Brown v. Alabama Dry Dock and Shipbuilding Corp.
| Decision Date | 25 July 1994 |
| Docket Number | BRB 92-1302 |
| Parties | THOMAS EDWARD BROWN Claimant-Respondent v. ALABAMA DRY DOCK AND SHIPBUILDING CORPORATION Self-Insured Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order of Ben H. Walley, Administrative Law Judge, United States Department of Labor.
John D. Gibbons Gardner, Middlebrooks & Fleming, P.C., Mobile Alabama, for claimant. Walter R. Meigs, Mobile, Alabama, for self-insured employer.
Marianne Demetral Smith Thomas S. Williamson, Jr., Solicitor of Labor; Carol DeDeo, Associate Solicitor; Janet R. Dunlop Counsel for Longshore, Washington, D.C., for the Director Office of Workers' Compensation Programs, United States Department of Labor.
Before: DOLDER, Acting Chief Administrative Appeals Judge, SMITH, and McGRANERY, Administrative Appeals Judges.
SMITH, Administrative Appeals Judge:
Employer appeals the Decision and Order (90-LHC-2013) of Administrative Law Judge Ben H. Walley awarding benefits on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). We must affirm the administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
The facts of this case are undisputed. Claimant sustained a work-related hearing loss, and the administrative law judge awarded benefits pursuant to Section 8(c)(13), 33 U.S.C. §908(c)(13) (1988), for an 8.8 percent binaural impairment. Decision and Order at 5. The administrative law judge also awarded medical benefits, interest, and an attorney's fee. Id. at 5-6. Employer paid benefits but refused to pay the interest. It now appeals that portion of the administrative law judge's award, contending there is no provision in the Act for awarding interest. Claimant and the Director, Office of Workers' Compensation Programs (the Director), respond, urging affirmance. Additionally, claimant asks the Board to assess interest on the unpaid pre-judgment interest.
In challenging the administrative law judge's award of interest, employer contends that Section 5(a) of the Act, 33 U.S.C. §905(a), [1] precludes an award of interest. Employer argues that pre-judgment interest was an element of compensatory damages at law or in admiralty and cannot be awarded under the Act. Further, employer maintains that Section 19(d) of the Act, 33 U.S.C. §919(d), [2] does not vest authority in administrative law judges beyond that contained in the Act itself, and, therefore, the administrative law judge does not have the powers conferred on the district court by 28 U.S.C. §1961 to award interest.[3] Moreover, employer contends there is no authority in the Act in general for awarding interest. We disagree with employer's contentions.
The purpose of Section 5(a) is to make the Act a claimant's exclusive remedy against his employer for a work-related injury. See generally Texas Employers' Insurance Ass'n v. Jackson, 820 F.2d 1406 (5th Cir. 1987), cert. denied, __ U.S. __, 109 S.Ct. 1932 (1989). Thus, an injured claimant cannot sue his employer in tort or in admiralty. Id. Although interest is not specifically addressed in the Act, the courts and the Board have held that an award of interest on past-due compensation serves the humanitarian purpose of the Act by making a claimant whole for his work-related injury, as the employer had the use of the money until an award was issued. See, e.g., Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 25 BRBS 71 (CRT) (9th Cir. 1991); Quave v. Progress Marine, 912 F.2d 798, 24 BRBS 43 (CRT) (5th Cir. 1990), aff'd on reh'g, 918 F.2d 33, 24 BRBS 55 (CRT), cert. denied, __ U.S. __, 111 S.Ct. 2012 (1991); Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP, 594 F.2d 986, 9 BRBS 1089 (4th Cir. 1979); Strachan Shipping Co. v. Wedemeyer, 452 F.2d 1225 (5th Cir. 1971), cert. denied, 406 U.S. 958 (1972);[4] Jones v. U.S. Steel Corp., 25 BRBS 355 (1992). Moreover, the Board has noted previously that the award of interest is mandatory. Canty v. S.E.L. Maduro, 26 BRBS 147 (1992); Jones, 25 BRBS at 359 (1992); Grant v. Portland Stevedoring Co., 16 BRBS 267 (1984), aff'd on recon., 17 BRBS 20 (1985). As interest is awarded on compensation payable under the Act, it cannot be said that claimant is seeking recovery "at law or in admiralty" in violation of Section 5(a). Therefore, we reject employer's assertion that Section 5(a) bars an award of interest.
