Newpark Shipbuilding & Repair, Inc. v. Roundtree

• Citation: 698 F.2d 743
• Decision Date: 22 February 1983
• Docket Number: No. 81-4308,81-4308
• Parties: NEWPARK SHIPBUILDING & REPAIR, INCORPORATED and American Home Assurance Company, Petitioners, v. James P. ROUNDTREE and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 743

698 F.2d 743

1984 A.M.C. 301

NEWPARK SHIPBUILDING & REPAIR, INCORPORATED and American Home Assurance Company, Petitioners, v. James P. ROUNDTREE and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 81-4308.

United States Court of Appeals Fifth Circuit.

Feb. 22, 1983.

E.D. Vickery, Houston, Tex., for petitioners.

Stephen Vaughan, Houston, Tex., for Roundtree.

Laurie M. Streeter, Assoc. Sol., Mark C. Walters, Marianne Demetral Smith, U.S. Dept. of Labor, Washington, D.C., for respondents.

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

Before GARZA, TATE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

This appeal arises from a claim for workers' compensation under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Sec. 901 et seq. The employer urges that we find jurisdiction to lie in this appeal and that we rule on the proper statutory basis for computing compensation benefits under the facts presented. We find that jurisdiction does lie, and that Sec. 10(b) of the Act, 33 U.S.C. Sec. 910(b), is the proper statutory basis by which to compute benefits in this case.

I. Background

James Roundtree has been a welder in the shipyards since 1941, and he worked as an independent contractor between 1954 and 1975. During the last days he worked as an independent contractor, he charged a rate of $12.50 per hour for his services. For a variety of personal and career-related reasons, Roundtree abandoned his work as an independent contractor and began working as an hourly employee for the firm now known as Newpark Shipbuilding. Roundtree's wage as a welder was $5.50 per hour, with available overtime and a ten cent per hour shift differential. Other welders in the shipyard were paid as much as $5.95 per hour at the time.

Roundtree's first day on the job, April 22, 1975, was an unfortunate one for him. He was working on a barge. While welding a hole that had been fitted and tacked, Roundtree fell off his scaffold and injured his back, resulting in his disability. His claim for workers' compensation under LHWCA came before an Administrative Law Judge (ALJ) with the Office of Workers' Compensation Programs. The ALJ determined that Roundtree was entitled to compensation, and then considered the possible methods for computing Roundtree's average weekly wage pursuant to Sec. 10 of the Act. The ALJ first considered Sec. 10(a), which looks to the employee's wages during the prior year, and found that subsection inapplicable because of the change in Roundtree's employment from independent contractor to hourly employee. He then considered Sec. 10(b), which looks to the prior year's wages of coworkers performing the same or similar work. The ALJ rejected that theory, in part because the shipyard workers had recently received a wage hike that would not be reflected fully in a Sec. 10(b) calculation based on twelve prior months. He therefore concluded that it would not be "fair and equitable" for Sec. 10(b) to apply, and looked to Sec. 10(c) for guidance. Section 10(c) points toward the earnings potential of the employee at the time of injury, rather than actual prior wages. Applying Sec. 10(c), the ALJ looked at Roundtree's earnings capacity as an independent contractor and determined his weekly wage to be $360.41, approximately $10.29 per hour, based on Roundtree's earnings of $18,741.20 in the preceding year. He then ordered compensation accordingly as provided in Sec. 8(b).

Both Roundtree and his employer appealed to the Benefits Review Board (BRB). The employer argued that Sec. 10(b) rather than Sec. 10(c) should control. Roundtree cross-appealed to call for application of Sec. 10(a), but apparently switched his view during the BRB proceedings and agreed with the ALJ's application of Sec. 10(c). The BRB affirmed the use of Sec. 10(c) for determining the weekly wage, but ruled that the ALJ had erred in using the gross earnings of an independent contractor for determining the amount of Roundtree's weekly wage. The BRB suggested that the net earnings of an independent contractor, after business expense deductions, might be an appropriate wage determination. In any event the BRB remanded for a redetermination of Roundtree's weekly wage under Sec. 10(c).

