Ingalls Shipbuilding, Inc. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor
| Decision Date | 26 April 1990 |
| Docket Number | Nos. 89-4459,89-4468 and 89-4469,s. 89-4459 |
| Citation | 898 F.2d 1088 |
| Parties | INGALLS SHIPBUILDING, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR, Respondent, and Aaron C. Fairley, Respondent. INGALLS SHIPBUILDING, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR, Respondent, and John A. Ryan, Respondent. INGALLS SHIPBUILDING, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR, Respondent, and Ervin J. Gulley, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Karl Wiesenburg, Pascagoula, Miss., Richard P. Salloum, Traci M. Castille, Franke, Rainey & Salloum, Gulfport, Miss., William F. Jordan, Pascagoula, Miss., for Ingalls Shipbuilding.
Lowry M. Lomax, Rebecca J. Ainsworth, John F. Dillon, Pascagoula, Miss., for Fairley.
Linda Meekins, Clerk, Benefits Review Bd., U.S. Dept. of Labor, Washington, D.C., for other interested parties in Nos. 89-4459 and 89-4469.
Janet R. Dunlop, James Michael O'Neill, Sol., Donald S. Shire, Associate Sol. of Labor, Office of U.S. Dept. of Labor, NDOL, Washington, D.C., for Director.
Lowry M. Lomax, John F. Dillon, Rebecca J. Ainsworth, Pascagoula, Miss., Linda Meekins, Clerk, Benefits Review Bd., Dept. of Labor, Washington, D.C., for Ervin J. Gulley in No. 89-4468.
On Petition for Review of Orders of the Benefits Review Board.
Before GEE, GARZA and DAVIS, Circuit Judges.
Ingalls Shipbuilding, Inc. (Ingalls), the employer, appeals the Benefits Review Board's (the Board) compensation award under the Longshore and Harbor Workers' Compensation Act (LHWCA or the Act) and the Board's award of attorneys' fees and penalties. We affirm in part and reverse in part.
Three retired Ingalls employees, Aaron C. Fairley, John A. Ryan, and Ervin J. Gulley, filed compensation claims against Ingalls for binaural hearing loss suffered as a result of exposure to noise at work. Three Administrative Law Judges (ALJ) heard the workers' respective claims and assessed compensation values. Ingalls then appealed the awards to the Board which consolidated the appeals for oral argument but severed them for determination.
The Board affirmed the ALJ award of compensation pursuant to 33 U.S.C. Sec. 908(c)(13) of the Act which covers compensation for permanent partial disability due to hearing loss. The Board assessed a ten percent penalty against Ingalls as to each claimant because Ingalls had not filed proper and timely controversions of the claims according to 33 U.S.C. Sec. 914(e). Finally, the Board affirmed the ALJ award of attorneys' fees to the claimants under 33 U.S.C. Sec. 928(b) because the claimants had utilized the services of an attorney to receive a greater compensation award.
Ingalls filed a timely appeal of the computation of benefits, the assessment of penalties, and the award of attorneys' fees.
The primary point of contention on appeal is the applicability of four 1984 amendments to the LHWCA: the addition of 33 U.S.C. Secs. 910(d)(2), 910(i), 908(c)(23) and portions of Sec. 902(10). 1 Before the 1984 amendments, a claimant had to prove loss of wage-earning capacity, which precluded voluntary retirees who discovered their disability following retirement from obtaining compensation. See, e.g., Aduddell v. Owens-Corning Fiberglass, 16 BRBS 131 (1984). Congress added the above provisions to allow voluntarily retirees to recover even if they could not prove loss of earning capacity.
In its opinion, the Board explained that Sec. 908(c)(13) 2 specifically covers hearing loss, while Sec. 908(c)(23) is a more general provision applicable only to retirees. The Board read Sec. 908(c)(13) to supercede Sec. 908(c)(23) because it concluded that Congress intended Sec. 908(c)(23) to apply only to occupational diseases not specifically compensated elsewhere. The primary differences in the compensation under the two statutes is that under Sec. 908(c)(23), claimants receive a weekly rather than a lump sum payment and the percentage of disability is determined as a percentage of disability to the "whole man" 3 rather than as a percentage of hearing loss.
