Boroski v. Dyncorp Int'l

• Decision Date: 30 October 2012
• Docket Number: No. 11–10033.,11–10033.
• Citation: 700 F.3d 446
• Parties: Bernard D. BOROSKI, Plaintiff–Appellant, v. DYNCORP INTERNATIONAL, Insurance Company of the State of Pennsylvania/AIG Worldsource, Director, Office of Workers' Compensation Programs, United States Department of Labor, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

700 F.3d 446

Bernard D. BOROSKI, Plaintiff–Appellant,

v.DYNCORP INTERNATIONAL, Insurance Company of the State of Pennsylvania/AIG Worldsource, Director, Office of Workers' Compensation Programs, United States Department of Labor, Defendants–Appellees.

No. 11–10033.

United States Court of Appeals,Eleventh Circuit.

Oct. 30, 2012.

Joshua Thomas Gillelan, II, Longshore Claimants' Nat. Law Ctr., Washington, DC, Paul M. Doolittle, Paul M. Doolittle, PA, Jacksonville, FL, for Plaintiff–Appellant.

Roger A. Levy, Laughlin, Falbo, Levy & Moresi, LLP, San Francisco, CA, William Rutherford Wicks, III, Seipp & Flick, LLP, Miami, FL, Matthew W. Boyle, Susan G. Bajkowski, Mark A. Reinhalter, U.S. Dept. of Labor, Washington, DC, for Defendants–Appellees.

Appeal from the United States District Court for the Middle District of Florida.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before PRYOR and EDMONDSON, Circuit Judges, and HOPKINS,^* District Judge.

HOPKINS, District Judge:

This case is on remand from the Supreme Court for further consideration in light of Roberts v. Sea–Land Services, Inc., ––– U.S. ––––, 132 S.Ct. 1350, 182 L.Ed.2d 341 (2012). The Roberts decision conclusively answers one issue in this appeal, and the Roberts opinion offers some guidance to answer the other issue. Accordingly, we affirm the district court.

I. BACKGROUNDA. The Initial Panel Decision in this Appeal

The facts and procedural history of this appeal are set forth in our earlier opinion, Boroski v. DynCorp International, 662 F.3d 1197, 1198–1200 (11th Cir.2011) (hereinafter Boroski I). We need not recount them here.

Additionally, we need not discuss at length the statutory framework at issue here. We earlier described the content and structure of the Longshore and Harbor Workers' Compensation Act (the “Act”), 33 U.S.C. §§ 901–50 (2006), as extended by the Defense Base Act, 42 U.S.C. §§ 1651–55 (2006). See Boroski, 662 F.3d at 1200–02. And, the Supreme Court's opinion in Roberts also explains the Act's operation. See Roberts, 132 S.Ct. at 1354–55. Therefore, we describe the Act only briefly.

The Act provides disability benefits to covered employees, and sets maximum and minimum benefit payments. See 33 U.S.C. § 906(b). The amount of these payments are determined in reference to the national average weekly wage. See id. The national average weekly wage is calculated after June 1 of each year, and applies to the period from October 1 of that year to September 30 of the next year. See 33 U.S.C. § 906(b)(3). Section 906(c) provides that determinations of the national average weekly wage:

... shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.

33 U.S.C. § 906(c) (2006). Thus, the amount of a disabled employee's benefit payment depends on which year's national average weekly wage is used to calculate that payment.

Additionally, for certain disabled employees, the Act provides for annual increases in their benefit payment amounts. See 33 U.S.C. § 910(f). For example, Section 910(f) provides that persons who are permanently and totally disabled shall receive a yearly increase in relation to the increase in the national average weekly wage. Id. This section caps any increase at five percent. Id.

In his initial brief, Boroski made two arguments. First, he contended that the phrase “newly awarded compensation” means the actual entry of a compensation award. See Appellant's Br. at 15. Because Boroski's compensation award was entered in 2008 (six years after he became disabled), he contended that the 2008 national average weekly wage should determine the size of his disability benefit payments for each year from 2002 to 2008. Second, Boroski contended that a court would reach the same result under the “currently receiving compensation” clause. Boroski argued that “currently receiving compensation” means the time the compensation is actually received. Boroski did not receive any payments until 2008. Thus, he claimed that the 2008 national average weekly wage should determine the size of his benefit payments under either clause.

In Boroski I, we agreed with Boroski's first argument. We followed the Fifth Circuit's decision in Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904 (5th Cir.1997), and held that “newly awarded compensation” means the formal entry of a compensation order. See Boroski, 662 F.3d at 1208, 1214–15. We noted that the Ninth Circuit reached a different conclusion in Roberts v. Director, Office of Workers' Compensation Programs, 625 F.3d 1204, 1208 (9th Cir.2010) (holding that “newly awarded compensation” means “newly entitled to compensation”), but we rejected their position. See Boroski, 662 F.3d at 1211–12.

