98 F.3d 1170 (9th Cir. 1996), 94-70927, Mallott & Peterson v. Director, Office of Workers' Compensation Programs, Dept. of Labor

Docket Nº:94-70927.
Citation:98 F.3d 1170
Party Name:96 Daily Journal D.A.R. 12,951 MALLOTT & PETERSON and Industrial Indemnity Co., Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR; Beatrice Stadtmiller, widow of Delbert Stadtmiller, Respondents.
Case Date:October 24, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1170

98 F.3d 1170 (9th Cir. 1996)

96 Daily Journal D.A.R. 12,951

MALLOTT & PETERSON and Industrial Indemnity Co., Petitioners,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,

DEPARTMENT OF LABOR; Beatrice Stadtmiller, widow

of Delbert Stadtmiller, Respondents.

No. 94-70927.

United States Court of Appeals, Ninth Circuit

October 24, 1996

Argued and Submitted April 12, 1996.

Page 1171

Roger A. Levy, Laughlin, Falbo, Levy & Moresi, San Francisco, CA, for petitioners.

Victoria Edises and Anne Michelle Burr, Kazan, McClain, Edises, Simon & Abrams, Oakland, CA; Mark A. Reinhalter, Office of the Solicitor, Department of Labor, Washington, DC, for respondents.

Petition for Review of an Order of the Benefits Review Board. OWCP No. 13-87454, BRB No. 94-0439.

Before: SNEED, NORRIS, and WIGGINS, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Section 933 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1988) (LHWCA or Act), establishes a claimant's right to pursue claims for his or her injuries against third parties without forgoing compensation under the Act. Subsection (g), the provision at issue in this case, protects employers against claimants entering into inordinately low settlements that would deprive the employer of a proper setoff available under subsection (f).

Subsection (g) provides that "[i]f the person entitled to compensation (or the person's representative )" under the Act enters into a settlement of a claim against a third party without approval of the employer, the person forfeits his or her rights to the LHWCA compensation. 33 U.S.C. § 933(g) (emphasis added). The Benefits Review Board of the Department of Labor (Board) interpreted "representative" as used in § 933(g) to exclude legal counsel acting within the attorney-client relationship. It therefore held that Mallott & Peterson and its LHWCA insurer, Industrial Indemnity Co. (Employer),

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which owed LHWCA benefits to Beatrice Stadtmiller, were liable to Stadtmiller despite certain actions by her attorney Harry Wartnick which allegedly settled Stadtmiller's claim against third party Waldron Duffy, Inc. (Waldron) without Employer's approval. 1 Stadtmiller v. Mallott & Peterson, 28 Ben.Rev.Bd.Serv. (MB) 304, 1994 WL 661134, at * 5 (1994) (per curiam). The Board also held that the finding of the Administrative Law Judge (ALJ) that Stadtmiller had not ratified any settlement was reasonable in light of the evidence presented. Id. at * 7. Employer timely petitioned pursuant to 33 U.S.C. § 921(c) to have the Board's decision set aside. We deny the petition.

I

Employer argues that the Board misconstrued the term "representative" as used in § 933(g). According to Employer, the way the term "representative" is used in other provisions of the LHWCA, as well as in other statutes, and the general purpose of the LHWCA, establish that "representative" as used in § 933(g) must include legal counsel acting within the attorney-client relationship. Stadtmiller and Respondent Director of the Office of Workers' Compensation Programs assert that "representative" in § 933(g) means the legal representative of a deceased person, i.e., an executor or administrator, and thus does not include legal counsel such as Wartnick.

Although decisions of the Board are reviewed for "errors of law," Metropolitan Stevedore Co. v. Brickner, 11 F.3d 887, 889 (9th Cir.1993), "considerable weight" is accorded to the statutory construction of the LHWCA urged by the Director. Hunt v. Director...

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