Cooper Stevedoring Co., Inc. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 86-7443

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before FAY and CLARK; PER CURIAM
• Citation: 826 F.2d 1011
• Parties: COOPER STEVEDORING COMPANY, INC. and Insurance Company of North America, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Ralph M. Dorsey, Respondents.
• Docket Number: No. 86-7443
• Decision Date: 08 September 1987

Page 1011

826 F.2d 1011 1988 A.M.C. 2408 COOPER STEVEDORING COMPANY, INC. and Insurance Company of
North America, Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, and Ralph M. Dorsey,
Respondents. No. 86-7443. United States Court of Appeals,
Eleventh Circuit. Sept. 8, 1987.

W. Boyd Reeves, Grover E. Asmus, II, Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, Ala., for petitioners.

Lawrence P. Postol, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D.C., for Shipbuilders (amicus).

Joshua T. Gillelan, II, U.S. Dept. of Labor, Office of the Solicitor, Washington, D.C., for respondents.

Dennis Lindsay, Lindsay, Hart, Neil & Weigler, Portland, Or., for Master Contracting Stevedore Ass'n of the Pacific Coast (amicus).

Robert E. Babcock, Samuel J. Smith, Mullen & Filippi, San Francisco, Cal., for American President Lines, et al. (amicus).

Page 1012

Petition for review of an Order of the United States Department of Labor Benefits Review Board.

Before FAY and CLARK, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

PER CURIAM:

Rudolph Dorsey (hereinafter claimant) sought and received an award for continuing temporary total disability compensation under the Longshore and Harbor Workers' Compensation Act (hereinafter LHWCA), 33 U.S.C. Sec. 901 et seq. (Supp. II. 1984) This appeal challenges an order of the Benefits Review Board of the United States Department of Labor vacating a conclusion of law by the Administrative Law Judge (hereinafter ALJ) and remanding the case for further findings of fact. Because we conclude that the order of the Benefits Review Board is not "final" in accordance with 33 U.S.C. Sec. 921(c) and is therefore not subject to judicial review, we dismiss the appeal for lack of jurisdiction.

I.

BACKGROUND

On June 7, 1980, claimant was employed by Cooper Stevedoring Company, Inc. (hereinafter Cooper) as a longshoreman. Claimant was assigned the task of handling cargo aboard a vessel moored in the Port of Mobile, Alabama. Claimant sustained injuries to his back, knee and foot when he jumped approximately eight feet down into the hold of the ship in order to escape the path of a falling boom.

Cooper ¹ voluntarily paid compensation for temporary total disability and assumed medical costs for the period from June 8, 1980 to June 29, 1980. Claimant sought additional compensation under the LHWCA. In addition, claimant filed an action against the owner of the cargo ship in the United States District Court for the Southern District of Alabama pursuant to 33 U.S.C. Sec. 905(b). ² Cooper intervened in the third-party action and sought a lien for compensation and medical expenses already paid.

The ALJ conducted a hearing on August 3, 1981 and granted claimant's request to hold the record open sixty days for the addition of supplemental medical evidence. On December 8, 1981, the ALJ ruled that claimant was temporarily totally disabled and was entitled to compensation from the date of injury plus interest less amounts already paid. At some point, the third-party action against the owner of the vessel was settled for $56,000. ³

It is undisputed that claimant did not receive Cooper's written approval of the settlement. Claimant did, however, reimburse Cooper for compensation and medical benefits provided through January 18, 1982. ⁴

Cooper filed a motion to dismiss and a motion for reconsideration on December 11, 1981, and December 23, 1981 respectively. These motions raised the issue of whether claimant's settlement of the third-party claim in the absence of Cooper's written approval forfeited claimants right to additional compensation under 33 U.S.C. Sec. 933(g). ⁵ The ALJ rejected the forfeiture

Page 1013

contention on alternate grounds in an order dated April 21, 1982. First, assuming that Cooper was not paying compensation at the time of the settlement, ⁶ the ALJ reasoned that the written approval requirement of Sec. 933(g) did not apply because claimant was not a "person entitled to compensation." Second, assuming that claimant was receiving payments when the settlement was executed, the ALJ ruled that the subsequent acceptance by Cooper of a portion of the settlement proceeds constituted an approval of the settlement and a waiver of rights under Sec. 933(g).

Cooper appealed to the Benefits Review Board on May 19, 1982. During the pendency of the appeal, Congress amended Sec. 933(g). ⁷ Oral argument was held on May 29, 1985. A panel of the Benefits Review Board ultimately ruled that the 1984 amendment applied retroactively and reversed the ALJ's conclusion that the acceptance of settlement funds by Cooper constituted a waiver of the written approval requirement. Under the panel's interpretation of Sec. 933(g) as amended, "a claimant must, in order to preserve his or her right to compensation (1) obtain written approval of a third party settlement if at the time of settlement claimant is 'entitled to compensation' under an award or because of voluntary payments, or (2) give notice of the third party settlement (or judgment) in...