his health, we believe that the Act presumes that the injury is work-related. In Butler v. District Parking Management Co., 124 U.S.App.D.C. 195, 363 F.2d 682 (1966) (per curiam), the District of Columbia Circuit held that 33 U.S.C. § 920(b) ¹¹ presumes that an employer has notice of the work-relatedness of an injury when the injury manifests itself on the job. Since United Brands is presumed to know that Melson's injury was work-related, we hold that United Brands had sufficient knowledge to toll the prescriptions periods of 33 U.S.C. § 912(a) and 33 U.S.C. § 913(a).

II.

Next, United Brands argues that the Benefits Review Board erred by failing to apply the successive or last employer's rule. United Brands relies heavily on Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2 Cir. 1955), Cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955). In Cardillo, the Second Circuit determined that the last employer in whose employment an employee was exposed to an injurious stimuli was liable for the full amount of the award with no apportionment of damages between successive employers. Taking this rule, United Brands argues that McKnight's Service Station was the last employer in whose employment Melson was exposed to the stress and strain that eventually resulted in his heart attack, and therefore McKnight is solely liable.

The Benefits Review Board held that the successive employer's rule was limited to occupational disease cases and that it is inappropriate when the administrative law judge does not have jurisdiction over both the former and later employer, I. e., mixed federal-state coverage as in McKnight Service Station's Louisiana coverage and United Brands' federal coverage.

The Director urges us to affirm the Board on either of these grounds. We need not reach these difficult questions for the simple reason that the ALJ found that Melson was totally and permanently disabled as of his last day at work for United Brands. The date of Melson's heart attack is a false issue. It makes no difference that Melson later suffered a heart attack. If Melson had not suffered a heart attack, United Brands would still be liable. In its supplemental brief, United Brands apparently recognizes this possibility and...