Cooper Stevedoring of Louisiana, Inc. v. Washington

• Decision Date: 20 July 1977
• Docket Number: No. 76-2849,76-2849
• Citation: 556 F.2d 268
• Parties: COOPER STEVEDORING OF LOUISIANA, INC. and Employers National Insurance Company, Petitioners, v. James WASHINGTON, and Director, Office of Workers Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 268

556 F.2d 268

COOPER STEVEDORING OF LOUISIANA, INC. and Employers National Insurance Company, Petitioners, v. James WASHINGTON, and Director, Office of Workers Compensation Programs, United States Department of Labor, Respondents.

No. 76-2849.

United States Court of Appeals Fifth Circuit.

July 20, 1977.

Ronald A. Johnson, Patrick E. O'Keefe, George W. Healy, III, New Orleans, La., for petitioners.

Edward H. Booker, New Orleans, La., William J. Kilberg, Sol., Laurie M. Streeter, Associate Sol., Mary A. Sheehan, Joshua T. Gillelan, II, Attys., U. S. Dept. of Labor, Washington, D. C., for respondents.

Petition for Review of an Order of the Benefits Review Board (Louisiana Case).

Before AINSWORTH and MORGAN, Circuit Judges, and LYNNE ^*, District Judge.

AINSWORTH, Circuit Judge:

This case presents novel questions arising from the recent amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. It grows out of a petition for review of the decision and order of the Benefits Review Board affirming a compensation order of an administrative law judge awarding disability benefits to James Washington, a longshoreman, pursuant to the Act. After a careful review and analysis of this matter, we affirm the Board's decision.

We must determine (1) whether the limitation provisions contained in Section 13(a) of the amended Act (33 U.S.C. § 913(a)) are retroactive, ¹ and (2) assuming that they are retroactive, whether the last sentence of the section, which enlarges the time for filing a claim, applies to accidental injuries. Also at issue are the additional questions of whether the record contains substantial evidence to support the decision of the administrative law judge that the date of Washington's awareness of his injury was June 4, 1973, and whether there was adequate notice that the issue of total and permanent disability would be considered at the hearing.

On August 29, 1972, Washington, while in the course of his employment with Cooper Stevedoring of Louisiana, Inc. (the Employer), was struck on the back, neck and face by a length of steel cable. He was immediately sent by a company superintendent to the office of Doctors Lyons and Paine. Dr. Paine examined Washington and concluded that his injuries were not serious. After stitching the facial cuts, Dr. Paine told the patient he could return to work and suggested rubbing the painful neck area with oil. Two days later Washington returned to the company doctors' office and was seen by Dr. LaRose who informed him that the neck pain was caused by stiffness and bruised tissue. He prescribed pain pills and recommended that Washington continue to rub oil on the affected area. Washington returned to the doctors' office several days later at which time x-rays were taken. Dr. LaRose expressed the opinion that the neck pain was attributable to arthritis and not to the accident. He informed Washington that the company doctors would not treat such a condition and that he should consult with his family doctor. On June 4, 1973, Washington saw a neurosurgeon, Dr. Jackson, who diagnosed the condition as cervical degenerative disc disease, a preexisting condition which was aggravated by the blow which the patient received causing it to become symptomatic. On August 28, 1973, Dr. Jackson performed surgery on Washington consisting of the removal of two degenerative discs and interior cervical fusion at both levels. Washington continues to suffer and Dr. Jackson is of the opinion that further surgical fusion is indicated but he cannot guarantee the results of a second operation.

On February 12, 1974, counsel for Washington filed on his behalf a claim for compensation with the deputy commissioner. A hearing was held before the administrative law judge who issued his decision and order, finding claimant to be totally and permanently disabled as a result of the accident which aggravated the preexistent latent condition of cervical degenerative disc disease or cervical spondylosis. He further found that the manifestation of the "harm done by the accident" was the "date of the injury," that Washington "was led to and did believe that his neck problems resulted from arthritis or an arthritic condition not related to or resulting from the accident," and that he "did not discover the true cause and effect of his problems until his initial consultation with Dr. Jackson on June 4, 1973." Accordingly, the administrative law judge concluded that "the date on which the claimant first realized the true harm done by the accident and that his ailments were job-related" was June 4, 1973, which date commenced the running of the one-year limitation period under the Act, and therefore that the claim filed on February 12, 1974 was timely.

