Bath Iron Works Corp. v. Director Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 03 December 1997
• Docket Number: No. 96-2179,96-2179
• Citation: 136 F.3d 34
• Parties: BATH IRON WORKS CORPORATION and Liberty Mutual Insurance Co., Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 34

136 F.3d 34

1998 A.M.C. 1586

BATH IRON WORKS CORPORATION and Liberty Mutual Insurance Co., Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.

No. 96-2179.

United States Court of Appeals First Circuit.

Heard Dec. 3, 1997.

Decided Feb. 12, 1998.

Kevin M. Gillis, Portland, ME, with whom Troubh, Heisler & Piampiano, P.A. were on brief, for petitioners.

LuAnn B. Kressley, Washington, DC, with whom J. Davitt McAteer, Acting Solicitor of Labor, Carol A. De Deo, Associate Solicitor for Employee Benefits, and Janet R. Dunlop, Counsel for Longshore, were on brief, for respondent.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.

The Longshore and Harbor Workers' Compensation Act ("LHWCA" or "Act"), 33 U.S.C.A. §§ 901--950 (West Supp.1997), requires employers to pay compensation to certain maritime workers for disabling injuries resulting from their employment. An exception from total liability is provided to employers under § 8(f) of the LHWCA when the employer proves, among other things, that a permanent partial disability existed prior to the work-related injury. 33 U.S.C.A. § 908(f). In construing this exception, this court, along with other circuit courts of appeals, has required the employer to come forward with proof, which is not specifically elucidated in the statutory language, that the pre-existing disability was "manifest to the employer" before § 8(f) relief can obtain. See Part II, infra.

In 1984 the LHWCA was amended, inter alia, to permit claimants to receive compensation when a long-latent occupational disease does not become apparent until after the employee has retired. This appeal presents a novel question in the wake of that amendment: may an employer obtain § 8(f) relief when both the claimed pre-existing disability and compensable occupational disease do not become manifest until after the worker has retired from employment with the responsible employer? In such instances, of course, the employer cannot show that the pre-existing disability was "manifest to the employer" because employment has ceased by the time both disabilities arise.

Because the question before us is purely legal, the facts underlying the worker's claim need only be sketched briefly. Phillip J. Reno voluntarily retired from Bath Iron Works ("BIW") ¹ in 1985, after a total of thirty-eight years ² in various positions. It is uncontroverted that at various stages of his employment at BIW, Reno was exposed to asbestos. In 1989 or 1990, several years after his retirement, Reno began to experience shortness of breath. He was diagnosed at that time with chronic obstructive pulmonary disease (emphysema) and interstitial lung disease. Reno had been a cigarette smoker. In June of 1991, Reno was referred to a pulmonary specialist who diagnosed obstructive pulmonary disease, primarily the result of cigarette smoking, and restrictive pulmonary disease resulting from Reno's asbestos exposure. Reno was assessed a twenty percent whole person impairment due to the overall pulmonary impairments. Reno filed a timely claim for workers' compensation benefits on the basis of his partial pulmonary disability.

BIW in turn gave notice of its intent to seek relief from the compensation liability under § 8(f) of the LHWCA on the theory that Reno's smoking-related emphysema was a permanent partial disability which predated the work-related injury of asbestosis. On December 3, 1993, the Administrative Law Judge ("ALJ") awarded benefits to Reno and denied BIW the § 8(f) relief. Relying on our precedent, the ALJ held that in order to obtain such relief, an employer must demonstrate that the pre-existing disability was manifest to the employer prior to retirement.

BIW appealed the legal basis of the § 8(f) decision to the Department of Labor's Benefits Review Board. After no action, the ALJ's decision became the final order of the Board on September 12, 1996. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. at 1321-219 (April 26, 1996). Our jurisdiction over the appeal is proper under 33 U.S.C.A. § 921(c). Because the issue before us is purely a question of law, we exercise de novo review. Liberty Mut. Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 757 (1st Cir.1992).

