Smith v. Aerojet-General Shipyards, Inc.

Decision Date08 June 1981
Docket Number78-3818,Nos. 78-3794,AEROJET-GENERAL,s. 78-3794
Citation647 F.2d 518
PartiesThomas SMITH, Petitioner, v.SHIPYARDS, INC., Transport Indemnity Company, and Director, Office of Workers' Compensation Programs, U. S. Department of Labor, Respondents. Marie Wilson SMITH (Widow of Thomas Smith), Petitioner, v.SHIPYARDS, INC., Transport Indemnity Company, and Director, Office of Workers' Compensation Programs, U. S. Department of Labor, Respondents. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, Petitioner, v.SHIPYARDS, INC., Transport Indemnity Company, Thomas Smith and Marie Wilson Smith (Widow of Thomas Smith), Respondents. . Unit B
CourtU.S. Court of Appeals — Fifth Circuit

Richard F. Pate and Stephen J. Flynn, Mobile, Ala., for Thomas and Marie Smith, etc.

Cowles, Coker & Meyers, Robert L. Cowles, James R. Barfield, Jacksonville, Fla., for Aerojet-General Shipyards, Inc. and Transport Indemnity Co.

Carin A. Clauss, Sol. of Labor, Joshua T. Gillelan, II, Laurie M. Streeter, Associate Sol., Washington, D.C., U.S. Dept. of Labor, for Director, O.W.C.P.

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

Before GODBOLD, Chief Judge, and TJOFLAT and VANCE, Circuit Judges.

TJOFLAT, Circuit Judge:

These consolidated Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. (1976), cases come to us on petition for review of a decision of the United States Department of Labor Benefits Review Board. We reverse the Board's decision and remand the cases for further proceedings.

I

Thomas Smith brought this action for compensation under the Longshoremen's and Harbor Workers' Compensation Act in 1971. Smith, now deceased, worked as a sandblaster for approximately ten shipyards during the thirteen years preceding his death. As the record reflects, Smith's multi-employer history is typical of longshore work. Longshoremen often migrate to where work is available; in Smith's case, this involved moving as far north as Quincy, Massachusetts and as far south as New Orleans. Smith did, however, maintain a home base at the Southside Shipyard in Jacksonville, Florida, returning there for as long as possible whenever work was available. During his tenure there, the Southside Shipyard was operated by a succession of employers. For purposes of this case we note that Smith worked there for the presently defunct Aerojet General Shipyards, Inc. from 1961 to 1965 and for Jacksonville Shipyards at the same facility from 1966 to 1970.

In September of 1971 Smith worked for Atlantic Sandblasting Service, Inc. in Baltimore, Maryland. While on that job he collapsed and was hospitalized. Smith then filed a LHWCA compensation claim against Atlantic Sandblasting. Tests revealed that he was suffering from silicosis, a debilitating lung disease generated by the inhalation of free silica, a material sometimes used in sandblasting compounds. Six months later Smith filed a second LHWCA claim, this time against his next previous employer, Jacksonville Shipyards.

Both Atlantic Sandblasting and Jacksonville Shipyards contested Smith's claims, asserting that their sandblasting compounds did not contain free silica at the time of Smith's employment. In 1973, the claims were scheduled for hearing before an administrative law judge in conjunction with four other cases that questioned the effects of sandblasting compounds. Aerojet General was a party in these other cases.

The administrative law judge held a prehearing conference for the ordering of proof in these cases. Just before the hearing began, counsel for Aerojet's insurers, Home Indemnity Company and Transport Indemnity Company, learned that Smith intended to add Aerojet as a party in his case. Counsel for Home Indemnity objected to Aerojet's joinder, contending that the lack of adequate notice rendered the company unprepared to defend Smith's claim. After registering this objection, Home Indemnity's counsel departed. Counsel for Transport Indemnity also elected not to participate in the hearing on Smith's case, though he did enlist an attorney for another insurer to stand in for Aerojet. When the hearing commenced, that attorney made the following objection:

Mrs. Miller: Bette Miller representing INA. Mr. Cowles, Robert Cowles, representing Transport Indemnity, asked me since he had a deposition, to raise the point on behalf of his Carrier that (counsel for Home Indemnity) has raised on behalf of his.

