Henderson v. Shea
| Decision Date | 31 January 2006 |
| Docket Number | BRB 05-0449 |
| Parties | LARRY D. HENDERSON (Grandson of JAMES W. HARRISON) Claimant-Petitioner v. KIEWIT SHEA and KEMPER INSURANCE COMPANY Employer/Carrier- Respondents DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order Denying Benefits of William S Colwell, Administrative Law Judge, United States Department of Labor.
Richard W. Galiher, Jr. Galiher, Clarke & Galiher, Chevy Chase, Maryland, for claimant.
Kevin J. O’Connell O’Connell, O’Connell & Sarsfield, Rockville, Maryland, for employer/carrier.
Matthew W. Boyle Howard M. Radzely, Solicitor of Labor; Allen H. Feldman, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore, Washington, D.C., for the Director, Office of Workers’ Compensation Programs.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order (2004-DCW-0005) of Administrative Law Judge William S. Colwell rendered 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. (1982) (the Act), as extended by the District of Columbia Workmen’s Compensation Act, 36 D.C. Code §§501-502 (1973) (the 1928 D.C. 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).
Claimant, the decedent’s grandson, appeals the administrative law judge’s finding that he is not entitled to death benefits under the provisions of the 1972 Longshore Act. The decedent sustained a work-related “cardiac incident” on May 1, 1981. In a 1985 Decision and Order, Administrative Law Judge Groner awarded the decedent temporary total disability benefits from the date of injury until October 5, 1981, at which time an award of permanent total disability benefits commenced. Employer was awarded Section 8(f) relief, 33 U.S.C. §908(f), and the Special Fund assumed disability payments as of October 1983.
Claimant was born on September 28, 1985, and was living with his grandfather at the time of the latter’s death on July 21, 2001. Claimant filed a claim for death benefits pursuant to Section 9 of the Act, 33 U.S.C. §909, alleging that decedent’s work-related cardiac injury caused his death, and that claimant was dependent on decedent at the time of death, pursuant to Section 9(f) of the Act, 33 U.S.C. §909(f). The administrative law judge accepted briefs from claimant, employer and the Director, Office of Workers’ Compensation Programs (the Director), on the issue of when a survivor’s dependency must be established; an oral hearing was not held.
The administrative law judge rejected the position of claimant and the Director that the time of the 2001 death was the relevant time for determining dependency. He found, inter alia, that under the express language of Section 9(f) the determination of dependency must be made at the time of the 1981 work-related injury, and that as claimant had not yet been born he could not establish his dependency on the employee. The administrative law judge therefore denied the claim for death benefits and did not address the issue of whether claimant actually was dependent on the decedent.
On appeal, claimant contends the administrative law judge erred in finding that dependency must be established at the time of the work-related injury that ultimately causes the death rather than at the time of death. The Director agrees, contending that Section 2(2) of the Act, 33 U.S.C. §902(2), supports his interpretation and that his opinion in this regard is entitled to deference. Employer responds, urging affirmance of the denial of benefits.
33 U.S.C. §909(d) (emphasis added). Thus, if Section 9(d) is applicable, a dependent grandchild is entitled to death benefits until he turns 18 or if he is 18 or older “is (1) wholly dependent upon the employee and incapable of self-support by reason of mental or physical disability, or (2) a student as defined in paragraph (19) of this section.” 33 U.S.C. §902(14). Section 9(f) of the Act states, “All questions of dependency shall be determined as of the time of the injury.” 33 U.S.C. §909(f). It is obvious that when an employee’s death is concurrent with his work injury the dependency of survivors is determined at the time of the incident, i.e., the death is the injury. This case requires the interpretation of Section 9(f) in a case in which the work-related injury and work-related death are not concurrent.
In finding that the time of decedent’s 1981 injury was the pertinent time for determining dependency, the administrative law judge first interpreted the phrase “time of injury” in Section 9(f) with reference to that phrase elsewhere in the statute. Decision and Order at 3. He discussed Section 2(14) of the Act, which states, “ ‘Child’ shall include... a child legally adopted prior to the injury of the employee, a child in relation to whom the deceased employee stood in loco parentis for at least one year prior to the time of injury...” Id. (). We hold that the references to “time of injury” in this section are not dispositive of the interpretation of Section 9(f) case as they are equally susceptible to the interpretation claimant seeks in this case, i.e., that the time of death is the relevant “time of injury.” Rather, it appears that in relation to the adopted child phrase, the proper emphasis is on the “legally adopted” portion of the sentence. As for the loco parentis phrase, the statute contemplates a longer-standing temporal relationship with the employee than for a natural or legally adopted child. See generally Brooks v. General Dynamics Corp., 32 BRBS 114 (1997).
The administrative law judge next turned to Section 12(a) of the Act, 33 U.S.C. §912(a), which requires that the employee give employer notice of his injury. The phrase “time of injury” is not literally contained in Section 12(a), [3] but the administrative law judge reasoned that because decedent was “aware” of his injury in 1981, this must be the “time of injury” for purposes of determining dependency under Section 9(f). Decision and Order at 4-5. This analysis does not withstand scrutiny because the Act’s statutes of limitations provision, 33 U.S.C. §§912, 913, start afresh in a death claim even if the injury causes death – the widow or other survivor need file a claim for death benefits only when she is aware of the relationship between the death and the employment. See, e.g., Bath Iron Works Corp. v. U.S. Dept. of Labor [Knight], 336 F.3d 51, 37 BRBS 67(CRT) (1st Cir. 2003). The earliest date a survivor can be “aware” of the work-relatedness of a death is the date of death, so it immaterial that the decedent previously was aware of a work-related injury. See Jones v. Aluminum Co. of America, 35 BRBS 37 (2001); see also Bailey v. Bath Iron Works Corp., 24 BRBS 229 (1991), aff'd sub nom. Bath Iron Works Corp. v. Director, OWCP, 950 F.2d 56, 25 BRBS 55(CRT) (1st Cir. 1991).
The administrative law judge also cited the Board’s decision in Lynch v. Washington Metropolitan Area Transit Authority, 22 BRBS 351 (1989), for the proposition that the time of decedent’s 1981 injury controls the dependency determination. The issue in Lynch was whether the Department of Labor had jurisdiction to adjudicate a death benefits claim where the employee’s death occurred after the repeal of the 1928 D.C. Act by the District of Columbia Workers' Compensation Act of 1979, 36 D.C. Code §301 et seq. In Lynch, the decedent was found to be permanently totally disabled as of February 13, 1975 under Section 8(a) of the Act. The decedent died on February 25, 1984, due to causes unrelated to his disability. The 1928 D.C. Act was repealed as of July 26, 1982. The Board held that although the new D.C. Act became effective in 1982, the provisions of the Longshore Act as they existed in 1982 were preserved by virtue of the General Savings Statute, 1 U.S.C. §109, for the benefit of those persons whose claims originate from employment events occurring prior to the effective date of the 1982 D.C Act. Lynch, 22 BRBS at 354-355. The Board noted that although a claim for death benefits is a separate cause of action which does not arise until the employee's death, the liability of employer for death benefits is fixed at the time of injury since 20 C.F.R. §701.101(b) of the regulations provides that claims for deaths based on employment events occurring prior to the effective date of the 1982 Act are covered under the 1928...
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