Employer does not contest the gravity or nature of Washington's injuries or that they were job-related. Nor does it dispute the well-established principle that aggravation of a preexisting condition is compensable under the Act. ² Employer contends, however, that the 1972 amendment to Section 913(a) is not applicable in this case as the accident occurred prior to its effective date.

THE ISSUE OF RETROACTIVITY.

Washington's accident occurred on August 29, 1972. Approximately three months later on November 26, 1972, and well within the one-year limitation period for filing claims under the pre-amended Act, the 1972 amendment to Section 913(a) took effect changing the time for the commencement of the limitation period to the date of employee awareness of the relationship between the injury and the employment. On February 12, 1974, Washington's claim was filed with the deputy commissioner.

Employer contends that the cause of action is barred by limitation because the amendment to Section 913(a) is not retroactive. In support of this position, reliance is placed on decisions which recognize the general rule of law that where a statute creates a cause of action unknown at common law, a period of limitation contained in the statute is regarded as a matter of substance, limiting the right as well as the remedy. ³ The cases cited by Employer, however, involve suits filed by parties after the expiration of any statutory limitation period. ⁴ None of these cases presents the situation with which we are concerned here, that is, where the limitation period is enlarged subsequent to the incident giving rise to the cause of action but prior to the filing of suit.

The specific question of whether the amended limitation provisions of Section 913(a) should receive prospective or retrospective application has not, to our knowledge, been heretofore answered by any court. Nevertheless, decisions involving a similar 1934 amendment to time limitations of Section 22 of the Act uniformly held that a claimant's remedy, which had not expired under the former law, could be pursued under the 1934 amendment. Prior to May 26, 1934, the date on which Section 22 of the Act (33 U.S.C. § 922) was amended, that section limited review of a compensation award, sought to be modified because of a change in the claimant's condition, to the actual term of the award. The 1934 amendment extended the period to "one year after the date of the last payment of compensation."

The D.C. Circuit, in rejecting the argument that the 1934 amendment was not to be given a retroactive effect, stated, "(T)he passage of the amendment neither creates new, nor destroys old rights. It applies only to the remedy, and from its date it permits the deputy to enlarge or diminish the former award to meet the circumstances of a particular case." New Amsterdam Casualty Co. v. Cardillo, 1939, 71 App.D.C. 172, 108 F.2d 492, 493. Similarly, the Third Circuit rejected the contention that the 1934 amendment was inapplicable because it was adopted after the date of the accident at issue, noting that the amendment was "remedial, affecting matters of procedure" and clearly applicable. Luckenbach S. S. Co., Inc. v. Norton, 3 Cir., 1939,106 F.2d 137, 138. In reaching the same conclusion, the First Circuit characterized Section 22 as remedial, calling for a liberal construction. Bethlehem Shipbuilding Corporation v. Cardillo, 1 Cir., 1939, 102 F.2d 299, 303. By analogy, amended Section 913(a) should receive similar treatment. This is in accord with the established principle, long ago recognized by the Supreme Court, that "statutes of limitation go to matters of remedy, not to destruction of fundamental rights." See Chase Securities Corporation v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945), upholding and reaffirming its former decision in Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885), which rejected the argument that a statute of limitations is a vested right.

Finally, Employer's reliance on decisions holding that the 1972 amendments are not retroactive is misplaced. The cases cited in support of this argument ⁵ all involve the judicially created substantive rights of longshoremen to sue for unseaworthiness under Sieracki, ⁶ and the subsequent Ryan ⁷ doctrine of indemnity by a shipowner, stemming therefrom, which decisions were congressionally overturned by the 1972 amendments to the Act. None of the cases relied on by Employer remotely pertains to the procedural limitation provisions contained in Section 913(a) as amended.

Employer contends that in the event that we should hold that Section 913(a) is retroactive, the claim filed on February 12, 1974 is nevertheless barred by the one-year limitation provisions contained in the first sentence of the section and that the exception provided by the amendatory language is unavailing to Washington for two reasons: (1) the added language applies only to claims for occupational diseases and not accidental injuries; and (2) contrary to the findings of the administrative law judge, there was no substantial evidence to show that Washington was unaware "of the relationship between the injury . . ....