Further, we reject employer's contention that the administrative law judge does not have the authority to award interest pursuant to 28 U.S.C. §1961, as that section is applicable only to awards of interest on judgments of the district courts. Although Section 1961 does not give administrative law judges authority to award interest, the Board has held that it is to be used as guidance in setting the interest rate. See Santos v. General Dynamics Corp., 22 BRBS 226 (1989); Grant, 16 BRBS at 270-271. As employer's contentions lack merit, we affirm the administrative law judge's award of interest in this case.
In response to employer's appeal, claimant indicates that employer has not paid the pre-judgment interest awarded by the administrative law judge and asks the Board to assess post-judgment interest on the past-due pre-judgment interest.[5] Neither employer nor the Director has addressed this issue. The purpose of interest is not to penalize employers but, rather, to make claimants whole, Smith v. Ingalls Shipbuilding Div., Litton Systems, Inc., 22 BRBS 46 (1989), and the issue of whether a claimant is entitled to interest can be raised at any time. See Jones, 25 BRBS at 359. It is well-established that, under the Act, claimants are entitled to interest on over-due payments of compensation. See Canty, 26 BRBS at 153. It is equally well-established that they are entitled to interest on past-due payments of additional compensation under Section 14(f), 33 U.S.C. §914(f), Barry v. Sea-Land Services, Inc., 27 BRBS 260 (1993), past-due funeral expenses and death benefits, Adams v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 78 (1989), and past-due reimbursement for medical expenses, Hunt v. Director, OWCP, 999 F.2d 419, 27 BRBS 84 (CRT) (9th Cir. 1993). However, interest is not permitted on an award of an attorney's fee, Fisher v. Todd Shipyards Corp., 21 BRBS 323 (1988); cf. Guidry v. Booker Drilling Co., 901 F.2d 485, 23 BRBS 82 (CRT) (5th Cir. 1990), or on over-due payments of Section 14(e), 33 U.S.C. §914(e), penalties, Cox v. Army Times Publishing Co., 19 BRBS 195 (1987) (). Thus, the novel question before us is whether post-judgment interest assessed on pre-judgment interest serves the purpose of the Act and makes claimant whole or whether it merely penalizes employer for its failure to pay that portion of the administrative law judge's award.
Section 1961 specifically provides for the assessment of post-judgment interest in civil cases in the federal district courts.[6] See 28 U.S.C. §1961(a), (c)(4). In interpreting this section, the Supreme Court of the United States stated:
[T]he purpose of post judgment interest is to compensate the successful plaintiff for being deprived of compensation for the loss from the time between the ascertainment of the damage and the payment by the defendant.
Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 835-836 (1990) (quoting Poleto v. Consolidated Rail Corp., 826 F.2d 1270, 1280 (3d Cir. 1987)). Moreover, the Board has noted that, because a claimant is entitled to receive his award on the date the final judgment is entered, post-judgment interest serves to reimburse the claimant for his deprivation. See Canty v. S.E.L. Maduro, 26 BRBS 147, 155 n.10 (1992) (citing FIGA v. R.V.M.P. Corp., 874 F.2d 1528, 1532 (11th Cir. 1989)). Although no court has addressed this issue in the context of a case arising under the Longshore Act, the United States Courts of Appeals have determined that post-judgment interest assessed on unpaid awards, including any accrued pre-judgment interest, is permissible.
After acknowledging that Section 1961 mandates the payment of post-judgment interest but does not indicate whether pre-judgment interest should be included in the calculation of post-judgment interest, and after quoting the purpose of post-judgment interest as espoused by the Supreme Court in Kaiser Aluminum, the United States Court of Appeals for the Fourth Circuit held:
We believe that awarding post-judgment interest on the entire amount the court awarded [the plaintiff], including pre-judgment interest, most closely comports with the purpose of post-judgment interest articulated by the Supreme Court.
Quesinberry v. Life Insurance Co. of North America, 987 F.2d 1017, 1031 (4th Cir. 1993). In earlier decisions, the United States Courts of Appeals for the Second and Fifth Circuits came to the same conclusion. The Fifth Circuit stated:
The award of interest on interest is proper in those situations in which a judgment grants interest on an amount resulting from an unsatisfied judgment on which interest has accrued.
Dorey v. Dorey, 609 F.2d 1128, 1133 (5th Cir. 1980). The Second Circuit, favorably citing Dorey, concluded:
[W]hen a prior judgment consisting of both principal and accumulated interest is not paid, a court renewing the judgment may award interest on the entire amount due.
United States v. Hannon, 728 F.2d 142, 145 (2d Cir. 1984).
As the courts are in agreement...
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