Henry v. George Hyman Const. Co., 83-2099
| Citation | 749 F.2d 65 |
| Decision Date | 07 December 1984 |
| Docket Number | No. 83-2099,83-2099 |
| Parties | Clemmie M. HENRY, widow of Wilson R. Henry, Petitioner, v. GEORGE HYMAN CONSTRUCTION COMPANY and Maryland Casualty Company, Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Mark J. Brice, Landover, Md., with whom Joseph H. Koonz, Jr., Carolyn McKenney and Roger C. Johnson, Landover, Md., were on the brief, for petitioner.
William J. Donnelly, Jr., Washington, D.C., for respondent George Hyman Const. Co., et al.
Marianne Demetral Smith and Donald S. Shire, Attys., Dept. of Labor, Washington, D.C., entered appearances for respondent, Director, Office of Workmen's Compensation Programs, Dept. of Labor.
Before TAMM, WILKEY and EDWARDS, Circuit Judges.
Section 8(c)(4) of the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA") 1 provides for scheduled benefits for specified periods of time for employees who are permanently partially disabled from a work-related injury. In this case, the petitioner, Clemmie M. Henry, seeks review of an order of the Benefits Review Board, United States Department of Labor ("the Board"), denying her claim to survivor's benefits in a scheduled award due her husband under section 8(c)(4). In rejecting Mrs. Henry's claim, the Board ruled that scheduled benefits due at the time of an employee's death may be paid to survivors under the LHWCA only where an employee "dies from causes other than the injury," 2 not where, as here, an employee dies from causes related to the work injury that triggered the scheduled award. 3 We find that, by looking solely to section 8(d)(1) and failing to correctly construe section 8(d)(2) 4 of the statute, the Board improperly denied Mrs. Henry survivor's benefits in the scheduled award due her husband at the time of his death. Accordingly, we set aside that portion of the Board's order denying these benefits and remand to the Board for the appropriate disposition consistent with this opinion.
The petitioner also challenges the applicability of the "special fund" 5 to this case on the ground that it prevents her from negotiating a lump sum settlement of her benefits. However, because the petitioner has no significant interest in the source of her compensation, we hold that Mrs. Henry lacks standing to appeal the applicability of the special fund.
The facts of this case, set forth here as found by the Administrative Law Judge ("ALJ"), are not in dispute. 6 The petitioner's decedent, Wilson R. Henry, a diabetic, was injured on April 8, 1976, while working as a rodman for George Hyman Construction Company ("Hyman"). A large section of steel fell on his right foot, fracturing one toe and dislocating another. The injury "initiated a chain of events," resulting first in the amputation of the dislocated toe on July 4, 1976, and later in an amputation of the right leg below the knee on July 19, 1976. A third surgical procedure, a stump revision, led to still further healing complications but, despite initial improvement, Mr. Henry died from cardiac arrest on October 6, 1976. The parties have stipulated that Mr. Henry's death arose out of and in the course of his employment. Hyman voluntarily paid Henry temporary total disability benefits from the date of injury to the date of death, and then paid death benefits to his survivors according to the statutory formulae. 7
At the initial hearing before the ALJ, Mrs. Henry claimed that, as her husband's survivor, she was entitled to any unpaid amounts on the scheduled benefits due her husband under section 8(c)(4) of the LHWCA for the loss of his foot. That section provides disability benefits for workers who are permanently partially injured. The ALJ held that the petitioner was not entitled to those benefits because, in his view, the decedent was permanently totally disabled--rather than permanently partially disabled--at the time of his death. 8 The ALJ reasoned that any section 8(c)(4) benefits for permanent partial disability were thus "subsumed in the whole." 9
During the administrative hearing, Hyman claimed that section 8(f) of the statute applied to this case because Mr. Henry's diabetes was a pre-existing disability. Section 8(f) limits an employer's liability to 104 weeks of benefits where an injury increases a manifest prior disability or condition and provides that the rest of the award be paid from a special fund. 10 The ALJ found that Hyman was entitled to special fund relief because decedent's pre-existing diabetes and vascular disorder both increased the risk of injury and contributed to the seriousness of the injury sustained on April 8, 1976. 11
The petitioner appealed the ALJ's findings to the Board on July 18, 1980. On July 23, 1980, Hyman moved to strike the portion of claimant's brief concerning section 8(f). The Board granted that motion on September 18, 1980, Henry v. George Hyman Construction Co., B.R.B. No. 80-514 (Sept. 18, 1980) (Order), and hence did not consider the section 8(f) issue on review. Before this court, however, the petitioner reasserts her challenge to the special fund's applicability here.
