Fleetwood v. Newport News Shipbuilding and Dry Dock Co.

• Decision Date: 05 November 1985
• Docket Number: No. 84-1845,84-1845
• Citation: 776 F.2d 1225
• Parties: , 54 USLW 2264 Melvin FLEETWOOD, Petitioner, v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1225

776 F.2d 1225

85 A.L.R.Fed. 387, 54 USLW 2264

Melvin FLEETWOOD, Petitioner, v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, and Director, Office of Workers' Compensation

Programs, United States Department of

Labor, Respondents.

No. 84-1845.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 7, 1985.

Decided Nov. 5, 1985.

Richard B. Donaldson, Jr., Newport News, Va. (Jones, Blechman, Woltz & Kelly, P.C., Newport News, Va., on brief), for petitioner.

Lawrence P. Postol, Washington, D.C. (Junius C. McElveen, Jr., Jones, Day, Reavis & Pogue, Washington, D.C., on brief), for respondents.

Before WINTER, Chief Judge, SNEEDEN, Circuit Judge, and WARRINER, United States District Judge for the Eastern District of Virginia, sitting by designation.

SNEEDEN, Circuit Judge:

Melvin Fleetwood was granted a 40-percent permanent partial disability award, based upon an average weekly wage of $193.85, for a back injury that occurred on July 11, 1975, when he was employed by Newport News Shipbuilding and Dry Dock Company as a handyman. The partial disability award was made pursuant to The Longshoremen's and Harbor Workers' Compensation Act (LHWCA), ch. 509, 44 Stat. 1424 (1927), codified as amended at 33 U.S.C. Secs. 901-950 (1982), which allows any person engaged in maritime employment to recover compensation if his death or disability results from an injury incurred upon the navigable waters of the United States or upon any adjoining area customarily used to service a vessel. ¹ The 40-percent disability payments, based upon an average weekly wage of $193.85, began on March 8, 1978; and, about two years later, the employer applied for a modification of the compensation order, arguing that a "change of conditions" had occurred in that Fleetwood had acquired new job skills and was working as a production coordinator. See 33 U.S.C. Sec. 922 (employer or employee may obtain modification of award based upon a "change in conditions").

The employer argued that Fleetwood no longer suffered from any post-injury wage-earning capacity loss. ² Fleetwood argued that his original award could not be modified because under Section 22 of the statute, the term "change of conditions" included only a change in the worker's physical condition and the fact that a worker was earning higher wages in his new job than in his pre-injury job was irrelevant as long as there was no improvement in the condition of his back. The administrative law judge (ALJ) concluded that modifications based upon a change in the claimant's wage-earning capacity were appropriate under the statute and that the record as a whole showed that Fleetwood no longer suffered a wage-earning capacity loss. We address two issues on appeal: 1) Does Section 22 of the Longshoremen's Act permit a modification of a compensation award based solely upon a change in a worker's wage-earning capacity? 2) Was there substantial evidence to support the ALJ's finding that Fleetwood no longer had a wage-earning capacity loss?

I.

At the time of his injury, Fleetwood was working as a third-class handyman. On July 11, 1975, he was descending a ladder, carrying a bucket of nuts and bolts, when he felt a pain in his back. The back pains grew more acute, and in August 1975, he was hospitalized and a partial hemilaninectomy was performed. He underwent further back surgery in July 1976.

The employer paid compensation for Fleetwood's temporary total disability from August 2, 1975, to March 28, 1976, and from July 7, 1976, to January 2, 1977, at a compensation rate of $124.57 per week. The employer paid temporary partial disability at a compensation rate of $47.64 per week from February 1, 1978, to February 27, 1978, as well as paying temporary total disability compensation from February 28, 1978, to March 7, 1978, at a rate of $124.57 per week.

Freeman C. Murray, the administrative law judge, after a hearing on July 10, 1978, found that Fleetwood suffered from a 40-percent permanent partial disability starting on March 8, 1978, and continuing. Fleetwood's average weekly wage prior to the injury was found to be $193.85.