The employer appeals the BRB's ruling to this Court, pursuant to Sec. 21(c) of the Act, 33 U.S.C. Sec. 921(c). It argues that Sec. 10(b) rather than Sec. 10(c) should control this determination of average weekly wage. Further, it argues that the appeal is ripe for review as a "final order" because the record in this case is sufficiently complete. It urges that an appellate determination of this question will effectively terminate the litigation. Since our authority to review an administrative ruling under LHWCA is limited to "final orders", 33 U.S.C. Sec. 921(c), we must begin by examining our jurisdiction over the subject matter of this case.

II. Examination of Subject Matter Jurisdiction

Appellate review of BRB orders is restricted under 33 U.S.C. Sec. 921(c) to "final orders". ¹ The "final order" requirement follows the contours of the finality rule expressed in 28 U.S.C. Sec. 1291. Director, Office of Workers' Compensation Programs v. Brodka, 643 F.2d 159, 161 (3d Cir.1981); National Steel and Shipbuilding Co. v. Director, Office of Workers' Compensation Programs, 626 F.2d 106, 107-08 (9th Cir.1980). The requirement sometimes, but not always, excludes from appellate review a remand order to an administrative agency. Id. at 108; United Fruit Co. v. Director, Office of Workers' Compensation Programs, 546 F.2d 1224, 1225 (5th Cir.1977). We believe, however, that the case before us is properly reviewable at this time even though the administrative body directed a remand.

Our determination of whether jurisdiction lies does not depend on a single formula or a simple rule. "The inquiry requires some evaluation of the competing considerations underlying all questions of finality--'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.' " Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974), quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950).

This Circuit recently faced the question of what constitutes a final administrative order in a LHWCA case. In Ingalls Shipbuilding Division, Litton Systems, Inc. v. White, 681 F.2d 275 (5th Cir.1982), White and his employer entered into a compromise settlement of his LHWCA workers' compensation claim resulting from White's employment-based injury. An ALJ approved the settlement agreement after a cursory examination. The Director of the Office of Workers' Compensation Programs appealed the order of the ALJ to the Benefits Review Board, which held that the Director had standing to challenge the settlement, and that the ALJ's approval of the settlement must be set aside. The BRB remanded the claim to the ALJ, and the employer appealed to this Circuit.

We noted first that considering the appeal would not raise the specter of piecemeal review before the court, id. at 279, because the record was complete, the legal conclusions had been made, and the issue on appeal was only whether the power of the ALJ had been exercised properly. Reaching the merits effectively eliminated the need for later review, while dismissal would only have caused the same legal issue to come before us after the agency held additional hearings based on its tentative interpretation of its role. We therefore recognized jurisdiction.

Similarly in the case before us today, the issue presented challenges the proper legal standard, rather than constitutes a factual dispute. The record itself is factually complete, and application of Sec. 10(b) can be accomplished on the record. The only question presented is that of ruling on the proper formula.

If we were to dismiss for lack of jurisdiction, the next proceeding would be the ALJ's application of Sec. 10(c) to the record and a pronouncement of a definite monetary award. If applying Sec. 10(c) is not supported in the law, that proceeding would be a wasted one. If, however, we were to defer our review and determine at a later date that there is no error, we would have little effect on the risk of piecemeal review but merely would delay the resolution of the dispositive issue in the case. No party has raised any other issues on appeal, and there is little risk of a new appellate issue developing in the proceedings to come.

With our decision today, the remaining issues will not be questions of law but merely the largely ministerial job of applying the law to the preexisting record. This task is properly left to the sound discretion of the administrative body. Obviously our decision would be definitive guidance to the agency. Hence, we believe that the order of the BRB is ripe for review.

We recognize that cases in this and other Circuits have denied appellate review of pending actions from the BRB. But these cases involved incomplete determinations or administrative records, thus placing them in a less "final" posture than Ingalls or the immediate case. In United Fruit Co. v. Director, Office of Workers' Compensation Programs, supra, we dismissed the appeal as untimely. The unresolved issues were more than a simple calculation of disability benefits; the ALJ had not properly ruled on the nature and extent of the employee's disability, or the "possible liability of the special second injury fund." In Sun Shipbuilding & Dry Dock Co. v. Benefits Review Board, United States Dep't of Labor, 535 F.2d 758 (3d Cir.1976), (per curiam) the court dismissed the appeal, because, even though liability had been decided, the extent of disability due to the worker's loss of hearing remained undetermined. In Newport News Shipbuilding and Dry Dock Co. v....