Cooper/T. Smith Stevedoring Co., Inc. v. Liuzza
| Decision Date | 05 June 2002 |
| Docket Number | No. 01-60643.,01-60643. |
| Citation | 293 F.3d 741 |
| Parties | COOPER/T. SMITH STEVEDORING COMPANY, INCORPORATED, Petitioner, v. Rosemary LIUZZA, Widow of Jake Liuzza; Director, Office of Worker's Compensation Programs, U.S. Department of Labor, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alan G. Brackett, Daniel J. Hoerner, Mouledoux, Bland, Legrand & Brackett, New Orleans, LA, for Petitioner.
John F. Dillon, Donni E. Young, Scott Michael Galante, Ness, Motley, Loadholt, Richardson & Poole, New Orleans. LA, for Liuzza.
Peter Brule Silvain, Jr., Carol A. De Deo, Samuel Jay Oshinsky, U.S Dept. of Labor, Thomas O. Shepherd, Jr., Clerk, Benefits Review Bd., Washington, DC, Michael O. Brewer, U.S Dept. of Labor, Employment Standards Administration, New Orleans, LA, for Director, Office of Worker's Comp. Programs, U.S. Dept. of Labor.
Petition for Review of an Order of the Benefits Review Board.
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
Cooper/T. Smith Stevedoring Company, Incorporated (Cooper/T.Smith), petitions for review of a final order of the Benefits Review Board (BRB) issued January 10, 2000, and a final order of the BRB issued June 29, 2001, affirming a decision and order on remand by an administrative law judge (ALJ) awarding disability and death benefits pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. (1994). In its petition, Cooper/T. Smith raises an issue of first impression: whether 33 U.S.C. § 914(j) entitles an employer to a credit or offset against a widow's death benefits for the overpayment of disability benefits erroneously awarded by the ALJ. Cooper/T. Smith also argues that the BRB erred in finding substantial evidence demonstrating that the employee's lung disease was causally related to his employment with Cooper/T. Smith and that Cooper/T. Smith was the last responsible employer. Finding no error, we deny the petition for review.
Jake Liuzza, now deceased, worked as a longshoreman for numerous employers between 1947 and 1984. During this time period it is alleged that he was exposed to asbestos. He voluntarily retired in 1984. In May 1993, he was diagnosed as having squamous cell carcinoma, a malignant lung cancer. Later that month, a left upper pulmonary lobectomy was performed. The cancer reappeared in August of 1994, and a second resection was performed. He died on September 30, 1994. Subsequently, Liuzza's widow, Rosemary Liuzza (widow), filed a claim under the LHWCA, seeking death benefits as well as disability benefits on behalf of the decedent.
The ALJ found that the widow had established a causal relationship between Liuzza's employment and his lung cancer. The ALJ also determined that Liuzza had been totally disabled from May 18, 1993 through the date of his death on September 30, 1994. Accordingly, the ALJ awarded permanent partial disability compensation based upon a one hundred percent impairment for the relevant time period pursuant to 33 U.S.C. § 908(c)(23), death benefits pursuant to § 909, and funeral expenses.
Cooper/T. Smith appealed, arguing that the ALJ erred in concluding that it was the responsible employer, that the widow had established a causal relationship between the employment and the lung cancer, and that Liuzza had been totally disabled. The BRB vacated the finding with respect to the extent of Liuzza's disability prior to his death and remanded the case for reconsideration of the extent of impairment pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed.1993). The BRB affirmed the decision in all other respects.
On remand, the ALJ found that the decedent was not entitled to any permanent partial disability benefits from June 1, 1993, through July 27, 1994, but was entitled to compensation benefits based on a fifty-one percent impairment rating from May 18, 1993, to May 31, 1993, and from July 28, 1994, until his death. The ALJ rejected Cooper/T. Smith's claim that it was entitled to an offset of overpayment of disability benefits already paid against death benefits it owed the widow. The BRB affirmed the ALJ's decision and order on remand. Cooper/T. Smith now petitions this Court for review of the BRB's decisions.