The Board affirmed the decision of the ALJ that Mrs. Henry was ineligible for a survivor's benefit in a scheduled award, but reversed the ALJ's specific finding that decedent was permanently totally disabled at the time of his death. The Board found, instead, that decedent was temporarily totally disabled until his death, and that he "had an underlying permanent partial disability at the time of his death." 12 The Board concluded, however, that despite the fact that Mr. Henry's underlying permanent partial disability entitled him to a scheduled award, Mrs. Henry was not entitled as a survivor to receive the unpaid award.
In reaching its result, the Board relied on section 8(d)(1), which merely provides that,
[i]f an employee who is receiving compensation for permanent partial disability pursuant to subsection (c)(1)-(20) of this section dies from causes other than the injury, the total amount of the award unpaid at the time of death shall be payable to or for the benefit of his survivors [according to a prescribed formula]. 13
Although section 8(d)(1) clearly does not address the issue at hand, the Board nonetheless read this provision to foreclose the payment of scheduled benefits to survivors whenever the decedent dies of causes related to the compensable injury. As a consequence of its statutory construction, the Board's decision effectively ignored and nullified the express language of section 8(d)(2), which provides that,
[n]otwithstanding any other limitation in section 909 of this title [pertaining to survivors' death benefits], the total amount of any award for permanent partial disability pursuant to subsection (c)(1)-(20) of this section unpaid at time of death shall be payable in full in the appropriate distribution. 14
Mrs. Henry contends, and we agree, that section 8(d)(2) controls the resolution of her claim. We therefore reverse and remand on this point.
The petitioner contends that, because section 8(f) deprives her of the opportunity to obtain a lump sum settlement, she has standing to contest the applicability of the special fund to this case. 15 Hyman responds that petitioner lacks standing because nothing in the LHWCA permits the settlement of a death claim under section 8(i)(A) and because she has no interest in the source of her benefits. We hold that Mrs. Henry does not have standing to appeal the applicability of section 8(f).
The Board's precedents unequivocally establish that a claimant has no interest in the source of compensation, and we agree. 16 Moreover, the Board has considered and rejected the contention that, because a claimant is deprived of the opportunity to commute benefits to a lump sum settlement, the claimant has an interest sufficient to confer standing when the special fund applies. The Board has characterized this argument as a "chimera" and stated that:
Even if it is true that special fund benefits cannot be commuted, a proposition for which claimant cites no authority and for which we can find none, this would have no bearing on the proper allocation of liability between employers and the special fund. We will not open section 8(f) deliberations to claimants with such totally insignificant grounds for asserting standing.
Sims v. Singleton Electric Co., 9 B.R.B.S. 1068, 1072 (1978).
Furthermore, in a recent case, in which the Ninth Circuit considered inter alia the question whether the Director, Office of Workers' Compensation Programs has standing to contest the applicability of section 8(f), the court observed:
The Director is the only party who has a real interest in protecting the financial integrity of the fund; consequently, the ability to petition for review of a Board decision protects the fund against unnecessary payments.
Director, OWCP v. Cargill, Inc., 718 F.2d 886 (9th Cir.1983) (emphasis added). 17
We can find no fault with the foregoing precedent. Accordingly, we uphold the decision denying petitioner's claim of standing under section 8(f).
Petitioner's claim with respect to scheduled benefits implicates section 8 and 9 of the LHWCA, which provide respectively for disability and death benefits. Section 8 classifies four types of benefits: (1) permanent total disability, (2) temporary total disability, (3) permanent partial disability, and (4) temporary partial disability benefits. Benefits for permanent partial disability can be either scheduled, as defined in sections 8(c)(1)-(20), 18 or unscheduled under section 8(c)(21). 19 Except for scheduled permanent partial disability benefits, all benefits last for "the continuance" of the disability. 20 Scheduled permanent...
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