BIW posits that Reno's emphysema is a pre-existing permanent disability which, when combined with his occupational disease of asbestosis, created a greater disability. Based on this postulate, BIW points to both the plain language of § 8(f), and the substance and legislative history of the 1984 Amendments to argue that it is entitled to relief under § 8(f). In Newport News Shipbuilding & Dry Dock Co. v. Harris, 934 F.2d 548 (4th Cir.1991), the Fourth Circuit examined a similar situation, and concluded that "adherence to the [manifestation] requirement [in instances of a long-latent occupational disease] would defeat the real purposes of the [1984] amendments," id. at 553. In cases such as these, the Harris court determined that "the manifestation requirement will not be applied." Id. BIW urges adoption of the Harris holding, ³ as a basis for overturning the decision of the Board below.

We decline to follow the Fourth Circuit and therefore affirm the decision of the Board. We find the manifestation requirement a necessary prerequisite to § 8(f) relief even where the compensation claim is based on a post-retirement long-latent occupational disease. Our analysis follows.

I.

Under § 8(f) of the Act, "the liability for permanent partial and permanent total disability, and death benefits, [is shifted] from employer to the Special Fund when the disability or death is not due solely to the injury which is the subject of the claim." A2 Benefits Review Board Service, Longshore Reporter Desk Book § D8.20, at 248 (Matthew Bender, 1996). In these instances, after an initial period of employer liability, the employee is "paid the remainder of the compensation that would be due out of the special fund established in section 944 of" the LHWCA. 33 U.S.C.A. § 908(f)(2)(A). The Special Fund is currently financed by assessments on all covered employers, part of which is prorated according to the extent to which that particular employer's compensated employees make use of the Fund. 33 U.S.C.A. § 944(c).

We turn initially to the words of the statute. If these are not clear, "we next examine the legislative history, albeit skeptically, in search of an unmistakable expression of congressional intent." Strickland v. Commissioner, Me. Dep't of Human Servs., 48 F.3d 12, 17 (1st Cir.1995).

Section 8(f) currently reads, in relevant part:

Injury increasing disability:

(1) In any case in which an employee having an existing permanent partial disability suffers injury, the employer shall provide compensation for such disability as is found to be attributable to that injury based upon the average weekly wages of the employee at the time of the injury. If following [certain statutorily scheduled] ... injur[ies] ..., the employee is totally and permanently disabled, and the disability is found not to be due solely to that injury, the employer shall provide compensation for the applicable prescribed period of weeks provided for in that section for the subsequent injury, or for one hundred and four weeks, whichever is the greater.... In all other cases of total permanent disability or of death, found not to be due solely to that injury, of an employee having an existing permanent partial disability, the employer shall provide ... compensation payments or death benefits for one hundred and four weeks only. If, following [a statutorily scheduled] injury ..., the employee has a permanent partial disability and the disability is found not to be due solely to that injury, and such disability is materially and substantially greater than that which would have resulted from the subsequent injury alone, the employer shall provide compensation for the applicable period of weeks ..., or for one hundred and four weeks, whichever is the greater....

In all other cases in which the employee has a permanent partial disability, found not to be due solely to that injury, and such disability is materially and substantially greater than that which would have resulted from the subsequent injury alone, the employer shall provide in addition to [statutorily mandated compensation], compensation for one hundred and four weeks only.

33 U.S.C.A. § 908(f)(emphasis added).

Thus two categories of resulting disability are covered under § 8(f): (1) total permanent disability found to be the result of the workplace injury (statutorily scheduled or otherwise) combined with the existing disability; and (2) partial permanent disability found to be the result of the workplace injury (statutorily scheduled or otherwise) combined with the existing disability, where the resulting disability is "materially and substantially greater" because of the combined effect. Reno's situation falls under the latter category. The first sentence of the section contains the language crucial to all requests for relief: § 8(f) cases are those "in which an employee having an existing permanent partial disability suffers injury."

The statute, however, is silent on the meaning of "existing permanent partial disability." See 33 U.S.C.A. § 902 (definitions). At first blush then, BIW's argument makes some sense; it is, at least, an arguable reading to suggest that Reno's emphysema was an "existing permanent partial disability" by the time the asbestosis made itself known. Leaving aside the question of when injury occurs for purposes of long-latent occupational diseases, ⁴ the issue turns to a large degree on how one interprets the word "existing." For purposes of this appeal, does it mean existing during employment, or existing before another disability becomes...