Our decision in Boroski I did not address Boroski's second argument, concerning the “currently receiving compensation” clause.

B. The Supreme Court's Decision in Roberts v. Sea–Land Services, Inc.

After we handed down our opinion in Boroski I, but before the mandate issued, Defendants moved to stay. They explained that the Supreme Court had recently granted certiorari in Roberts to address the “newly awarded” clause. We agreed, and stayed our mandate in Boroski I pending the Supreme Court's decision of Roberts. See Order Staying Mandate, Boroski v. DynCorp Int'l, No. 11–10033 (11th Cir. Dec. 14, 2011). Defendants then filed their own petition for certiorari.

In Roberts, the Supreme Court agreed with the Ninth Circuit, and held that “newly awarded compensation” in § 906(c) means newly entitled to compensation. The Court first determined that the phrase “newly awarded compensation” is ambiguous when viewed in isolation. The Court acknowledged that the plaintiff's (and Boroski's) contention—i.e., “award” means a formal compensation award—is “appealing.” Roberts, 132 S.Ct. at 1356. But, the Court also noted that “award” can mean “grant” or “confer or bestow upon.” Id. (citations omitted). The Court then examined the whole statute and concluded that “in the context of the [Act's] comprehensive, reticulated regime for worker benefits—in which § 906 plays a pivotal role—‘awarded compensation’ is much more sensibly interpreted to mean ‘statutorily entitled to compensation because of disability.’ ” Id. at 1357.

The Court listed several reasons for its conclusion. First, the Court noted that, if “newly awarded compensation” means a formal compensation order, the Act will not work as Congress intended. According to the Court, the maximum and minimum caps on disability payment amounts in § 906(b) “appl[y] globally, to all disability claims.” Id. at 1358. However, these caps only work if § 906(c) “applies globally” as well. Id. Yet, accepting the plaintiff's (and Boroski's) position on the “newly awarded compensation” clause would make § 906(c) irrelevant in all but a few instances as, in most cases, the employer pays benefits voluntarily and no formal compensation award is ever entered. Id. The court expressly rejected as unsound the plaintiff's suggestion that a formal award should issue in every case. Id.

Second, the Court said its interpretation furthers the Act's goal of compensating disability, “defined as incapacity because of injury to earn the wages which the employee was receiving at the time of injury.” Roberts, 132 S.Ct. at 1359 (citing 33 U.S.C. § 902(10)) (internal quotation marks omitted). On the other hand, the plaintiff's (and Boroski's) position would treat similarly situated employees differently. Id. As the Court noted, “two employees who earn the same salary and suffer the same injury on the same day could be entitled to different rates of compensation based on the happenstance of their obtaining orders in different fiscal years.” Id.

Third, the Court said its interpretation would discourage gamesmanship. Conversely, the plaintiff's (and Boroski's) position would strongly encourage employees to delay the entry of a formal compensation award to a later year. The court declined to “reward employees with windfalls for initiating unnecessary administrative proceedings, while simultaneously punishing employers who have complied fully with their statutory obligations.” Id. at 1360.

Finally, the Court expressly rejected the plaintiff's counterargument that “award” in other provisions of the Act means a formal compensation award. The Court acknowledged that it normally presumes that Congress intended identical words to have the same meaning. Still, the Court found the presumption overcome “because several of the provisions of the Act would make no sense if ‘award’ were read as [the plaintiff] proposes.” Id.

After deciding Roberts, the Supreme Court granted the Defendants' petition for certiorari, vacated Boroski I, and remanded for further consideration in light of Roberts.Director, Office of Workers' Compensation Programs, Department of Labor v. Boroski, ––– U.S. ––––, 132 S.Ct. 2449, 182 L.Ed.2d 1059 (2012).

II. REMAINING ISSUES ON APPEAL AND CONTENTIONS OF THE PARTIES

In Roberts, the Supreme Court conclusively decided the first issue in this appeal. In fact, Boroski concedes as much. See Supplemental Brief for Petitioner–Appellant at 3. But, neither this court in Boroski I nor the Supreme Court in Roberts addressed Boroski's second argument based on the “currently receiving compensation” clause. Therefore, this issue remains open.

Moreover, this issue is squarely before us. Even assuming that Boroski's benefits for 2002 are governed by the “newly awarded clause,” the amount of Boroski's benefit payments for each year after he became disabled (2003–2007) must be determined under the “currently receiving” clause. As the Director for the Office of Workers' Compensation Programs explained in his opening brief to this court, “[b]ecause Boroski was being compensated at the maximum rate, his annual benefit increases (for as long as his calculated compensation rate remains...