Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor v. General Dynamics Corp.

• Decision Date: 22 April 1983
• Docket Number: No. 82-1636,82-1636
• Citation: 705 F.2d 562
• Parties: DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. GENERAL DYNAMICS CORPORATION and Mary Graziano (Widow of Charles Graziano), Respondents.
• Court: U.S. Court of Appeals — First Circuit

Page 562

705 F.2d 562

1984 A.M.C. 1213

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. GENERAL DYNAMICS CORPORATION and Mary Graziano (Widow of Charles Graziano), Respondents.

No. 82-1636.

United States Court of Appeals First Circuit.

Argued Feb. 4, 1983.

Decided April 22, 1983.

Janet R. Dunlop, U.S. Dept. of Labor, Washington, D.C., with whom T. Timothy Ryan, Jr., Sol. of Labor, and Donald S. Shire, Associate Sol., Washington, D.C., were on brief, for petitioner.

Norman P. Beane, Jr., Boston, Mass., with whom Stephen E. Laskin, and Murphy & Beane, Boston, Mass., were on brief, for General Dynamics Corp.

Before ALDRICH and BREYER, Circuit Judges, and ZOBEL, ^* District Judge.

BAILEY ALDRICH, Senior Circuit Judge.

We would affirm the decision of the Benefits Review Board limiting respondent's liability simply on its opinion, were it not that we believe that the persistent attempt by the Director of the Office of Workers' Compensation Programs (OWCP), United States Department of Labor, to limit the scope of section 8(f) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 908(f), calls for our articulated views. We add these to those of our sister circuits, see Director, OWCP v. Todd Shipyards Corp., 9 Cir., 1980, 625 F.2d 317; Director, OWCP v. Potomac Electric Power Co., D.C.Cir., 1979, 607 F.2d 1378 (per curiam); Director, OWCP v. Sun Shipbuilding & Dry Dock Co., 3 Cir., 1979, 600 F.2d 440, as well as to the many decisions of the Board.

In brief, the facts are that in 1972 Charles Graziano was hospitalized for a non-work connected kidney infection and peptic ulcer. Bronchitis, and eventually emphysema, were also diagnosed, and were traced to a long history of heavy smoking. After discharge his treating physician advised him that he could return to his same job at the shipyard as a maintenance mason. His duties had thus far included breaking up old, and laying new, cement, cleaning acid tanks, removing asbestos covering from broken pipes incident to repair work, and similar jobs. Before authorizing his return to work, the company's medical director noted evidence of pulmonary disease, but also considered him able to return to work.

The Director states that Graziano's further exposure, on his return, to dust, fumes, and the like, was "contra-indicated," and implies in his brief that respondent deliberately assigned the decedent to work that entailed further injurious exposure. The Director is able to give this impression by omitting reference to the fact that the contra-indication came entirely from trial testimony of medical evaluations conducted between 1974 and 1976. In 1972 no one had noted anything of the kind, and both respondent's physician and decedent's own treating physician had expressed the opinion that Graziano could return to his same work. Perhaps the Director makes these assertions based on our prior opinion, Graziano v. General Dynamics Corp., 1 Cir., 1981, 663 F.2d 340, 341, where our description of the facts could be read to say that his pulmonary condition was linked in 1972 to workplace dust and fumes. The date, however, was not then in issue, and neither doctor had then connected the condition with his work.

Because of his past health experience, however, Graziano's duties on his return were somewhat lightened, but much of his work in the next two years took him into the steel shop, which was "foggish" with fumes and smoke. In 1973 his shortness of breath became marked, and in 1974 he quit work altogether. Although the expert testimony varied, the ALJ credited testimony which indicated that working conditions had aggravated his condition, and had perhaps been a minor contributing factor from the start. As the Director put it, "[t]he exposure to pathogenic stimuli aggravated his chronic obstructive pulmonary disease and made him more susceptible to viral or pneumonic processes." In 1976 he suffered a respiratory arrest and was rushed to the hospital, dying shortly thereafter of various causes including his pulmonary and kidney conditions.

Before his death Graziano had claimed compensation, and upon his death his widow claimed death benefits. The travel of this case has already brought it before us on the issue of Graziano's maritime status, Graziano v. General Dynamics Corp., ante. The merits of the Benefits Review Board's award of compensation has not been appealed, and the only present issue is the Director's contention that General Dynamics is not entitled to limit its liability by the provisions in section 8(f).

Under the compensation scheme as first enacted employers were required to compensate a worker who was totally and permanently disabled by an injury even if an existing partial disability contributed. To take an extreme case, a worker who had previously lost an eye would be permanently and totally disabled by the loss of the second eye even though loss of a single eye normally would result in only a partial disability. Enforcement of such a "take your worker as you find him" rule led many employers not to hire, or not to retain, workers suffering from a permanent partial disability. To combat that reluctance Congress enacted section 8(f), which provided, inter alia, that in case of total and permanent disability or death not solely caused by the second injury, the employer's liability for compensation or death benefits would be limited (for the most part) to 104 weeks. See Lawson v. Suwannee Fruit & S.S. Co., 1949, 336 U.S. 198, 69 S.Ct. 503, 93 L.Ed. 611; General Dynamics Co. v. Sacchetti, 1 Cir., 1982, 681 F.2d 37, 39-40. The remaining compensation would be paid out of a general fund, viz., the Special Fund created by 33 U.S.C. Sec. 944. The issue presented by the instant case is whether aggravation of an existing "disability" so qualifies. The Third, Ninth, and District of Columbia Circuit Courts of Appeals, see citations ante, have expressly held that it does. Although our opinion in General Dynamics Corp. v. Sacchetti, ante, implied agreement with these courts, this circuit, along with others, has not squarely faced the issue. See, also, Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 4 Cir., 1982, 676 F.2d 110; Equitable Equipment Co. v. Hardy, 5 Cir., 1977, 558 F.2d 1192; Duluth, Missabe & Iron Range Ry. Co. v. U.S. Department of Labor, 8 Cir., 1977, 553 F.2d 1144.

We begin by noting that every argument the Director musters in support of limiting section 8(f) has been consistently rejected. The Director suggests that this is so due to a lack of understanding, or of sufficient consideration. A review of the cases, however, shows that the Director's arguments have been fully dealt with, and his errors in analysis and use of authority patiently pointed out. The real problem is that the courts, and the Board, do not accept the Director's attempt to restrict the application of the statute to a narrow class of cases.

The Director contends that the statute applies when a prior condition, combined with a new and unrelated injury, results in greater disability than would be caused by the latter alone, but does not apply when the former contributes to, or causes, the injury itself. Thus the Director uses the prior example...