Mallott & Peterson v. Director, Office of Workers' Compensation Programs, Dept. of Labor
Decision Date | 24 October 1996 |
Docket Number | No. 94-70927,94-70927 |
Citation | 98 F.3d 1170 |
Parties | , 96 Cal. Daily Op. Serv. 7815, 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. |
Court | U.S. Court of Appeals — Ninth Circuit |
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.
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).
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, OWCP, 999 F.2d 419, 421 (9th Cir.1993); see also Director, OWCP v. General Dynamics Corp., 982 F.2d 790, 795 (2d Cir.1992) ) (citations omitted). If the Director's interpretation is "reasonable," the court should defer to it. See Martin v. Occupational Safety & Health Rev. Comm'n, 499 U.S. 144, 158, 111 S.Ct. 1171, 1179-80, 113 L.Ed.2d 117 (1991). Put another way, if the provision to be interpreted is "easily susceptible" to the Director's interpretation, the reviewing court "need go no further." Hunt, 999 F.2d at 421. This deference extends not only to regulations articulating the Director's interpretation, but also to litigating positions asserted by the Director in the course of administrative adjudications, since administrative adjudications are agency action, not post hoc rationalizations for it. Martin, 499 U.S. at 156-57, 111 S.Ct. at 1178-79.
For the reasons stated by the Board in its decision, see Stadtmiller, 1994 WL 661134, at * 4-* 6, we hold that the Director's interpretation of "representative" in § 933(g) to mean the "legal representative of the deceased," and to exclude legal counsel acting within the attorney-client relationship, is reasonable. Section 933(c) specifically defines the term "representative" for purposes of § 933. Section 933(c) provides that "legal representative of the deceased" is "hereinafter referred to as 'representative.' " 33 U.S.C. § 933(c); see also Aetna Life Ins. Co. v. Moses, 287 U.S. 530, 539, 53 S.Ct. 231, 232, 77 L.Ed. 477 (1933) ( ). Moreover, only the Director's interpretation of "representative" can be reconciled with the specific language of § 933(g)(1). Section 933(g)(1) refers to entering into settlements "for an amount less We reject Employer's arguments against the Director's interpretation for the reasons stated by the Board. See Stadtmiller, 1994 WL 661134, at * 5-* 6. In addition, contrary to Employer's assertion, the Director's interpretation does not frustrate § 933(g)'s purpose of protecting employers from inordinately low settlements because an attorney cannot settle a case without some action by the client, i.e., the claimant or his or her legal representative. See Levy v. Superior Court, 10 Cal.4th 578, 41 Cal.Rptr.2d 878, 882-84, 896 P.2d 171, 175-76 (1995) ( ); Blanton v. Womancare, Inc., 38 Cal.3d 396, 212 Cal.Rptr. 151, 155-56, 158-59, 696 P.2d 645, 650, 653 (1985) ( ); Whittier Union High Sch. Dist. v. Superior Court, 66 Cal.App.3d 504, 136 Cal.Rptr. 86, 89 (1977) (); accord United States v. Beebe, 180 U.S. 343, 352, 21 S.Ct. 371, 374-75, 45 L.Ed. 563 (1901).
than the compensation to which the person (or the person's representative) would be entitled...." As the Board pointed out, "[w]hile a legal representative of the decedent may receive compensation [for a LHWCA claim], his attorney cannot." Stadtmiller, 1994 WL 661134, at * 5. Attorneys can recover attorney's fees, but they are not entitled to recover "compensation," defined in § 902(12) of the Act as "the money allowance payable to an employee or his dependents...." 33 U.S.C. § 902(12)
II
Employer argues in the alternative that, even if Wartnick is not a "representative" within the meaning of § 933(g), Stadtmiller nonetheless forfeited her benefits because she ratified the settlement negotiated by Wartnick. 2 Ratification is a question of fact. Common Wealth Ins. Sys., Inc. v. Kersten, 40 Cal.App.3d 1014, 115 Cal.Rptr. 653, 661 (1974). Employer bears the burden of proving that Beatrice ratified Wartnick's efforts. See Gates v. Bank of America Nat'l Trust & Sav. Ass'n, 120 Cal.App.2d 571, 261 P.2d 545, 547-48 (1953).
Decisions of the Board are reviewed for "adherence to the substantial evidence standard." Metropolitan Stevedore, 11 F.3d at 889. The Board's own review of the ALJ's factual findings is similarly limited by the LHWCA. 33 U.S.C. § 921(b)(3) ( ). "The Board may not substitute its views for those of the ALJ, but instead must accept the ALJ's findings unless they are contrary to the law, irrational, or unsupported by substantial evidence The Board determined that the...
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