Both Ingalls and the Director of the Office of Workers' Compensation Programs (the Director) agree that the Board's reasoning is flawed. On its face, Sec. 908(c)(23) applies to retirees "notwithstanding [Sec. 908(c) ] paragraphs (1) through (22)." We agree that the Board erred in simply ignoring that language. Because the Board's reasoning is contrary to the statute's plain language, we agree that its reasoning cannot support its awards. We next consider Ingalls' arguments and the alternative grounds urged by the Director and the claimants to support the Board's conclusion.
Ingalls contends that, because the claimants were retired, their compensation should have been figured under Sec. 908(c)(23), which covers all retired employees; Sec. 908(c)(13), has no application to retirees and only covers hearing loss suffered by active employees. All parties agree that hearing loss is an occupational disease. Ingalls argues that, because: (1) Sec. 908(c)(23) expressly applies when wages are determined under Sec. 910(d)(2), and (2) Sec. 910(d)(2) governs the computation of the wage rate of all retired employees who suffer death or disability due to an occupational disease, it follows that Sec. 908(c)(23) should apply in all cases of occupational disease suffered by voluntary retirees. In other words, Sec. 908(c)(23) adopts the computation method of Sec. 910(d)(2) providing solely for voluntary retirees who suffer from employment-related occupational diseases. With the exception of hearing loss cases, the Director agrees with Ingalls that Sec. 908(c)(23), by adopting the computation method of Sec. 910(d)(2) is the statutory authority for compensating voluntary retirees suffering from occupational diseases.
The Director argues that Sec. 908(c)(23) and Sec. 910(d)(2) were added as part of the 1984 amendments to the Act only to give compensation to retirees who suffered from delayed-disability occupational disease. That is, retirees who suffer from occupational diseases, such as asbestosis, that may not create disability until after retirement, are entitled to claim benefits under Sec. 908(c)(23); however, an employee with hearing loss which, unknown to the employee, has developed into a disabling condition at the time the employee leaves the workplace is covered by Sec. 908(c)(13). In other words, the Director contends that employees with hearing loss that has fully developed and will not increase after they retire, should be compensated under Sec. 908(c)(13) rather than Sec. 908(c)(23), the retiree section.
The core of the Director's argument is his interpretation of Sec. 910(i). Section 910(d)(2) which establishes the method to compute the wage rate for retirees incorporates the "time of injury" definition of Sec. 910(i) into the retiree compensation scheme. The Director contends that Sec. 910(d)(2) only applies to claims for compensation for "disability due to an occupational disease which does not immediately result in death or disability...." Sec. 910(i). Thus, the director argues that Sec. 910(d)(2), describing the method of computing the retiree's average weekly wage, only applies if the disability does not immediately develop because the only possible purpose of the language in Sec. 910(i) referring to an "occupational disease which does not immediately result in death or disability" is to distinguish between the compensation scheme for diseases which do not lead to disabilities until after retirement and for disabling occupational diseases which are fully developed at the time exposure to the harm ceases. The Director contends that because of this distinction: (1) the time of injury is the time of last exposure to the work environment that caused the deafness; (2) the wage rate is computed under Sec. 910(a)-(d)(1); and (3) the degree of impairment is computed under Sec. 908(c)(13), just as if the claim had been filed prior to retirement and without reference to the 1984 retiree amendments.
The director relies on the legislative history of the Act to support his argument that hearing loss cases are outside the scope of the Sec. 908(c)(23) scheme. The director points out that the amendment made "express provision for the payment of benefits to retirees who become disabled during retirement as a result of an occupational disease." 130 Cong.Rec. 26300 (1984) (emphasis added). While we usually do not consider the legislative history of a statute which is clear and unambiguous on its face, 4 the Director argues that the legislative history is not necessary to interpret the statutory scheme for retiree compensation, but, rather, to determine whether it has any applicability to cases involving retirees with hearing loss. Because the language of Sec. 910(i) may raise some doubt as to the applicability of the statute, we will address the arguable ambiguity in Sec. 910(i).
We note that the Board has refused to adopt the Director's interpretation of Sec. 910(i). See Machado v. General Dynamics Corporation, 22 BRBS 176 (1989). We review its analysis in depth here because it frames the issues and we find its reasoning persuasive.
In Machado the Board first construed the relevant language in Sec. 910(i) as being descriptive of all occupational diseases and noted that hearing loss had always been treated in the same manner as other occupational diseases. The Director argues that Sec. 910(i) itself provides a basis for the distinction that did not exist before. We agree that the determinative issue is whether Congres...
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