Record, vol. 4 at 9.

Smith then moved to add Aerojet as a party; the administrative law judge reserved ruling on the motion and proceeded with the hearing. The judge granted Smith's motion three days later, and after a delay of six months, he issued an order holding that Smith should have been aware of his silicosis more than one year before September of 1971, and thus that his claim was time-barred by section thirteen of the LHWCA:

Except as otherwise provided in this section, the right to compensation for disability or death under this chapter shall be barred unless a claim therefor is filed within one year after the injury or death. If payment of compensation has been made without an award on account of such injury or death, a claim may be filed within one year after the date of the last payment. Such claim shall be filed with the deputy commissioner in the compensation district in which such injury or death occurred. The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment.

33 U.S.C. § 913(a) (1976).

Smith appealed this holding to the Benefits Review Board. Aerojet moved to dismiss Smith's appeal, claiming that its joinder was improper. The Board denied the motion, found Smith's claim timely and reversed, remanding the case for a determination of the responsible employer. Both Atlantic Sandblasting and Jacksonville Shipyards petitioned this court to review the Board's determination of the timeliness of Smith's claims. Aerojet did not join in this petition, nor did it seek review of the Board's determination that it had been properly added as a party.

In 1976, we affirmed the Board's decision and remanded Smith's case for further proceedings. We ordered, inter alia, that findings be made concerning Smith's compliance with the LHWCA notice requirement. This requirement is found in section twelve of the Act:

Notice of an injury or death in respect of which compensation is payable under this chapter shall be given within thirty days after the date of such injury or death, or thirty days after the employee or beneficiary is aware or in the exercise of reasonable diligence should have been aware of a relationship between the injury or death and the employment. Such notice shall be given (1) to the deputy commissioner in the compensation district in which the injury occurred, and (2) to the employer.

33 U.S.C. § 912(a) (1976). The Benefits Review Board then amended its remand order and directed the administrative law judge to resolve the section twelve notice issue and assign liability to the responsible employer.

On remand, the administrative law judge issued an order to show cause why a compensation order should not be entered. At the show-case hearing, the administrative law judge learned that Thomas Smith had died in March of 1975 and that Smith's counsel had filed a LHWCA claim for death benefits on behalf of Smith's widow and child the following October.

These revelations prompted a second show-cause hearing, notice of which was sent to all counsel. At that hearing, no testimony was introduced, but the parties did stipulate that Smith's death was caused by silicosis. Subsequently, the administrative law judge issued a decision denying death benefits to Smith's widow but imposing liability for disability compensation on Aerojet. The judge found that neither Atlantic Sandblasting nor Jacksonville Shipyards was liable for compensation because the companies did not use free silica in sandblasting during the period they employed Smith. The judge identified Aerojet as the last employer under whom Smith was exposed to free silica, and found Transport Indemnity to be the insurer on the risk for Aerojet at that time. The administrative law judge held that Smith's compensation claim and notice were timely as to Aerojet under sections twelve and thirteen and thus that Aerojet was liable under the LHWCA. Concerning the claim for death benefits, however, the judge found that although Smith's widow had filed her claim within one year of death as required by section thirteen, she had failed to give notice of Smith's death within the thirty-day limitations period of section twelve. Her claim was therefore time-barred.

On appeal once again, the Benefits Review Board affirmed the denial of death benefits and reversed the award of disability compensation, holding that Smith's widow had failed to give notice of Smith's death within section twelve's thirty-day limitations period, and that Smith's disability claim and notice were untimely under sections twelve and thirteen. Because the Board determined that these claims were time-barred, it did not address the other issues Aerojet presented on appeal, including the company's contention that the administrative law judge had erred in finding that Smith was last exposed to free silica while employed by Aerojet, and that Aerojet's initial joinder was a denial of due process.

II

This case is now before us for the second time. Smith's widow and the Director of the Office of Workers' Compensation Programs, United States Department of Labor, have petitioned for review of the Benefits Review Board determination that Smith's disability claim and his widow's death benefit claim were time-barred. To focus adequately on the...

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