After this first hearing, Fleetwood continued to work for Newport News Shipbuilding, and on July 1, 1978, he applied for and obtained the job of production coordinator with this same employer. A production coordinator is a salaried employee, and the salary as of July 1, 1978, was $1,065.00 a month. As a production coordinator, Fleetwood would examine drawings of piping system arrangements and digitize those arrangements. He would then enter these data into the computer, and the computer would generate the coordinates for bending the pipes as well as fabricate the instructions for pipe manufacture. Fleetwood also was responsible for checking the computer printouts from the CAPDAM (Computer Aided Piping Design and Manufacturing) system.

The employer sought to have the award modified pursuant to Section 22 of the LHWCA. ³ A hearing on the issue of modification was held before the same ALJ who heard the original claim, and he concluded on March 3, 1981, that Fleetwood no longer had a wage-earning capacity loss due to his injury. Fleetwood appealed the decision to the Benefits Review Board, but the ALJ's decision was unanimously affirmed on June 15, 1984. Fleetwood petitioned this Court to set aside the decision of the Benefits Review Board.

II.

The Benefits Review Board held that under Section 22 of the LHWCA a change in an employee's wage-earning capacity, without a change in the employee's physical condition, could be the basis for the modification of an award. We agree with the Board's interpretation of the Act's statutory language because it is consistent with the statute's purpose and is a reasonable view of the statutory language. See Connecticut Dept. of Income Maintenance v. Heckler, --- U.S. ----, 105 S.Ct. 2210, 85 L.Ed.2d 577 (1985) (Agency's construction of statute need not be the only reasonable interpretation); Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982) ("[I]nterpretation of a statute by an agency charged with administration of the statute is entitled to substantial deference."). But see Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446 (1980) (Benefits Review Board interpretation is not entitled special deference from courts.).

The statute section in question provides as follows:

Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case in accordance with the procedure described in respect of claims in section 919 of this title, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation....

Fleetwood argues that employers are precluded from seeking a modification of a compensation award unless the employee's physical condition has changed since the time of the initial award. ⁴ We reject this reading of the statute because it is not in keeping with the purpose of the Act, which is to compensate workers for injuries that affect their wage-earning capabilities.

Under the Act, "disability" is defined as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." 33 U.S.C. Sec. 902(10). Thus, the Board was correct when it concluded that a worker is not compensated solely for physical impairment, but rather the worker is compensated for the future economic loss attributable to the physical impairment. The worker initially must prove his loss of wage-earning capacity to obtain benefits; therefore, his wage-earning capabilities should be relevant when considering a modification of an award. Thus, for example, if an employee initially was awarded a 40-percent partial disability award, and later found that his wage-earning capacity was much less than originally determined, he could then seek a modification. Likewise, an employer who finds that an employee's wage-earning capacity has not been affected to the degree originally determined should be able to seek a modification. As this case demonstrates, it is possible for a worker to show no physical improvement, but at the same time to acquire new job skills that enable him to compete again in the workforce. A sensible modification procedure would allow employees whose loss of wage-earning capacity becomes more apparent over time to obtain a larger disability award at a later date without requiring such an employee to demonstrate that his physical condition caused by the accident had changed. We fail to see how an employee whose wage-earning capacity had declined could be treated differently from the employee whose wage-earning capacity had improved without rendering inconsistent interpretations of the same statutory section of the LHWCA.

Without such a modification procedure, workers who had secured new skills and employment would be receiving disability compensation when they were not disabled and an unequitable distribution of limited financial resources would result. The Act is a worker's compensation statute that reflects a legislative compromise in which employees' common law tort remedies for work-related injuries were surrendered in exchange for guaranteed disability compensation. See Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 282, 101 S.Ct. 509, 516, 66 L.Ed.2d 446 (1980) (J. Blackmun, dissenting). The employer's reward for securing compensation is immunity from employee tort suits. Id. Over the years, ...