We review statutory interpretation by the BRB de novo. Equitable Equip. Co. v. Dir., OWCP, 191 F.3d 630, 631 (5th Cir.1999). Further, our review of BRB decisions is limited to considering errors of law and whether the BRB properly concluded that the ALJ's factual findings were supported by substantial evidence on the record as a whole. See Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 688 (5th Cir.1996); see also 20 C.F.R. § 802.301(a) (). "Substantial evidence is that relevant evidence — more than a scintilla but less than a preponderance — that would cause a reasonable person to accept the fact finding." Director, OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir.1997). This Court "may not substitute our judgment for that of the ALJ, nor reweigh or reappraise the evidence, but may only determine whether evidence exists to support the ALJ's findings." Pool Co. v. Cooper, 274 F.3d 173, 178 (5th Cir.2001) (internal quotation marks and citations omitted).
As previously set forth, Cooper/T. Smith paid disability benefits erroneously awarded by the ALJ's initial decision and order. Relying on 33 U.S.C. § 914(j), Cooper/T. Smith challenges the ALJ's denial of its request to offset against the death benefits due to the widow any overpayment of the employee's disability benefits. This appears to be a question of first impression.
Like other workers' compensation programs, the LHWCA "represents a compromise between the interests of injured workers, who receive a certain and immediate recovery, and the interests of employers and insurers, who in turn receive definite and lower limits on potential liability than would have been applicable in common-law tort actions for damages." Ceres Gulf v. Cooper, 957 F.2d 1199, 1205 (5th Cir.1992) (internal quotation marks and citations omitted). With respect to reimbursement, we have explained that the LHWCA does not provide a basis upon which an employer may recover overpayments directly from the employee. Id. Recovery of any overpayment "can only be an offset against future LHWCA compensation." Id.
In answering any statutory question, we begin with the language of the statute itself. United States v. Ron Pair Enterprises, 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). Section 914(j) is entitled "Reimbursement for advance payments," and provides that: "If the employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due."1
In denying Cooper/T. Smith's request for offset of the overpayment, the ALJ cited our decision in Ceres Gulf, 957 F.2d at 1205, and ruled that there was no statutory basis for such an offset because the claims were separate. Cooper/T. Smith correctly contends that the primary issue in Ceres Gulf was whether the district court had subject matter jurisdiction for an original action by an employer to recover advance payments made to its former employee under the LWHCA. As previously indicated, in Ceres Gulf we explained that because Congress permitted recovery only as an offset against future benefits in the statutory provisions of the LHWCA, we should not imply a federal remedy for reimbursement. 957 F.2d at 1205-09. Ceres Gulf, however, does not address the issue joined in this case, which is whether disability compensation may be credited against death benefits. Cooper/T. Smith cites no Fifth Circuit precedent (or any other circuit for that matter) in support of its argument.2
On the other hand, the Director of the Office of Workers' Compensation Programs, U.S. Department of Labor (Director), relying on circuit precedent, has filed a brief arguing that § 914(j) does not provide a basis for Cooper/T. Smith to be reimbursed for its overpayment of Liuzza's disability payments by collecting out of unpaid installments of the widow's death benefits. We afford deference to the Director's interpretations of the LHWCA and the amount of deference depends upon the "thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Pool Co., 274 F.3d at 177. Here, we are persuaded by the Director's reasoning that the BRB did not err in denying Cooper/T. Smith's request for reimbursement pursuant to § 914(j).
The Director propounds two principal arguments in support of its position. First, it argues that the plain language of § 914(j) forecloses reimbursement. Second, the Director argues that interpreting § 914(j) to be claim specific is consistent with caselaw interpreting the LHWCA.
With respect to the former argument, the Director asserts that the overpayments of compensation for which Cooper/T. Smith seeks reimbursement were made in satisfaction of a compensation order issued by the ALJ, thereby not in "advance" of that order as indicated by the language of § 914(j).3 Section 914(j), however, does not specify the event to which the payments are made in advance. Additionally, the Director states that neither the LHWCA nor the regulations define the phrase "advance payments of compensation."
"The canons of statutory construction dictate that when construing a statute, the court should give words their ordinary meaning and should not render as meaningless the language of the statute." White v. Black, 190 F.3d 366, 368 (5th Cir.1999) (citation omitted). The Director asserts that the word "advance"...
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